HomeMy WebLinkAbout2013_01_08 CC PKT1
Brookings City Council
Tuesday, January 8, 2013
6:00 p.m. Regular Meeting
Brookings City & County Government Center
Chambers - Room 310 - 520 Third Street
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.
6:00 p.m. REGULAR MEETING
1. Call to order.
2. Pledge of Allegiance.
3. Record of Council Attendance.
4. Action to approve the following Consent Agenda Items:*
A. Action to approve the agenda.
B. Action to approve the minutes.
C. Action to approve various volunteer appointments.
D. Action on Resolution No. 01-13, a Resolution authorizing Change Order No. 1
(CCO#1 Final) for 2012-15SSI, Wiese Addition Wetland Project.
Action: Motion to Approve, Request Public Comment, Roll Call
5. Items removed from Consent Agenda.
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 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.
Open Forum/Presentations/Reports
6. Open Forum.
7. SDSU Student Senate Report.
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Contracts & Change Orders
8. Action on Resolution No. 02-13, a Resolution authorizing Change Order No. 2 (CCO#2)
for 2012-05SSI, Camelot Square Drainage Improvement Project.
Action: Motion to approve, request public comment, roll call
First Readings**
9. Ordinance No. 32-12: An Ordinance granting to NorthWestern Corporation, its
successors and assigns, the right to occupy any of the streets, alleys, or public places of
the City of Brookings, South Dakota, for the purpose of transmitting or distributing
natural gas.
Public hearing: January 22nd
**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.
Second Readings & Public Hearings
10. Public hearing and action on Resolution No. 03-13, a Resolution authorizing city
manager to sign an On-Off Sale Wine License Operating Agreement for Carpy’s Pub,
Roger & Verla Carpenter, Owners, 714 22nd Ave. So., Brookings, South Dakota (legal: E
77' 5" of the W145' and the N 32' 9" of the S 655' and the E 30' of the W 137' of the N6’
of S 679' of Lot 2, Brookings Mall Addition).
Action: Open & Close Public Hearing, Motion to Approve, Roll Call
Other Business
11. Update on 20th Street South & Main Avenue South Signal Project.
Action: Informational
12. 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.
13. Adjourn.
Brookings City Council
Tim Reed, Mayor, Keith Corbett, Deputy Mayor & Council Member
Council Members Tom Bezdichek, Jael Thorpe, John Kubal, Mike McClemans, Ope Niemeyer
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.
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CONSENT AGENDA #4
4. Action to approve the following Consent Agenda Items:*
A. Action to approve the agenda.
B. Action to approve the minutes.
C. Action to approve various volunteer appointments.
D. Action on Resolution No. 01-08, a Resolution authorizing Change
Order No. 1 (CCO#1 Final) for 2012-15SSI, Wiese Addition Wetland
Project.
*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 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.
Action: Motion to Approve, Request Public Comment, Roll Call
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CONSENT AGENDA #4
B. Action to approve minutes.
The draft December 18th Brookings City Council minutes are enclosed for Council review
and approval.
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Brookings City Council
December 18, 2012 (unapproved)
The Brookings City Council held a meeting on Tuesday, December 18, 2012 at 5:00 p.m., at City
Hall with the following members present: Mayor Tim Reed, Council Members John Kubal, Mike
McClemans, Ope Niemeyer, Keith Corbett and Jael Thorpe. Tom Bezdichek was absent. City
Attorney Steve Britzman, City Manager Jeff Weldon and City Clerk Shari Thornes were also
present.
EXECUTIVE SESSION. A motion was made by Kubal, seconded by Niemeyer, to enter into
Executive Session at 5:00 p.m. for purposes of discussing the qualifications, competence,
performance, character or fitness of any public officer or employee or prospective public officer
or employee with the City Manager present from 5:30 p.m. to 5:50 p.m. A motion was made by
Kubal, seconded by Corbett, to exit Executive Session at 5:50 p.m.
Consent Agenda. A correction was made to the volunteer appointments. Dick Peterson is not
being reappointed to the Board of Adjustment. A public hearing and action on a temporary
liquor license for the VFW and action to approve a temporary transfer from the public
improvement fund to airport fund were added to the agenda. A motion was made by Kubal,
seconded by Niemeyer, to approve the consent agenda.
A. Action to approve the agenda as amended.
B. Action to approve the December 4th Council meeting minutes.
C. Action to approve the following volunteer appointments: Brookings Committee for people
who have Disabilities: appoint Sylvia Lozada (term 1/1/2013-1/1/2016); Brookings Health
Systems Board of Trustees: reappoint Justin Sell, appoint Dr. Jeremy Beireis (Medical Staff
Appointment (terms 1/1/2013-1/1/2016); Business Improvement District #1 Board:
reappoint Tom Richter (term1/1/2013-1/1/2016); Historic Preservation Commission:
reappoint Mary McClure Bibby (term 1/1/2013-1/1/2016); Human Rights Committee:
reappoint Rebecca Deinert and Penny Hauffe (terms 1/1/2013-1/1/2016); Library Board:
reappoint Mac R. Harris (term 1/1/2013-1/1/2016); Planning Commission: reappoint Al
Gregg, John Sydow and Al Heuton (terms 12/31/2012-12/31/2017); Sustainability Council:
reappoint Ryan Carda, Paul Peterson and Norma Nusz Chandler (terms 1/1/2013-1/1/2016);
Swiftel Center Advisory Committee: reappoint Rod Schaefer (term 1/1/2013-1/1/2016);
Traffic Safety Committee: reappoint Daryl Englund, Pete Kirchhevel and Skip Webster
(terms 12/31/2012-12/31/2015), and appoint Gregg Jorgenson (term 12/31/2012-
12/31/2015).
D. Action on Resolution No. 167-12, a Resolution surplusing a pay loader.
Resolution No. 167-12 - Declaring Surplus Property – 1988 John Deere 644E Pay Loader
Whereas, the City of Brookings is the owner of the following described equipment formerly
used by the City of Brookings Landfill Department: One (1) 1988 John Deere 644E Pay
loader, Serial Number DW644EB516177.
Whereas, in the best financial interest, it is the desire of the City of Brookings to sell same
as surplus property;
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Whereas, the City Manager is hereby authorized to sell the said surplus property;
Whereas, the City Manager hereby authorized to appoint three qualified appraisers to
appraise the value of the 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.
E. Action to purchase a John Deere 644 Loader off another governmental entity bid (State of
Minnesota) from RDO Equipment Company, Burnsville, MN in the amount of $210,978.00.
Bid letting was held on October 10, 2012.
F. Action on Resolution No. 168-12, a Resolution updating the City of Brookings Personnel
Policy Manual Sections 7.9 Shift Differential, and Section 8.7 Sick Leave.
Resolution No. 168-12 - Establishing Personnel Policy Changes to Sections 7.9 Shift
Differential and 8.7 Sick Leave from the City of Brookings Personnel Policy Manual
Whereas, Be It Resolved, that the City of Brookings Personnel Policy Manual changes be
established as follows:
7 .9 Shift Differential (Revised - Effective 1/1/2013)
All hours worked between 6:00 PM and 6:00 AM Monday through Friday and all hours
worked on Saturday and Sunday shall be paid at the applicable rate plus sixty cents ($.60)
an hour.
8.7 Sick Leave (Revised - Effective 1/1/2013)
Regular full-time employees shall accrue sick leave at a rate of twelve (12) hours per month.
Sick leave shall be earned and credited to employees on the last working day of the month.
Sick leave requests may not exceed the amount of leave accumulated.
8.7.1 Administrative Guidelines
(1) Sick Leave Pay: Sick leave benefits shall be paid at the employee’s regular rate of pay at
any time the leave is taken. The minimum charge to sick leave is one-fourth (1/4) hour per
leave period. Sick pay shall not be used in the computation of overtime.
(2) Using Sick Leave: Sick leave shall be granted to employees:
• when they are incapacitated for the performance of their duties due to illness,
injury, and injury not incurred in the course of their employment.
• for medical, dental, and optical examinations or treatments during work hours,
provided the employee gives the City one (1) week notice of such appointment,
except in cases of emergency; sick leave requests may include travel time, waiting
time and time for the appointment.
• when an employee or ward child is sick or when a member of the immediate family
is sick and requires the care and/or attendance of the employee during scheduled
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work hours; immediate family is defined as spouse, son or daughter, parent or
spouse’s parent, brother or sister, and dependent(s) residing in the employee’s
home to include step-relatives in the same categories. After three consecutive sick
days, the employee’s department head and/or Human Resources Director, may
require a doctor’s statement specifying the requirement of care and/or attendance.
The cumulative amount of sick leave that can be utilized by any one employee
within the calendar year for their spouse’s parent, brother and/or sister is 160 hours
for calendar year 2013, 140 hours for calendar year 2014, and 120 hours for
calendar year 2015 and thereafter.
• when, through exposure to a contagious disease, the presence of the employee at
his/her post of duty would jeopardize the health of others provided, however, that
sick leave for these purposes shall require a verification by a medical doctor’s
certificate.
• for up to five (5) working days of paid sick leave for the adoption of a child and for
the father employee of newborn child(ren) to assist with care and/or delivery. If
employee is eligible for the provisions of the Family Leave Act, he/she can request
additional time off without pay up to a maximum of 12 total weeks. Vacation
accrual, however, must be used to cover additional FMLA leave period.
An employee absent from work due to illness or disability shall notify his/her
Department Head before scheduled to work, or as soon as possible. If an emergency
situation exists, indicate the nature of the situation and the expected length of absence.
If an employee is absent three (3) consecutive days without proper notification he/she
will be considered to have voluntarily resigned his/her position. The City reserves the
right to require employees to submit verification from a medical practitioner of their
reason for absence upon their return from three (3) consecutive sick days, or where a
pattern of frequent absences exist. Upon returning to work, the employee shall notify
his/her supervisor of her/her recovery. The City may also require any employee afflicted
with an illness or injury that may require work restrictions to present verification from a
medical practitioner of their fitness to return and/or continue to work. Any employee
found to have abused his/her sick leave privileges may be subject to disciplinary action.
(3) Carry-Over of Sick Leave: Employees with a start date prior to January 1, 2013 may
accumulate up to a maximum of 260 days (2,080 hours) of sick leave. Employees with a hire
date of January 1, 2013 and thereafter, may accumulate up to a maximum of 1500 hours of
sick leave. Sick leave benefits not used during the calendar year in which they were earned
may be carried over and used during the succeeding calendar years.
(4) Leave of Absence: Employees on an unpaid leave of absence in excess of one-half month
shall not accrue sick leave benefits.
(5) Termination of Employment: After ten years of service and upon termination of
employment other than discharge, any unused accumulated sick leave will be paid at ten
percent (10%) of the employees current base hourly rate, plus one percent (1%) additional
for each year of service beyond ten (10) years, up to 1,500 hours maximum accumulated
sick leave.
G. Action on Resolution No. 169-12, a Resolution authorizing Change Order No. 1 (CCO#1
Final) for 2012-14SSI Storm Sewer Improvement Project, VJ Ahlers Excavating, Inc.
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Resolution No.169-12 - Resolution Authorizing Change Order No. 1 (CCO#1 Final) for
2012-14SSI Storm Sewer Improvement Project, VJ Ahlers Excavating, Inc.
Be It Resolved by the City Council that the following change order be allowed for 2012-14SSI
Storm Sewer Improvement Project: Construction Change Order Number 1 (Final): Adjust
plan quantities to as-built quantities to final out the project for a total decrease of $793.26
to the contract.
H. Action on Resolution No. 171-12, a Resolution authorizing Closeout on 2011-01 Gateway
Project (Phase I) Improvements; Clark Drew Construction, Inc..
Resolution No. 171-12 - A Resolution Authorizing Closeout on 2011-01 Gateway Project
(Phase I) Improvements; Clark Drew Construction, Inc.
Be It Resolved by the City Council that the following be allowed for 2011-01 Gateway
Project Improvements (Phase I) with Clark Drew Construction, Inc.: Construction Closeout
on Phase I Improvements for the Gateway Project. There are no further adjusted bid
quantities for this phase of the project.
I. Action to approve an amendment to the Brookings Event Center Agreement City-County
Agreement for the County Resource Center use by the Swiftel Center.
AMENDMENT TO BROOKINGS EVENT CENTER AGREEMENT
THIS AGREEMENT is made and entered into by and between the CITY OF BROOKINGS,
hereinafter sometimes referred to as "CITY", a Municipal Corporation, of Brookings, South
Dakota; BROOKINGS COUNTY, hereinafter referred to as "COUNTY", a political subdivision
of the State of South Dakota; and the BROOKINGS EVENT CENTER, INC., hereinafter
sometimes referred to as the "CORPORATION", a South Dakota Non-Profit Corporation, of
Brookings, South Dakota, WITNESSETH:
WHEREAS, the parties previously entered into an Agreement entitled "BROOKINGS AREA
MULTIPLEX, INC. AGREEMENT", dated April 10, 2000; and
WHEREAS, the parties previously amended the BROOKINGS AREA MULTIPLEX, INC.
AGREEMENT on the 25th day of September, 2001 and on the 13th day of June, 2006.
WHEREAS, BROOKINGS AREA MULTIPLEX, INC., has subsequently changed its Corporate
name to BROOKINGS EVENT CENTER, INC.; and
WHEREAS, the parties now desire to modify the Agreement dated April 10, 2000, and as
previously amended, by making certain modifications as hereinafter specified, now
therefore,
IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:
Section 8. of the Brookings Event Center, Inc. Agreement is hereby amended to provide as
follows:
8. County Meeting Rooms: County Resource Center Rooms C and D shall be scheduled and
utilized as follows:
a. Brookings County shall continue to use County Resource Center rooms C and D for 4-
H -sanctioned events and for the annual township meeting; Brookings County will
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not schedule any other events in such rooms other than the 4-H events and the
annual township meeting. It is further agreed that 4-H events for (1) Achievement
Days; (2) Horse Show; and (3) Dog show shall have access to the Swiftel Arena at no
cost pursuant to scheduling procedures of the Swiftel Center.
b. The Swiftel Center shall maintain the schedule and be entitled to use and schedule
all events in County Resource Center Rooms C and D at no cost at any time except
when4-H-sanctioned events or the annual township meetings are scheduled. The
Swiftel Center shall be entitled to receive all revenues generated from events
scheduled in the County Resource Center Rooms C and D except for 4-H-sanctioned
events and the annual township meeting.
c. Any events (excluding 4-H events) that involved catering must follow the Swiftel
Center's Catering Policy and all other Swiftel Center Policies for Rental of facilities.
d. As compensation to Brookings County for its use of County Resource Center Rooms
C and D the Swiftel Center shall deduct a sum equal to 80% of the amount otherwise
due from Brookings County for maintenance and utility costs under the annual
maintenance agreement and Brookings County shall only be obligated to pay the
remaining 20%.
This Amendment shall be effective from and after November 1, 2012, and shall continue
unless canceled by any Party upon thirty (30) days written notice.
The parties hereby ratify and confirm all other provisions of the original BROOKINGS AREA
MULTIPLEX, INC. AGREEMENT, dated as of April 10, 2000, and previous Amendments, not
modified by this Amendment, and hereby affirm their intent to have said Agreement remain
in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the dates set forth below.
J. Action on Resolution No. 173-12, a Resolution authorizing a CDBG Payment Request for
the Boys & Girls Club of Brookings.
Resolution No. 173-12 - CDBG Payment Request for the Boys & Girls Club of Brookings
Whereas, the City of Brookings is the recipient of a Community Development Block Grant,
on behalf of the Boys & Girls Club of Brookings for the construction of a Boys & Girls Club
Facility in the City of Brookings;
Therefore, Be It Resolved, that the funds for CDBG #1212-105 disbursed by the State of
South Dakota be disbursed directly to the Boys & Girls Club of Brookings and any such
payment requests shall originate from the Executive Director of the Boys & Girls Club of
Brookings.
This resolution shall be effective upon publication.
K. Action on Resolution No. 183-12, a Resolution Authorizing Change Order No. 2 for 2012-
04SSI, Pheasant Nest Detention Pond Project.
Resolution No. 183-12 - Resolution Authorizing Change Order No. 2 (CCO#2 Final) for
2012-04SSI, Pheasant Nest Detention Pond Project
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Be It Resolved by the City Council that the following change order be allowed for 2012-
04SSI, Pheasant Nest Detention Pond Project: Construction Change Order Number 2 Final:
Adjust contract to as-built quantities and for lawn irrigation repair due to culvert installation
for a total increase of $357.30 to the contract.
On the motion, all present voted yes; motion carried.
Resolution No. 175-12. A motion was made by Corbett, seconded by McClemans, to approve
Resolution No. 175-12, a Resolution Awarding Bids on Bel Brands Wastewater Pretreatment
Facility Project. All present voted yes; motion carried.
Resolution No. 175-12 - Resolution Awarding Bids on Bel Brands Wastewater
Pretreatment Facility Project
Whereas, the City of Brookings opened bids for the Bel Brands Wastewater Pretreatment
Facility Project on Tuesday, December 4, 2012 at 1:30 pm at Brookings City & County
Government Center; and
Whereas, the City of Brookings has received the following bids for the Bel Brands Wastewater
Pretreatment Facility Project – John T. Jones Construction Co., Fargo, ND: Bid Schedule 1 Base
Bid - $5,000,000.00, Alternate #1 - $164,645.50, Alternate #2 - $58,903.00, Alternate #3 -
$166,241.70, Alternate #4 – No Bid, Alternate #5 - $153,990.00, and Bid Schedule 2 Base Bid -
$151,393.00; Rice Lake Construction Group, Deerwood, MN: Bid Schedule 1 Base Bid -
$5,168,600.00, Alternate #1 - $126,000.00, Alternate #2 - $72,000.00, Alternate #3 -
$160,000.00. Alternate #4 - $165,000.00, Alternate #5 - $30,000.00, and Bid Schedule 2 Base
Bid - $200,000.00; Wenck Construction and Remediation, Inc., Maple Plain, MN: Bid Schedule 1
Base Bid - $5,100,000.00, Alternate #1 - $152,000.00, Alternate #2 - $54,000.00, Alternate #3 -
$158,000.00, Alternate #4 - $1,000,000.00, Alternate #5 - $1,000,000.00, and Bid Schedule 2
Base Bid - $326,000.00; Miron Construction Co., Inc., Neenah, WI: Bid Schedule 1 Base Bid -
$5,271,000.00, Alternate #1 - $146,000.00, Alternate #2 - $61,400.00, Alternate #3 -
$99,200.00, Alternate #4 - $536,700.00, Alternate #5 - $19,400.00, and Bid Schedule 2 Base Bid
- $233,030.00; PKG Contracting, Inc. Fargo, ND: Bid Schedule 1 Base Bid - $5,521,900.00,
Alternate #1 - $142,000.00, Alternate #2 - $67,000.00, Alternate #3 - $197,000.00, Alternate #4
- $350,000.00, Alternate #5 - $200,000.00, and Bid Schedule 2 Base Bid - $205,000.00;
Swanberg Construction, Inc., Valley City, ND: Bid Schedule 1 Base Bid - $5,534,000.00, Alternate
#1 - $155,000.00, Alternate #2 - $75,000.00, Alternate #3 - $165,000.00, Alternate #4 – No Bid,
Alternate #5 - $200,000.00, and Bid Schedule 2 Base Bid - $275,000.00.
Now Therefore, Be It Resolved that the low bid of John T. Jones Construction Co. of Fargo, ND
for the Bid Schedule 1 Base Bid of $5,000,000.00, Alternate #1 of $164,645.50, Alternate #2 of
$58,903.00 and Bid Schedule 2 Base Bid of $151,393.00 for the total of $5,374,941.50 for Bel
Brands Wastewater Pretreatment Facility Project be accepted.
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Resolution No. 176-12. A motion was made by Niemeyer, seconded by Kubal, to approve
Resolution No. 176-12, a Resolution Awarding a Contract on Recycling Carts. All present voted
yes; motion carried.
Resolution No. 176-12 - Resolution Awarding Bids for Automated Containers
Whereas, the City of Brookings has received the following bid(s) for 65-gallon Universal
Automated containers: Sanitation Products, Inc. in the amount of $57.00 per container.
Now Therefore, Be It Resolved that the bid from Sanitation Products, Inc. in the amount of
$57.00 per cart be accepted.
City Manager Compensation Package. A motion was made by Thorpe, seconded by Corbett, to
increase the City Manager annual salary by six percent (6%) in the amount of $7594.65 for a
total salary of $134,172.15 for 2013. All present voted yes; motion carried.
A motion was made by Kubal, seconded by Niemeyer, directing the Mayor to create a differed
compensation package for the city manager with the goal of aiding in the retention of Jeff
Weldon as the Brookings City Manager for 5 years. An agreement will be brought to an open
meeting of the council for approval. All present voted yes; motion carried.
Union Contracts. A motion was made by Corbett, seconded by Kubal, to approve the City
General Employee Contract. All present voted yes; motion carried.
A motion was made by Corbett, seconded by Niemeyer, to approve the City Police Department
Employee Contract. All present voted yes; motion carried.
Purchase Agreement. A motion was made by McClemans, seconded by Niemeyer, to approve
a purchase agreement with Dean Christie for south fire station property. All present voted yes;
motion carried.
REAL ESTATE SALE AND PURCHASE AGREEMENT
THIS REAL ESTATE SALE AND PURCHASE AGREEMENT is made and executed by and between
the City of Brookings, South Dakota, (hereinafter referred to as the "City"), and Dean Christie,
Trustee of the Christie Family Trust, (hereinafter referred to as "Seller").
WITNESSETH:
WHEREAS, the City desires to acquire the real property described below and Seller agrees to
convey to the City, pursuant to the terms and conditions of this Real Estate Purchase
Agreement, the real estate described below.
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND AGREEMENTS
CONTAINED HEREIN, THE PARTIES HERETO MUTUALLY AGREE TO THE FOREGOING AND AS
FOLLOWS:
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1. Purchase of Real Property. The Seller hereby agrees to sell to the City and the City hereby
agrees to purchase from Seller the following described real property: The East Seven Hundred
Seven Feet (E 707') of the South Two Hundred Twenty-nine Feet (S 229') of the Northwest
Quarter (NW ¼ ) of Section Two (2), Township One Hundred Nine (109) North, Range Fifty (50)
West of the 5th P.M., County of Brookings, State of South Dakota, consisting of 3. 7 acres, more
or less, with the exact acreage to be determined by survey of this property. The approximate
dimensions are shown on the attached map, marked Exhibit "A".
2. Effective Date. This Real Estate Purchase Agreement 1s effective upon its execution by all
parties.
3. Purchase Price. The Buyer shall pay Seller the sum of Twenty-five Thousand and no/100
($25,000.00) Dollars per acre for purchase of the above-described property, which consists of
approximately Three and Seven Tenths (3.7) acres, the exact dimensions of which will be
determined by a survey, with the purchase price adjusted for the final dimensions of the
property as determined by a survey. A computation of the exact purchase price based on the
survey shall be attached to this Purchase Agreement as an Addendum after the survey is
completed and shall be approved by Seller and Buyer. The purchase price shall be paid as
follows:
a) An earnest money down payment of the sum of One Thousand Five Hundred and no/l
00 ($1,500.00) Dollars at the time of execution of this Agreement.
b) The balance of the purchase price shall be paid at Closing.
4. Merchantable Title/Real Estate Closing Documents and Miscellaneous. Seller will convey the
property free of liens and mortgages, but the property may be subject to easements, rights of
way and restrictions of record. Seller will provide clear and marketable title to the City
concerning the above described real property, by Warranty Deed, which contains only
easements, rights of way and reservations of record.
If there are any title restrictions, defects or burdens to which the City objects, other than
easements, rights of way and restrictions of record, such objections, shall be stated in writing to
Seller, and Seller will be allowed a reasonable time of not less than sixty ( 60) days in which to
correct the same, and the Closing date will be delayed for not less than sixty (60) days to
provide Seller with time to correct said defect or defects.
If the foregoing contingency is not satisfied or corrected by Seller prior to the Closing date, then
this Agreement may be terminated at the option of the Buyer and the earnest money down
payment of $1,500.00 will be returned to Buyer and this Agreement shall be null and void.
In addition, the City and Seller, as the case may be, will also perform the following:
A. Title Insurance Policy. Seller will provide a Title Insurance Commitment, the amount
of which will be based on the purchase price, which shows Seller has marketable and
merchantable title to the real property which is the subject of this Agreement. At
the time of Closing, the City will pay the entire cost of the Title Insurance Policy.
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B. Deed Preparation/Closing Service Fees. The City Attorney for the City will prepare
the Warranty Deed and a Certificate of Real Estate Value required for this
transaction at no expense to Seller at the time of Closing.
C. Transfer Fee/Recording Fee/Real Estate Taxes.
1. This transaction is exempt from transfer fees.
2. The City will pay the recording fee for the Warranty Deed.
3. The Seller will pay the 2013 Real Estate Taxes. Because the property will be
owned by the City of Brookings, which is a political subdivision, the property
will be exempt from real property taxes from and after the date of Closing.
D. Closing/Possession/Insurance. The Closing date will be scheduled at the convenience
of the parties at such time as all contingencies have been satisfied or waived, with
possession to be given to the City at the time of Closing. The City estimates that the
Closing date will be on or about January 3, 2013. Seller agrees to maintain all
existing insurance coverage on the property until the time of Closing. It is
understood and agreed that the City will not be permitted to take possession of the
property until title has transferred.
Closing will be scheduled at a location mutually convenient for Seller and the City
after the expiration of the referendum period ends without a referendum occurring,
or if a referendum occurs and the public vote approves the purchase by the City of
the real property which is the subject of this Agreement.
E. No Personal Property Included in this Agreement. No personal property is included
in the sale of the above-described real estate.
F. Current Use of Premises/Leases. Seller acknowledges there is a current oral lease of
the above-described property. This lease will terminate on or about December
31,2013.
G. Surveys and Tests. The City, its employees, agents and contractors will have the right
to enter upon the above-described real property to perform such soil tests and
surveys upon execution of this Agreement which the City deems necessary, provided
the City's representatives do not interfere with Seller's use of the property. The City
intends to survey the above-described real property and will pay the costs of the
survey.
5. Contingencies. The obligation of the City to purchase the above-described property pursuant
to this Agreement is contingent upon the following contingencies:
a) That Seller provides clear and marketable title to the Buyer concerning the above
described real property, by Warranty Deed, which contains only easements, rights of
way and reservations of record.
If there are any title restrictions, defects or burdens to which Buyer objects, other
than easements, rights of way and restrictions of record, such objection will be
stated in writing to
January 8, 2013
City of Brookings
14
Seller, and Seller will be allowed a reasonable time of not less than sixty (60) days in
which to correct the same, and the Closing date will be delayed for not less than
sixty (60) days to provide Seller with time to correct said defect.
(b) The parties also acknowledge the following contingencies are also condition
precedents to the performance of this Agreement by the City. Briefly stated, the
contingencies concern: (i) the Resolution of the City, discussed at greater length in
subsection (i) below; and (ii) that no actions or suits are commenced or threatened
against the City prior to Closing and pertaining to the performance of this
Agreement, as is more fully discussed in subsection (ii) below.
i. Referendum/Election. The City's obligation to purchase the property
described herein will be terminated if the City Council's decision to
purchase the above-described property is referred by the voters and the
voters do not approve the purchase. "Referred" means the voters of the
City, at an election, vote to nullify the decision of the City to purchase or
pay for the property described herein. In the event of a successful
referral, this Agreement will be null and void. This contingency will be
waived at the later of the expiration date of any referendum period if
there is no referendum, or the date following the election canvassing if
there is a referendum election, and the purchase is approved at a
referendum election. However, a referendum decision by voters of the
City which does not approve the purchase will permit the City to
terminate this Agreement. If this Agreement is terminated pursuant to
this provision, City will be entitled to a refund of its earnest money down
payment.
ii. Pending or Threatened Litigation. Through the date of Closing, there are
no actions, suits or proceedings pending or threatened against the City at
law or in equity pertaining to this transaction which might adversely
affect the ability of the City to perform its obligations under this Purchase
Agreement. In the event of pending or threatened litigation pertaining to
this transaction, at the option of the City, this Agreement may be
declared null and void. If this Agreement is terminated pursuant to this
provision, City will be entitled to a refund of its earnest money down
payment.
6. Good Faith/Mutual Cooperation.
a) The City will in good faith seek to satisfy all contingencies to this Real Estate
Purchase Agreement and will act in a timely manner to permit its Closing as close
to the January 3, 2013 Closing date as possible.
At any time and from time to time before and after the Closing, the City will, at
the request of Seller, and without further consideration, promptly execute,
acknowledge and deliver such further instruments and take such further action
as Seller may reasonably request in order to consummate and confirm the
transaction contemplated by this Agreement and to accomplish the purposes of
January 8, 2013
City of Brookings
15
this Agreement; however, no such instruments or actions will impose upon the
City any burden or obligation which is in excess of any burden or obligation
specifically imposed upon the City pursuant to the terms of this Agreement.
b) At any time and from time to time before and after the Closing, Seller will, at the
request of the City, and without further consideration, promptly execute,
acknowledge and deliver such further instruments and take such further action
as the City may reasonably request in order to consummate and confirm the
transaction contemplated by this Agreement and to accomplish the purposes of
this Agreement; however, no such instruments or actions will impose upon Seller
any burden or obligation which is in excess of any burden or obligation
specifically imposed upon Seller pursuant to the terms of this Agreement.
7. Review by Counsel. The City and Seller acknowledge that they each have had an opportunity
to review this Agreement with legal counsel, and the parties agree that the rule of construction
to the effect that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement.
8. Applicable Law. The laws of South Dakota govern this transaction.
9. Entire Agreement. This written Agreement constitutes the complete Agreement between the
parties and supersedes any prior oral or written Agreement between the parties regarding the
subject matter of this Agreement. There are no verbal agreements that change this Agreement
and no waiver of its terms will be effective unless such are made and executed in writing and
duly acknowledged as received by the parties.
10. Binding Effect. This Agreement binds the parties hereto and their heirs, successors and
assigns, if any.
Resolution No. 180-12. A motion was made by Kubal, seconded by Corbett, to approve
Resolution No. 180-12, a Resolution for Federal Aid Construction Project Number P-PH
0014(172)418 PCN 01TJ, 6th Street from west of Western Avenue to Main Avenue, Brookings,
SD. All present voted yes; motion carried.
Resolution No. 180-12 - A Resolution for South Dakota Federal Aid Construction Project
Number P-PH 0014(172)418 PCN 01TJ; Highway 14 from west of Western Avenue to Main
Avenue, Brookings, SD
Whereas, the Brookings City Council desires the construction improvement of Highway 14 from
west of Western Avenue to Main Avenue, and
Whereas, the City of Brookings is obligated and hereby agrees to provide proper maintenance
as required by the Financial Agreement between the Department of Transportation and the
City of Brookings, and
Whereas, the City of Brookings is obligated and hereby agrees to the provisions outlined in the
January 8, 2013
City of Brookings
16
Financial Agreement between the Department of Transportation, City of Brookings and
Brookings Municipal Utilities.
Now, Therefore Be It Resolved, that the Mayor is hereby authorized to sign the revised State of
South Dakota Joint Powers Financial Agreement between the Department of Transportation,
City of Brookings and Brookings Municipal Utilities for South Dakota Federal Aid Construction
Project Number P-PH 0014(172)418 PCN 01JT.
Resolution No. 181-12. A motion was made by Corbett, seconded by McClemans, to approve
Resolution No. 181-12, a Resolution Annexing the following property for the airport: Outlots 1A
and 2 in the NE ¼ of Section 28-T110N-R50W, and the SW ¼ of the NW ¼, except Sublots A and
B of Outlot 1, in Section 27-T110N-R50W. All present voted yes; motion carried.
Resolution No. 181-12 - Resolution Annexing the following property for the airport: Outlots 1A
and 2 in the NE ¼ of Section 28-T110N-R50W, and the SW ¼ of the NW ¼, except Sublots A and
B of Outlot 1, in Section 27-T110N-R50W.
Whereas, the City of Brookings is authorized pursuant to South Dakota Codified Law 9-4-1 to
annex contiguous territory upon receipt of a written petition, describing said territory sought to
be annexed, signed by not less than three-fourths (3/4) of the legal voters and by the owner or
owners of not less than three-fourths (3/4) of the value of said territory, and
Whereas, The City of Brookings desires to annex the following described property, to wit:
Outlots 1A and 2 in the NE ¼ of Section 28-T110N-R50W, and the SW¼ of the NW¼, except
Sublots A and B of Outlot 1, in Section 27-T110N-R50W
Whereas, the aforesaid land is contiguous to the present boundaries of the City of Brookings,
and
Whereas, the City of Brookings has received a Petition For Annexation of Territory signed by the
owners of greater than three-fourths (3/4) of the value of the aforesaid property and by not
less than three-fourths (3/4) of the legal voters residing in said territory, now therefore
Be It Resolved by the City of Brookings, South Dakota, that the property described above is
hereby annexed to the City of Brookings.
Resolution No. 182-12. A motion was made by Thorpe, seconded by Niemeyer, to approve
Resolution No. 182-12, a Resolution pertaining to the Procurement of Professional Services for
the City of Brookings. All present voted yes; motion carried.
Resolution Pertaining to the Procurement of Professional Services for the City of Brookings
Whereas, the City of Brookings frequently utilizes a wide variety of professional services to
implement the mission, services, programs, and strategic plan of the City, and
January 8, 2013
City of Brookings
17
Whereas, policies that encourage businesses to locate within the City of Brookings help
strengthen the local economy, and
Whereas, dollars expended on local vendors and employees leads to return on the investment
through local vendors and employees spending earned dollars in Brookings; that such local
purchases retains and circulates more money in the local economy, and
Whereas, it shall be the commitment of the City to facilitate local economic development by
encouraging the retention of City professional development expenditures within the local
economy to the greatest extent possible, and
Whereas, the City has a fiduciary responsibility to all taxpayers to seek the best possible value
for the City in the procurement of professional services;
Now, Therefore, Be It Resolved by the City Council of the City of Brookings that:
1) When considering contract awards for professional services, such contract shall be
awarded to the proposer that represents the best value to the City in the sole
determination of the City; and it is in the best interest of the City to secure multiple
competitive proposals for such services.
2) When all such considerations constituting a best value determination are made and
such considerations are deemed to be equal among two or more proposals, the award
shall go to the local proposer. In the event two or more equal proposals are local, the
City shall further revise with more detail the evaluation and make a selection from
among the local proposals.
3) Consideration of “best value” determination shall include but not be limited to: (a) local
presence, (b) price, (c) qualifications and capabilities, (d) quality of work, (e) applicable
warranties, (f) service, (g) past experience with City, (h) reference checks (i) balance of
awarded contracts among local firms; and that an objective system, to the greatest
extent feasible, be applied to the evaluation of proposals based on these criteria.
4) All local firms may submit proposals for consideration for professional services with the
possible exception of: (i) emergency situations; (ii) situations where state and federal
contract procurement policies conflict with this policy; or (iii) for joint contracts with
third parties who express preferences in providers. The City Manager may solicit
proposals from non-local firms in the interest of obtaining multiple competitive
proposals for the best possible value.
5) Professional Services subject to this policy are those defined in South Dakota Codified
Law and are project-oriented for a limited duration. Professional services exempt from
this policy shall be those deemed to be on-going (i.e. City Attorney, Auditor, Bond
Counsel, and Financial Advisor.
6) For professional services estimated to cost in excess of $75,000, formal Requests for
Proposals (RFP) shall be made, local firms will be notified of the RFP via electronic or
telephonic communication, and a formalized point evaluation system suitable for the
January 8, 2013
City of Brookings
18
service(s) requested will be used. The City may utilize RFPs for projects less than
$75,000.
7) The following criteria helps to define the extent a service provider is local: (a) having a
physical address in Brookings County; (b) owning or leasing commercial space in a
commercially permitted address where that location is for the express purpose of
providing the professional service; (c) a number of employees that work from the local
office; and (d) corporate headquarters or local ownership.
Resolution No. 174-12. A motion was made by Thorpe, seconded by McClemans, to approve
Resolution No. 174-12, a Resolution to exchange Federal Surface Transportation Program Funds
for State Funds. All present voted yes; motion carried.
Resolution No. 174-12 - A Resolution to Exchange
Federal Surface Transportation Program Funds for State Funds
Whereas, the City of Brookings desires funding for the construction and improvement of local
road and/or bridge projects; and
Whereas, the City of Brookings Surface Transportation Program fund balance is sufficient for
the projects currently programmed for the City of Brookings.
Now Therefore Be It Resolved, that the City of Brookings elects to participate and enter into an
agreement for the swap program that SDDOT is offering for federal fiscal year 2013 as
referenced in the letter from Darin P. Bergquist, Secretary, South Dakota Department of
Transportation.
Ordinance No. 30-12. A public hearing and action was held on Ordinance No. 30-12, an
Ordinance pertaining to an Application for a Conditional Use for a Community Center in the
Business B-2A District. A motion was made by Corbett, seconded by McClemans, to approve
Ordinance No. 30-12. All present voted yes; motion carried.
TABLED ITEM: Ordinance No. 25-12. A motion was made by Niemeyer, seconded by
McClemans, to remove Ordinance No. 25-12, an Ordinance amending the Zoning Ordinance
pertaining to the Conditional Use Permit process, from the table. McClemans and Niemeyer
voted yes; Corbett, Kubal, Reed and Thorpe voted no; motion failed.
Ordinance No. 28-12. A public hearing and action was held on Ordinance No. 28-12, an
Ordinance revising Article IV and pertaining to Excavations in the City of Brookings, SD. A
motion was made by Kubal, seconded by Corbett, to approve Ordinance No. 28-12. All present
voted yes; motion carried.
Ordinance No. 29-12. A public hearing and action was held on Ordinance No. 29-12, an
Ordinance prohibiting littering in the City of Brookings, SD. A motion was made by Corbett,
January 8, 2013
City of Brookings
19
seconded by McClemans, to approve Ordinance No. 29-12. All present voted yes; motion
carried.
Ordinance No. 31-12. A public hearing and action was held on Ordinance No. 31-12, an
Ordinance prohibiting texting (while driving) in the City of Brookings, SD. A motion was made
by Kubal, seconded by Corbett, to approve Ordinance No. 31-12. All present voted yes; except
Thorpe voted no; motion carried.
ADDITION – Temporary Liquor License. A public hearing was held on a Temporary On-Sale
Liquor License for the VFW for the National Guard Christmas Party at the National Guard
Armory on January 5, 2013. A motion was made by Corbett, seconded by Niemeyer, to approve.
All present voted yes; motion carried.
ADDITION – Fund Transfer. A motion was made by McClemans, seconded by Corbett, to
authorize a temporary transfer from the Public Improvement Fund to the Airport Fund. All
present voted yes; motion carried.
Adjourn. A motion was made by Corbett, seconded by McClemans, to adjourn. All present
voted yes; motion carried. Meeting adjourned at 7:26 p.m.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
January 8, 2013
City of Brookings
20
CONSENT AGENDA #4
C. Action to approve various volunteer appointments.
Mayor Tim Reed has submitted the following appointment recommendations for City Council
advice and consent:
Business Improvement District #1 Board
Number of positions: 1
Position Held by: Lance Park
Term Length: 3 years
Residency Requirement: Not Required
The Business Improvement District #1 Board is responsible to prepare a plan of improvements for
a district and provide improvement recommendations to the City Council. The boundaries of
Business Improvement District #1 are defined as non-contiguous properties to include all
hotels/motels with 25 or more rooms situated within the corporate limits of the city of
Brookings.
Mayor’s Recommendation:
1. Appoint Jennifer Johnson
Brookings Committee for People who have Disabilities – Student Position
Number of positions: 1 (vacancy)
Term Length: Unexpired Term – 05/01/13
Residency Requirement: Required for 7 members
The Brookings Committee for People who have Disabilities strives to advocate for the rights of
people who have disabilities in our community. Throughout the year, specific events are held to
bring awareness and information to our citizens. Technical assistance is provided to the business
community, private individuals, governmental entities and nonprofit organizations. This is a
service not provided by any other entity in Brookings. The goals of this service are to improve the
quality of life for people who have disabilities through enhancing the knowledge base of entities
in the community; and to further serve as a community-based advocacy group enhancing the
ability of local entities to comply with Federal Civil Rights legislation.
Mayor’s Recommendation:
1. Appoint Nadine Gjerde
Sustainability Council
Number of positions: 1 (vacancy)
Term Length: Unexpired Term – 01/01/14
Residency Requirement: Required for Majority
The purpose of the Sustainability Council is to investigate, propose, educate, communicate, and
advocate investment strategies and policies that will improve our future qualities of life while
still meeting the needs of the present.
Mayor’s Recommendation:
1. Appoint Betty L. Beer
January 8, 2013
City of Brookings
21
CONSENT AGENDA #4
D. Action on Resolution No. 01-13, a Resolution authorizing Change Order
No. 1 (CCO#1 Final) for 2012-15SSI, Wiese Addition Wetland Project.
The Wiese Addition Wetland Project has been completed and is ready to be closed out.
This project was designed by Banner Associates and included the construction of
wetlands, grading, wetland seeding, buffer zone seeding, and hydromulch. The City
obtained a wetland permit to construct wetlands on Block 2 in Wiese Addition, which is
owned by the City. These wetlands were built as mitigation for the disturbed wetlands
from Block 1 in Wiese Addition, in conjunction with an agreement with Steve Schwanke,
the owner of Block 1. Mr. Schwanke will pay a prorated share of the entire construction
project.
The project substantial completion deadline was November 12, 2012 with $50.00/day
for liquidated damages. However, the construction staking was not completed by
Banner Associates until November 9, 2012, which did not allow the contractor time to
complete the work by the deadline. The contractor began work on November 12, 2012,
and completed the work on November 14, 2012. The contractor is requesting a time
extension of 3 working days on the attached letter. The City is agreeable to extending
the contract due to the construction staking. This resolution will adjust the contract
quantities to final as-built quantities for an increase of $0.00 to the contract and will
adjust the contract time by three working days to close out the project. The project
summary is as follows:
Original Contract Price: $17,623.00
Increase from Previous Change Orders: $ 0.00
Contract Price Prior to this Change Order: $17,623.00
Increase of this Change Order (No. 1 Final): $ 0.00
Contract Price incorporating this Change Order: $17,623.00
This resolution will approve Change Order No. 1 (CCO #1 final) for an increase of $0.00
to the contract and adjust the contract time by three working days to close out the
project.
January 8, 2013
City of Brookings
22
Resolution No. 01–13
Resolution Authorizing Change Order No. 1 (CCO#1 Final) for
2012-15SSI, Wiese Addition Wetland Project
Be It Resolved by the City Council that the following change order be allowed for 2012-15SSI,
Wiese Addition Wetland Project:
Construction Change Order Number 1 (final): Adjust contract quantities to final as-built
quantities for an increase of $0.00 and adjust contract time by three working days to close out
the project.
Passed and approved this 8th day of January, 2013.
CITY OF BROOKINGS
___________________________
Tim Reed, Mayor
ATTEST:
_________________________
Shari Thornes, City Clerk
January 8, 2013
City of Brookings
24
5. Items removed from Consent Agenda.
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 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.
January 8, 2013
City of Brookings
25
Open Forum/Presentations/Reports
6. Invitation for a Citizen to schedule time on the Council Agenda for an
issue not listed.
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.
7. SDSU Student Senate Report.
President – Jameson Berreth
Vice-President – Wyatt DeJong
Administrative Assistant – Daniel Vellek
Finance Chair – Ben Ruggeberg
State & Local Chair – Jameson Goetz
SDSU Sent Website: http://www.sdstatesa.com/#!
January 8, 2013
City of Brookings
26
Contracts & Change Orders
8. Action on Resolution No. 02-13, a Resolution authorizing Change Order
No. 2 (CCO#2) for 2012-05SSI, Camelot Square Drainage Improvement
Project.
The Camelot Square Drainage Improvement Project was designed by Civil Design Inc.
and entails installing new storm sewer, channel grading, valley gutter and street and
sidewalk repairs in the drainage basin from the Hammond and Horner Avenues of the
Fairgrounds Addition through Camelot Square Addition, down to 15th Street South. This
project is being funded with a loan from the South Dakota Department of Environment
and Natural Resources, which will be paid back with Storm Drainage Fees.
The contractors have been progressing on their work on the Camelot Square Drainage
Improvement Project. Late fall, they constructed the concrete valley gutter on the
south end of the project. The plan specifications did not require any erosion control
measures for the side-slopes of the valley gutter embankment. However, the project
engineer and City staff felt that turf reinforcement mat should be installed on the side-
slopes to protect against erosion for heavy spring storm flows that may occur before
grass is established. Sod will be placed approximately five feet wide along the valley
gutter and the turf reinforcement mat will be installed from the edge of the valley
gutter under the sod to the top of the slopes. This change order also includes gabion
baskets around the south end of the box culvert where it connects to the valley gutter
to protect from erosion. Gabion baskets are a wire mesh rectangular box with large
rocks inside used for erosion control and bank stabilization. The cost for the turf
reinforcement mat and gabion baskets is an increase of $9,378.00 to the contract
amount. The summary is as follows:
Original Contract Price: $1,715,775.43
Increase from Previously Approved Change Orders (No. 1): $ 1,590.00
Contract Price Prior to this Change Order: $1,717,365.43
Increase of this Change Order (No. 2): $ 9,378.00
Contract Price incorporating this Change Order: $1, 726,743.43
This resolution will approve Change Order No. 2 (CCO #2) for an increase of $9,378.00 to
the contract amount.
City Manager Introduction
Action: Motion to Approve, Request Public Comment, Roll Call
January 8, 2013
City of Brookings
27
Resolution No. 02-13
A Resolution Authorizing Change Order No. 2 (CCO#2) For
2012-05SSI Camelot Square Drainage Improvement Project
Bowes Construction Inc.
Be It Resolved by the City Council that the following change order be allowed for 2012-05SSI
Camelot Square Drainage Improvement Project:
Construction Change Order Number 2: Adjust contract to add turf reinforcement mat and
gabion baskets around the box culvert opening and valley gutter side-slopes for an increase of
$9,378.00 to the contract.
Passed and approved this 8th day of January, 2013.
CITY OF BROOKINGS
_________________________
Tim Reed, Mayor
ATTEST:
____________________________
Shari Thornes, City Clerk
January 8, 2013
City of Brookings
28
First Reading **
9. Ordinance No. 32-12: An Ordinance granting to NorthWestern
Corporation, its successors and assigns, the right to occupy any of the
streets, alleys, or public places of the City of Brookings, South Dakota, for
the purpose of transmitting or distributing natural gas.
Public hearing: January 22nd
**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.
TO: Mayor and City Council Members
FROM: City Manager Jeff Weldon
RE: First Reading, Ordinance Granting Franchise to conduct business in the
City for NorthWestern Public Service
Our current ordinance providing authority to NorthWestern Public Service to sell natural
gas to customers in the City of Brookings expired on December 31, 2012. The Council
approved a continuing Resolution No. 152-12 on December 4, 2012, for a 60-day
extension of the expiring ordinance until a replacement ordinance can be adopted.
Attached is the expired ordinance as well as the proposed replacement ordinance. The
new language was the result of a meeting between staff and legal representatives of the
Company and the City. You will note the new ordinance is significantly more complex
and covers many more issues than the expired ordinance. This is due, in part, to the
new changes we enacted with the excavation ordinance where those issues apply, but
also reflects the changes over the years in the natural gas industry and the growth of
the community as well as legal protections for the City. Perhaps most importantly, the
new ordinance has much improved language to better address public safety
considerations since natural gas is potentially very dangerous.
To aid with understanding the content of the ordinance, I have prepared the following
section summary.
Section 1: Purposes of this Ordinance
Grants authority from the City to NorthWestern Public Service (Company) the right to
sell natural gas within the city limits via the city’s rights-of-way subject to certain state
and local regulations. Acknowledges the City has no rate-setting authority.
Section 2: Definitions
Standard statutory language providing definitions for terms in the ordinance.
Section 3: Powers Granted to the Company
January 8, 2013
City of Brookings
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Provides City approval for access by the Company to streets and public right-of-ways to
provide gas line infrastructure. The ordinance is not exclusive meaning the City may
grant competitive franchise approvals to other gas providers.
Section 4: Powers Retained by the City
Describes situations whereby if the City determines a dangerous situation exists, the
City may direct the Company to abate the danger at the Company’s expense. In the
event the Company fails to abate said dangerous situation, the City may, after
exhausting all reasonable notification remedies, unilaterally abate the dangerous
situation.
Section 5: Duties of the Company
Requires the Company to obtain the necessary permits from the City for work being
done; and that the work substantially follow the plans submitted and subsequently
approved. Provides for an exception for abating an emergency situation.
Requires the Company to use existing right-of-ways where possible. Provides for
restoration and repairs to property as a result of construction. Provides for the
submission of “as-built” plans to the City so the City has a record of installed natural gas
utility infrastructure; and that the Company must keep them up-to-date. An accurate
inventory of existing infrastructure is important for future work planned in the area as
well as identifying specific locations of infrastructure without requiring field locations.
Prescribes construction standards and timing requirements to complete the work as
well as situations where extensions would be permitted.
Provides for the removal and re-location of Company infrastructure from right-of-ways
when directed by the City to do so at the Company’s expense. Provides for the
approval of abandonment-in-place in certain circumstances of Company infrastructure.
Requires the Company to obtain and maintain liability insurance and a local emergency
response plan, including the ability of City-trained personnel to shut-off gas meters in an
emergency situation.
Section 6: Duties of the City
Requires the City to effectively maintain all City property in a manner suitable for being
serviced with natural gas; and that the City will pay for such services.
Section 7: Term
Provides for a term of ten (10) years and the right of prior termination for just cause;
includes remedy provisions.
Section 8: General Conditions
Standard contractual language.
January 8, 2013
City of Brookings
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Ordinance No. 32-12
An Ordinance authorizing granting a franchise to Northwestern Corporation to
provide, transmit or distribute Natural Gas upon and within the streets and public rights-of-
way in the City of Brookings, South Dakota, and establishing regulations pertaining thereto.
Be It Ordained by the governing body of the City of Brookings, South Dakota, as follows:
I.
Sec. 1. Purposes of this Ordinance.
To the extent permitted by law, the City Council of the City of Brookings is adopting this
Ordinance to establish reasonable regulations applicable to Northwestern Corporation
(referred to herein as the “Company”) for the construction, operation and maintenance of gas
facilities in, along, across, under, or over the City’s property.
Specifically, the purposes of this Ordinance are:
(a) To regulate the construction, operation and maintenance of natural gas distribution
lines on city property;
(a) To authorize the Company to provide gas distribution services within the streets and
public rights-of-way corporate limits of the City, subject to the City’s right to the regulation of
its streets and public rights-of-ways pursuant to SDCL §9-35-1; and
(b) To protect the health, safety, and welfare of the public in the City; and
(d) To hold the City harmless from all claims arising from the granting of such franchise
and the operations of the franchise thereunder.
The City recognizes that pursuant to SDCL Chapter 49-34A-5, municipal corporations
have no authority or jurisdiction over rates and conditions of service of any public utility subject
to the jurisdiction of the South Dakota Public Utilities Commission. To the extent of any conflict
between this Ordinance and SDCL Chapter 49-34A, State law shall control.
The City is enacting this Ordinance pursuant to SDCL §9-35-1 and its police powers.
Sec. 2. Definitions.
For the purposes of this Ordinance, the following words and terms shall have the meanings
provided in this Section, except where the context clearly indicates a different meaning. Unless
otherwise expressly stated or clearly contrary to the context, words and terms not defined
herein shall be given the meaning set forth in the City code; if not defined in the City code, the
meaning set forth in any State law of general applicability; and if not defined either in the City
code or in a State law, their common and ordinary meaning.
When not inconsistent with the context, words used in the present tense include the future
tense and vice versa; words in the plural number include the singular number and vice versa;
and the masculine gender includes the feminine gender and vice versa. The words “shall” and
“will” are mandatory; the word “may” is permissive.
January 8, 2013
City of Brookings
31
(a) Agreement shall mean the terms of this Ordinance Franchise Agreement negotiated
by the City and Company pursuant to this Ordinance.
(b) City shall mean the City of Brookings, State of South Dakota.
(c) City property shall mean all properties, facilities or objects currently or in the future
owned or operated by the City within the present and/or future corporate limits of the City.
(d) Company shall mean Northwestern Corporation, and its successors and/or assigns
upon written approval of the City.
(e) Company facilities shall mean all gas facilities owned or operated or otherwise
controlled by the Company.
(f) Construction or Construct shall mean, without limitation, constructing, acquisition,
laying, maintaining, testing, operating, extending, renewing, relocating, removing, replacing,
repairing, and using gas transmission or distribution facilities.
(g) Consumer shall mean any person, firm, partnership, corporation, municipality,
cooperative, organization, governmental agency or other form of legal entity currently or
potentially provided services by the Company.
(h) Gas shall mean natural, artificial, and/or mixed methane-based gas.
(i) Gas facilities shall mean gas pipes, pipe lines, mains, laterals, conduits, feeders,
regulators, meters, fixtures, connections, and all attachments, appurtenances, and accessories
necessary and incidental thereto located within City properties or within the City limits,
whether the same be located above or below ground.
(j) Maintenance, maintaining, or maintain shall mean, without limitation, relaying,
repairing, replacing, relocating, examining, testing, inspecting, removing, digging and
excavating, and restoring operations incidental thereto.
(k) Services shall mean natural gas service provided by the Company.
Sec. 3. Powers Granted to the Company.
(a) Right to construct, maintain and operate. The Company shall have the right, privilege
and authority and franchise to construct, maintain and operate within the streets and public
rights-of-way all necessary gas facilities to provide services to consumers within the City limits,
so long as all such activities are performed in compliance with this Ordinance.
(b) Non-exclusive use of the public rights-of-ways franchise. The rights franchise granted
to the Company under this Ordinance are is a non-exclusive franchise. Therefore, this
Ordinance franchise is adopted granted upon the express condition that it shall not in any
manner prevent the City from granting to others the right to use streets and public rights-of-
ways for the purpose of transmitting or distributing natural or further franchises for gas
services.
Sec. 4. Powers Retained by the City.
(a) Retention of rights by the City.
(1) Nothing contained in the franchise issued to the Company under this
Ordinance shall be construed to prevent the City from purchasing or contracting for gas
services for City property from sources other than the Company.
(a) Retention of power to abate a dangerous situation.
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City of Brookings
32
(1) Whenever the construction, maintenance or operation of the Company’s
facilities has caused or contributed to a condition that appears to City officials to
substantially impair or endanger the public, or adjoining City property or private
property, the City may direct the Company, at the Company’s expense and within a
reasonable time period appropriate to the circumstances, to take such actions to
protect the public or the potentially affected properties or facilities. The Company shall
relocate, at its own cost, all Company facilities that an appropriate City official
objectively determines are located in a place or in a way so as to constitute a danger to
the public or to the City or private properties. In the event that the Company shall not
take such actions within the requested time period, the Company and the City agree to
meet to discuss the situation and proceed with due diligence to determine an
appropriate and timely remedy may enter upon the Company’s facilities to take
appropriate actions to alleviate the condition or potential danger. and The Company
shall be liable to the City for the costs of any relocation of its facilities pursuant to this
Section thereof. The Company will hold the City harmless for any actions taken pursuant
to this subsection. This provision shall survive the expiration, revocation or termination
of this Ordinance Franchise Agreement.
(2) Furthermore, in the event of a public emergency, such as a fire or flood, and
only in the event the Company does not act or is unable to take the necessary action,
the City shall have the right to modify, sever, disrupt, dig up, or destroy facilities of the
Company or to shut off service to one or more consumers, without prior notice, if such
action is deemed necessary because of a public emergency. Public emergency shall be
such a condition which, in the opinion of an official of the City, poses an immediate
threat to the lives or property of the citizens of the City, caused by any natural or man-
made disaster, including but not limited to storms, floods, fire, accidents, explosions,
major water main breaks, hazardous spills, etc., where there is insufficient time for the
City to notify the Company of the threat and the Company to resolve the problem after
notice by the City. The City’s action shall only be performed by its authorized Fire
Department personnel and only in the event the Company cannot act or requests the
City to take action and the action taken shall be limited to shutting the gas meter down
by closing the gas valve. The City shall be responsible for repair, at its sole expense, of
any of the Company’s facilities damaged pursuant to any such emergency actions taken
by the City under this provision.
Sec. 5. Duties of the Company.
(a) Comply with all laws and obtain all necessary permits.
(1) The Company shall at all times be subject to all laws, statutes, ordinances,
codes, rules, regulations, standards, and procedures regarding the construction,
operation or maintenance of the Company’s facilities, whether Federal, State or local,
now in force or which, hereafter, may be promulgated (including but not limited to
zoning, land use, historic preservation ordinances, safety standards, and other
applicable requirements). However, if any term or condition of this Agreement shall be
in conflict with any local ordinance, code, rule, or regulation, the provisions of in this
January 8, 2013
City of Brookings
33
Ordinance shall govern and control. The Company shall obtain all necessary permits or
approvals for construction, maintenance and operations.
(2) No action or omission of the City shall operate as a future waiver of any laws,
statutes, ordinances, codes, rules, regulations, standards, or procedures of the City
under this Agreement.
(b) Construct Company facilities per filed plans and specifications filed.
(1) Except in an emergency situation, the Company shall file with the City
detailed project plans and specifications of for intended work and operations, and
obtain all necessary permits before commencing construction, maintenance or
operation of Company facilities. If construction, maintenance or operation is
commenced without a permit due to an emergency situation, the Company shall file all
necessary documents and obtain all necessary permits as soon as possible after
commencing work under the emergency situation. The Company (and its contractors or
subcontractors) shall construct, maintain and operate the Company’s facilities
consistent with plans and specifications filed with and approved by the City.
(2) To the maximum extent possible, the Company will utilize existing utility
rights-of-way where practicable. Company construction, maintenance or operations
under this Ordinance Franchise Agreement shall not unduly burden or interfere with
present or future normal uses of any City property, except for periods expressly
approved by the City. No City property shall be obstructed longer than necessary during
the work of construction or maintenance. The Company shall coordinate with the City’s
plans for street construction, rebuilding, resurfacing and repair to minimize multiple
disturbances of the same area. The Company shall leave City property in as good and
safe condition as it was before the commencement of work by the Company, its agents
and contractors, and shall repair and restore any City property which is disturbed,
damaged or injured by construction, maintenance or operations of the Company. The
City shall have the final approval right over whether adequate repair and restoration has
been completed by the Company. In the event that the Company fails to repair or
restore affected City property in a manner acceptable to the City, the City shall have the
right, after allowing the Company a reasonable period to complete the repair and
restoration, to make such repairs and restoration and the Company shall pay the costs
incurred by the City for such actions. Repairs and restoration by the City shall be limited
to the City’s property and this provision does not authorize any repair of Company
facilities.
(3) Where possible, the Company shall bury Company facilities in the manner
required by the City.
(c) Record all Company facilities.
(1) Within a reasonable time Immediately upon the effective date of this
Agreement, and after construction or modification of Company facilities, the Company
shall mark (or otherwise clearly identify ownership of) such facilities in a manner
acceptable to the City. Within thirty (30) days of the effective date of this Agreement,
the Company shall provide to the City, at no cost, all plans, maps and records showing
the location and specifications of the Company facilities affected by this Agreement
which have not been previously provided to the City. Where construction, maintenance
January 8, 2013
City of Brookings
34
or operations cause such facilities to be modified in any significant manner, within a
reasonable period after such modification, the Company shall provide to the City, at no
cost, a copy of all as-built plans, maps and records to reflect such modifications.
(2) The Company shall at all times keep full and complete plans, plat or plats,
specifications, profiles, and records in accordance with industry standards showing the
exact location and size of all Company facilities. These Company records shall be subject
to inspection by City officials during business hours and on prior notice. In the case of an
emergency involving Company facilities, the Company shall provide access to such
records by City officials as expeditiously as possible even if outside business hours and
without prior notice.
(d) Maintain and operate Company facilities in a safe manner.
(1) The Company shall have the obligation under this Agreement to maintain and
operate its facilities at all times in a safe and careful manner which is consistent with
applicable industry standards. No City property shall be obstructed longer than
necessary during the Company’s construction, maintenance and operations. The
Company shall cause no damage or injury to any City property; however, if any such
damage or injury shall occur, the Company shall repair the same as promptly as
possible. Upon thirty (30) days written notice by the City to the Company of the repairs
required by the Company’s actions and failure by the Company to make such repairs as
requested by the City, the City may make such repair of the City’s property and the
Company shall reimburse the City for all costs and expenses incurred. On notice from
the City, the Company shall be responsible for correcting or replacing, at its sole cost
and expense, any defective work or materials on Company facilities affecting City
property within a sixty (60) day period of the date of acceptance by the City for the
replacement or repair of the City property. Such corrections or replacements by the
Company shall be completed within the time specified by the City.
(2) Upon not less than ninety (90) sixty (60) days prior written notice, the City
may request that the Company, for the benefit of the City and its municipal utilities,
relocate, protect, support, disconnect, or remove Company facilities because of work to
be otherwise performed by the City (including but not limited to construction, grading,
reconstruction, maintenance or repair of a City street or alley, or water, sewer or storm
drainage lines; movement of buildings; or any other public improvement). The Company
will be permitted additional time appropriate to the circumstances to take action
pursuant to this provision if necessary due to inclement weather or other circumstance
which, through no fault of the Company, delays the Company’s performance. Written
notice of the Company’s request for additional time shall be given to the City, and the
Company and City shall enter into good faith discussions concerning the delay and the
City shall thereafter determine whether additional time is appropriate given the
circumstances. The City shall provide to the Company a description of its planned work
and a description of the actions requested of the Company. The Company shall
expeditiously take the action requested by the City, at its sole expense and without
recovery from the City, and shall immediately inform the City of when such actions will
be completed after receiving such notice. If relocation is requested, the Company shall
relocate its facilities to a reasonable alternative route designated by the City.
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City of Brookings
35
(3) If the City vacates or consents to the vacation of a street or alley within the
City limits, and such vacation necessitates the removal and/or relocation of Company
facilities, as a condition to this Agreement, the Company agrees to consent to the
vacation and further agrees to relocate or remove its facilities at its sole cost and
expense if asked to do so by the City. The Company will not be obligated to remove or
relocate its facilities if the vacation of a street or alley does not also require or make
necessary the removal or relocation of its facilities. If relocation is requested, the
Company shall relocate its facilities to a reasonable alternative route designated by the
City.
(4) The Company will not abandon its main service lines No Company facilities
shall be abandoned without prior notice to approval from the City. This does not
prevent the Company from abandoning customer service lines. In the event that this
Agreement is not renewed at the end of its term or is terminated by forfeiture or
breach, or the Company proposes to abandon service provided to consumers from
Company facilities on City property, and the City has not purchased such Company
facilities, the Company shall continue to provide services to consumers affected until
alternative services can be arranged if necessary. For any period during which service
continues after a termination or proposed abandonment, the Company shall be entitled
to payment for services by consumers in no greater amount than that which it would
have been entitled were such services provided prior to the termination of this
Agreement or abandonment of Company facilities. Upon request from the City and
within a reasonable time after receipt thereof, the Company shall remove all Company
facilities affected by the termination or abandonment of facilities which are located
upon City’s property, or services or shall take other actions directed by the City if the
Company facilities are to be abandoned in place. Such removal shall be at no cost to the
City the Company’s sole expense. All City property previously affected by the Company’s
facilities shall be restored to its condition prior to the construction, maintenance and
operation by the Company. In the event that in a reasonable period the Company fails
to remove the abandoned Company facilities or perform the actions requested by the
City for an abandonment in place, the City shall have the right to take such actions and
the Company shall pay the costs incurred by the City for such actions.
(e) Obtain and maintain insurance.
(1) The Company shall maintain, at its sole expense, during the entire term of
this Agreement, general comprehensive liability insurance coverage for property
damage and bodily injury, including coverage for construction, operations,
maintenance, relocation, and repair. Such policy(ies) shall be with a Company
authorized to do business in the State of South Dakota and shall provide that the City
(including all officials, officers, employees, and volunteers) is specifically covered as an
additional insured with respect to any activities performed by or on behalf of the
Company. To fulfill this obligation, the Company may self-insure in such amounts as are
consistent with applicable law and industry standards good utility practice. The
Company shall provide to the City evidence of such insurance policy(ies) or self-
insurance on an annual basis upon request. A copy of the policy(ies) or other proof of
self-insurance satisfactory to the City shall be filed with the City prior to commencement
January 8, 2013
City of Brookings
36
of any work or operations related to City property. The Company shall hold the City
harmless for any premiums due, amounts of deductible, or claims under such policy(ies).
(2) Recovery by the City under insurance shall not limit the Company’s duty to
hold the City harmless for its construction, maintenance and operations as set forth
herein. Recovery by the City under insurance is in addition to all other rights of the City,
whether specified in this Ordinance or as otherwise authorized by law. Such insurance
policy(ies) may not be suspended, voided, canceled by either party, or reduced in
coverage or limits, except after sixty (60) days prior written notice bas been received by
the City. If the Company proposes to suspend, void or cancel such insurance previously
approved by the City, unless the City expressly waives its right under this subsection (e),
this Agreement may be terminated at the sole discretion of the City.
(f) Reimburse the City for costs and expenses for proposed transfer of this Agreement.
At the City’s option, the Company shall pay in advance or reimburse the City for expenses
incurred with respect to any proposed transfer of this Agreement, including, without limitation,
attorney’s fees, consultant’s fees, publication of notices and ordinances, and copying of
documents in connection with a proposed transfer of this Agreement. In addition, the Company
shall pay to the City the actual administrative expenses incurred by the City which are directly
related to actions taken by the Company for any such transfer of this Agreement. As such
administrative expenses and costs are incurred, the City shall bill the Company and the
Company shall make payment to the City within thirty (30) days of receipt of such statement.
(g) File and maintain a local emergency response plan.
(1) The Company shall prepare and file with the Brookings Fire Department those
portions of its an emergency management plan applicable to the City and County of
Brookings for responding to any emergency condition. The plan shall designate
responsible officials and emergency 24-hour on-call personnel and shall describe the
procedures to be followed when responding to an emergency. After being notified of an
emergency by the City, the Company shall cooperate with the City and make every
effort to respond as quickly as possible with actions to minimize damage and to protect
the health and safety of the public and/or property.
(2) The Company shall ensure that Company meters facilities which can be used
to shut off service at the meter are accessible to the City public safety personnel forces
in time of an emergency at no cost to the City. To the extent existing facilities are not so
accessible, the Company either shall immediately relocate or require the customer to
relocate its inaccessible meter at no cost to the City, at its sole cost and expense such
equipment to make it accessible or shall reach agreement with the City on a reasonable
schedule for such relocation.
(h) Provide safe and efficient services to the City.
(1) During the term of this Agreement, the Company shall provide services to
meet the reasonable demands of the City and the consumers located within the City
limits without discrimination. The Company shall acquire, construct, maintain, equip,
and operate all necessary Company facilities to provide such services as set forth in this
Section. The Company shall not curtail services to the City or to its consumers except in
compliance with a curtailment plan filed and approved by Public Utilities Commission.
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City of Brookings
37
(2) The Company promptly shall make any extension of Company facilities as
may be necessary to service one or more current or potential consumers, provided that
if the anticipated revenues to be derived from such extension shall not afford a
reasonable return of the cost of providing and rendering service by the Company, the
Company may decline to make such extension unless the consumer(s) to be served by
such an extension submit(s) cash advances, minimum guarantees, service guarantees or
other arrangements as will enable the Company to earn a reasonable return of its costs
of providing such
services.
Sec. 6. Duties of the City.
(a) Maintain City property. The City shall maintain its property in a sufficient condition
that does not prevent the Company from performing its duties and obligations under this
Agreement. If any City property is causing substantial adverse impact on Company facilities
covered by this Agreement, upon written notice from the Company, the City will take
reasonable steps to resolve such adverse impact.
(b) Payment to City of charges for Company services. The City shall pay all reasonable
charges for services provided to the City by the Company.
Sec. 7. Term.
(a) Term of Ordinance Franchise Agreement. The term of the Agreement under this
Ordinance is will be ten (10) years from and after the effective date hereof, provided that
neither the Company nor the City shall be bound by the provisions herein until the Company
has filed with the City its written acceptance of this arrangement as provided in Section 8
below.
(b) Termination.
(1) If the Company shall fail to comply with any provision of this Agreement, the
City may serve on the Company a written order to so comply within sixty (60) days from
the date of the order. If the Company is not in compliance after expiration of that
designated time period, the City may, after affording the Company a reasonable
opportunity to be heard, declare an immediate breach and forfeiture of this Agreement;
provided, however, that if any failure to comply cannot with reasonable and appropriate
efforts by the Company be corrected within the designated time period, the City may
extend that period upon appropriate representations and assurances by the Company
that corrections are being made. Such extension will not be considered or deemed a
waiver by the City of any such lack of compliance. The City may allow continuation of
this Agreement for as long as the City deems appropriate, despite a breach or forfeiture
as described herein, in order to ensure continuation of service to consumers; such
continuation of the arrangement will not be deemed a waiver of the City’s claim of a
breach or forfeiture.
(2) Nothing in this Agreement shall limit or restrict any legal rights that the City
may possess arising from any alleged violation of this Agreement.
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City of Brookings
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Sec. 8. General Conditions.
(a) Indemnification and hold harmless. The Company agrees to protect, hold harmless,
and indemnify the City (including its officers, agents, contractors, and employees) from and
against all claims, losses, damages, causes of action, suits and liability of every kind, which may
occur to, or be suffered by, any person or persons, corporation, or property by reason of any
act or failure to act on the part of the Company. In case suit or action is brought against the City
for damages arising out of or by reason of the above-mentioned causes, the Company shall,
upon notice to it of the commencement of said action against the City, defend the same at its
sole cost and expense, and hold harmless and indemnify the City from any attorney’s fees and
costs of litigation incurred by the City in connection with the litigation. In case judgment shall
be rendered in such a suit or action against the City, the Company shall fully satisfy the
judgment within sixty (60) days after the suit or action shall have been finally determined, if
determined adversely to the City. If the Company shall fail to satisfy the judgment within the
designated time period set forth herein, this Agreement shall be deemed in breach and can be
terminated by the City under Section 7 of this Agreement hereof.
(b) Exception. The Company shall not be required to indemnify the City for negligence
on the part of the City or its officials, agents, or employees (hereinafter “such acts”). The City
shall hold the Company harmless for any damage resulting from any such acts of the City or its
officials, agents, or employees and for any such acts committed by the Company in connection
with action taken by the City and permitted by this Ordinance, on or adjacent to the Company’s
facilities.
(c) No waiver. Neither the City nor the Company shall be excused from complying with
any of the terms and conditions of this Agreement by any failure of the other (including its
affiliates, employers, or agents) to insist upon or seek compliance with any such term or
condition.
(d) No third-party rights. It is the express intent of the City and the Company that
neither this Agreement nor any of its provisions shall create any rights in third parties.
(e) Dispute resolution. In the event that there is any dispute between the City and the
Company arising by reason of this Agreement, the City and Company may, by mutual
agreement (both as to whether to hire and whom to hire) employ the services of technical
consultants as mediators. All reasonable fees of the consultants incurred by the City and the
Company in this regard shall be borne equally.
(f) Assignment, lease/sublease, and transfer.
(1) This Agreement may not be assigned or transferred without the express
written approval of the City, with such approval not unreasonably withheld;
except that the Company may freely assign this Agreement in whole or in part to a
parent, subsidiary or affiliated entity or as part of any internal corporate financing,
reorganization, or refinancing. Any proposed assignment which requires City approval
shall be submitted to the City together with written confirmation of the assignee’s
written acceptance of all terms and conditions of the Agreement and promise of
compliance. The City shall have ninety (90) days in which to approve in writing such a
proposed assignment before the proposed effective date of the assignment. In the
event of transfer or assignment in whole or in part to secure indebtedness, consent by
the City shall not be required. The Company shall promptly file with the City any such
January 8, 2013
City of Brookings
39
assignment or transfer which does not require prior City approval within thirty (30) days
of its effective date.
(2) The Company shall not lease or sublease any portion of its Company facilities
in the City limits without the express consent of the City.
(g) Company as independent contractor. When performing under this Agreement, the
Company’s status shall be that of an independent contractor and not an agent, servant,
employee or representative of the City in the performance of work pursuant to this Agreement.
No term or provision of this Agreement, or act of the Company (or its employees, contractors,
or subcontractors), shall be construed as changing that status.
(h) Modification of the Agreement. The City and the Company hereby reserve the right
to alter, amend or modify the terms and conditions of this Agreement upon written agreement
of both parties to such alteration, amendment or modification, and acceptance of such by the
City Council, if required.
(i) Notice.
(1) All notices, including communications and statements which are required or
permitted under the terms of this Agreement, shall be in writing and evidenced by
receipt, service of a notice may be accomplished by facsimile, personal service,
registered or certified mail (postage prepaid), or reputable daytime or overnight courier
service.
(2) Notices shall be sent to the parties at the following addresses:
City:
City of Brookings
Attn: City Manager
P.O. Box 270
Brookings, SD 57006
Tele: (605) 692-6281
Fax: (605) 692-6907
Company:
Northwestern Corporation
1232 – 22nd Ave. S.
P.O. Box 57
Brookings, SD 57006
Tele: (605) 692-6265
Fax: (605) 692-9108
(3) The City or the Company may designate a new address for itself for purpose
of notice hereunder by written notice to the other duly given as provided herein.
(j) Approval by City. The Agreement as set forth herein shall be approved by the City
Council before acceptance by the Company.
(k) Acceptance by the Company. Within sixty (60) days after approval and passage of
this Ordinance by the City, the Company shall file with the City Clerk an unconditional written
acceptance thereof. Failure of the Company to so accept this Agreement within said period of
time shall be deemed a rejection of this the Franchise Agreement by the Company, and the
rights and privileges granted herein (after the designated timed period for filing acceptance)
January 8, 2013
City of Brookings
40
shall absolutely cease and be forfeited and null and void as to the Company, unless the time
period for acceptance is extended by order of the City Council.
(l) Effective date. This Ordinance shall be in full force and effect from and after its
passage, approval by the City, acceptance by the Company, and legal publication as provided by
law.
Sec. 9. Miscellaneous.
(a) The headings of sections and subsections of this Ordinance are for convenience of
reference only and are not intended to restrict, affect, or be of any weight in the interpretation
or construction of the provisions of such sections or subsections.
(b) This Ordinance contains the entire agreement of the parties; and no other
Agreement (oral, written, or otherwise) regarding the subject matter of the Agreement shall be
deemed to exist or to bind the parties hereto. The Agreement may not be changed, modified,
discharged, or extended, except by written amendment, duly executed by the parties.
(c) If any term, condition, or provision of this Ordinance, to any extent, be held to be
invalid, illegal or unenforceable (referred to herein as an “impaired provision”) the remaining
terms, conditions and provisions shall remain valid in all other respects and continue to be
effective. With respect to the impaired provision, the City and the Company shall enter into
good faith negotiations and proceed with due diligence to draft a term, condition or provision
that will achieve the original intent of the parties hereunder. In the event of a subsequent
change in applicable, law so that the impaired provision is no longer impaired, and the impaired
provision has not been renegotiated by mutual agreement of the City and the Company, upon
reasonable notice by the City said provision shall thereupon return to full force and effect
without further action by the City and shall thereafter be binding on the Company and the City.
(d) Governing law: This Ordinance shall, in all respects be construed and interpreted in
accordance with the laws of the State of South Dakota.
II.
Any or all ordinances in conflict herewith are hereby repealed.
First Reading: January 8, 2012
Second Reading:
Published:
CITY OF BROOKINGS, SD
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
ACCEPTED: This Ordinance Franchise is accepted by Northwestern Corporation which agrees to
be bound by its terms and conditions.
NORTHWESTERN CORPORATION
Dated: __________________ By:
Its:
January 8, 2013
City of Brookings
43
Second Readings & Public Hearings
10. Public hearing and action on Resolution No. 03-13, a Resolution
authorizing city manager to sign on-off sale wine license operating
agreement for Carpy’s Pub, Roger & Verla Carpenter, Owners, 714 22nd
Ave. So., Brookings, SD (legal: E 77' 5" of the W145' and the N 32' 9" of
the S 655' and the E 30' of the W 137' of the N6’ of S 679' of Lot 2,
Brookings Mall Addition).
Roger and Verla Carpenter, owners of Carpy’s Pub, 714 22nd Ave. So., have applied for an
on-off sale Wine Alcohol license. A public hearing and action by the local governing body
is required for all new alcohol licenses. Additionally, an operating agreement is required
for wine licenses. Resolution No. 03-13 allows the City Manager to enter into the first
five years of the 10-year agreement effective through 2018. This license would be
effective January 1-December 31, 2013 and then subject to an annual renewal. If
approved, the application would be forwarded to the State Department of Revenue for
final action and issuance of the license. Staff recommends approval.
City Ordinances:
Listed below is Chapter 5, Article 2, Section 5-20 of the City Code of Ordinances pertaining to Application
Review Procedure. The City Council shall review all applications submitted to the City for available On-
Sale Alcoholic Beverage Agreements and for On-Sale Malt Beverage and Wine Licenses in accordance with
SDCL 35-2 and in accordance with the following factors:
a) Type of business which applicant proposes to operate: On-Sale Alcoholic Beverage Operating
Agreements and On-Sale Malt Beverage and Wine Licenses may not be issued to convenience
grocery stores, gas stations, or other stores where groceries or gasoline are sold unless it can be
established that minors do not regularly frequent the establishment.
b) The manner in which the business is operated: On-Sale Alcoholic Beverage Operating
Agreements and On-Sale Malt Beverage and Wine Licenses may not be issued to establishments
which are operated in a manner which results in minors regularly frequenting the establishment.
c) The extent to which minors are employed in such a place of business: On-Sale Alcoholic Beverage
Operating Agreements and On-Sale Malt Beverage and Wine Licenses may not be issued to
convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold and
which regularly employ minors.
d) The adequacy of the police facilities to properly police the proposed location: The City
Council shall inquire of the Police Chief whether the Police Department can adequately police the
proposed location.
e) Other factors: The hours that business is conducted shall be considered by the City Council in its
review of applications for on-sale alcoholic beverage operating agreements and on-sale malt
beverage and wine licenses.
City Manager Introduction
Action: Open & Close Public Hearing, Motion to Approve, Roll Call
January 8, 2013
City of Brookings
44
Resolution No. 03-13
Carpy’s Pub
Wine Operating Agreement
Be It Resolved by the City of Brookings, South Dakota, that the City Council hereby approves a
Lease Agreement for the Operating Liquor Management Agreement for wine between the City
of Brookings and Carpy’s Pub, 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 714 22nd Ave. So.
Be It Further Resolved that the City Manager be authorized to execute the Agreement on behalf
of the City, which shall be for a period of five (5) years and renewal for another five (5) years.
Passed and approved this 8th day of January, 2013.
CITY OF BROOKINGS
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
January 8, 2013
City of Brookings
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Other Business
11. Update on 20th Street South & Main Avenue South Signal Project.
The South Dakota Department of Transportation (SDDOT) has programmed the signal
project for Main Avenue South and 20th Street South for construction. The Brookings
City Council adopted Resolution No. 119-12 authorizing the mayor to sign the funding
agreement for the project. The project is currently being designed by the engineering
firm HDR in Sioux Falls. Originally, the signal project at this intersection was going to be
constructed after the intersection was reconstructed with either the 20th Street South
reconstruction project or the Main Avenue South reconstruction project. Both of these
street reconstruction projects have been delayed due to funding issues. City staff has
discussed the possibility of constructing the signal project in advance of these two street
projects. This would require an update to the scope and an amendment to the SDDOT
agreement since the project would involve pavement and radius replacement. A draft
layout of the intersection is included. Staff will provide an update on this option.
Action: Informational
January 8, 2013
City of Brookings
47
Other Business
12. 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.
January 8, 2013
City of Brookings
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13. Adjourn.