HomeMy WebLinkAbout2012_09_18 CC PKT1
Brookings City Council
Tuesday, September 18, 2012
5:00 p.m. Study Session
Brookings City & County Government Center
Community Room, Room 300
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.
1. Staff Updates:
A. Traffic at 17th Avenue and 12th Street near Mickelson Middle School (10 minutes)
B. Dogs-at-Large (10 minutes)
C. Brookings Municipal Utilities 2nd Quarter Financial Report (20 minutes)
General topics that staff needs to communicate to Council on, but do not need a full discussion or feedback
from Council; a brief written update is sufficient. However, if requested, update can be moved to discussion
agenda.
2. Discussion Agenda Topics
A. Resolution No. 109-12 - Design Build Procedures
- Staff presentation
- Council Questions/Discussion
- Item to return to Council for consideration or adoption at later date
- Estimated time: 20 minutes
B. Introduction to Hegg Companies and discussion of a preliminary MOU for a hotel
and conference center
- Staff presentation
- Council Questions/Discussion
- Item to return to Council for consideration or adoption at later date
- Estimated time: 45 minutes
C. Liquor Operating Agreement Review
- Staff presentation
- Council Questions/Discussion
- Item to return to Council for consideration or adoption at later date
- Estimated time: 4 hours
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September 18, 2012
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3. Council Reports:
A. Ex-Officio Reports
B. Joint Powers Board
4. Identify topics for future study sessions (motion required)
5. Adjournment
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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September 18, 2012
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STAFF UPDATES
1A. Traffic at 17th Avenue and 12th Street near Mickelson Middle School
The traffic at the intersection of 17th Avenue South and 12th Street South has been
monitored and discussed by City staff since the Mickelson Middle School was
constructed, especially during peak school-related times such as approximately 8:00 AM
and 3:20 PM. The Brookings School administration office has tried various traffic
configurations through the parking lot, and have had the current route for several years.
The current entrance into the parking lot is off 17th Avenue South and the parking lot
exit is onto 12th Street South. The school recently closed their south driveway access off
17th Avenue South.
The City included a special analysis of the intersection of 12th Street So. / 17th Avenue in
the 2010 Brookings Area Master Transportation Plan because of public comments
received in conjunction with the study survey of public opinion. There were several
comments indicating excessive delays and potential safety problems at this location.
The Transportation Plan stated an observation at the site showed there were
considerable traffic backups during the morning and afternoon travel periods for the
adjacent middle school and nearby intermediate school. The locations of the schools
result in nearly every driver traveling to either school passing through the all-way stop
intersection at 12th Street South and 17th Avenue South. The intersection is also a
pedestrian crossing for students and is staffed by a crossing guard. The Transportation
Plan listed the signalization of this intersection as a short-term project. The signal
project is currently under design by HDR of Sioux Falls, and the project is scheduled for
construction in 2013 as a State Urban STP project. The City is anticipating the signal will
be programmed to move vehicles as efficiently as possible through the intersection.
However, there may still be traffic delays due to the volume of vehicles passing through
the intersection during peak times. A map of the intersection is attached.
Estimated time: 10 minutes
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September 18, 2012
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STAFF UPDATES
1B. Dogs-at-Large
ORDINANCE NO. 32-08
ARTICLE IV. DOGS AND CATS
Division 1. Generally
Sec. 14-121. Dogs running at large.
It shall be unlawful for any person to permit or allow a dog to run at large within the city. All
dogs shall be restrained in such a manner so they cannot run at large within the city.
Sec. 14-122. Impoundment of dogs.
The animal control officer may impound any dog which is at large if the owner or caretaker of
the dog cannot be located or is not available to take immediate possession of the dog. For purposes of
this section, a dog is considered at large if it is not on a leash and is either off its owner’s or caretaker’s
premises or is upon or returns to its owner's or caretaker’s premises and its owner or caretaker is not
present at such premises at such time.
Sec. 14-123. Disturbance of the peace.
(a) The owner or caretaker of an animal shall not allow the animal to create a disturbance by
making loud continuous noises at any time of the day or night.
(b) Any animal control or police officer may remove and impound any animal which is disturbing
the peace when the owner or caretaker of the animal cannot be located. If an animal control
or police officer removes an animal because of a disturbance, and the owner or caretaker
cannot be located, a notice advising the owner or caretaker of the impoundment and
complaint shall be left on the premises of the owner or caretaker.
Sec. 14-124. Emergency confinement.
An animal control officer or the police chief, in an emergency, may order that all dogs and cats
in the city shall be confined in such a manner as to make it impossible for such dogs and cats to bite any
person, dog, cat or other animal. A statement declaring the confinement order shall be issued to all local
news media and shall require confinement of all dogs and cats upon 24 hours' notice.
Sec. 14-125. Defecation disposal.
No owner, keeper, caretaker or attendant of a dog or cat shall allow that animal to defecate on
public or private property other than their own. If such dog or cat does defecate upon such public or
private property, the owner, keeper, caretaker or attendant shall immediately clean the fecal material
from such public or private property. Public property shall include any park in the city.
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September 18, 2012
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Sec. 14-126. Vicious or biting dogs.
(a) An animal may be declared to be a biting, dangerous or vicious animal by at least two (2)
persons which may include law enforcement and animal control officers, utility personnel or
veterinarians, or by the attending physician of a victim of an animal bite or scratch may request such
declaration under the following guidelines:
(1) An animal which, in a vicious or aggressive manner, approaches in an apparent attitude
of attack, or bites, inflicts injury, assaults or otherwise attacks a person or other animal
upon the streets, sidewalks or any public grounds, parks or places; or
(2) An animal, while on private property, approaches in a vicious or aggressive manner, in an
apparent attitude of attack, or bites, or inflicts injury, or otherwise attacks a postal
worker, meter reader, service person, journeyman, delivery person, or other such
person, or other animal, provided such person or animal is on private property by reason
of permission of the owner or occupant of such property or who is on private property
by reason of a course of dealing with the owner or occupant of such private property.
(3) No animal may be declared biting, dangerous or vicious if the injury or damage is
sustained to any person or animal who is committing a willful trespass or is not
authorized to be upon the premises occupied by the owner or caretaker of the animal,
or who is teasing, tormenting, abusing or assaulting the animal or was committing or
attempting to commit a crime.
The following conditions shall also be considered:
(i) The nature or severity of the attack or bite.
(ii) Whether the dog has shown a propensity to display dangerously aggressive behavior
and is able or likely to inflict injury to another animal or person.
(iii) Previous incidents of a similar nature.
(b) When the animal in question is declared to be biting, dangerous or vicious, an animal control
officer shall notify the owner of such declaration in writing that such animal must be registered as a
biting, dangerous or vicious animal. The notice shall be served either in person or by mail.
(c) The owner or caretaker of an animal that has been declared biting, dangerous or vicious shall
register the dog as a biting, dangerous or vicious animal and shall comply with the following:
(1) The owner or caretaker of the animal shall notify the city animal control department of
any changes in the following:
(i) Ownership of the dog;
(ii) Name, address and telephone number of a new owner;
(iii) Address change of the owner or any change of where the dog is housed;
(iv) Any changes in the health status of the animal; and
(v) Death of the animal.
(2) If the dog is indoors, the dog shall be in control of a person over 18 years old.
(3) If the dog is outdoors and attended, the dog shall be muzzled, on a leash no longer than
six (6) feet and under control of a person over 18 years of age.
(4) If the dog is outdoors and unattended, the dog must be locked in an escape proof kennel
approved by the city animal control department.
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(5) The owner shall present proof of current rabies vaccination and current city license of
the dog to the animal control department and shall be required in the future to maintain
current and up to date rabies vaccination and license.
(6) The owner shall present proof the dog has been altered to prevent reproduction to
animal control.
(d) The biting, dangerous or vicious dog shall be impounded by the city animal control
department for a period of no longer than thirty (30) days at the owner’s expense until such time as all
provisions of subsection (c) are fully performed.
(e) If the conditions of subsection (c) are not fully performed, within the thirty (30) days allowed,
the dog shall be euthanized in a humane manner and proof of euthanasia filed with animal control.
(f) Any biting, dangerous or vicious dog found off the premises of its owner, other than provided
for in this article, shall be seized by an animal control officer, any police officer or any sheriff’s deputy
and impounded. If the dog cannot be captured, it may be destroyed. If the dog has been running at large,
or bites a person, or bites another animal, the animal control officer, any police officer or any sheriff’s
deputy may order the owner to deliver the dog to the city animal shelter within twenty-four (24) hours
and the owner required to appear in court to show cause why the dog shall not be destroyed. If the
owner of the dog fails to deliver the dog as ordered, an animal control officer, any police officer or
sheriff’s deputy shall use such means necessary to impound the dog.
Sec. 14-127. Guard dogs.
(a) Designation. The owner or caretaker of a dog whose purpose is to guard and protect
property must designate that their dog is a guard dog at the time of obtaining a city dog license.
(b) Signs. It shall be the responsibility of the owner or caretaker of a guard dog to post
appropriate warning signs indicating that there is a guard dog upon the premises.
(c) Confinement. The guard dog shall be confined to the premises protected by such dog.
Division 2. Licensing Requirements
Sec. 14-151. Required.
It shall be unlawful for any person within the city to keep, maintain or have in their custody or
under their control any dog or cat which is over the age of three months, without first having obtained a
license for the dog or cat from an authorized agent of the city.
Sec. 14-152. Application.
Any person desiring to keep, maintain or have in their custody or control within the city, any dog or
cat, shall on or before December 31st of each year make an application to an authorized agent of the city for a
license to keep such dog or cat. Such application shall be in writing, stating the name, sex, color and other
distinguishing characteristics (e.g., such as guard dog) of such dog or cat and the name of the owner or
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caretaker thereof, which application shall be made on a printed form furnished by an authorized agent and
shall be filed with an authorized agent.
Sec. 14-153. Rabies vaccination required.
No dog or cat license tag shall be issued to any owner or caretaker of any dog or cat who does not
present to an authorized agent at the time of making application for such license, a certificate of vaccination
against rabies by a veterinarian duly licensed to practice veterinary medicine within any State. The certificate
must show the date of such vaccination and shall state the period of time for which the dog or cat is
effectively immunized, which period of immunization shall be for at least one year from the date of issuance
of the license tag.
Sec. 14-154. Fee.
Before any license may be issued under the provisions of this article, the applicant shall pay to
an authorized agent a fee for each dog or cat to be licensed. The annual fee for such license shall be
determined from time to time by resolution of the city council which shall be on file in city hall.
Sec. 14-155. Authorized agent's fee.
If the license fee shall be collected by a veterinarian so authorized by the city, the veterinarian
may charge an additional fee in the amount established by resolution of the city for their services in
issuing such license.
Sec. 14-156. Issuance of tag.
It shall be the duty of an authorized agent of the city, at the time of issuance of the license
provided in this division, to furnish and deliver to such applicant a tag for each dog or cat for which such
license is issued, upon which tag shall be stamped or engraved the registered number of the dog or cat
and the year for which such license is issued.
Sec. 14-157. Dog or cat to wear tag.
It shall be the duty of the owner or keeper of any dog or cat to place a collar around the neck of
each dog or cat, on which collar shall be securely fastened the tag furnished by an authorized agent of
the city under the provisions of this article.
Sec. 14-158. Duplicate tag.
In the event of the loss of any tag issued under the provisions of this article, an authorized agent
of the city is authorized to issue a duplicate tag when application has been made stating the original tag
has been lost and payment of the actual cost of the duplicate tag has been made.
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Division 3. Impoundment and Redemption
Sec. 14-181. Notice to owner or caretaker.
The owner or caretaker of any dog or cat impounded under the provisions of this article shall be
notified that their dog or cat has been impounded within 24 hours if the owner's or caretaker’s identity
and location can be obtained by reasonable means.
Sec. 14-182. Impoundment fees.
Fees for the impoundment of any dog or cat shall be determined from time to time by
resolution of the city council, and such resolution shall be on file in the city clerk's office.
Sec. 14-183. Redemption of a dog or cat by owner or caretaker.
(a) The owner or caretaker of any impounded dog or cat, upon satisfactory proof of ownership,
may redeem their dog or cat upon payment of fees and charges as provided by resolution and upon
proof of a current rabies vaccination and city license.
(b) The owner or caretaker of any impounded dog or cat which has not been vaccinated or
licensed under this article may redeem their dog or cat by providing satisfactory proof of ownership and
by making a deposit in the amount established by resolution with an animal control officer. The owner
or caretaker shall be allowed five days to vaccinate and license such dog or cat. Upon presentation
within five days of a license issued under this article, the deposit shall be refunded.
(c) If such owner or caretaker fails to procure a certificate of vaccination and city license within
five days, the deposit shall be forfeited and delivered to the city clerk's office to be placed in the general
fund, and the dog or cat shall be reimpounded.
Sec. 14-184. Redemption by person other than owner or caretaker.
If the owner or caretaker of any dog or cat impounded under the provisions of this article shall
fail to redeem their dog or cat within five days after such impoundment, any other person may, upon
complying with the provisions of this article, redeem such dog or cat from the animal shelter and
become the lawful owner or caretaker of such dog or cat thereafter.
Sec. 14-185. Disposition.
All dogs and cats impounded under the provisions of this article and remaining unclaimed after
five days of impoundment, unless impounded for a longer specified time by order of an animal control
officer, may be placed for adoption or, without notice, disposed of by humane means by an animal
control officer.
Sec. 14-186. Alternate procedure.
If a dog or cat cannot be captured and the owner or caretaker is known to an animal control
officer, the animal control officer may issue a notice to the owner or caretaker that their dog or cat is in
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violation of this article, which notice shall state the violation date, time, location, breed and color of the
dog or cat, the license number, if known, and the name and address of the owner or caretaker of such
dog or cat, and such notice shall direct the owner or caretaker of such dog or cat to pay the
impoundment fees as provided in this article either by mail or in person to an animal control officer
within ten days of such notice. Failure to pay such fees shall constitute a violation of this article.
Sec. 14-187. Pickup and transportation fee.
A pickup and transportation fee shall be charged for every animal picked up from outside the
limits of the city and impounded at the animal shelter of the city.
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STAFF UPDATES
1C. Brookings Municipal Utilities 2nd Quarter Financial Report
Representatives of Brookings Municipal Utilities will provide the City Council and public
with a financial report and update on current and pending issues.
Estimated time: 20 minutes
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DISCUSSION AGENDA TOPICS
2A. Resolution No. 109-12 - Design Build Procedures
- Staff presentation
- Council Questions/Discussion
- Item to return to Council for consideration or adoption at later date
- Estimated time: 20 minutes
State law authorizes municipalities to utilize a design-build procedure for certain types
of specialized equipment, buildings, and structures where the traditional method of
contracting with architects or engineers and then bidding the construction may not be
practical. Under the design-build method, the design and construction process are
wrapped together with one vendor providing all services and the project is bid as such.
This method is particularly applicable for specialized structures and equipment that may
be atypical. What’s more, this method works well for projects that may be supplied by
vendors, but can be modified or adapted to meet the specific needs of the customer,
and thus, need some elements of design.
Before a municipality can utilize this method, it must first adopt procedures for its use.
State law is very specific in identifying components of such procedures. The attached
resolution promulgates such procedures.
The reason the City of Brookings would like to have these procedures in place is that we
have a project in the CIP well-suited for this method of procurement and would like to
utilize it. It is the fall protection cable system above the grid in the ceiling of the Swiftel
Center Arena. This is needed to avoid the current practice of riggers shimming and tying
off on the beams when positioning stage and lighting equipment. It is estimated at
$75,000 and was pushed back from the 2011 budget. We believe this is a basic safety
and liability issue which needs to be addressed.
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September 18, 2012
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Resolution No. 109-12
A Resolution Establishing Procedures for City of Brookings Design-Build Procurement
Be It Resolved by the City Council of the City of Brookings, South Dakota as follows:
Purpose
In order to comply with State law requirements for design-build procurements, the City of
Brookings adopts these procedures and will select design-build firms to provide combined
design and construction services for authorized projects in accordance with the following
procedures:
Definitions
For purposes of these procedures, the following definitions apply:
1. “City” means the City of Brookings.
2. “Department” is defined as any department of the City of Brookings, including the Swiftel
Center.
3. “Firm” is defined as any individual, firm, partnership, corporation, association, joint venture,
or other legal entity permitted by law to practice engineering, architecture or construction
contracting in the State of South Dakota.
4. “Project” is defined as that project described in the public announcement.
Minimum Qualification Requirements for Firms Providing Design-Build Services
Design-builders shall be registered with the Department of Revenue prior to contract award.
Where required by State law, the design-builder shall be able to provide design or construction
services by licensed or registered individuals.
Public Announcement Procedures
Except in emergency situations, the Department will publish an announcement in accordance
with SDCL §5-18B-1. The announcement will set forth a general description of the project
requiring design-build services and will define the time frame and procedures for interested
qualified firms to apply for consideration. The public announcement will further state whether
design-builders will be pre-qualified for the project.
Technical Review Committee
There will be a Technical Review Committee (Committee) comprised of the following:
1. The City Engineer, or their designee;
2. Representatives of the Department of the City involved in the design-build procurement
project.
The Committee will have the responsibility to determine the most qualified offerors as provided
in “Qualification of Design-Builders”, as well as the responsibility to rate any rating Proposals
received, as provided in “Competitive Selection of Design-Build Services”.
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Criteria Package and Request for Proposals
(1) The City will prepare a criteria package. The criteria developer may be either a private
practitioner (selected in accordance with the City’s procedures for selecting design firms) or the
criteria developer may be a staff member of the City. The criteria developer is prohibited from
being part of the bidding entity. The criteria package may include the following:
• Scope of work;
• Site survey (if necessary);
• Material quality standards;
• Conceptual design criteria;
• Design and construction schedules;
• Site development requirements;
• Stipulation of responsibilities for permits;
• Stipulation of responsibility for meeting any environmental regulations;
• Soil borings and geo-technical information (if necessary);
• Traffic control stipulations;
• Performance specifications; and
• Statement of required compliance with codes and general technical specifications.
(2) The purpose of the criteria package is to furnish sufficient information for firms to prepare
qualitative proposals and price proposals. The firm submitting the successful proposal shall
develop a detailed project design based on the criteria in the criteria package. Moreover, the
firm shall construct the improvement in accordance with the criteria package.
(3) The Request for Proposals ("RFP") shall consist of the Criteria Package, Instructions to
Bidders, Bid proposal forms, provisions for contracts, general and special conditions, and basis
for evaluation of proposals.
Qualification of Design-Builders
(1) The City will qualify design-builders on a project-by-project basis.
(2) The City will advertise in accordance with SDCL § 5-18B-1 for a Request for Qualifications
(“RFQ”). The RFQ shall contain the following:
• a general description of the project;
• a description of the areas of qualification required for performance of the work, such as
experience, management resources, and financial capability;
• the basis upon which the most qualified offerors will be determined; and
• any other requirements the City deems necessary.
Firms desiring to submit proposals on the design-build project shall submit a Statement of
Qualifications setting forth the qualifications of the entities involved in the firm and providing
any other information required by the RFQ.
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(3) The Committee shall determine the relative ability of each Design-Build bidding entity to
perform the services required for each project. The Committee shall base its determination
upon the following:
• Experience with comparable projects;
• Financial capacity;
• Managerial resources;
• The abilities of the professional personnel;
• Past performance;
• Capacity to meet time and budget requirements;
• Knowledge of local or regional conditions;
• Recent and current project workload;
• The ability of the design and construction teams to complete the work in a timely and
satisfactory manner; and
• Any Pre-qualification forms submitted by the entity.
(4) The Committee shall select at least three and no more than five firms deemed to be most
highly qualified to perform the required services, after considering the factors in (3) above. The
Committee will report its selection of most highly qualified firms to the City Manager. The
minimum number of pre-qualified design-builders is not required for any improvement project
that is complex in nature, requires close coordination of design and reconstruction, or new
construction (SDCL §5-18B-29).
(5) The City Manager or their designee shall issue RFP’s to the most highly qualified firms
selected by the Committee.
Competitive Selection of Design-Build Services
(1) Each firm submitting a proposal shall submit a Qualitative Proposal and a Price Proposal.
Only firms receiving an RFP may submit proposals. Proposals shall be segmented into two
packages;
Qualitative Proposal. A qualitative proposal shall include preliminary design
drawings, outline specifications, technical reports, calculations, permit
requirements, management plan, schedule, and other data requested in
response to the RFP. Qualitative proposals shall be submitted in a sealed
package, which identifies the project and the design-builder on the outside of
the package. Each firm shall place the words “QUALITATIVE PROPOSAL” on the
outside of the package. Nothing contained in the qualitative package, except the
project management plan set forth below shall identify the design-builder. The
project management plan shall be submitted in a separate envelope within the
qualitative proposal package.
Price Proposal. Price proposals shall include one lump sum cost for all design and
construction of the proposed project. Each firm shall submit its price proposal in
a separate sealed package. Each firm shall place the words “PRICE PROPOSAL” on
the outside of the package. Each firm shall also place its name, the project
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description, and any other information required by the RFP on the outside of the
package. The City shall retain unopened the Price Proposals until the time
provided in “Best Value Selection” set forth below.
(2) Each qualitative proposal shall be assigned a number by the staff member responsible for
the project. The proposal, with the exception of the Project Management Plan, shall be
submitted to each member of the Committee with only the assigned number to identify the
design-builder (it is intended that the Committee members not know the identity of the design-
builder during the review and scoring of the technical and scheduling aspects of the packages).
The Project Management Plan shall be submitted to the Committee members for review and
scoring only after they have turned in their scores for the other portions of the qualitative
proposal. The Committee members shall review the design concepts, preliminary designs and
technical data submitted by each firm. Prior to issuing their ratings, the Committee members
may consult with each other and with any Consultant hired by the City to assist with the design-
build procurement process. The Committee members shall then independently rate each firm’s
proposal based upon criteria established by the Committee for the project. The criteria may
include the following format example, but shall be adjusted for the particular characteristics of
the project prior to the advertisement of the RFP:
EXAMPLE
1. Technical Criteria Maximum Score: 65
2. Project-specific Management Plan Maximum Score: 20
A. Management Plan and Organization
B. Resumes of Key Professional and Managerial Personnel
C. Quality Assurance Plan
D. Safety Plan
E. Minority and Disadvantaged Business Participation Plan
3. Project Schedule Maximum Score: 15
A. Construction Schedule and Ability to Meet Schedule
B. Architecture and Engineering Design Schedule and Ability to Meet
Schedule
C. Length of Construction and Design Schedule
Total Maximum Score: 100
(3) The Committee may adjust and refine all of the above criteria and the points assigned to
each based on the project type and the City’s experience. The Committee may reduce the
weight of management criteria or omit it entirely if it is sufficiently determinative in selection of
the most qualified offerors under “Qualification of Design-Builders”. The Committee may omit
the Firm’s Scheduling (current project workload) as criteria when a firm project deadline is a
fixed requirement in the RFP.
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(4) The Committee members shall, without conferring with one another, submit their criteria
scores for each design-builder to the City Manager. The City Manager or their designee will
average the scores of the Committee members for each design-builder to arrive at a single
score for each design-builder.
Best Value Selection and Award for Design-Build Services
(1) The City Manager or their designee will set a date for publicly opening the price proposals,
and shall notify all firms submitting price proposals at least seven calendar days prior to the
opening date. The notification shall include the date, time, and place of the opening of price
proposals and date for award of the project.
(2) The City Manager or their designee will publicly open the sealed price proposals and divide
each firm’s proposed price by the qualitative score after converting the qualitative score to a
percentage (i.e. 90 x .01 = 90%) given by the Committee to obtain an "adjusted price". The firm
selected will be that firm whose adjusted price is lowest. An example of the "best value"
selection formula follows:
Firm Qualitative Score Proposed Price Adjusted Price
A 90 $6.9 $7.67
B 79 $6.3 $7.97
C 84 $6.8 $8.09
(Award to Firm A at $6.9)
(3) Instead of requiring Qualitative Proposals and Price Proposals, the City may establish a fixed
dollar budget for the design-build project in the RFP. With a fixed price established for all
proposers, each firm would submit only Qualitative Proposals. The City would award the project
to the firm receiving the highest qualitative score.
(4) The City reserves the right to reject all proposals. The City will either reject all proposals or
approve an award to the firm with the lowest adjusted price. The City Manager or their
designee will notify all proposers in writing of the City’s intent to enter into a contract with that
firm.
(5) The City shall enter into a contract with the firm selected as provided above.
Negotiated Changes and Preservation of Confidential Information
The procedures for negotiations between the City of Brookings and those submitting proposals
prior to the acceptance of a proposal are as follows:
At the time of the award, the City may negotiate minor changes for the purpose of clarifying
the design criteria and work to be done, provided that the negotiated changes do not affect
the ranking of the proposals based on their adjusted score.
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The procedures shall also contain safeguards to preserve confidential information and
proprietary information supplied by those submitting proposals consistent with §5-18B-34,
which are as follows:
Until a proposal is accepted, the drawings, specifications, and other information in the
proposal remain the property of the person making the proposal. The City will make
reasonable efforts to maintain the secrecy and confidentiality of any proposal and all
information contained in any proposal and the City will not disclose any proposal or the
information contained in a proposal to the design-builder’s competitors. The City will not
disclose, except as may be permitted pursuant to Chapter 1-27, confidential and proprietary
information contained in any proposal to the public until such time as the City takes final
action to accept a proposal.
Emergency Procedures
The procedures for awarding design-build contracts in the event of public emergencies as
defined in § 5-18A-9 are as follows:
The City may make an emergency procurement without advertising the procurement if
there exists a threat to public health, welfare, or safety or for other urgent and compelling
reasons. An emergency procurement will be made with such competition as is practicable
under the circumstances. A written determination of the basis for the emergency and for
the selection of the particular contractor will be included in the contract file.
Formal Protests to Solicitation or Award
The procedures for acting on formal protests relating to the solicitation or award of design-build
contracts are as follows:
Any person aggrieved or interested may appeal to the City Manager at any time within
twenty days after a decision to enter into a contract by providing notice of a formal
objection by First Class Mail to the City of Brookings, directed to the City Manager. The
notice shall state the decision being appealed and shall ask for a hearing. Upon receiving the
notice, the City Manager shall call a meeting to include the City Manager, City Engineer, City
Attorney and the Department member involved in the design-build project. This Appeal
Board shall consider the appeal, make a decision and give notice to the party filing the
notice of objection. The decision shall be submitted to the City Council for approval and if
approved, will be carried out accordingly.
Passed and approved on the day of , 2012.
CITY OF BROOKINGS:
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
City of Brookings
September 18, 2012
19
Memorandum
To: Mayor and Council Members, Jeff Weldon, City Manager and Shari Thornes, City Clerk
From: Steven J. Britzman, City Attorney
Date: September 11, 2012
Re: Design-Build Procedure/Background Information
I am attaching a short Flowchart which summarizes in general terms the design-build
procedure. This memo will provide additional information to explain the Resolution Establishing
Procedures for City of Brookings Design-Build Procurement.
In 2010, the State legislature updated the State “bid laws”, including the traditional bidding
procedures where construction specifications are developed by the City and its
architect/engineers, with the City then advertising for sealed bids from construction firms. This
is the traditional bidding method which the City will certainly continue to use for most of its
projects.
Design-Build is an alternative “procurement” procedure, which has been authorized for use by
cities for many years, but used primarily by the State of South Dakota and to a much lesser
extent by cities. Swiftel Center staff have identified a type of unique project which may be best
suited for design-build. The project is a “fall protection system” which basically is a system
attached to upper portions of the Swiftel Center to allow workers safe access to work below the
catwalk system when they are attaching apparatus for an event or concert. Each company
supplying and installing this type of system has their own design, and because few companies
are in this type of business, and engineers, such as Banner don’t work with this specialized type
of specification, it seems suited to a type of project procurement where the design work and
the construction are provided by the same company. Design-build allows these specialized
companies to provide their own design and construction which will be compatible, and should
bring together a better overall project than if the prospective bidders were required to work
from one set of specifications.
Design-Build allows the City to offer the project to a small number of qualified firms, with the
City evaluating both the quality of the proposals and the price to select the best value. The best
valued project may not be the lowest bidder and State law permits the city to select the best
“qualitative” proposal, which includes both quality and price. This type of procedure would not
necessarily be used for street projects or more conventional projects, but seems to be suited for
a forthcoming Swiftel project involving the “fall protection system”.
Finally, in order to use design-build, State law requires a City to first adopt the design- build
procedures it will use for all of its design-build project procurement. This allows the public and
interested parties to familiarize themselves with the design-build procedures so they are
prepared in advance should they desire to participate in a future design-build procurement
process.
City of Brookings
September 18, 2012
20
The Resolution I prepared is modeled after the State of South Dakota’s Bureau of Administration
design-build procedures, and covers a number of areas required by State law. It includes
examples of how the quality of a proposal is measured and how the price is considered, with
the combined quality and price resulting in the selection of the firm with the proposal of the
highest overall quality.
The Council, in selecting the successful firm, would be required to select the firm receiving the
highest qualitative score, but this selection would not necessarily be the lowest bidder, because
the quality of the firm, as measured against the City’s selection criteria, would be incorporated
into the selection. The City would continue to use all other bid laws to the extent such laws are
compatible with a design-build project. The City would continue to reserve the right to reject
any and all proposals.
City of Brookings
September 18, 2012
21
City of Brookings Design-Build Procedural Flowchart
1
Design-Build is a method of contracting for services where the “design” and the
“construction” of a project are provided by one firm/bidder, as compared with the
traditional method where the design and development of specifications are completed
by a design firm and then offered to interested bidders for construction.
2
The first step, as required by State law, is for the City to establish procedure (by
Resolution) for the use of the design-build method of bidding. The document entitled
Resolution Establishing Procedures for the City of Brookings Design-Build Procurement
satisfies this requirement.
3
The City, through staff, develops the criteria to be used to select the successful bidder
for the project. This criteria will yield both a qualitative score and a price, with both
quality and price to be evaluated for the best overall value.
4
The City, before using design-build for a particular project, must make a determination
that a design-build project will meet one or more of the following criteria:
(a) The purchasing agency requires a project design and construction time line
that is faster than the traditional design/bid/build process would allow;
(b) The complexity of the project requires close coordination of design and
construction expertise or an extreme amount of coordination;
(c) The purchasing agency requires early cost commitment; or
(d) The project can be defined at an early stage and the purchasing agency is
able to specify all requirements.
The City issues a Request for Proposals to at least 3 qualified firms.
5
Each firm which is interested in bidding submits a deposit or bond, a Proposal, which
includes its design “specs” and a Price it requires to be paid to complete the project.
6
City staff members evaluate the proposals using the City’s selection criteria, and the City
Manager recommends to the City Council for approval, the firm which receives the
highest score, or in other words, which offers the Best Value, based on a combination of
the quality of their proposal and the price.
City of Brookings
September 18, 2012
22
DISCUSSION AGENDA TOPICS
2C. Introduction to Hegg Companies and discussion of a preliminary
MOU for a hotel and conference center.
- Staff presentation
- Council Questions/Discussion
- Item to return to Council for consideration or adoption at later date
- Estimated Time: 45 minutes
City of Brookings
September 18, 2012
26
MEMORANDUM OF UNDERSTANDING
BY AND BETWEEN
Party of the First Part: City of Brookings, South Dakota (CITY)
Party of the Second Part: Hegg Companies, Inc. and Prairieland Partners (DEVELOPER)
WHEREAS, the City is desirous of increasing tourism and visitor commerce through a targeted
strategy of increasing lodging options for visitors to the community, and
WHEREAS, the City recognizes that tourism and visitor promotion are specific components of a
comprehensive economic development strategy, and
WHEREAS, the City had made, and will continue to make significant annual financial
investments in many facets of tourism and visitor promotion toward the overall goal of
generating revenue for the public and private sectors of the community’s economy, and
WHEREAS, the City recognizes the quantity of lodging accommodations must keep pace with
the growth in tourism-related events for the continued support of such events, and that the
two considerations are currently not in equilibrium with a shortage of lodging, and
WHEREAS, the City wishes to correct such imbalance by promoting more lodging
accommodations, and
WHEREAS, the City solicited proposals from interested parties for creative public-private
partnerships that would result in the development of an upscale hotel for the City to address
this issue, and
WHEREAS, this solicitation process yielded one (1) response from the Hegg Companies,
Incorporated and Prairieland Partners, as a joint venture, and
WHEREAS, the Developer has determined the Brookings market to be suitable for a private
investment of a hotel and expanded conference and meeting facilities, and
WHEREAS, the City has determined the proposal, as submitted, met the requirements of the
Request for Qualifications and Proposal (RFQP); and that the proposal merits further
consideration subject to negotiations for an ultimately mutually-beneficial public-private
partnership that meets the economic development goals of both parties.
THEREFORE, it is hereby agreed by both parties to the terms and conditions of this
Memorandum of Understanding as stated in the following sections.
City of Brookings
September 18, 2012
27
SECTION 1: Purpose
The purpose of this Memorandum of Understanding shall be to prescribe overall goals and a
conceptual framework of the comprehensive terms and conditions that would eventually lead
to a mutually-beneficial economic development partnership between the parties. The
Memorandum of Understanding shall be used as a planning tool to facilitate further
negotiations and prescribe the necessary details eventually leading to a Development
Agreement, or contract, between the parties.
This Memorandum of Understanding shall further identify common goals and responsibilities.
It does not legally bind either party but represents a good faith effort by both parties to
negotiate and work diligently to achieve a mutually-favorable outcome. It further seeks to
identify and clarify certain terms, conditions, responsibilities, procedures, and resources, with
the goal to eventually finalize negotiations and complete the Development Agreement which
will become legally binding upon both parties.
SECTION 2: Project Description
2-1: Generally
DEVELOPER proposes to simultaneously construct a hotel and convention/conference center
adjacent to, and easterly of, the Swiftel Center (Blocks 5 and 6, Wiese Addition). The hotel shall
be in the range of 80-100 guest rooms and shall carry the franchise label of either Courtyard by
Marriott, Hilton Garden Inn, or similar quality branded property. The hotel will have a
restaurant with bar/lounge, fitness center, business center, and aquatic center. The conference
center shall be designed generally to be consistent with the proposed conference center
schematic design as described in the VenuWorks consultant study (2008) and the HVS
consultant study (2008) which were contracted on behalf of the CITY.
2-2: Lease-back arrangement of conference center
DEVELOPER proposes to lease the conference center to the CITY upon completion of
construction; and the CITY shall operate the conference center in conjunction with the Swiftel
Center as one, seamless contract through VenuWorks. The DEVELOPER further retains
ownership and operational responsibility for the hotel. The CITY, through VenuWorks, shall be
responsible for operations and management of the conference center including being entitled
to all revenues and responsible for all expenses.
2-3: Marketing and promotional cooperation
The DEVELOPER and CITY, through its contract with VenuWorks, agree to cooperatively market,
plan, and recruit customers and events for the services and amenities of the Swiftel Center and
the Hotel. Both parties shall work cooperatively with the Brookings Convention and Visitors
Bureau toward this goal.
City of Brookings
September 18, 2012
28
2-4: Architectural design
DEVELOPER shall be responsible for the design of the hotel. DEVELOPER and CITY shall jointly
and mutually cooperate in the design of the conference center; the concourse connection
between the hotel, conference center, and Swiftel Center; any remodeling of the existing
conference facilities of the Swiftel Center and County Resource Center; parking lots;
landscaping; utility improvements; drainage; and other site plan considerations. CITY and
DEVELOPER shall have common party-wall agreement for adjacency of buildings.
SECTION 3: Property Considerations
3-1: Property subdivision
CITY and DEVELOPER shall agree to a suitable subdivision of Block 5, Wiese Addition into
separate parcels containing the proposed hotel, the proposed conference center, and the
existing Swiftel Center. Consideration of parking lots will be incorporated into the three new
parcels. The process shall be with a preliminary plat prior to construction and a final plat at the
completion of construction for accuracy of property lines and building construction.
3-2: Re-zoning
CITY agrees to re-zone Block 5, Wiese Addition from B-4 (Highway Business) to PDD (Planned
Development District) to provide for regulatory consistency with intended use.
3-3: Site Plan requirements
DEVELOPER shall meet the necessary requirements for parking lot, landscape/green space,
utility easements and storm drainage for the hotel and conference center. Consideration will
be given for cross-parking easements with existing and new parking lots.
3-4: Other development requirements
DEVELOPER agrees to abide by usual and customary development policies and procedures
currently in effect including but not limited to building permits, construction standards,
subdivision regulations, and utility connections and any applicable fees, licenses, or permits.
3-5: County Resource Center space
DEVELOPER and CITY agree to work cooperatively to acquire the existing County Resource
Center from Brookings County and incorporate this space into the overall design. CITY agrees to
endeavor to have Brookings County release their first right of refusal of property acquisition
over Blocks 5 and 6.
3-6: Signage
CITY shall permit DEVELOPER to install pylon signs on Block 8 Wiese Addition at a location that
provides interstate visibility; and on Block 2 Wiese Addition at a location that provides Highway
14 visibility and does not obstruct existing signage. Both signs shall be provided and installed at
the DEVELOPER’s expense and subject to applicable City Code restrictions. CITY shall permit
DEVELOPER to install an interior sign in the Swiftel Center subject to the terms and conditions
of the Swiftel Center policy.
City of Brookings
September 18, 2012
29
3-7: First Right-of-Refusal over other development; competing hotels
CITY agrees to give DEVELOPER the first right-of-refusal to purchase any portion of Blocks 3 or 8
Wiese Addition if the CITY contemplates selling the property to another developer for a hotel.
In the event DEVELOPER exercises said option, DEVELOPER agrees to construct a hotel. This
option shall not apply to any intended use where the contemplated sale is anything but another
hotel.
SECTION 4: Financial Considerations
4-1: Sale of property for the hotel and conference center
CITY shall transfer the newly-created parcels for the hotel and conference center to the
Brookings Economic Development Corporation (BEDC) who shall transfer the parcels to the
DEVELOPER. CITY will sell the parcels on a “fee simple” basis at a price subject to subsequent
negotiations. BEDC shall sell the parcels to the DEVELOPER at the same price. The prices of the
two parcels may be different.
4-2: Lease rate of conference center
DEVELOPER shall lease the conference center to the City for a rate subject to subsequent
negotiations which shall be amortized over a term to be determined but within a range of 15-20
years at which time ownership of the conference center and parcel upon which the conference
center is constructed shall revert to the CITY. The lease rate paid by the CITY to the DEVELOPER
shall be a net amount after the sales proceeds described in 4-3, and tax increment proceeds
described in 4-7, have been applied. (NOTE: Contract-for-deed or lease-purchase arrangement)
4-3: Developer to secure private financing
DEVELOPER shall be responsible for securing the private financing necessary for the
construction of the hotel, conference center, and related site plan improvements.
4-4: Sale proceeds may be applied to lease rate
The net sale proceeds resulting from the CITY sale of property to the DEVELOPER may be
applied to the lease expense of the CITY to the DEVELOPER for the conference center.
4-5: Business Improvement District assessment fee
To the extent permitted by applicable state law, CITY agrees to establish the hotel as an
exclusive Business Improvement District authorizing the imposition of an acceptable
assessment fee by the DEVELOPER. The fee shall be collected and remitted to the CITY and the
total amount collected by the CITY will be refunded less the administrative fee to the
DEVELOPER. The refunded amount shall be used in accordance with state law.
4-6: Property tax abatement
To the extent permitted by applicable state law, DEVELOPER shall be entitled to the property
tax abatement program known as the discretionary formula.
City of Brookings
September 18, 2012
30
4-7: Tax increment finance for public improvements
CITY shall establish a tax increment finance district to include parcels of Block 5 Wiese Addition
and possibly other contiguous parcels as determined necessary and prudent by the CITY. The
CITY will receive all positive increments from the tax increment district over the course of the
life of the tax increment district. The terms and conditions of the CITY’s duly-adopted policy
governing the use of tax increment finance shall apply to the establishment and operation of
this proposed tax increment district.
4-8: Public financing assistance
DEVELOPER agrees to seek financing from various state and federal sources and programs. CITY
agrees to lend assistance in a good faith effort to help DEVELOPER secure such funding.
4-9: Due diligence research needed by each party; market study
Each party recognizes that significant financial, market research, legal, and analytical research
will need to be conducted subsequent to this Memorandum of Understanding to substantiate
the feasibility of Sections 4-1 through 4-8. To that end, both parties agree to jointly undertake
or otherwise contract for a suitable market study for the entire project. The cost-share of the
market study shall be subject to subsequent negotiations and based on a pro rata benefits
received basis breakdown.
SECTION 5: Miscellaneous provisions
5-1: Liquor operating agreement at hotel
DEVELOPER, at the hotel, shall be entitled to a restaurant liquor license provided applicable
state and local requirements are met at the established fee.
5-2: Liquor operating agreement at conference center
Liquor sales at the conference center shall be under the provisions of the Swiftel Center.
5-3: Preliminary schedule
The CITY and DEVELOPER agree to the goal of establishing March, 2013 as the beginning of
construction; and further agree to a schedule leading up to this date of necessary pre-
construction activities.
5-4: Flexibility allowed for other options
Nothing in this Memorandum of Understanding shall prevent or prohibit the parties from
discussing, exploring, or negotiating terms, conditions, or procedures not strictly listed in this
document in the interest of achieving the mutually-beneficial goals of the project.
5-5: Use of local contractors encouraged
CITY strongly encourages DEVELOPER to utilize local trades, suppliers, vendors, and contractors
as much as feasible in the construction and operation of the project.
City of Brookings
September 18, 2012
31
5-6: Development Agreement
In the event this Memorandum of Understanding is approved as evidenced by the signatures
and attestations below, the CITY and DEVELOPER shall proceed to further due diligence,
research, and analysis with the goal of resulting in the Development Agreement which shall be
a legally-binding contract for the project.
5-7: Termination of Memorandum of Understanding
This Memorandum of Understanding shall expire upon the occurrence of: (1) either party
notifies the other of their intent to discontinue further discussions of the project, or (2) the
document is replaced with a Development Agreement.
Agreed this 25th day of September, 2012 for the CITY.
__________________________
Tim Reed, Mayor
City of Brookings
_________________________
Shari Thornes, City Clerk
Agreed this ___ day of _______________, 2012 for the DEVELOPER.
_________________________ _________________________
Paul Hegg Steve Westra
Hegg Companies, Inc Hegg Companies, Inc.
_________________________ __________________________
Steve Schwanke Peter Mork
Prairieland Partners Prairieland Partners
City of Brookings
September 18, 2012
32
DISCUSSION AGENDA TOPICS
2C Liquor Operating Agreement Review
- Staff presentation
- Council Questions/Discussion
- Item to return to Council for consideration or adoption at later date
- Estimated time: 4 hours
Pursuant the City Council’s 2012 Strategic Planning Retreat, the City Attorney and city
staff reviewed the terms and conditions embodied in the boilerplate operating
agreements for on-sale liquor licenses. This review was taken without any specific
establishment or application pending in order to promote as much of an objective
evaluation as possible. It has been several years since there have been any material
changes to this draft document with only minor adjustments to meet specific conditions
of the operating manager.
The City Council’s 2012 Strategic Plan identified the following steps in this process:
a) Schedule informal meeting to discuss current document; Council to identify
terms and conditions to be revisited for possible changes.
b) Develop policy options/alternatives for changes; conduct legal analysis.
c) Hold public hearings on revised “boilerplate” document.
d) Adopt revised document.
City of Brookings
September 18, 2012
33
To: Mayor Tim Reed, Council Members, Jeff Weldon, City Manager and
Shari Thornes, City Clerk
From: Steven J. Britzman, City Attorney
Date: September 11, 2012
Re: Operating Agreement Review
Accompanying this Memo is a Comparison of Operating Agreement Laws, which shows
that very few changes to the Operating Agreement Statute have occurred in the past 40
years. The items mentioned in SDCL 35-4-21 are the minimum required provisions.
Also included is a document entitled Comments and Proposed Revisions concerning our
current Operating Agreement. We have kept the Operating Agreement up to date,
incorporating minor changes and improvements from time-to-time. The right hand
column reflects several changes we could make at this time, and includes space for
others to include notes or suggested changes as we analyze the Operating Agreement
language.
City of Brookings
September 18, 2012
34
CITY OF BROOKINGS
COMPARISON OF OPERATING AGREEMENT LAWS – 1971 AND 2012
1971 State Law 1
35-4-21. *Contents of agreement for operation of
municipal on-sale business.
An operating agreement under subdivision 35-4-19
(2) shall include at least the following provisions:
(1) The manager shall be responsible for all
operating expenses, including but not limited to
taxes, insurance and license fees, if any.
(2) The manager shall dispense only liquors supplied
by the municipal off-sale establishment.
(3) The agreement shall be for a period of not to
exceed five years with the provision of one extension
of not to exceed five years in the discretion of the
governing board.
(4) Cancellation of the agreement shall be made
upon ninety days’ written notice by either party.
(5)The manager shall pay for all liquors supplied by
the municipal off-sale establishment, the actual cost
price, the transportation charges and markup and
such additional compensation or fee as may be
mutually agreed upon by both parties.
(6)A complete and detailed record shall be
maintained by the municipality of all liquors supplied
the on-sale manager and such liquors so supplied
shall be evidenced by prenumbered invoices
prepared in triplicate showing the date, quantity,
brand, size, and actual cost as set forth in subdivision
(5) above. Such invoices shall bear the signature of
the on-sale manager or his authorized
representative. One copy thereof shall be retained
by the off-sale establishment, one copy shall be
retained by the on-sale establishment and one copy
shall be filed with the municipal auditor or clerk. All
copies shall be kept as permanent records and made
available for reference and audit purposes.
1 The cumulative changes to the 1971 law are overstuck.
Current Law
35-4-21. Alcohol sales - Contents of agreement for
operation of municipal on-sale business.
An operating agreement under subdivision 35-4-19
(2) shall include at least the following provisions:
(1) The manager is responsible for all operating
expenses, including taxes, insurance, and license
fees, if any;
(2) The manager may dispense only liquors supplied
by the municipal off-sale establishment;
(3) The agreement shall be for a period of not to
exceed five years with the provision of one extension
of not to exceed five years in the discretion of the
governing board;
(4) Cancellation of the agreement shall be made
upon ninety days’ written notice by either party;
(5) The manager shall pay for all liquors supplied by
the municipal off-sale establishment, the actual cost
price, the transportation charges and markup, and
such additional compensation or fee as may be
mutually agreed upon by both parties;
(6) A complete and detailed record shall be
maintained by the municipality of all liquors supplied
the on-sale manager. All such liquors shall be
evidenced by prenumbered invoices prepared in
triplicate showing the date, quantity, brand, size,
and actual cost as set forth in subdivision (5) of this
section. The invoices shall bear the signature of the
on-sale manager or the manager's authorized
representative. One copy of the invoice shall be
retained by the off-sale establishment, one copy
shall be retained by the on-sale establishment, and
one copy shall be filed with the municipal auditor or
clerk. All copies shall be kept as permanent records
and made available for reference and audit
purposes.
CITY OF BROOKINGS
COMMENTS AND PROPOSED REVISIONS CONCERNING OUR CURRENT
OPERATING AGREEMENT
Prepared July 5, 2012
_____________________________
CURRENT FORM
LIQUOR OPERATING AGREEMENT
____________________________
(dba ______________)
THIS AGREEMENT is made
and entered into by and between the
CITY OF BROOKINGS, a municipal
corporation of the State of South Dakota,
hereinafter referred to as the “City” and
_________________________ (dba
________________), owner, hereinafter
referred to as the “Manager”. *
WHEREAS, the City has been
issued an on-sale alcoholic beverage
license and is engaged in the sale of
alcoholic beverages, and
*
WHEREAS, the City desires to
enter into a Liquor Operating Agreement
with the Manager for the purpose of
operating an on-sale establishment for
and on behalf of the City pursuant to
law, and
WHEREAS, the Manager has
offered to have facilities in which to
operate said on-sale establishment solely
upon the premises hereinafter described.
*NOW, THEREFORE, IT IS
MUTUALLY AGREED AS
FOLLOWS:
COMMENTS/PROPOSED
REVISIONS
Include Headings for each Section of the
Agreement to improve efficiency.
Add*: The City and the Manager may be
referred to collectively as “the parties”.
Add*: The applicant has submitted an
application for an On-sale Liquor
Operating Agreement, which includes a
description of the type of establishment
the applicant will operate as follows:
Example: “Establish a new
profitable restaurant in a vacant building
at 313 Main Avenue in historic
Brookings”.
*NOW, THEREFORE, THE
CITY AND MANAGER AGREE TO
THE FOREGOING PROVISIONS AND
AS FOLLOWS:
CITY OF BROOKINGS
COMMENTS CONCERNING OUR CURRENT OPERATING AGREEMENT
_____________________________
1.
This Agreement authorizes the
Manager to operate a retail on-sale
alcoholic beverage establishment,
pursuant to and in accordance with all of
the terms and conditions of this
Agreement in accordance with all State
laws and City Ordinances now in effect
and as may be enacted in the future.
2.
The Manager shall be
individually responsible for all operating
expenses of said on-sale establishment,
including but not limited to utilities,
taxes, insurance and license fees, if any.
The Manager shall furnish all
equipment and fixtures necessary to
operate the establishment.
3.
The on-sale establishment shall
be located upon real estate in the City of
Brookings, South Dakota, described as:
_____________________
_____________________
_____________________
_____________________
____________________,
City of Brookings,
Brookings County, South
Dakota
COMMENTS/PROPOSED
REVISIONS
PURPOSE
EXPENSES OF ON-SALE
ESTABLISHMENT
LOCATION OF ON-SALE
ESTABLISHMENT
CITY OF BROOKINGS
COMMENTS CONCERNING OUR CURRENT OPERATING AGREEMENT
_____________________________
4.
*The Manager shall dispense
only alcoholic beverages supplied by the
Municipal off-sale establishment.
5.
This Agreement shall be in full
force and effect for a period of five (5)
years, with the Manager having the
option and privilege of a five (5) year
extension, subject to the approval of the
governing body of the City of
Brookings.
6.
Either the Manager or the City
may terminate this Agreement without
cause upon ninety (90) days written
notice served by either party upon the
other. The City reserves the right to
immediately suspend or revoke this
Agreement without ninety (90) days
written notice for alcohol related
violations in accordance with the
provisions of Resolution No. 25-88 or
COMMENTS/PROPOSED
REVISIONS
CITY AS SOLE PROVIDER OF
ALCOHOLIC BEVERAGES
*The Manager will dispense only
alcoholic beverages supplied by the
Municipal off-sale establishment. Farm
wine and malt beverages manufactured
by a malt beverage manufacturer shall be
considered as supplied by the municipal
off-sale establishment and shall be
subject to the Fixed Markup as provided
in Section 8.
TERM
SUSPENSION/TERMINATION
Either the Manager or the City may
terminate this Agreement without cause
upon ninety (90) days written notice
served by either party upon the other.
The City reserves the right to
immediately request the Department of
Revenue to suspend or revoke this
Agreement without ninety (90) days
written notice for alcohol related
violations in accordance with the
provisions of Resolution No. 25-88 or
any amendments thereto or for any late
payments for alcoholic beverages
supplied by the Municipal off-sale
establishment to be sold on the premises
of Manager.
CITY OF BROOKINGS
COMMENTS CONCERNING OUR CURRENT OPERATING AGREEMENT
_____________________________
any amendments thereto or for any late
payments for alcoholic beverages
supplied by the Municipal off-sale
establishment to be sold on the premises
of Manager.
7.
The Manager shall receive as full
compensation for its services rendered,
the net profit from the on-sale
establishment under its management,
and the sole profit to be derived by the
City other than the fee for issuance of
this Operating Agreement, shall be the
markup hereinafter set forth on alcoholic
beverages furnished by the municipality
to the Manager for the purposes of resale
on the premises as above described.
8.
The Manager shall pay to the
City for all alcoholic beverages sold by
the City to the Manager for resale on the
above-described premises, the actual
cost of distilled spirits and wine supplied
by the City, plus eleven percent (11%) in
excess of such cost; the Manager shall
pay to the City for all malt beverages
sold by the City to the Manager for
resale on the above-described premises,
the actual cost of malt beverages, plus
ten percent (10%) in excess of such cost.
The actual cost shall include cost price
price and transportation charges. The
markup percentages provided in this
Agreement are subject to change by the
City of Brookings. In the event markup
percentages are changed by Ordinance,
COMMENTS/PROPOSED
REVISIONS
MANAGER’S COMPENSATION
FIXED MARKUP
CITY OF BROOKINGS
COMMENTS CONCERNING OUR CURRENT OPERATING AGREEMENT
_____________________________
then the markup percentages provided
by City Ordinance shall supercede the
markup percentages provided herein.
The Manager further agrees that if either
of the markup percentages shall be
increased at any time by the City, the
Manager shall pay the markup as so
increased.
9.
A complete and detailed record
shall be maintained by the City of all
alcoholic beverages supplied to the on-
sale Manager and such alcoholic
beverages so supplied shall be evidenced
by prenumbered invoices prepared in
triplicate showing the date, quantity,
brand, size and actual cost of such item,
and such invoice shall bear the signature
of the authorized representative of the
on-sale Manager or its authorized
representative. One copy thereof shall
be retained by the Municipal off-sale
establishment, one copy shall be retained
by the on-sale establishment, and one
copy shall be filed with the City Clerk.
All copies shall be kept as permanent
records and made available for reference
and audit purposes. The Manager also
agrees to maintain a complete record of
all alcoholic beverages received from the
City.
10.
The Manager agrees to pay the
CITY OF BROOKINGS an Operating
Agreement Fee of Twenty-five Thousand
and no/100 Dollars ($25,000.00) at or
prior to the execution of this Agreement.
COMMENTS/PROPOSED
REVISIONS
RECORD KEEPING
FEES
CITY OF BROOKINGS
COMMENTS CONCERNING OUR CURRENT OPERATING AGREEMENT
_____________________________
The Manager agrees to pay the
CITY OF BROOKINGS, an Annual
Renewal License Fee of One Thousand
Five Hundred and no/100 Dollars
($1,500.00), which is due on or by the
first day of November of each year of
this Operating Agreement. The payment
of the Annual Renewal License Fee will
not extend the term of this Operating
Agreement beyond the term provided
herein.
11.
The Manager agrees to keep the
premises in a neat, clean and attractive
appearance, and Manager further agrees
to operate said on-sale establishment
only on such days and at such hours as
permitted by State law and City
Ordinances.
12.
The Manager shall have the right
to return, at any time, alcoholic
beverages received from the City and to
receive in return any deposit made for
such alcoholic beverages; in the event of
termination of the business, all unused
alcoholic beverages, which may be
resold without discount may be returned
to the City and the Manager shall be
reimbursed for the cost of such alcoholic
beverages.
COMMENTS/PROPOSED
REVISIONS
APPEARANCE OF PREMISES
RETURN OF INVENTORY
CITY OF BROOKINGS
COMMENTS CONCERNING OUR CURRENT OPERATING AGREEMENT
_____________________________
13.
The Manager agrees to abide by
the credit policies of the City and
acknowledges, by execution of this
Agreement, receipt of a copy of the
credit policies of the City. The City
reserves the right to change or terminate
its credit policies at any time, but shall
be required to provide written notice to
Manager prior to the effective date of the
change or termination date of the credit
policies.
14.
The Manager agrees to furnish the
City upon demand, evidence of payment
of the following:
A. All salaries of on-sale
employees;
B. Social Security and
withholding taxes on said
employees;
C. Worker’s Compensation
insurance premiums covering
said employees;
D. Unemployment taxes on the
payrolls of said employees;
E. General liability insurance
protecting both the City and
Manager against claims for
injury or damages to persons
or property, said policy to
have general liability limits
COMMENTS/PROPOSED
REVISIONS
CREDIT POLICIES
PROOF OF PAYMENTS
CITY OF BROOKINGS
COMMENTS CONCERNING OUR CURRENT OPERATING AGREEMENT
_____________________________
of at least Five Hundred
Thousand Dollars
($500,000.00) single limit,
and One Million Dollars
($1,000,000.00) aggregate,
and a limitation of Fifty
Thousand Dollars
($50,000.00) for damage to
property. The general
liability insurance limits are
subject to change and
Manager agrees to change
limits of insurance if required
by the City;
F. Rent and utility bills;
G. Any and all miscellaneous
expenses, including taxes.
15.
The Manager agrees to observe
all Federal and State laws and all
ordinances of the City of Brookings.
16.
The City covenants and agrees to
furnish the on-sale license to Manager
pursuant to the terms and conditions of
this Operating Agreement and the terms
and conditions of the on-sale license.
17.
The City has the right to make
inspections and investigations of the
premises during the hours of operation,
and may make audits and examinations
of the records of the Manager relating to
the on-sale establishment.
COMMENTS/PROPOSED
REVISIONS
COMPLIANCE WITH LAWS
CITY’S OBLIGATIONS
INSPECTIONS BY CITY
CITY OF BROOKINGS
COMMENTS CONCERNING OUR CURRENT OPERATING AGREEMENT
_____________________________
18.
It is further specifically
understood and agreed that the waiver of
the rights of the City under this
Agreement shall not constitute a
continuous waiver, and any violation or
breach of the terms of this Agreement by
the Manager shall constitute a separate
and distinct offense and grounds for
immediate termination and revocation of
this Agreement.
19.
This Agreement shall not be
assignable to another person or location
without the written consent of the City.
COMMENTS/PROPOSED
REVISIONS
WAIVER
ASSIGNMENT PROHIBITED W/O
CONSENT
City of Brookings
September 18, 2012
44
COUNCIL REPORTS
3A. Ex-Officio Reports
Pursuant to council direction, “City Council Member Ex-Officio Reports” will be a
standing agenda item at all Council Work Sessions. The Council Members that serve as
Ex-Officio members on the Brookings Health System Board of Trustees and Utility Board
will provide verbal reports regarding recent meetings they have attended.
Brookings Municipal Utility Board:
1. Council Member Niemeyer
2. Council Member Corbett
Brookings Health Systems Board:
1. Council Member Kubal
2. Council Member McClemans
3B. Joint Powers Board
Pursuant to council direction, “Joint Powers Board City Member Updates” will be a
standing agenda item at all Council Work Sessions. The Council Members serving on the
Joint Powers Board will provide verbal updates regarding recent meetings they have
attended.
Mayor Tim Reed & Council Member Kubal
City of Brookings
September 18, 2012
45
4. Identify topics for future study sessions (motion required)
City of Brookings
September 18, 2012
46
5. Adjournment