HomeMy WebLinkAbout2012_12_04 CC PKT1
Brookings City Council
Tuesday, December 4, 2012
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 on Resolution No. 150-12, a Resolution declaring meeting dais surplus.
D. Action on Resolution No. 151-12, a Resolution authorizing check write-off for the
Brookings Municipal Liquor Store.
E. Action on Resolution No. 152-12, a Resolution amending various fees for the City of
Brookings.
F. Action on Resolution 153-12, a Resolution amending the City of Brookings
Governance and Ends Policies on Financial Stability.
G. Action on Resolution 154-12, a Resolution extending the Agreement between the
City of Brookings and Northwestern Corporation for sixty days.
H. Action on Resolution No. 155-12, a Resolution canceling certain outstanding checks.
I. Action on Resolution No. 156-12, a Resolution Authorizing Closeout on Dakota
Nature Park, Phase I (Fisheries Improvements) Construction; Rounds Construction,
Inc.
December 4, 2012
City of Brookings
2
J. Acton on Resolution No. 157-12, a Resolution authorizing Change Order No. 2 for
2011-02BLD Swiftel Center Storage Addition Project for Daniels Residential, Inc.
K. Action on Resolution No. 158-12, a Resolution Authorizing Change Order No. 1
(CCO#1 Final) for 2012-08STI Street Maintenance and Overlay Project; Bowes
Construction, Inc.
L. Action on Resolution No. 159-12, a Resolution Authorizing Change Order No. 4
(CCO#4 Final) for 2012-09STI 25th Avenue and 10th Street Project; Bowes
Construction, Inc.
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.
Contracts & Change Orders
8. Action on Resolution No. 160-12, a Resolution Authorizing Change Order No. 1 for the
City of Brookings Public Safety Center Renovation Project; Mark Luke Construction.
Action: Motion to Approve, Request Public Comment, Roll Call
9. Action on Resolution No. 161-12, a Resolution Authorizing Change Order No. 2 for the
City of Brookings Public Safety Center Renovation Project; Mark Luke Construction.
Action: Motion to Approve, Request Public Comment, Roll Call
10. Action on Resolution No. 162-12, a Resolution authorizing Change Order No. 1 for 2011-
02BLD Swiftel Center Storage Addition Project for Daniels Residential, Inc.
Action: Motion to Approve, Request Public Comment, Roll Call
11. Action on Resolution No. 163-12, a Resolution Awarding Bids on City of Brookings
Custodial Services.
Action: Motion to Approve, Request Public Comment, Roll Call
December 4, 2012
City of Brookings
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First Readings**
12. Ordinance No. 28-12: An Ordinance Revising Article IV and Pertaining to Excavations in
the City of Brookings, South Dakota.
Public Hearing: December 18th
13. Ordinance No. 29-12: An Ordinance Prohibiting Littering in the City of Brookings, South
Dakota.
Public Hearing: December 18th
14. Ordinance No. 30-12: An Ordinance pertaining to an application for a Conditional Use
for a Community Center in the Business B-2A District.
Public Hearing: December 18th
15. Ordinance No. 31-12: An Ordinance prohibiting texting (while driving) in the City of
Brookings, SD.
Public Hearing: December 18th
**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
16. Public hearing and action on Ordinance No. 27-12: Budget Amendment #4 - An
Ordinance Authorizing a Supplemental Appropriation to the 2012 Budget for the
purpose of providing for additional funds for the operation of the City.
Action: Open & Close Public Hearing, Motion to Approve, Roll Call
17. Public hearing and action on annual liquor and wine alcohol license renewals.
Action: Open & Close Public Hearing, Motion to Approve, Roll Call
18. Public hearing and action on Resolution No. 164-12, a Resolution authorizing the city
manager to enter into a Wine Operating Agreement for the Blizzard, LLC, 924 32nd Ave.,
Brookings, South Dakota (Legal Description: Blocks 6-7, Wiese Addition).
Action: Open & Close Public Hearing, Motion to Approve, Roll Call
19. (Tabled Item) Ordinance No. 25-12: An Ordinance amending the Zoning Ordinance
pertaining to the Conditional Use Permit process.
Action: Action to Remove From Table, Resume Public Hearing, Roll Call
20. Public hearing and action on Resolution No. 165-12, a Resolution approving a Special
Assessment For Weed Cutting, Tree Removal, Debris Removal And Snow Removal.
Action: Open & Close Public Hearing, Motion to Approve, Roll Call
December 4, 2012
City of Brookings
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Other Business
21. Action on Resolution No. 166-12, a Resolution relating to the improvement of the
Wastewater Collection System and Treatment Facilities; Authorizing and directing the
issuance and sale of a Revenue Bond to pay the cost of said improvements; Defining the
terms and manner of payment of the Bond and the security thereof and approving the
form of Loan Agreement.
Action: Motion to approve, request public comment, roll call
22. Presentation of 2012 Strategic Plan Report.
Action: Informational
23. 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.
24. 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.
December 4, 2012
City of Brookings
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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 on Resolution No. 150-12, a Resolution authorizing surplus of meeting dais.
D. Action on Resolution No. 151-12, a Resolution authorizing check write-off for the
Brookings Municipal Liquor Store.
E. Action on Resolution No. 152-12, a Resolution amending various fees for the City
of Brookings.
F. Action on Resolution 153-12, a Resolution amending the City of Brookings
Governance and Ends Policies on financial stability.
G. Action on Resolution 154-12, a Resolution extending the agreement between the
City of Brookings and Northwestern Corporation for sixty days.
H. Action to Resolution No. 155-12, a Resolution canceling certain outstanding
checks.
I. Action on Resolution No. 156-12, a Resolution Authorizing Closeout on Dakota
Nature Park, Phase I (Fisheries Improvements) Construction; Rounds Construction,
Inc.
J. Acton on Resolution No. 157-12, a Resolution authorizing Change Order No. 2 for
2011-02BLD Swiftel Center Storage Addition Project for Daniels Residential, Inc.
K. Action on Resolution No. 158-12, a Resolution Authorizing Change Order No. 1
(CCO#1 Final) for 2012-08STI Street Maintenance and Overlay Project; Bowes
Construction, Inc.
L. Action on Resolution No. 159-12, a Resolution Authorizing Change Order No. 4
(CCO#4 Final) for 2012-09STI 25th Avenue and 10th Street Project; Bowes
Construction, Inc.
*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
December 4, 2012
City of Brookings
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CONSENT AGENDA #4
B. Action to approve minutes.
The draft November 13th and November 20th Brookings City Council minutes are
enclosed for Council review and approval.
December 4, 2012
City of Brookings
7
Brookings City Council
November 13, 2012 (unapproved)
The Brookings City Council held a meeting on Tuesday, November 13, 2012 at 6:00 p.m., at City
Hall with the following members present: Deputy Mayor Keith Corbett, Council Members John
Kubal, Mike McClemans, Ope Niemeyer, Jael Thorpe and Tom Bezdichek. Mayor Tim Reed was
absent. City Attorney Steve Britzman, City Manager Jeff Weldon and City Clerk Shari Thornes
were also present.
Consent Agenda. A motion was made by Niemeyer, seconded by Kubal, to approve the
consent agenda.
A. Action to approve the agenda.
B. Action to approve October 23rd Council meeting minutes.
C. Action on Resolution No. 146-12, a Resolution authorizing the City Manager to enter into
a Liquor Operating Agreement renewal for Park Hospitality, Lance Park, Owner, 2500 6th
Street (Legal: Lot X-1 and all of Lot 1, excluding west 20' thereof; Lot F excluding north 60',
and all Lot G of Lot 2, all in Block 1, Holibrook Addition.
Resolution No. 146-12 - Park Hospitality – Liquor Operating Agreement
Be It Resolved by the City of Brookings, South Dakota, that the City Council hereby approves a
Lease Renewal Agreement for the Operating Liquor Management Agreement between the City
of Brookings and Lance Park, owner, Park Hospitality, for the purpose of a liquor manager to
operate the On-Sale Establishment or business for and on behalf of the City of Brookings at
2500 6th Street, also known as Park Hospitality. 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 10
years.
D. Action on Resolution No. 147-12, a Resolution Authorizing Change Order No. 1 for the
Dakota Nature Park Nature Center, Clark Drew Construction, Inc. (deduct).
Resolution No. 147-12 - A Resolution Authorizing Change Order No. 1; Dakota Nature
Park Nature Center – Clark Drew Construction, Inc.
Be It Resolved by the City Council that the following change order be allowed for
Resolution -12 Dakota Nature Park – Nature Center: Construction Change Order
Number 1. Gunnstock Timber Frames. Engineering: Reduced labor for new connections =
($3,500.00), Steel bracket package = ($9,504.00), Additional engineering = $6,504.00, Total
= ($6,500.00). Clark Drew Construction, Inc. Subtotal = $6,500.00, SD Excise Tax @ 2%
= $130.00, Bonding 1.2% = $79.56, Lump Sum Total = $6,710.00. There will be a total
deduction of $6,710.00 from the original contract sum of $1,198,700.00 ($1,191,990.00 new
contract amount).
E. Action on Resolution No. 148-12, a Resolution establishing Dental Insurance monthly
contribution rates for the City of Brookings Dental Insurance Plan.
Resolution No. 148-12 - Establishing Dental Insurance Monthly Contribution Rates for the
City of Brookings Dental Insurance Plan
Whereas, Be It Resolved, that the 2013 employee and employer contributions for the dental
insurance plan be established as follows:
CITY GENERAL AND PUBLIC SAFETY EMPLOYEES
December 4, 2012
City of Brookings
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Employer’s Share
(75%) of Single Rate
Employee’s
2013 Share TOTAL
Employee Only $28.43 $9.47 $37.90
Employee/Spouse $28.43 $44.31 $72.74
Employee/Child(ren) $28.43 $46.35 $74.78
Family $28.43 $72.93 $101.36
F. Action on Resolution No. 149-12, a Resolution authorizing the Mayor to sign documents
for P3368(03) PCN 03CB, 12th Street South and 17th Avenue South Intersection
Improvements.
Resolution No. 149-12 - A Resolution Authorizing the Mayor to Sign Documents
for P3368(03) PCN 03CB; 12th Street South and 17th Avenue South Intersection
Improvements
Whereas, the Brookings City Council desires the construction of Project P3368(03) PCN
03CB, 12th Street South and 17th Avenue South Intersection Improvements in Brookings,
SD; and
Whereas, the City of Brookings is obligated and hereby agrees to provide proper
maintenance as required for the project after construction is completed in accordance with
State and Federal requirements; and
Whereas, the City of Brookings certifies that all work involved in the project will take place
within the City’s right-of-way and easements, and that no additional right-of-way is required.
Now Therefore Be It Resolved that the Mayor of the City of Brookings is authorized to sign
the Right-of-Way Certificate, Utilities Certificate, Bid Letting Authorization, and other
related documents for Project P3368(03) PCN 03CB for 12th Street South and 17th Avenue
South Intersection Improvements in Brookings, SD
G. Action to purchase Tommel Screener from the City of Sioux Falls for $34,800.00.
A. Action to cancel the November 27, 2012 City Council meeting.
On the motion, all present voted yes; motion carried.
First Reading: Ordinance No. 27-12. A first reading was held on Ordinance No. 27-12, Budget
Amendment #4, an Ordinance authorizing a Supplemental Appropriation to the 2012 Budget for
the purpose of providing for additional funds for the Operation of the City. Public Hearing:
December 4, 2012.
Ordinance No. 26-12. A public hearing and action was held on Ordinance No. 26-12, an
Ordinance rezoning Blocks 3, 4, 5, 6, and 8, excluding Lots 1A and 5 of Block 8, Wiese Addition,
from a Business B-4 and B-5 District to a Planned Development District. No public comment.
A motion was made by Thorpe, seconded by Niemeyer, to approve Ordinance No. 26-12. All
present voted yes; motion carried.
December 4, 2012
City of Brookings
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Off-Sale Malt License: Heist Brewing Co., LLC. A public hearing and action was held on an
application for an Off-Sale Malt license for Heist Brewing Co., LLC, Thomas Strubel, owner, 611
2nd St. So., Brookings, South Dakota (Legal: E 33’ of Lot 7, Block 1, Folsom Addition). No public
comment. A motion was made by Kubal, seconded by McClemans, to approve. All present
voted yes; motion carried.
SD Outdoor Adventure Center. A motion was made by Kubal, seconded by Bezdichek, to
approve the South Dakota Outdoor Adventure Center’s final location, exterior design, site
improvements and landscaping in the Dakota Nature Park and the Council gave the park
director final approval on plans. All present voted yes; motion carried.
Brookings Municipal Utilities Quarterly Report. Representatives from Brookings Municipal
Utilities provided the council with an update on current and pending issues.
City Council member introduction of topics for future discussion. A motion was made by
McClemans, seconded by Bezdichek, to examine the storm drainage policy and discuss what
type of policy should be considered for drainage areas that need to be cleaned out, which may
include joint discussion with county officials. Discussion: January 15th is the next available
study session. All present voted yes; motion carried.
Executive Session. A motion was made by Niemeyer, seconded by Kubal, to enter into
executive session at 7:15 p.m. for purposes of discussing marketing or pricing strategies by a
board or commission of a business owned by the state or any of its political subdivisions, where
public discussions would be harmful to the competitive position of the business with the
Mayor, Council, City Attorney, City Manager, City Clerk, Steve Meyer, BMU and Laura Julius,
BMU, present. All present voted yes; motion carried. A motion was made by Kubal, seconded
by Niemeyer, to exit executive session at 8:13 p.m.
Executive Session. A motion was made by Kubal, seconded by Niemeyer, to enter into
executive session at 8:17 p.m. for purposes regarding employee union contract negotiations
with the Mayor, Council, City Attorney, City Manager, City Clerk and Donna Langland, Human
Resources Director, present. All present voted yes; motion carried. A motion was made by
Niemeyer, seconded by Thorpe, to exit executive session at 9:05 p.m.
Adjourn. A motion was made by Kubal, seconded by McClemans, to adjourn. All present voted
yes; motion carried. Meeting adjourned at 9:07 p.m.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
10
Brookings City Council
November 20, 2012 (unapproved)
The Brookings City Council held a study session on Tuesday, November 20, 2012 at 5:00 p.m., at
City Hall with the following members present: Mayor Tim Reed, Council Members Jael Thorpe,
John Kubal, Mike McClemans, Tom Bezdichek, Ope Niemeyer and Keith Corbett. City Attorney
Steve Britzman, City Manager Jeff Weldon, and City Clerk Shari Thornes were also present.
Discussion Topics: Revenue and expenditure financial reports, proposed ordinance banning
texting while driving (scheduled for first reading on 12/4), proposed Ordinance No. 25-12
amending the Conditional Use Permit process, draft policy on use of excess material for
construction projects, Tax Increment Finance (TIF) Process and Policy, update on hotel-
conference center MOU research, and council reports.
Topics for Future Study Sessions. The City Council requested an update on the Nature Park
project and an update from entities receiving city financial subsidies at a future study session.
Adjourn. A motion was made by Corbett, seconded by Kubal, to adjourn. All present voted
yes; motion carried. Meeting adjourned at 8:31 p.m.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
11
CONSENT AGENDA #4
C. Action on Resolution No. 150-12, a Resolution declaring meeting dais
surplus.
Attached is a Resolution to declare as surplus the council dais located in the old city
council chambers. As the council meetings have moved to the new City & County
Government Building and the Police Department has taken over the space, it has been
determined the Police Department does not have a need for the dais in their newly
created training center. As such, the dais is still in very good condition and could be
utilized by another jurisdiction for similar purposes. The proposal is to declare the dais
as surplus and advertise it for bids.
Resolution No. 150-12
Resolution to declare old City County Dais as Surplus Property
Whereas, the City of Brookings has renovated old City Hall for the operation of the Police
Department to expand its operations; and
Whereas, the City of Brookings and the Police Department no longer have use for the old
council dais located in the newly renovated Public Safety Center; and
Whereas in the best financial interest, it is the desire of the City of Brookings to sell same as
surplus property; and
Whereas, the City Manager hereby authorized to sell said surplus property.
Now, Therefore, Be It Resolved by the governing body of the City of Brookings, South Dakota,
that this property be declared surplus property according to SDCL Chapter 6-13
Passed and approved this 4th day of December, 2012.
City of Brookings
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
12
CONSENT AGENDA #4
D. Action on Resolution No. 151-12, a Resolution authorizing check write-off
for the Brookings Municipal Liquor Store.
Attached is a resolution to remove checks from the liquor store account, which are
uncollectible. The following is a listing totaling $883.91.
03-11 Aaron T Kuehnel $116.99
4-11 Candance Reynolds 115.69
07-10 Marjorie Leichtnam 135.76
7-10 Marjorie Leightnam 40.90
12-10 Lela Sample 64.12
4-10 Corey Chase In Water 32.54
05-10 Philip Devine 60.69
11-10 Tamara Eighmy 16.04
12-10 James Feuerhelm 31.79
08-10 Travis Gilman 7.05
7-10 Jason Mathiesen 138.27
1-10 Keith Mcgehee 41.81
1-10 Tara St Pierre 30.64
9-10 Justin Witham 30.00
5-10 Valerie Zdaniewicz 21.62
Total
$883.91
Resolution No. 151-12
Uncollectible Checks Removed From Liquor Store Records
Whereas, The Brookings Municipal Liquor Store has received a total amount of $883.91 in insufficient
funds and no account checks; and
Whereas, these checks and bills have been processed for collection with the States Attorney and
Sheriff’s Office and have been considered uncollectible;
Now, Therefore Be It Resolved that the checks totaling $883.91 for the Liquor Store be determined as
uncollectible and removed from the records. Such checks will be retained by the State’s Attorney Office
to support possible subsequent collection of that debt.
Passed and approved this 4th day of December, 2012.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
13
CONSENT AGENDA #4
E. Action on Resolution No. 152-12, a Resolution amending various fees for
the City of Brookings.
City Departments reviewed current fees to determine if the amounts were sufficient to
cover the cost of the service being provided. Attached is an updated resolution
indicating current fees and proposed increases and new fees. Resolution No. 152-12
incorporates all fees for service, with the exception of those established by ordinance or
state statute.
December 4, 2012
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Resolution No. 152-12
A Resolution Revising Fees of the City of Brookings, South Dakota
Whereas the fines, fees, and procedures pertaining to services of the City of Brookings shall be
reviewed and revised; and
Whereas the license fees has been established by various chapters of the Code of Ordinances,
The City Clerk license fees shall be revised; and
Whereas weed removal, grass mowed, and line clearance removal is required under Section 62-
90, of the Code of Ordinances, the Parks and Forestry Department service fees shall be revised;
and
Whereas street and sidewalk snow removal is required under Section 74-212, Article 5 of
Chapter 74, of the Code of Ordinances, the Parks Department service fees shall be revised; and
Whereas the Engineer Department building permit fees required under service fees shall be
adopted, under Section 22-35, Article II of Chapter 22 of the Code of Ordinances, shall be
revised; and
Whereas planning and zoning application fees required under Section 66-3 of Chapter 66, of the
Code of Ordinances, the Community Development Department fees shall be revised; and
Whereas the application fees for sign permits required under Chapter 94, of the Code of
Ordinances, the Community Development Departments fees shall be revised; and
Whereas the investigation fee for violation of code under Chapter 94, of the Code of
Ordinances, the Community Development Department fees shall be revised; and
Whereas the Airport Board is recommending fees, the fees shall be revised; and
Whereas the Code of Ordinances under Section 34, requires inspections and plan reviews by
the Fire Department, and reports of fires are provided, the Fire Department Fees shall be
revised; and
Whereas the Police Department assign officers and cars to escort the moving of structures
within the City and provide accident reports the Police Departments fee shall be revised; and
Whereas the Library Board is recommending fees, the fees shall be revised; and
Whereas the standardized fee for black and white copies is $.50, color copies $1.00 for all
departments.
December 4, 2012
City of Brookings
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Therefore Be It Resolved that the fees be adopted and become effective January 1, 2013 as
follows:
City Clerk
Circuses, carnivals Each circus per day $75.00
Each carnival or similar exhibition, per day $25.00
Commercial garbage haulers Original License $50.00
Each annual renewal $25.00
House movers Per year $50.00
Pawnbrokers Per year $50.00
Plumbing Contractor Original License $50.00
Each annual renewal $25.00
Vehicles for Hire First taxicab, or other vehicle for hire $25.00
Per year
Each additional vehicle operated by the $10.00
Same person per year
Vehicle for Hire Drivers Per year $15.00
Going out of Business Sales Initial License
Thirty (30) day renewal license
Transient Merchants Per month or part thereof
DVD or CD Per disk
$25.00
$25.00
$100.00
$ 5.00
Parks & Forestry Department
Weed Control plus contractor cost $ 65.00
$25.00
Mowing 1st hour $ 150.00
$60.00
each additional hour or fraction $ 85.00
$35.00
each additional hour large area $125.00
$50.00
Sidewalk Snow Removal-1st Offense Per hour-per piece of equipment/1 hr
minimum
$125.00
$100.00
Sidewalk Snow Removal-2nd Offense Per hour-per piece of equipment/1 hr
minimum
$175.00
$150.00
DED Removal/BMU Line Clearance
Aerial Bucket plus employee wage
$150.00
$60.00
December 4, 2012
City of Brookings
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Brookings Street Department
Sign Repairs
--Traffic Accidents
--Vandalism
Replacement Cost, Plus Labor, Sales Tax, and Excise Tax
Street Repairs Replacement Cost for Materials
Brookings City Engineers Department
Residential Building Permit Fees:
The base valuation to determine permit fees for residential buildings and additions are based
on a dollar per square foot schedule per the following. The bid price must be quoted for
renovations or remodels.
Dwellings: Single-family dwellings, duplexes, townhouses:
Finished habitable space per square foot $65.00
Finished basements per square foot $24.00
Unfinished space (basement and upper levels) per square foot $18.00
Attached garages per square foot $20.00
Detached garages per square foot $18.00
Building Permit Fee Schedule - - Group R-3 and U Occupancies Only:
Total Valuation Fees
$1.00 - 1,200.00 $20.00
$1,200.01 – 2,000.00
$10.00 for the first $500 plus $1.50 for each additional $100 or
fraction thereof, to and including $2,000, for valuations in excess of
$1,100.
$2,000.01 - 25,000.00 $32.50 for the first $2,000 plus $6.00 for each additional $1,000 or
fraction thereof, to and including $25,000.
$25,000.01 – 50,000.00 $170.50 for the first $25,000 plus $4.50 for each additional $1,000
or fraction thereof, to and including $50,000.
$50,000.01 - 100,000.00 $283.00 for the first $50,000 plus $3.00 for each additional $1,000
or fraction thereof, to and including $100,000.
$100,000.01 and up $433.00 for the first $100,000 plus $2.50 for each additional $1,000
or fraction thereof.
Loader plus employee wage
Trucks plus employee wage
Chipper plus employee wage
Chainsaw/Miscellaneous Equipment plus Employee Wage
$ 125.00
$50.00
$ 85.00
$35.00
$ 85.00
$35.00
$ 65.00
$25.00
December 4, 2012
City of Brookings
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Commercial Building Permit Fees:
Commercial Building Permit Fee Schedule
Groups A, B, E, F, H, I, M, S, Group R Division 1’s and Division 2’s (including Group U’s
accessory to the R-1 and R-2 occupancies):
Total Valuation Fees
$1 - 700.00 $20.00
$700.01 to 2,000.00
For values in excess of $700.00, $15.00 for the first $500.00,
plus $2.00 for each additional $100.00 or fraction thereof, to and
including $2,000.00
$2,000.01 to 25,000.00 $45.00 for the first $2,000 plus $9.00 for each additional $1,000
or fraction thereof, to and including $25,000.
$25,000.01 to 50,000.00 $252.00 for the first $25,000 plus $6.50 for each additional
$1,000 or fraction thereof, to and including $50,000.
$50,000.01 to 100,000.00 $414.50 for the first $50,000 plus $4.50 for each additional
$1,000 or fraction thereof, to and including $100,000.
$100,000.01 to 500,000.00 $639.50 for the first $100,000 plus $3.50 for each additional
$1,000 or fraction thereof, to and including $500,000.00
$500,000.01 to 1,000,000.00 $2,039.50 for the first $500,000 plus $3.00 for each additional
$1,000 or fraction thereof, to and including $1,000,000.00
$1,000,000.00 and up $3,539.50 for the first $1,000,000 plus $2.00 for each additional
$1,000 or fraction thereof.
Other Inspections and Fees:
Inspections outside normal business hours per hour
(minimum charge of one hour) $45.00
Inspection for which no fee is specifically indicated per hour
(minimum charge of 1/2 hour)
$45.00
Re-inspection fees assessed under provisions of Section R108 IRC
and 108 IBC per hour
$45.00
Driveway, demolition, window replacement and other minor construction
per permit
$25.00
Inspection fees assessed for moving of house
$200.00
$50.00
Brookings Community Development Department
Planning and Zoning
Change of Zone $250.00
$230.00
Planned Development District $250.00
December 4, 2012
City of Brookings
18
$230.00
Final Development Plan $100.00
Major Amendment $250.00
$230.00
Minor Amendment $100.00
$75.00
Board of Adjustment $125.00
$100.00
Preliminary Plats plus $1.00/lot over 20 lots or $1.00/acre over 1 acre $175.00
$150.00
Final Plats $160.00
$100.00
Vacation $150.00
I-1R Site Plan $150.00
$100.00
Conditional Use $200.00
$175.00
Zoning & Use Registration Permit $ 60.00
$50.00
Rental License
--per structure plus $2.00 for each dwelling unit
--per structure plus $2.00 for 7 or fewer units/$1.00 for 8 or more units
Tax Increment Financing Application
$ 20.00
$15.00
$1,000.00
Permanent Signs
Square Feet
Fee
From 0 to less than 30 $25.00 $20.00
30 60 $30.00 $25.00
60 90 $35.00 $30.00
90 120 $40.00 $35.00
120 150 $45.00 $40.00
150 180 $50.00 $45.00
180 210 $55.00 $50.00
210 240 $60.00 $55.00
240 270 $65.00 $60.00
270 300 $70.00 $65.00
300 330 $75.00 $70.00
330 360 $80.00 $75.00
360 390 $85.00 $80.00
390 420 $90.00 $85.00
420 450 $95.00 $90.00
450 480 $100.00 $95.00
December 4, 2012
City of Brookings
19
480 510 $105.00 $100.00
510 540 $110.00 $105.00
540 or more $115.00 $110.00
Non permanent Signs $15.00 $10.00
Portable Signs per week $15.00 $10.00 Portable
Signs per month. Maximum permit period shall not carry$45.00 $30.00
over from one permit period to the next
Banner Signs Exempt
Code Enforcement
Code Enforcement Investigation per hour (1 hour minimum) $45.00
Industrial Lands
Crop Land Lease Based on Bid
Airport Fees
Land Lease per square foot $.11
Fuel Flowage per gallon
per gallon
FBO: $0.06
Others: $0.06
Crop land Lease Based on Bid
Tie Down Fee Per week for tie downs 11 days or longer from
April 14 to October 14 $25.00
Hangar Application Fee $25.00
Brookings City Fire Department
Fire Protection Systems Fees
Fire Sprinkler Systems $75.00 plus $.45 per sprinkler head
Retrofitted Fire Sprinkler Systems $75.00 plus $.45 per sprinkler head
Kitchen Hood Extinguishing Systems $90.00
Kitchen Hood Extinguishing System Modification $45.00
Clean Agent or other Total Flooding System per square foot
of covered area $.20
Fire Alarm Systems $75.00 + $.45 each initiation &
signaling device
Fire Alarm System Modifications $37.50 + $.45 each initiation &
signaling device
False Fire Alarm Calls when trucks roll
$0.00 First Call
$50.00 Second Call
$100.00 Third Call
Flammable & Combustible Liquids Fees
Flammable & Combustible Liquids $90.00
Flammable & Combustible Liquids Modifications $45.00
December 4, 2012
City of Brookings
20
Site Plan Review
Site Plan Review per hour (one hour minimum) $45.00
Inspections outside of normal business hours per hour (two hour minimum) $45.00
Re-inspection per hour (one hour minimum) $45.00
Fire Incident Reports $10.00
Library Fees
Out of County Library Card Per individual $32.00
$29.00
Fax Per family $42.00
$39.00
Sent or Received per page $2.25
Fines Per day books $.10
$.05
Fines Per day DVD’s/VHS $1.00
Process Fee Lost material per item $5.00
Police Department Fees
Moving of Structure Per unit (Officer and patrol car) $50.00
2 hour minimum per unit
Accident Reports Per report $5.00
Pictures, each $4.00
Passed and approved on this 4th day of December, 2012.
CITY OF BROOKINGS
_______________________________
Tim Reed, Mayor
ATTEST:
_________________________
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
21
CONSENT AGENDA #4
F. Action on Resolution No. 153-12, a Resolution amending the City of
Brookings Governance and Ends Policies on Financial Stability.
Date: November 27, 2012
To: Mayor and City Council Members
From: Jeffrey W. Weldon, City Manager
Subject: Governance and Ends Policy Amendment/Financial Stability
I am requesting an amendment to the Governance and Ends Policy, Ends Policy 1,
Financial Stability, Guideline C.
On November 22, 2011 we amended the policy committing fund balances for
governmental funds per GASB 54. When the City audit of 2011 was done in 2012, the
Department of Legislative Audit reviewed our policy and made the following statement:
Excerpt from Department of Legislative Audit:
… “Stabilization amounts may be expended only when certain specific
circumstances exist. The formal action that imposes the parameters for spending
should identify and describe the specific circumstances under which a need for
stabilization arises. Those circumstances should be such that they would not be
expected to occur routinely.”
I then received a comment from our auditor’s as follows:
Comment from BKD Auditors:
… “The Department of Legislative Audit wants the ‘Governance & Ends Policy’ to
follow the standard closer. The policy needs more specifics to be able to
quantify what an emergency is in order for the balance to be classified as
committed.”
Attached is the proposed new language.
December 4, 2012
City of Brookings
22
Resolution No. 153-12
A Resolution Amending the City of Brookings Governance and Ends Policy, Financial Stability
Whereas, the Brookings City of Brookings has adopted Governance and Ends Policies; and
Whereas, the Policy 1, Financial Stability, Guideline C, establishes and maintains reservations of
Fund Balance in accordance with Governmental Accounting and Financial Standards Board
Statement No. 54, Fund Balance Reporting and Governmental Fund Type Definitions; and
Now, Therefore Be It Resolved that “Section a. Fiscal Stabilization Arrangement” shall read as
follows:
a. Fiscal Stabilization Arrangement: A minimum of 10 percent of the General Fund
beginning adopted appropriations (expenditure budget) should be incrementally
established and maintained for use in meeting unanticipated needs and/or
emergencies.
I. Use of Stabilization Fund Balance: The amount shall be used only after all efforts
have been exhausted to fund unanticipated needs and/or emergencies such as
an urgent event that affects the safety of the Citizens of the City of Brookings,
City of Brookings Employees, and Brookings Students. The urgent event could be
a blizzard, tornado, fire, flood, terrorist attack, bombing, explosions, train
derailments, straight-line winds/severe thunderstorm, hazardous materials
incident, water contamination, failure of electrical grid, mass casualty/fatality or
health epidemic. such as would occur in event of a natural disaster. Once the
City Manager or his/her designee has determined that it is necessary to draw
down fund balance, written communication should be provided by the City
Manager to the City Council, explaining the nature of the unanticipated need
and/or emergency and requires approval by a two-thirds vote of the Council.
The Stabilization Fund Balance may not be used for more than two consecutive
years.
Passed and approved this 4th day of December 2012.
CITY OF BROOKINGS
____________________________
Tim Reed, Mayor
ATTEST:
________________________
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
23
CONSENT AGENDA #4
G. Action on Resolution No. 154-12, a Resolution extending the Agreement
between the City of Brookings and Northwestern Corporation for sixty
days.
The City has been working with Northwestern Public Service on the renewal agreement.
Their current agreement will expire on December 15, 2012, and renewal terms are still
being negotiated. Resolution No. 154-12 will extend the current agreement for a
maximum of 60 days to allow sufficient time to complete the agreement. The final
agreement will be on a future council agenda for approval.
Resolution No. 154-12
Resolution to Extend Northwestern Public Service Company Agreement
Whereas, The City of Brookings adopted Ordinance No. 29-92 on December 15, 1992, granting
to Northwestern Public Service Company, 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; and
Whereas, the term of Ordinance No. 29-92 was granted for a period of twenty years from the
15th day of December, 1992; and
Whereas, the terms of the renewal ordinance are under negotiation and will not be finalized
before the expiration date of Ordinance No. 29-92 on December 15, 2012.
Therefore be it resolved, that the expiration date of Ordinance No. 29-92 be extended for 60
days.
Passed and approved this 4th day of December, 2012.
CITY OF BROOKINGS
____________________________________
Tim Reed, Mayor
ATTEST:
__________________________
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
24
CONSENT AGENDA #4
H. Action on Resolution No. 155-12, a Resolution canceling certain
outstanding checks.
Resolution No. 155-12 cancels outstanding checks more than a year old. The Finance
Department has contacted these individuals and requested they cash or contact them
for a duplicate check.
Resolution No. 155-12
Cancelling Certain Outstanding Checks
Whereas, the City of Brookings, has issued checks that have been outstanding for more than six
(6) months;
Now, Therefore, Be It Resolved that the following amounts be canceled and the proper funds
be credited:
General Fund
1/11/12 Ivy Gunn $ 10.00
5/2/12 Paul Carrol $ 15.00
Total $ 25.00
Passed and approved this 4th day of December, 2012.
CITY OF BROOKINGS, SD
________________________
Tim Reed, Mayor
ATTEST:
_____________________________
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
25
CONSENT AGENDA #4
I. Action on Resolution No. 156-12, a Resolution Authorizing Closeout on
Dakota Nature Park, Phase I (Fisheries Improvements) Construction;
Rounds Construction, Inc.
The Dakota Nature Park is located on 22nd Ave. South on the site of the previous city
landfill. This project phase entails the grading and surfacing of approximately 3,300 LF of
hiking trails; construction of a canoe/kayak launch; pick-up, delivery and installation of
two floating fishing piers; grading and surfacing of two entrance roads and parking lots.
Surfacing to be recycled concrete aggregate.
This is the first of several phases under which the park will be developed. This first
phase is funded through a matching grant with South Dakota Department of Game, Fish
and Parks (SDGFP) with the City of Brookings providing a 25% match to the 75% match
by SDGFP.
This project was completed by the completion date and is ready to be closed out. The
final project cost was $184,400.00, which was an increase of $4,400.00 to the original
contract. This was due to two change orders: 1) additional tree removal ($3,000.00) and
2) increase in excise tax for owner provided materials ($1,400.00). A summary is as
follows:
Original Contract Price: $180,000.00
Change from Previously Approved Change Orders: $ 4,400.00
Contract Price incorporating all Change Orders: $184,400.00
Resolution No. 156-12 will approve closeout for this phase of the project.
Resolution No. 156-12
A Resolution Authorizing Closeout on Dakota Nature Park, Phase I (Fisheries Improvements)
Construction; Rounds Construction, Inc.
Be It Resolved by the City Council that the following be allowed for Phase I Construction (Fisheries
Improvements) at Dakota Nature Park with Rounds Construction, Inc: Construction Closeout on Phase I
Construction at Dakota Nature Park.
There are no further adjusted bid quantities for this phase of the project.
Passed and approved this 4th day of December, 2012.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
26
CONSENT AGENDA #4
J. Acton on Resolution No. 157-12, a Resolution authorizing Change Order
No. 2 for 2011-02BLD Swiftel Center Storage Addition Project for Daniels
Residential, Inc.
Change order #2 was to widen the sidewalk around the storage addition to
accommodate vehicle traffic. This change order also included relocation of electrical
wiring and a security light that needed to be relocated for the installation of the new
exit door. Change order #2 was an addition to the contract in the amount of $2,454.54.
Resolution No. 157-12
Resolution Authorizing Change Order No. 2 for
2011-02BLD Swiftel Center Storage Addition Project
Daniels Residential, Inc.
Be it Resolved by the City Council that the following change order be allowed for 2011-02BLD
Swiftel Center Storage Addition Project:
• Construction Change Order Number 2
• Adjust the contract price for an increase of $2454.54 to the contract.
Passed and approved this 4th day of December, 2012.
CITY OF BROOKINGS
________________________________
Tim Reed, Mayor
ATTEST:
_________________________
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
27
CONSENT AGENDA #4
K. Action on Resolution No. 158-12, a Resolution Authorizing Change Order
No. 1 (CCO#1 Final) for 2012-08STI Street Maintenance and Overlay
Project; Bowes Construction, Inc.
This project was the annual street maintenance project which included asphalt milling,
digouts and overlays on various streets in Brookings in need of repair. The streets
repaired were 34th Avenue north of Highway 14, the east/west landfill road, Pheasant
Run Road between Arrowhead Pass and 12th Street South, and a portion of Lefevre
Drive.
This project has been completed and is ready to be closed out. Resolution No. 158-12
will adjust the plan quantities to as-built quantities, for a decrease of $40,694.18. The
decrease was due to adjustments in actual quantities, and 20th Street South and Medary
Avenue South were not repaired. The balance of the overlay budget will be
recommended for transfer to 2013, and this intersection will be repaired with the
overlay maintenance project next year.
The substantial completion date for this project was October 15, 2012 with liquidated
damages of $200 per day. The project was substantially completed on October 16,
2012. The digout repairs and asphalt overlay for 34th Avenue was delayed since that
street was being used as a haul road for the Interstate 29 project and we wanted to
perform the work after the hauling was completed. A letter from the contractor is
included. Staff recommends extending the contract completion date by one working
day with no liquidated damages due to the haul road situation. The change order is
summarized below:
Original Contract Price: $380,070.00
Change from Previously Approved Change Orders: $ 0.00
Contract Price Prior to this Change Order: $380,070.00
Decrease of this Change Order (No. 1 Final): $ 40,694.18
Contract Price incorporating this Change Order: $339,375.82
Resolution No. 158-12 will approve Change Order No. 1 (CCO #1 Final) for a decrease of
$40,694.18 to close out the project and extend the contract deadline by one working
day.
December 4, 2012
City of Brookings
28
Resolution No. 158-12
A Resolution Authorizing Change Order No. 1 (CCO#1 Final) For
2012-08STI Street Maintenance and Overlay Project
Bowes Construction Inc.
Be It Resolved by the City Council that the following change order be allowed for 2012-08STI
Street Maintenance and Overlay Project:
Construction Change Order Number 1 Final
Adjust estimated bid quantities to “as-built” quantities for a total decrease of $40,694.18 to
close out the project and extend completion date by one working day.
Passed and approved this 4th day of December, 2012.
CITY OF BROOKINGS
_________________________
Tim Reed, Mayor
ATTEST:
____________________________
Shari Thornes, City Clerk
CORSTRUCTIOR., /DC.
November 14, 2012
Jackie Lanning, City Engineer
PO Box 270
Brookings, SD 57006
Re: 2012-0SSTI Street Maintenance & Overlay Project
Dear Ms. Lanning:
2915 22nd Avenue South
Brookings SO 57006
605.693.3557
605.693.3589 tax
www.bowesconstruction.com
The above-referenced project has a substantial completion date of October 15, 2012 and a final
completion date of November 1, 2012. Bowes Construction, Inc. completed the paving operation
October 16, 2012. I am requesting a time extension to be made due to the following reason.
As we are all aware, 16 miles of the north bound lane of Interstate 29 was under repair the entire
construction season. The road on the Brookings Maintenance Project to be asphalt overlaid was one of
the major haul roads for the Interstate 29 project. Due to the volume of traffic on that road, it was
decided to schedule that work to be done when the road was no longer in need as a haul road for
Interstate 29.
We reached this decision first and foremost because of safety to our personnel and the traveling public.
Working on that road with an abnormally high volume of traffic would have meant increasing the
exposure to our employees and citizens of an accident and/or injury. We felt this was too big of a risk to
take. ·
Further, the extra traffic would have impeded the construction process and raised the likely-hood of the
asphalt mat being damaged. Waiting until the heavy haulers were done using that road insured that the
newly placed asphalt would stay new and not take the impact of a of all the truck traffic unique to this
construction season.
With the above reasons taken into consideration, I ask that an extension request of one day be granted.
Thank you.
igffily
· Miran~a Bowes Peterson
Vice President
December 4, 2012
City of Brookings
30
CONSENT AGENDA #4
L. Action on Resolution No. 159-12, a Resolution Authorizing Change Order
No. 4 (CCO#4 Final) for 2012-09STI 25th Avenue and 10th Street Project;
Bowes Construction, Inc.
The Street Assessment Project 2012-09STA, 25th Avenue and 10th Street is completed
and ready to be closed out. This project includes curb and gutter, grading, gravel,
detention pond, storm sewer, asphalt pavement, and water and sanitary sewer mains
and services. This project is an assessment project, with the City paying the extra width
and thickness costs for the street.
This change order adjusts plan quantities to as-built final quantities to close out the
project for a total increase of $903.00 to the contract. The project was completed by
the contract deadline and no time adjustment is needed. The project summary is as
follows:
Original Contract Price: $398,661.42
Decrease from Previous Change Orders (No. 1, 2 & 3): $ 1,059.48
Contract Price Prior to this Change Order: $397,601.94
Increase of this Change Order (No. 4 Final): $ 903.00
Contract Price incorporating this Change Order: $398,504.94
Resolution No. 159-12 will approve Change Order No. 4 (CCO #3) for an increase of
$903.00 to the contract.
Resolution No. 159-12
Resolution Authorizing Change Order No. 4 (CCO#4 Final) for
2012-09STI 25th Avenue and 10th Street Construction Project
Be It Resolved by the City Council that the following change order be allowed for 2012-09STI
25th Avenue and 10th Street Construction Project:
Construction Change Order Number 4 (Final): Adjust plan quantities to as-built quantities to
final out the project for a total increase of $903.00 to the contract.
Passed and approved this 4th day of December, 2012.
CITY OF BROOKINGS
________________________________
ATTEST Tim Reed, Mayor
_________________________
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
31
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.
December 4, 2012
City of Brookings
32
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/#!
December 4, 2012
City of Brookings
33
Contracts & Change Orders
8. Action on Resolution No. 160-12, a Resolution Authorizing Change Order
No. 1 for the City of Brookings Public Safety Center Renovation Project;
Mark Luke Construction.
This project entailed work for the general renovation of the Brookings Police
Department located at 307 3rd Avenue. The project included work in three phases to
the HVAC, CID remodel, and Dispatch remodel. The project with the general
contractor included items such as: demolition, general carpentry, heating and cooling
systems, carpeting, painting, and electrical work.
During the construction of the project, unforeseen items were discovered and are
included in this change order. These items included: acoustical seals to doorways and
walls in interview rooms, existing gate valves (upstairs) to the heating system which
were leaking, demolition to an existing bathroom ceiling for access for the new heating
system, and removal of existing wallpaper to water damaged walls in old city hall,
followed by patching and repainting those walls. This increased the project by an
additional $10,184.15. The project summary is as follows:
Original Contract Price: $403,000.00
Increase of this Change Order (No. 1): $ 10,184.15
Contract Price incorporating this Change Order: $413,184.15
Resolution No. 160-12 will approve Change Order No. 1 (CCO #1) for an increase of
$10,184.15 to the contract for this project.
City Manager Introduction
Action: Motion to Approve, Request Public Comment, Roll Call
December 4, 2012
City of Brookings
34
Resolution No. 160-12
Resolution Authorizing Change Order No. 1 for
City of Brookings Public Safety Center Renovation Project
Mark Luke Construction
Be It Resolved by the City Council that the following change order be allowed for the City of
Brookings Public Safety Center Project: Construction Change Order Number 1
Adjust contract for additional work of replacement of leaking gate valves, acoustical work in
the CID, demolition to bathroom ceiling for HVAC access, and repair of water damaged walls in
old City Hall for a total increase of $10.184.15 to the contract.
Passed and approved this 4th day of December, 2012.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
35
Contracts & Change Orders
9. Action on Resolution No. 161-12, a Resolution Authorizing Change Order
No. 2 for the City of Brookings Public Safety Center Renovation Project;
Mark Luke Construction.
This project entailed work for the general renovation of the Brookings Police
Department located at 307 3rd Avenue. The project included work in three phases to
the HVAC, CID remodel, and Dispatch remodel. The project with the general
contractor included items such as demolition, general carpentry, heating and cooling
systems, carpeting, painting, and electrical work.
During the construction of the project, unforeseen items were discovered and are
included in this change order. These items included: replacement of existing CV to
electrical valves in basement, removal of existing VCT tile to prepare floor for new
carpet, replace faulty gate valves in basement (heating system), remove existing sound
panels from old interview rooms, relocate hidden electrical and mechanical lines in
dispatch area, remove existing carpet from walls in Dispatch, and added cost of new
signage and lighting for the exterior Public Safety Center. This increased the cost of the
project by $13,702.91. The project summary is as follows:
Original Contract Price: $403,000.00
Increase of this Change Order (No. 1): $ 10,184.15
Contract Price incorporating this Change Order: $413,184.15
Increase of this Change Order (No. 2): $ 13,702.91
Total cost with both Change Order 1 & 2 $426,887.06
Resolution No. 161-12 will approve Change Order No. 2 (CCO #2) for an increase of
$13,702.91 to the contract for this project.
City Manager Introduction
Action: Motion to Approve, Request Public Comment, Roll Call
December 4, 2012
City of Brookings
36
Resolution No. 161-12
Resolution Authorizing Change Order No. 2 for
City of Brookings Public Safety Center Renovation Project
Mark Luke Construction
Be It Resolved by the City Council that the following change order be allowed for the City of
Brookings Public Safety Center Project: Construction Change Order Number 2.
Adjust contract for additional work of replacement of leaking gate valves in basement,
replacing pneumatic valves in basement for electrical, removal of VCT tile for carpet installation
in basement, remove existing sound panels in old interview rooms, remove old existing carpet
in Dispatch walls, and additional cost of the Public Safety Center exterior signage for an
additional increase of $13,702.91 to the contract.
Passed and approved this 4th day of December, 2012.
CITY OF BROOKINGS
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
37
Contracts & Change Orders
10. Action on Resolution No. 162-12, a Resolution authorizing Change Order
No. 1 for 2011-02BLD Swiftel Center Storage Addition Project for Daniels
Residential, Inc.
Change Order #1 was to re-route the existing 6” sewer line around the storage addition.
The existing pipe was schedule 80 and was running diagonal across where the addition
was going to be located. Building code requires schedule 40 pipe when located
underneath a structure. The schedule 80 pipe was abandoned and replaced with
schedule 40 and routed around the building for any future construction. Change Order
#1 was an addition to the contract in the amount of $7,696.01.
Resolution No. 162-12
Resolution Authorizing Change Order No. 1 for
2011-02BLD Swiftel Center Storage Addition Project
Daniels Residential, Inc.
Be it Resolved by the City Council that the following change order be allowed for 2011-02BLD
Swiftel Center Storage Addition Project:
• Construction Change Order Number 1
• Adjust the contract price for an increase of $7696.01 to the contract.
Passed and approved this 4th day of December, 2012.
CITY OF BROOKINGS
________________________________
Tim Reed, Mayor
ATTEST:
_________________________
Shari Thornes, City Clerk
City Manager Introduction
Action: Motion to Approve, Request Public Comment, Roll Call
December 4, 2012
City of Brookings
38
Contracts & Change Orders
11. Action on Resolution No. 163-12, a Resolution Awarding Bids on City of
Brookings Custodial Services.
The City of Brookings held a bid letting on Tuesday, November 27, 2012 at 1:30 pm for
the Custodial Services for the Brookings Public Library, Public Safety Center and the
Research & Technology Center and the City received the following bids:
Johnson Pro Clean
506 Ashley Ave.
Volga, SD
Carol Jung
705 6th Ave.
Brookings, SD
J&T Cleaning
721 5th St.
Brookings, SD
KaiJay C-1
PO Box 983
Maricopa, AZ
Library $1,600.00 $1,636.25 $2,500.00 $3,699.78
Public Safety
Center $1,200.00 $0.00 $2,800.00 $2,298.87
R&T Center $600.00 $0.00 $1,100.00 $611.32
Johnson Pro Clean has current custodial contract for the Public Safety Center and the
Research & Technology Center although they have not held the Public Library contract.
This resolution will award the Custodial Services contracts to Johnson Pro Clean, Volga,
SD for the low bids of $1,600.00/month for the Public Library, $1,200.00/month for the
Public Safety Center, and $600.00/month for the Research & Technology Center.
City Manager Introduction
Action: Motion to Approve, Request Public Comment, Roll Call
December 4, 2012
City of Brookings
39
Resolution No. 163-12
Resolution Awarding Bids on City of Brookings Custodial Services
Whereas, the City of Brookings opened bids for Custodial Services on Tuesday, November 27,
2012 at 1:30 pm at the Brookings City and County Government Center; and
Whereas, the City of Brookings has received the following bids: Johnson ProClean, Volga, SD:
Library - $1,600.00/month, Public Safety Center - $1,200.00/month and R & T Center -
$600.00/month; Carol Jung, Brookings, SD: Library - $1,636.25/month, no bids on Public Safety
Center or R & T Center; J & T Cleaning, Brookings, SD: Library - $2,500.00/month, Public Safety
Center - $2,800.00/month and R & T Center - $1,100.00/month; Kaijay C-1, Maricopa, AZ:
Library - $3,699.78/month, Public Safety Center - $2,298.87/month and R & T Center -
$611.32/month.
Now Therefore, Be It Resolved that the low bids of Johnson ProClean, Volga, SD for
$1,600.00/month for the Library, $1,200.00/month for the Public Safety Center and
$600.00/month for the Research & Technology Center be accepted.
Passed and approved this 4th day of December, 2012.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
40
First Readings**
12. Ordinance No. 28-12: An Ordinance Revising Article IV and Pertaining to
Excavations in the City of Brookings, South Dakota.
Public Hearing: December 18th
**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.
City staff and City Attorney Steve Britzman have been reviewing Article IV of the Code of
Ordinances pertaining to Excavations. This section of the code has not been updated for
some time and clarifications are needed to address some issues the City has had
regarding excavations on City streets. These issues include: not obtaining the proper
excavation permits, closing city streets without the City’s approval, using substandard
traffic control, and lack of street repairs. The length of the warranty for excavation
repairs is currently five years, but the revised ordinance expands on the excavator’s
responsibility during those five years. The updated ordinance will also allow the City to
have the repairs made and the excavator billed for the work. This Ordinance will
approve the updated language regarding Excavations.
December 4, 2012
City of Brookings
41
Ordinance No. 28-12
An Ordinance Revising Article IV and Pertaining to Excavations in the City of
Brookings, South Dakota.
Be It Ordained and Enacted by the Council of the City of Brookings, State of South Dakota, As
Follows:
I.
ARTICLE IV.
EXCAVATIONS
Sec. 74-141. Permit required.
No person shall make or cause to be made any excavation in or upon any street, sidewalk, alley
or public ground in the City; nor shall any person remove soil, paving, gravel or any material
therefrom without first having obtained a permit therefor from the City engineer. Exceptions
shall be made for work that is contracted directly with the City or for emergency work. For
emergency work, contractor shall immediately notify the City engineer (or Police Department if
after hours) and obtain a permit the next business day.
Sec. 74-142. Specifications.
All work performed under the provisions of this article shall conform to the specifications, rules
and regulations of the City engineer and on file in the office of the City engineer.
Sec. 74-143. Trenches generally.
All excavations shall be open trench work unless otherwise authorized by the City engineer or
by a representative of the City engineer. Trenches for all sewer and water service lines, sewer
and water mains or other excavations for any purpose between the curblines of any street shall
be backfilled and compacted with suitable engineered fill in accordance with standards and
procedures established by the City engineer. In any case, frozen or organic material shall not be
used as trench backfill may be refilled with finely graded gravel or the native soil, if approved by
the City engineer.
Sec. 74-144. Cutting pavements.
Where pavement is cut in making any street excavation such pavement shall be replaced by the
street department or the contractor and the contractor or person making such excavation shall
pay for and be liable to the City for the cost of such replacement. If the contractor fails to
repair the pavement within the dates, times or durations stated on the permit, the City shall
arrange to repair the pavement and the contractor shall be responsible for reimbursing the City
for the cost of the repair.
Sec. 74-145. Protection of public.
Any person receiving a permit to make performing excavations on or about any street, alley,
sidewalk or public ground shall, during the progress and continuance of the work, erect, keep
and maintain about and around the excavation during both day and night, suitable guards,
December 4, 2012
City of Brookings
42
fences, warning lights and signals as described in the latest version of the Manual of Uniform
and Traffic Control Devices published by the Federal Highway Administration so as to prevent
injury to persons, animals or vehicles as a result of such excavations. Any person making such
excavation shall, when the excavation shall be completed, promptly and without delay, refill
backfill the excavation in accordance with the standards and procedures established by the City
engineer.
Sec. 74-146. Excavator's responsibility.
The excavator shall leave the site clear of all excess dirt and any debris as a result of the
excavation. The excavator shall be responsible for maintaining the excavation for a
period of five years after the patch has been made. The excavator shall coordinate with the City
for street or alley construction, rebuilding, resurfacing and repair to minimize multiple
disturbances of the same area. The excavator shall leave City property and right-of-way in as
good and safe condition as it was before the commencement of work by the excavator, 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 excavator. The City shall
have the final approval right over whether adequate repair and restoration has been completed
by the excavator. In the event that the excavator fails to repair or restore affected City property
in a manner acceptable to the City, the City shall have the right, after allowing the excavator a
reasonable period to complete the repair and restoration, to make such repairs and restoration
and the excavator shall pay the costs incurred by the City for such actions.
Sec. 74-147. Duration of Street or Alley Closures.
The dates, times and duration of any street or alley closures shall be stated on the permit and
subject to approval by the City. Requests for changes to such dates, times, or durations of
street or alley closures stated on the permit must be made in writing to the City engineer prior
to expiration of the permit.
Sec. 74-148. Warranty
The excavator shall be held responsible for workmanship, materials, trench settlement or any
other deficiencies caused by their work during the corrective period of five (5) years and the
Contractor shall repair and/or replace all deficiencies during the corrective period at no cost to
the City. Any surface restoration costs incurred because of the repairing and/or replacing of
deficiencies shall be borne by the Contractor. The City shall have the final approval right over
whether adequate repair and restoration has been completed by the excavator. In the event
that the excavator fails to repair or restore affected City property in a manner acceptable to the
City, the City shall have the right, after allowing the excavator a reasonable period to complete
the repair and restoration, to make such repairs and restoration and the excavator shall pay the
costs incurred by the City for such actions.
Sec. 74-149. Violations and Enforcement.
(a) Violations. A violation of any provision of this Article shall be punishable by penalties
as stated in the Code of Ordinances.
December 4, 2012
City of Brookings
43
(b) In case any excavation occurs in violation of this Article, the appropriate authorities
of the city, may, in addition to other remedies, institute injunction or other appropriate action
or proceeding to prevent such unlawful excavation or construction, and may correct or abate
such violation.
Secs. 74-150-74-180. Reserved.
Any or all ordinances in conflict herewith are hereby repealed.
First Reading: December 4, 2012
Second Reading: December 18, 2012
Published:
CITY OF BROOKINGS, SD
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
44
First Readings**
13. Ordinance No. 29-12: An Ordinance Prohibiting Littering in the City of
Brookings, South Dakota.
Public Hearing: December 18th
**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 Tim Reed and Council Members, Jeff Weldon, City Manager and Shari
Thornes, City Clerk
From: Steven J. Britzman, City Attorney
Date: November 28, 2012
Re: Proposed Littering Ordinance
This memo is intended to provide background concerning the proposed Littering
Ordinance. While we have a State law prohibiting littering, we would normally utilize a
city ordinance for such a violation. While we have had a littering ordinance in the Code
of Ordinances for years, the littering ordinance we presently have is limited in scope and
the proposed Ordinance will include conduct not currently covered by our current
ordinance.
The proposed littering ordinance is based upon a very similar State littering law, and I
believe it will be helpful, as littering is a frequent problem. Please let me know if you
have any questions.
December 4, 2012
City of Brookings
45
Ordinance No. 29-12
An Ordinance Prohibiting Littering in the City of Brookings, South Dakota.
Be It Ordained and enacted by the council of the City of Brookings, State of South Dakota, as
follows:
I.
CHAPTER 70, ARTICLE II. Section 70-37. Littering prohibited – Exceptions.
SECTION 70-37. Littering prohibited - Exceptions.
No person may dump, deposit, drop, throw, discard, leave, cause or permit the dumping,
depositing, dropping, throwing, discarding or leaving of litter upon any public or private
property in the city, or upon or into any river, lake, pond, or other stream or body of water in
this city, unless:
(1) The litter is placed into a receptacle or other container intended by the owner or
tenant in lawful possession of that property for the deposit of litter;
(2) The person is the owner or tenant in lawful possession of the property or has first
obtained the consent of the owner or tenant in lawful possession, or unless the
act is done under the personal direction of the owner or tenant and does not
create a public health or safety hazard, a public nuisance, or a fire hazard;
(3) The person is acting under the direction of proper public officials during special
cleanup days; or
(4) The person is lawfully acting in or reacting to an emergency situation where
health and safety is threatened, and removes and properly disposes of such litter
when the emergency situation no longer exists.
II.
Any or all ordinances in conflict herewith are hereby repealed.
First Reading: December 4, 2012
Second Reading:
Published:
CITY OF BROOKINGS, SD
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
46
First Readings**
14. Ordinance No. 30-12: An Ordinance pertaining to an Application for a
Conditional Use for a Community Center in the Business B-2A District.
Public Hearing: December 18th
**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.
Applicant: Prairie Hills, LLC
Proposal: Construct a building to serve as a “clubhouse” for a new townhome
association.
Background: Prairie Hills Addition is a multi-use development planned for the 20th
Street South/Main Avenue South area. A residential phase called “The Landing” will
consist of about 45 twinhomes on private streets. The concept is similar to the Meadow
Green Townhome Association on 22nd Avenue South.
Specifics: The community center would serve as a gathering place for groups that were
too large for an association member’s residence. In addition, certain utilities would be
housed in the building. The building would have about 2,800 square feet of floor area
per floor. Parking would run parallel with the private street along the south side of the
lot. The petitioner’s property completely surrounds this lot.
Recommendation: The Planning Commission voted 6 yes and 0 no, with one abstention,
to recommend approval of a Conditional Use Permit for this use.
Ordinance No. 30-12
An ordinance pertaining to an application for a Conditional Use for a Community Center in the
Business B-2A District.
Be it ordained by the governing body of the City of Brookings, South Dakota that said Conditional Use
shall be approved for a Community Center on Lot 1, Block 4, Prairie Hills Addition with the following
conditions: None.
All sections and ordinances in conflict herewith are hereby repealed.
First Reading: December 4, 2012
Second Reading: December 18, 2012
Published:
December 4, 2012
City of Brookings
47
Planning Commission
Brookings, South Dakota
November 6, 2012
OFFICIAL MINUTES
Chairperson Wayne Avery called the regular meeting of the City Planning Commission to
order on Tuesday, November 6, 2012, at 5:30 PM in the Chambers Room on the third floor of
the City & County Government Center. Members present were Hal Bailey, Mike Cameron, Alan
Gregg, Al Heuton, John Sydow, Kristi Tornquist, and Avery. Donna DeKraai and Greg Fargen
were absent. Also present were John Mills, Richard Shane, Chris Engen, Scott Peterson,
Community Development Director Mike Struck, Planning and Zoning Administrator Dan Hanson
and others.
Item #4 – Prairie Hills, LLC has submitted an application for a Conditional Use Permit to
establish a community center on Lot 1, Block 4, Prairie Hills Addition
(Gregg/Bailey) Motion to approve the conditional use. All present voted aye, except
Sydow abstained. MOTION CARRIED.
SUMMARY OF DISCUSSION
Item #4 – John Mills, President of Prairie Hills, LLC, stated the community center would serve a
new twinhome development. He submitted an elevation drawing showing the proposed
architectural style of the building. He felt the center would be a useful amenity for residents of
the area.
Heuton asked about parking. Mills responded that there were 12 spaces planned for the
center, and more could be added adjacent to the private street. As a comparison, the
Meadowgreen Townhome community center had 14 spaces and that building was smaller.
Cameron noted that residents of Meadowgreen often walk to their center. He felt the
project fit in well with the proposed future uses. Bailey remarked that the center would add
value to the development in regards to added services. Heuton felt the style of the building
would blend in well with the neighborhood, and the center would compliment “The Landing”
development.
December 4, 2012
City of Brookings
48
Sec. 94-133. BUSINESS B-2A OFFICE DISTRICT
(a) Intent. This district is intended to provide for a mixture of office and other compatible and
complimentary uses. This district is intended to be located in close proximity to commercial uses or used as
a transitional zone between commercial and residential uses. An emphasis shall be placed on landscaping
and site arrangement.
(b) Scope of Regulations. The regulations set forth in this section or set forth elsewhere in this title, when
referred to in this section, are the district regulations of the Business B-2A Office District.
(c) Permitted Uses.
1. Office
2. Personal Health Service
3. Funeral home or mortuary
(d) Permitted Special Uses. A building or premises may be used for the following purposes in conformance
with the conditions prescribed herein:
1. Broadcast station or studio
a. No broadcast towers allowed
2. Service Store or hair salon
a. Floor area shall not exceed 2,000 square feet
b. No tanning beds shall be allowed in conjunction with these uses
(e) Conditional Uses.
1. Home occupation
2. Mixed business/residential use
3. Financial institution
4. Community center
(f) Density, Area, Yard and Height Regulations.
The B-2A district regulations shall be as follows:
Min. Min. Min. Min. Min. Max.
Lot Lot Front Side Rear Height
Density Area Width Yard Yard Yard
Sq.Ft. Sq.Ft.
All Uses - - 25' -* 20'* 35'
*A twenty-five foot (25') landscaped area shall be required between an abutting residential district
boundary line and any structure, access drive, parking lot or other accessory use.
(g) Accessory Uses. Accessory uses and building permitted in the B-2A District are buildings and uses
customarily incidental to any of the permitted uses in the district.
(h) Parking Regulations. Parking, loading and stacking within the B-2A District shall be in conformance with
the regulations set forth in division 4 of article VI of this chapter.
(i) Sign Regulations. Signs within the B-2A District shall be in conformance with the regulations set forth in
division 5 of article VI of this chapter.
(j) Other Regulations. Development within the B-2A District shall be in conformance with the regulations
set forth in article II of this chapter.
--
CONDITIONAL USE
PRAIRIE HILLS LLC
1. Hearing and action on an application for a cond itional use perm it to
establish a Commun ity Center on Lot 1, Block 4, Pra irie Hills
Add it io n (7th Avenue South/201h Street South area )
!
-~.
FUTURE
TWIN HOME
-... ___
\
\
\
"\I
BLOCK 50.
7th
Ave.
So.
70'
1. Hearing and action on an applicatio n for a cond itiona l use permit to establ is h a
Comm u nity Center on Lot 1, Block 4, Prairie Hills Addition (7th Avenue So uth/20 th Street South a rea)
20th St. So.
FUTURE BUSINESS ---->~
COMMUNITY .
CENTER LOT "1. ~~
PRIVATE
STREETS
TWINJtOME
DEVELOPMENT
CONDITIONAL USE REQUEST
PRAIRIE HILLS LLC
December 4, 2012
City of Brookings
51
First Readings**
15. Ordinance No. 31-12: An Ordinance prohibiting texting (while driving) in
the City of Brookings, SD.
Public Hearing: December 18th
**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: Jeff Weldon, City Manager
From: Jeff Miller, Chief of Police
Re: Texting while Driving Ordinance
Date: November 28, 2012
As a result of the recent study session by the City Council regarding a public concern
over texting or electronic messaging while operating a motor vehicle, I am presenting an
ordinance prohibiting such activity by drivers within the City of Brookings. The
ordinance outlines that such electronic messaging or the reviewing of such electronic
messaging while operating a motor vehicle on city streets would be prohibited within
the city limits of Brookings. The intent of the ordinance is to promote safe and
responsible driving within the City of Brookings.
December 4, 2012
City of Brookings
52
Ordinance No. 31-12
An Ordinance Prohibiting Texting in the City of Brookings, South Dakota.
Be It Ordained and Enacted by the Council of the City of Brookings, State of South Dakota, as
follows:
I.
Sec. 82-311. Definitions
Electronic communication device means wireless or cellular phones, PDAs, BlackBerries,
smartphones, MP3 players, laptop or notebook computers utilizing VoIP (Voice-over Internet
Protocol) technology, wireless and cellular phones utilizing push-to-talk technology, and any
other mobile communication device that uses shortwave analog or digital radio transmission
between the device and a transmitter to permit wireless communications to and from the user
of the device.
Electronic message means a self-contained piece of digital communication that is designed or
intended to be transmitted between two electronic communication devices. An electronic
message includes, but is not limited to, email, a text message, an instant message, a command
or request to access a World Wide Web page, or other data that uses a commonly recognized
electronic communications protocol. An electronic message does not include the use of global
positioning or navigation systems or voice or other data transmitted as a result of making a
phone call or data transmitted automatically by a wireless communication device without direct
initiation by a person.
Sec. 82-312. Prohibition of use of electronic message.
No person may operate or be in actual physical control of a motor vehicle while using a
handheld electronic communication device to compose, read, or send an electronic message
when the vehicle is in motion or a part of traffic.
Sec. 82-313. Exceptions to prohibition of use of electronic communication devices and
electronic message.
Section 82-312 shall not apply if the electronic communication device is being used:
(a) In the reasonable belief that a person’s life or safety is in immediate danger;
or
(b) In an emergency vehicle while in the performance of official duties.
II.
Any or all ordinances in conflict herewith are hereby repealed.
First Reading: December 4, 2012
Second Reading: December 18, 2012
Published:
CITY OF BROOKINGS, SD
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
53
Second Readings & Public Hearings
16. Public hearing and action on Ordinance No. 27-12: Budget Amendment
#4 - An Ordinance Authorizing a Supplemental Appropriation to the 2012
Budget for the purpose of providing for additional funds for the operation
of the City.
To: Mayor and City Council Members
From: Jeffrey W. Weldon, City Manager
Subject: 2012 Budget Amendment #4
Budget Amendment #4 for 2012 recognizes unanticipated revenues, reduces
expenditures for capital projects, and recognizes additional expenses in some areas with
a net effect of adding to the general fund balance, special revenue fund balance in total,
and decreasing revenues and expenses within our enterprise funds.
The City of Brookings is self-insured for unemployment. An unemployment fund was
created by the Hospital, Utilities, and City General in 1991. Each contributed a dollar
amount and all unemployment claims were paid from this fund. The City General Fund
owes the fund $63,041. This will bring the City General participation balance to zero. In
the future we will have to pay any of those claims from what department the claims
arise from.
We are not undertaking the capital project at EdgeBrook to upgrade our irrigation
system from the Everist Pond. However, we will use the public improvement
appropriation from EdgeBrook for the Valley View Park frontage improvements which
was donated this year.
We received several state grants. One was for the upgrade for our firewalls, which
required a local match. Another was for the remodeling of the police and dispatch area.
We also received a grant for equipment at the Dakota Nature Park and a donation for
park playground equipment at Arrowhead Park.
We split the Hillcrest Aquatic Center revenues and expenses and Larson Ice Arena
revenue and expenses from the Park and Recreation Department for more transparency
and accountability. There are budget amendments moving expenses and revenues
between the four departments, recognizing the actual revenues and expenses for each
of the four departments. This type of adjustment may be necessary again in 2013 until
we have historical activity to review for solid budget estimates.
We are amending the budget for the additional dispatch position granted this year due
to the increased state tax.
December 4, 2012
City of Brookings
54
There are major projects which are being adjusted significantly: Airport Phase 1, 25th
Avenue, and Storm Drainage projects for the Nelson Addition, Pheasant Nest, and
Camelot.
We are recognizing the loss of rental income at the Research & Technology Center due
to vacancies.
City Manager Introduction
Action: Open & Close Public Hearing, Motion to Approve, Roll Call
December 4, 2012
City of Brookings
55
Ordinance No. 27-12
An Ordinance Entitled “An Ordinance Authorizing a Supplemental Appropriation to the 2012
Budget for the Purpose of Providing for Additional Funds and for the Operation of the City.”
Be It Ordained by the City of Brookings, South Dakota:
Whereas, there is a need to recognize grant revenues which will be received in 2012; and
Whereas, the City of Brookings has received donations for recreational equipment at the
Nature Park and playground equipment at Arrowhead Park; and
Whereas, it is necessary to reimburse the unemployment fund for past claims; and
Whereas, salaries need to be adjusted for the additional dispatch position and temporary help
and unanticipated retirements by long time employees; and
Whereas, the Larson Ice Arena experienced equipment failure and loss of Freon; and
Whereas, it is necessary to provide the grant match used to remodel city hall for the Dispatch
Center; and
Whereas, it is necessary to recognize the Swiftel Center capital from 2011; and
Whereas, the construction of 25th Avenue is less than anticipated; and
Whereas, the Storm Drainage projects need adjustment for bond proceeds and construction
cost; and
Whereas, the Airport phase 1 of the project needs to be adjusted per the bids; and
Whereas, EdgeBrook Golf Course experienced increase usage additional revenues need to be
recognized and expenses per the contract for management; and
Whereas, the rent generated by the Research & Technology Center needs to be adjusted
because of vacancy’s and maintenance to the structure; and
Whereas State Law (SDCL 9-21-7) and the City Charter (4.06 (a) permit supplemental
appropriations provided there are sufficient funds and revenues available to pay the
appropriation when it becomes due.
Now, Therefore, Be It Resolved by the City Council that the City Manager be authorized to make
the following budget adjustments to the 2012 budget:
December 4, 2012
City of Brookings
56
Budget Amendment #4
Revenue Expense
Policy & Adm-City Coucil,City Clerk, City Manager 3,595
Other-Non-Dept, Gen Gov Buildings, IT 103,920 77,771
Public Safety-Police, Fire, Animal Control 12,775 (101,712)
Public Works-Comm Dev, Engineer, Street 23,000 6,107
Culture & Recreation-Park, Rec, Ice Arena, Pool,
Forestry, Library 74,299 106,228
Total General Government 213,994 91,989
75% Sales & Use Tax 135,994
E-911 46,420
Swiftel Center 135,994
Special Assessment (300,000)
Storm Drainage 1,620,000 (135,233)
Total Special Revenue 1,755,994 (252,819)
Airport (1,172,642) (1,196,303)
EdgeBrook Golf Course (25,858) (22,500)
Research & Technology Center (34,119) 12,171
Total Enterprise Funds (1,232,619) (1,206,632)
All Ordinances or parts of Ordinances in conflict herewith are hereby repealed.
First Reading: November 13, 2012
Second Reading: December 4, 2012
Published: December 7, 2012
CITY OF BROOKINGS
_________________________
Tim Reed, Mayor
ATTEST:
____________________________
Shari Thornes, City Clerk
8 - amendment detail
User:
Printed:
Ord Dec 2012/Recognizing Workmens Comp refund
Ord Dec 2012/Transfer in from 75% S&U
(from Edgebrook allocation)
0.00
0.00
0.00
0.00
Ord Dec 2012/Computer Dias
0.00
0.00
0.00
0.00
Ord Dec 2012/Temporary Help Increase
0.00
0.00
0.00
0.00
Ord Dec 2012/Paying unemployment claims from 1991-2012.
Ord Dec 2012/Moving to cover consulting and grant match IT
Ord Dec 2012/Moving btw depts to cover grant match
IT/Consulting Streetscape
0.00
0.00
0.00
0.00
Ord Dec 2012/Intern wages
Ord Dec 2012/Add'l wiring supplies PD/Cityhall
Ord Dec 2012/Computer Dias
Ord Dec 2012/PD & Dispatch phone upgrade
0.00
0.00
0.00
0.00
Ord Dec 2012/Adjusting Revenue to Actual
0.00
Ord Dec 2012/Estimated retirement pay out
0.00
0.00
0.00
Transaction Description
FUND 101 - General Government
DEPT 000 - General
REVENUE
101-000-4-669-08 Workers Compensation Refund 0.00 63,920.00
Account Number Description Original Budget New Budget
General Ledger
Budget Adjustment Proof List
rthompson
11/05/2012 - 1:25PM
Fiscal Year:2012
Expense Total:0.00 0.00
DEPT 000 - General Net Amount:650,000.00 753,920.00
Revenue Total:650,000.00 753,920.00
Revenue Total:650,000.00 753,920.00
101-000-6-700-03 Transfer In from 75% S&U Tax 650,000.00 690,000.00
DEPT 401 - Mayor & Council Net Amount:-4,000.00 -3,095.00
DEPT 403 - City Clerk
EXPENSE
Revenue Total:0.00 0.00
Expense Total:4,000.00 3,095.00
Expense Total:4,000.00 3,095.00
DEPT 401 - Mayor & Council
EXPENSE
101-401-5-429-00 Miscellaneous 4,000.00 3,095.00
Expense Total:0.00 4,500.00
DEPT 403 - City Clerk Net Amount:0.00 -4,500.00
Expense Total:0.00 4,500.00
Revenue Total:0.00 0.00
101-403-5-101-01 Temporary Pay 0.00 4,500.00
101-405-5-856-96 Matching Grant Expense 15,000.00 0.00
101-405-5-422-03 Consulting/Engineering 32,000.00 44,500.00
DEPT 405 - Non-Departmental
EXPENSE
101-405-5-421-05 Unemployment Claims 0.00 63,041.00
DEPT 416 - Information Technology
EXPENSE
101-416-5-101-01 Temporary Pay 4,650.00 6,650.00
Expense Total:47,000.00 107,541.00
DEPT 405 - Non-Departmental Net Amount:-47,000.00 -107,541.00
Expense Total:47,000.00 107,541.00
Revenue Total:0.00 0.00
Expense Total:41,455.00 55,885.00
Revenue Total:0.00 0.00
101-416-5-950-21 Capital less than $5,000-PD 9,500.00 18,525.00
101-416-5-940-03 Other Capital-City Clerk 1,000.00 1,905.00
101-416-5-940-00 Other Capital-IT 26,305.00 28,805.00
EXPENSE
101-418-5-101-00 Regular Pay 273,231.00 276,966.00
Revenue Total:7,000.00 10,000.00
DEPT 418 - Community Development
REVENUE
101-418-4-662-01 Rental Income 7,000.00 10,000.00
Expense Total:41,455.00 55,885.00
DEPT 416 - Information Technology Net Amount:-41,455.00 -55,885.00
Expense Total:273,231.00 276,966.00
Expense Total:273,231.00 276,966.00
Revenue Total:7,000.00 10,000.00
8 - amendment detail
User:
Printed:
Transaction DescriptionAccount Number Description Original Budget New Budget
General Ledger
Budget Adjustment Proof List
rthompson
11/05/2012 - 1:25PM
Fiscal Year:2012
0.00
Ord Dec 2012/Recognize add'l revenue
0.00
Ord Dec 2012/Est. retirement pay
Ord Dec 2012/Est. retirement pay
Ord Dec 2012/Adjusting to actual
Ord Dec 2012/Reducing budget
Ord Dec 2012/Reducing budget
Ord Dec 2012/Reducing budget
0.00
0.00
0.00
0.00
Ord Dec 2012/Grants Revenue
0.00
Ord Dec 2012/Open positions-Reducing budget
Ord Dec 2012/Open positions, reducing pay
Ord Dec 2012/Open positions, reducing budget
Ord Dec 2012/Open positions, reducing budget
Ord Dec 2012/Open positions, reducing budget
Ord Dec 2012/Gasoline increase due to price
Ord Dec 2012/Grant expenditure
Ord Dec 2012/Transfering funds for phone upgrade to IT
0.00
0.00
0.00
0.00
Ord Dec 2012/Reimbursement by State for Wildfire gasoline
0.00
Ord Dec 2012/Gasoline increase
Ord Dec 2012/Wiring phone system in new addition
0.00
0.00
0.00
0.00
Ord Dec 2012/Alignment btw depts
Ord Dec 2012/Alignment btw depts
Ord Dec 2012/Alignment btw depts, eqp failure,loss of freon
0.00
0.00
0.00
0.00
DEPT 419 - Engineering
REVENUE
101-419-4-223-01 Building Permits/Engineer Fees 100,000.00 120,000.00
DEPT 418 - Community Development Net Amount:-266,231.00 -266,966.00
101-419-5-422-09 Testing Services 320.00 0.00
101-419-5-120-00 FICA 25,152.00 23,652.00
EXPENSE
101-419-5-101-00 Regular Pay 314,888.00 320,490.00
Revenue Total:100,000.00 120,000.00
Expense Total:352,270.00 354,642.00
Revenue Total:100,000.00 120,000.00
101-419-5-428-01 Telephone 4,800.00 4,000.00
101-419-5-426-05 Photographic Supplies 110.00 0.00
101-419-5-426-01 Office Supplies 7,000.00 6,500.00
EXPENSE
101-421-5-101-00 Regular Pay 1,763,004.00 1,700,910.00
Revenue Total:114,448.00 123,223.00
DEPT 421 - Police Services
REVENUE
101-421-4-334-09 Grants 114,448.00 123,223.00
Expense Total:352,270.00 354,642.00
DEPT 419 - Engineering Net Amount:-252,270.00 -234,642.00
101-421-5-123-00 Group Insurance 341,143.00 317,083.00
101-421-5-121-09 Retirement 143,609.00 139,889.00
101-421-5-120-00 FICA 141,154.00 136,217.00
101-421-5-101-01 Temporary Pay 32,000.00 14,319.00
Expense Total:3,034,295.00 2,927,578.00
Revenue Total:114,448.00 123,223.00
101-421-5-930-00 Machinery & Auto Equipment 126,800.00 118,800.00
101-421-5-911-00 Building & Structures 416,585.00 425,360.00
101-421-5-426-10 Gasoline 70,000.00 75,000.00
EXPENSE
101-422-5-426-10 Gasoline 14,000.00 18,000.00
Revenue Total:0.00 4,000.00
DEPT 422 - Fire Protection Services
REVENUE
101-422-4-441-08 Reimbursed Expense 0.00 4,000.00
Expense Total:3,034,295.00 2,927,578.00
DEPT 421 - Police Services Net Amount:-2,919,847.00 -2,804,355.00
Expense Total:19,400.00 24,405.00
DEPT 422 - Fire Protection Services Net Amount:-19,400.00 -20,405.00
Expense Total:19,400.00 24,405.00
Revenue Total:0.00 4,000.00
101-422-5-428-01 Telephone 5,400.00 6,405.00
101-449-5-426-15 Chemicals 30,000.00 19,500.00
101-449-5-425-04 Maintenance Equipment 12,500.00 2,500.00
DEPT 449 - Aquatic Center
EXPENSE
101-449-5-101-01 Temporary Pay 174,133.00 152,133.00
Expense Total:216,633.00 174,133.00
DEPT 449 - Aquatic Center Net Amount:-216,633.00 -174,133.00
Expense Total:216,633.00 174,133.00
Revenue Total:0.00 0.00
8 - amendment detail
User:
Printed:
Transaction DescriptionAccount Number Description Original Budget New Budget
General Ledger
Budget Adjustment Proof List
rthompson
11/05/2012 - 1:25PM
Fiscal Year:2012
Ord Dec 2012/Recognize donation for rec. eqp for Dakota Nature Park
Ord Dec 2012/Recognize add'l revenue
0.00
Ord Dec 2012/Aligment btw depts
Ord Dec 2012/Add'l expense
Ord Dec 2012/Expenditure for grants rec'd
0.00
0.00
0.00
0.00
Ord Dec 2012/Recognize donation rec'd
Ord Dec 2012/Recognize add'l reimbursed revenue
0.00
Ord Dec 2012/Retirement pay
Ord Dec 2012/Budget realignment
Ord Dec 2012/Budget realignment
Ord Dec 2012/Realignment of budget
Ord Dec 2012/Add'l weed control in parks
Ord Dec 2012/Ballfields extreme need of aglime
Ord Dec 2012/Expense the donation for Arrowhead Park
Ord Dec 2012/Valley View frontage expense per donation
0.00
0.00
0.00
0.00
Ord Dec 2012/Realignment btw depts, eqp failure,loss of freon
Ord Dec 2012/Realignment btw depts
0.00
0.00
0.00
0.00
Ord Dec 2012/Recognize add'l revenue
0.00
Ord Dec 2012/Increased expense
Ord Dec 2012/Increased expense
Ord Dec 2012/increased expense
0.00
0.00
0.00
0.00
DEPT 451 - Recreation
REVENUE
101-451-4-446-10 Donation 0.00 12,760.00
101-451-5-423-05 Advertising/Promotion Fees 9,000.00 9,925.00
Revenue Total:0.00 20,060.00
EXPENSE
101-451-5-101-01 Temporary Pay-Recreation 95,000.00 117,000.00
101-451-4-669-02 Miscellaneous 0.00 7,300.00
Expense Total:124,000.00 162,545.00
DEPT 451 - Recreation Net Amount:-124,000.00 -142,485.00
Expense Total:124,000.00 162,545.00
Revenue Total:0.00 20,060.00
101-451-5-426-07 Recreation Supplies 20,000.00 35,620.00
Revenue Total:0.00 25,914.00
EXPENSE
101-452-5-101-00 Regular Pay 367,046.00 378,699.00
101-452-4-669-02 Miscellaneous Revenue 0.00 8,118.00
DEPT 452 - Parks
REVENUE
101-452-4-446-10 Donations 0.00 17,796.00
101-452-5-426-15 Chemicals 4,000.00 8,000.00
101-452-5-426-11 Oil & Grease Supplies 3,000.00 5,500.00
101-452-5-426-03 General Supplies 40,000.00 45,942.00
101-452-5-424-01 Equipment Rental 3,500.00 5,000.00
Expense Total:543,551.00 628,980.00
Revenue Total:0.00 25,914.00
101-452-5-960-00 Street & Sidewalk Improvements 15,000.00 55,000.00
101-452-5-940-00 Other Capital 108,005.00 125,801.00
101-452-5-426-23 Sand 3,000.00 5,038.00
101-453-5-426-04 Cleaning Supplies 2,000.00 4,000.00
DEPT 453 -
EXPENSE
101-453-5-426-03 General Supplies 3,500.00 14,500.00
Expense Total:543,551.00 628,980.00
DEPT 452 - Parks Net Amount:-543,551.00 -603,066.00
DEPT 454 - Forestry
REVENUE
101-454-4-441-09 Miscellaneous 10,000.00 38,325.00
Expense Total:5,500.00 18,500.00
DEPT 453 - Net Amount:-5,500.00 -18,500.00
Expense Total:5,500.00 18,500.00
Revenue Total:0.00 0.00
101-454-5-426-13 Diesel Fuel 7,000.00 9,000.00
101-454-5-426-11 Oil & Grease Supplies 500.00 1,350.00
EXPENSE
101-454-5-425-03 Maintenance Trucks 6,500.00 8,000.00
Revenue Total:10,000.00 38,325.00
Expense Total:14,000.00 18,350.00
DEPT 454 - Forestry Net Amount:-4,000.00 19,975.00
Expense Total:14,000.00 18,350.00
Revenue Total:10,000.00 38,325.00
8 - amendment detail
User:
Printed:
Transaction DescriptionAccount Number Description Original Budget New Budget
General Ledger
Budget Adjustment Proof List
rthompson
11/05/2012 - 1:25PM
Fiscal Year:2012
Ord Dec 2012/Retirement pay
Ord Dec 2012/Retirement pay
0.00
0.00
0.00
0.00
Ord Dec 2012/increasing to actual expense for fireworks display
0.00
0.00
0.00
0.00
0.00
0.00
0.00
Ord Dec 2012/Transfer to GF for Valley View Park
Ord Dec 2012/2011 capital carried over to 2012
Ord Dec 2012/Transfer appropriation to Parks-Valley View
0.00
0.00
0.00
0.00
0.00
0.00
0.00
Ord Dec 2012/Add'l dispatch postion
Ord Dec 2012/Add'l dispatch position
Ord Dec 2012/Add'l dispatch position
Ord Dec 2012/Add'l dispatch position
Ord Dec 2012/Match grant for remodel
0.00
0.00
0.00
0.00
0.00
0.00
0.00
DEPT 455 - Library
EXPENSE
101-455-5-101-00 Regular Pay 485,043.00 494,466.00
Expense Total:548,943.00 556,347.00
DEPT 455 - Library Net Amount:-548,943.00 -556,347.00
Expense Total:548,943.00 556,347.00
Revenue Total:0.00 0.00
101-455-5-123-00 Group Insurance 63,900.00 61,881.00
DEPT 495 - Subsidies Net Amount:-10,000.00 -12,800.00
Revenue Total:881,448.00 1,095,442.00
Revenue Total:0.00 0.00
Expense Total:10,000.00 12,800.00
Expense Total:10,000.00 12,800.00
DEPT 495 - Subsidies
EXPENSE
101-495-5-856-49 4th of July Subsidy 10,000.00 12,800.00
690,000.00
213-000-7-899-03 Transfer out-Swiftel CIP 338,500.00 474,494.00
FUND 213 - 75% Public Improvemnts/ord
DEPT 000 - General
EXPENSE
213-000-7-899-00 Transfer out General Fund 650,000.00
Expense Total:5,234,278.00 5,326,267.00
FUND 101 - General Government Net Amount:-4,352,830.00 -4,230,825.00
Expense Total:1,090,000.00 1,225,994.00
DEPT 000 - General Net Amount:-1,090,000.00 -1,225,994.00
Expense Total:1,090,000.00 1,225,994.00
Revenue Total:0.00 0.00
213-000-7-899-28 Transfer out to Edgebrook Golf 101,500.00 61,500.00
214-000-5-120-00 FICA 24,300.00 24,937.00
EXPENSE
214-000-5-101-00 Regular Pay 306,748.00 325,971.00
FUND 213 - 75% Public Improvemnts/ord Net Amount:-1,090,000.00 -1,225,994.00
FUND 214 - E911
DEPT 000 - General
Revenue Total:0.00 0.00
Expense Total:1,090,000.00 1,225,994.00
Expense Total:432,463.00 478,883.00
Revenue Total:0.00 0.00
214-000-5-911-00 Buildings & Structures 23,815.00 45,718.00
214-000-5-123-00 Group Insurance 58,541.00 62,698.00
214-000-5-121-09 Retirement 19,059.00 19,559.00
FUND 214 - E911 Net Amount:-432,463.00 -478,883.00
Revenue Total:0.00 0.00
Expense Total:432,463.00 478,883.00
Expense Total:432,463.00 478,883.00
DEPT 000 - General Net Amount:-432,463.00 -478,883.00
8 - amendment detail
User:
Printed:
Transaction DescriptionAccount Number Description Original Budget New Budget
General Ledger
Budget Adjustment Proof List
rthompson
11/05/2012 - 1:25PM
Fiscal Year:2012
Ord Dec 2012/2011capital project carried over to 2012
0.00
0.00
0.00
0.00
0.00
0.00
0.00
Ord Dec 2012/Reduce the expense for 25th Ave. const.
0.00
0.00
0.00
0.00
0.00
0.00
0.00
Ord Dec 2012/Recognize loan proceeds for drainage projects
0.00
Ord Dec 2012/Recognize add'l expense for Nelson, Pheasant Nest & Camelot Project
Ord Dec 2012/Recognize add'l expense for Nelson, Pheasant Nest & Camelot Project
Ord Dec 2012/Recognize loan payment
Ord Dec 2012/Recognize loan payment
Ord Dec 2012/Recognize land purchase S of 15th St S for Camelot
Ord Dec 2012/Reduce storm sewer improvement cost
0.00
0.00
0.00
0.00
0.00
0.00
0.00
REVENUE
224-000-6-700-04 Transfer in Sales & Use Tax 338,500.00 474,494.00
FUND 224 - Swiftel Center
DEPT 000 - General
Revenue Total:338,500.00 474,494.00
Expense Total:0.00 0.00
Expense Total:0.00 0.00
DEPT 000 - General Net Amount:338,500.00 474,494.00
Revenue Total:338,500.00 474,494.00
Revenue Total:338,500.00 474,494.00
Expense Total:1,580,000.00 1,280,000.00
Revenue Total:0.00 0.00
EXPENSE
280-000-5-960-00 Street & Sidewalk Improvements 1,580,000.00 1,280,000.00
FUND 224 - Swiftel Center Net Amount:338,500.00 474,494.00
FUND 280 - Special Assessment
DEPT 000 - General
REVENUE
282-000-4-663-50 Proceeds SRF Loan 320,000.00 1,940,000.00
FUND 280 - Special Assessment Net Amount:-1,580,000.00 -1,280,000.00
FUND 282 - Storm Drainage
DEPT 000 - General
Revenue Total:0.00 0.00
Expense Total:1,580,000.00 1,280,000.00
Expense Total:1,580,000.00 1,280,000.00
DEPT 000 - General Net Amount:-1,580,000.00 -1,280,000.00
282-000-5-470-11 Principal Payment-SRF Loan 0.00 10,822.00
282-000-5-425-10 Maintenance Storm Sewer 65,000.00 85,000.00
282-000-5-422-03 Consulting/Engineering 100,000.00 250,000.00
Revenue Total:320,000.00 1,940,000.00
EXPENSE
Expense Total:2,015,000.00 1,879,767.00
Revenue Total:320,000.00 1,940,000.00
282-000-5-980-00 Storm Sewer Improvements 1,850,000.00 1,500,000.00
282-000-5-910-00 Land 0.00 15,156.00
282-000-5-470-12 Interest Payment-SRF Loan 0.00 18,789.00
FUND 282 - Storm Drainage Net Amount:-1,695,000.00 60,233.00
Revenue Total:320,000.00 1,940,000.00
Expense Total:2,015,000.00 1,879,767.00
Expense Total:2,015,000.00 1,879,767.00
DEPT 000 - General Net Amount:-1,695,000.00 60,233.00
8 - amendment detail
User:
Printed:
Transaction DescriptionAccount Number Description Original Budget New Budget
General Ledger
Budget Adjustment Proof List
rthompson
11/05/2012 - 1:25PM
Fiscal Year:2012
Ord Dec 2012/Grant revenues adjusted to anticipate work on phase 1
Ord Dec 2012/Revenue for sale of Pitts property reduced to actual
0.00
Ord Dec 2012/Workmens Comp reduced to actual
Ord Dec 2012/Adjusting auditing cost for grant expenditures
Ord Dec 2012/Reducing cost for less snow removal expense
Ord Dec 2012/Moving to gasoline line item
Ord Dec 2012/Adjusting line items
Ord Dec 2012/Reducing to cover loss of revenue on land sale
Ord Dec 2012/Reducing expense for loss of revenue for sale of property
Ord Dec 2012/Reducing expense
Ord Dec 2012/Adjusting to anticipated spend for phase 1 in 2012
0.00
0.00
0.00
0.00
0.00
0.00
0.00
Ord Dec 2012/Adjusting revenue lines to actual
Ord Dec 2012/Adjusting revenue lines for new fee structure
Ord Dec 2012/Adjusting revenue lines for new fee structure
Ord Dec 2012/Adjusting revenue lines for new fee structure
Ord Dec 2012/Adjusting revenue lines for new fee structure
Ord Dec 2012/Adjusting revenue lines to actual
Ord Dec 2012/Adjusting revenue lines to actual
Ord Dec 2012/Adjusting revenue lines for new fee structure
Ord Dec 2012/Adjusting revenue lines for new fee structure
Ord Dec 2012/Adjusting revenue lines for new fee structure
Ord Dec 2012/Adjusting revenue lines for new fee structure
Ord Dec 2012/Adjusting revenue lines for new fee structure
Ord Dec 2012/Lower transfer for Everist Pond Irrigation
0.00
Ord Dec 2012/Adjusting according to contract for Pro
Ord Dec 2012/Reduce capital project/Everist pond irrigation
0.00
0.00
0.00
0.00
0.00
0.00
0.00
REVENUE
606-000-4-334-09 Grants 4,256,782.00 3,100,130.00
FUND 606 - Airport
DEPT 000 - General
606-000-5-422-02 Contracted Auditing Services 2,400.00 4,000.00
Revenue Total:4,276,782.00 3,104,140.00
EXPENSE
606-000-5-130-00 Workmans Compensation 3,723.00 2,123.00
606-000-4-664-00 Sale of Fixed Assets 20,000.00 4,010.00
606-000-5-427-01 Travel & Lodging 6,000.00 3,000.00
606-000-5-426-10 Gas 2,800.00 3,300.00
606-000-5-426-03 General Supplies 4,774.00 3,774.00
606-000-5-425-09 Maintenance Grounds 27,036.00 18,000.00
Expense Total:4,400,388.00 3,204,085.00
Revenue Total:4,276,782.00 3,104,140.00
606-000-5-940-00 Other Capital 4,343,655.00 3,163,388.00
606-000-5-428-03 Heat 6,000.00 3,500.00
606-000-5-427-02 Registration & Training 4,000.00 3,000.00
FUND 606 - Airport Net Amount:-123,606.00 -99,945.00
FUND 607 - Edgebrook Golf Course
DEPT 000 - General
Revenue Total:4,276,782.00 3,104,140.00
Expense Total:4,400,388.00 3,204,085.00
Expense Total:4,400,388.00 3,204,085.00
DEPT 000 - General Net Amount:-123,606.00 -99,945.00
607-000-4-346-18 Golf Carts-Senior 9 holes 2,000.00 0.00
607-000-4-346-15 Season Tickets-Family/children 10,000.00 5,703.00
607-000-4-346-14 Season Tickets-Family no child 16,000.00 7,999.00
REVENUE
607-000-4-346-04 Green Fees-Executive Course 6,000.00 13,554.00
607-000-4-346-24 Golf Carts-Season Tickets 22,000.00 15,068.00
607-000-4-346-21 Golf Carts-18 holes 1/2 price 11,000.00 14,091.00
607-000-4-346-20 Golf Carts-9 holes 1/2 price 15,000.00 16,219.00
607-000-4-346-19 Golf Carts-Senior 18 holes 1,000.00 0.00
607-000-4-346-41 Golf Cart/Driving Range-Single 0.00 3,876.00
607-000-4-346-33 Golf Cart Pkg-Family w/o child 0.00 3,344.00
607-000-4-346-32 Golf Cart Package-Senior 0.00 5,497.00
607-000-4-346-31 Golf Cart Package-Single 0.00 11,791.00
607-000-5-940-00 Other Capital 40,000.00 0.00
Revenue Total:184,500.00 158,642.00
EXPENSE
607-000-5-422-04 Contracting Services/Pro 85,500.00 103,000.00
607-000-6-700-09 Transfer in 75% Public Improve 101,500.00 61,500.00
Revenue Total:184,500.00 158,642.00
Expense Total:125,500.00 103,000.00
Expense Total:125,500.00 103,000.00
DEPT 000 - General Net Amount:59,000.00 55,642.00
Expense Total:125,500.00 103,000.00
Revenue Total:184,500.00 158,642.00
FUND 607 - Edgebrook Golf Course Net Amount:59,000.00 55,642.00
8 - amendment detail
User:
Printed:
Transaction DescriptionAccount Number Description Original Budget New Budget
General Ledger
Budget Adjustment Proof List
rthompson
11/05/2012 - 1:25PM
Fiscal Year:2012
Ord Dec 2012/Adjusting rental revenue for loss of tenant
0.00
Ord Dec 2012/Adjusting for building improvement
0.00
0.00
0.00
0.00
0.00
0.00
0.00
630-000-5-911-00 Buildings & Structures 0.00 12,171.00
Revenue Total:135,000.00 100,881.00
EXPENSE
REVENUE
630-000-4-848-12 Rentals 135,000.00 100,881.00
FUND 630 - Research & Tech Center
DEPT 000 - General
FUND 630 - Research & Tech Center Net Amount:135,000.00 88,710.00
GL-Budget Adjustment Proof List (11/5/2012 - 1:25 PM)
Revenue Total:135,000.00 100,881.00
Expense Total:0.00 12,171.00
Expense Total:0.00 12,171.00
DEPT 000 - General Net Amount:135,000.00 88,710.00
Expense Total:0.00 12,171.00
Revenue Total:135,000.00 100,881.00
December 4, 2012
City of Brookings
64
Second Readings & Public Hearings
17. Public hearing and action on Annual Liquor and Wine Alcohol License
Renewals.
Enclosed for City Council review and action are the annual on-sale liquor and wine
renewals for 2013. All required documentation has been submitted.** Staff
recommends approval. ** At the time of printing, Oly’s Pub had not submitted their wine renewal
application. If not received by time of meeting, City Council action will need to exclude Oly’s Pub.
Liquor (Off-Sale):
1. Brookings Municipal Liquor Store, 780 22nd Ave. So.
Liquor (On-Sale):
1. Fireside Inc., 2515 E. 6th St.
2. Applebee’s/Porter Apple Co. B Inc., 3001 LeFevre Dr.
3. BraVo’s Inc., 610 Medary Ave.
4. Brownstone Restaurant & Lounge, 313 Main Ave.
5. Buffalo Wild Wings Bar & Grill, 1721 6th St.
6. Cubby’s Sports Bar & Grill / GDT Inc., 307 Main Ave.
7. Danny’s / David Olson Inc., 703 Main Ave. So.
8. BPO Elks/ Brookings Lodge #1490, 516 4th St.
9. Jim’s Tap, 309 Main Ave.
10. Half Pint Enterprise Inc / Lantern Lounge, 303 3rd St.
11. 9 Bar Nightclub (Nine Inc.), 303 Main Ave.
12. Old Market Eatery, LLC, 424 5th St.
13. Park Hospitality, Inc., 2500 6th St.
14. Pheasant Café & Lounge, 726 Main Ave. So.
15. Prairie Lanes Inc., 722 Western Ave.
16. Ram & O’Hare’s Ent LLC/The Ram, 327 Main Ave.
17. Ray’s Corner / Fergen Enterprises Inc., 401 Main Ave.
18. Skinner’s Pub Inc., 300 Main Ave.
19. B&L Sullivan Inc./Sully’s Irish Pub, 421 Main Ave.
20. GEO Dokken Post 2118/VFW, 520 Main Ave.
Restaurant (On-Sale):
1. Whiskey Creek Wood Fire Grill/Brookings Steak Co. LLC, 621 32nd Ave.
Wine (On-Off Sale):
1. Aramark/McCrory Gardens Visitors Center, 6th St. & 22nd Ave.
2. BraVo’s Inc., 610 Medary Ave.
3. Brookings Municipal Liquor Store, 780 22nd Ave. So.
4. CHS, Inc. / Zip Trip #63, 1005 6th St.
5. CHS, Inc./Zip Trip #64, 3045 LeFevre Dr.
6. Cottonwood Coffee Inc., 1710 6th St.
7. Guadalajara, 1715 6th St., Suite F
8. Hy-Vee Food Store, 700 22nd Ave.
9. Old Sanctuary, 928 4th St.
10. Oly’s Neighborhood Pub & Grill, 725 Main Ave. So.
December 4, 2012
City of Brookings
65
11. Pheasant Café & Lounge, 726 Main Ave. So.
12. Rian Corp./Italian Garden, 1300 Main Ave. So.
13. Sake, Inc., 724 22nd Ave. So.
14. Schoon’s Pump N’ Pak South, 1205 Main Ave. So.
15. Skinner’s Pub Inc., 300 Main Ave.
16. Swiftel Center, 824 32nd Ave.
17. Wal-Mart Supercenter #1538, 2233 6th St.
SDCL 35-2-6.2 provides the character requirements for alcoholic beverage licensees: Any license under
this title must be a person of good moral character, never convicted of a felony, and, if a corporation, the
managing officers thereof must have like qualifications.‖
Procedure for issuance of licenses: Procedurally, SDCL 35-2-3 provides that no license for the on or off-
sale at retail of alcoholic beverages shall be granted to an applicant for any such license, except after
public hearing, upon notice.‖ SDCL 35-2-5 provides the procedure for the time and place of hearing and
for publication of notice. If an application for a license is refused, no further application may be received
from a person until after the expiration of one year from the date of a refused application.‖
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
Summary: SDCL and case law support the premise that the decision to issue an alcoholic beverage license
is discretionary. The City can assess the character of the applicant and whether the location is suitable. A
person convicted of a felony is prohibited from applying for a license; therefore, a convicted felon would
fail the character test. In determining suitable location, the Council may involve the determination of
whether the location is suitable consistent with the procedure developed through South Dakota Case
Law. This includes the manner in which the business is operated; the extent to which minors frequent or
are employed in such place of business; the adequacy of the police facilities to properly police the
proposed location, and other factors associated with the sale of alcoholic beverages.
City Manager Introduction
Action: Open & Close Public Hearing, Motion to Approve, Roll Call
December 4, 2012
City of Brookings
66
Second Readings & Public Hearings
18. Public hearing and action on Resolution No. 164-12, a Resolution
authorizing the City Manager to enter into a Wine Operating Agreement
for the Blizzard, LLC, 924 32nd Ave., Brookings, South Dakota(Legal
Description: Blocks 6-7, Wiese Addition).
The City of Brookings has received an application for On-Off Sale Wine License from The
Blizzard, LLC, Chris Canavati and Mitri Canavati, owners, 924 32nd Ave. (Larson Ice
Center), legal description: Blocks 6-7, Wiese Addition. An operating agreement is
required for wine licenses. Resolution No. 164-12 allows the City Manager to enter into
the first five years of the 10-year agreement effective through 2017.
A public hearing and action by the local governing body is required for all new alcohol
licenses. 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
December 4, 2012
City of Brookings
67
Resolution No. 164-12
Blizzard, LLC
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 Blizzard, LLC, for the purpose of a liquor manager to operate the on-sale
establishment or business for and on behalf of the City of Brookings at 924 32nd Ave.
Be It Further Resolved that the City Manager be authorized to execute the Agreement on behalf
of the City, which shall be for a period of five (5) years and renewal for another five (5) years.
Passed and approved this 4th day of December, 2012.
CITY OF BROOKINGS
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
68
On-Off Sale Wine Operating Agreement
The Blizzard, LLC
THIS AGREEMENT made and entered into by and between the CITY OF BROOKINGS, a
municipal corporation of the State of South Dakota, hereinafter referred to as the “City” and
The Blizzard, LLC (Chris Canavati and Mitri Canavati, owners) hereinafter referred to as
“Manager.”
WITNESSETH;
WHEREAS, the City has been issued an on-sale alcoholic beverage license and is engaged in the
sale of alcoholic beverages, and
WHEREAS, the City desires to enter into an Operating Agreement on a limited basis with the
Manager for the purpose of operating an on-off sale establishment or business for and on behalf
of the City pursuant to law, and
WHEREAS, the Manager has offered to have facilities in which to operate said on-off sale
establishment solely upon the premises hereinafter described.
NOW, THEREFORE IT IS MUTUALLY AGREED AS FOLLOWS:
I.
This Agreement is made and entered into on a limited basis between the parties hereto allow
the Manager to operate a retail on-off sale premises, pursuant to and in accordance with all of
the terms and conditions of this Agreement in accordance with all State laws and City
Ordinances now in effect and as may be enacted in the future.
II.
The Manager shall be individually responsible for all operating expenses of said on-off sale
establishment, including but not limited to utilities, taxes, insurance, and license fees, if any.
The Manager shall furnish all equipment and fixtures necessary to operate the establishment.
III.
The on-off sale establishment shall be located upon real estate in the City of Brookings, South
Dakota, described as:
Blocks 6 and 7, Wiese Addition, City of Brookings, Brookings County, South Dakota.
IV.
The Manager shall dispense only alcoholic beverages supplied by the Municipal Off-Sale
Establishment.
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69
V.
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.
VI.
Either the Manager or the City may terminate this Agreement without cause upon ninety (90)
days written notice served by either party upon the other. The City reserves the right to
immediately suspend or revoke this Agreement without ninety (90) days written notice for
alcohol related violations in accordance with the provisions of Resolution No. 25-88 or any
amendments thereto or for any late payments for alcoholic beverages supplied by the Municipal
Off-Sale Establishment to be sold on the premises of Manager.
VII.
The Manager shall receive as full compensation for its services rendered, the net profit from the
on-off sale establishment under its management, and the sole profit to be derived by the City
shall be the markup hereinafter set forth on alcoholic beverages furnished by the municipality to
the Manager for the purposes of resale on the premises as above described.
VIII.
The Manager shall pay to the City for all alcoholic beverages sold by the City to the Manager
for resale on the above-described premises, the actual cost of distilled spirits and wine supplied
by the City, plus eleven percent (11%) in excess of such cost; the Manager shall pay to the City
for all malt beverages sold by the City to the Manager for resale on the above-described
premises, the actual cost of malt beverages, plus ten percent (10%) in excess of such cost. The
actual cost shall include cost price and transportation charges. The markup percentages
provided in this Agreement are subject to change by the City of Brookings. In the event
markup percentages are changed by Ordinance, then the markup percentages provided by City
Ordinance shall supercede the markup percentages provided herein. The Manager further
agrees that if either of the markup percentages shall be increased at any time by the City, the
Manager shall pay the markup as so increased.
IX.
A complete and detailed record shall be maintained by the City of all alcoholic beverages
supplied to the on-sale Manager and such alcoholic beverages so supplied shall be evidenced by
prenumbered invoices prepared in triplicate showing the date, quality, brand, size, and actual
cost of such item, and such invoice shall bear the signature of the authorized representative of
the on-sale Manager or its authorized representative. One copy thereof shall be retained by
the Municipal off-sale establishment, one copy shall be retained by the on-sale establishment,
and one copy shall be filed with the City Clerk. All copies shall be kept as permanent records
and made available for reference and audit purposes. The Manager also agrees to maintain a
complete record of all alcoholic beverages received from the City.
X.
In consideration of the covenants herein contained, the Manager agrees to pay the CITY OF
BROOKINGS, Five Hundred, and no/100 Dollars ($500.00), constituting the Annual License
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70
Fee on or by 1st day of November of each year thereafter as long as this agreement shall remain
in force and effect. The payment of the Annual Renewal License Fee will not extend the term
of this Operating Agreement beyond the term provided therein. The Manager further agrees
that if the annual fee shall be increased at any time by the legislature, the Manager shall pay the
amount of any such increase.
XI.
The Manager agrees to keep the premises in a neat, clean and attractive appearance, and
Manager further agrees to operate said on-sale establishment only on such days and at such
hours as permitted by state law and city ordinances.
XII.
The Manager shall have the right to return, at any time, alcoholic beverages received from the
City and to receive in return any deposit made for such alcoholic beverages; in the event of
termination of the business, all unused alcoholic beverages, which may be resold without
discount may be returned to the City and the Manager shall be reimbursed for the of such
alcoholic beverages.
XIII.
The Manager agrees to abide by the credit policies of the City and acknowledges, by execution
of this Agreement, receipt of a copy of the credit policies of the City. The City reserves the
right to change or terminate its credit policies at any time, but shall be required to provide
written notice to Manager prior to the effective date of the change or termination date of the
credit policies.
XIV.
The Manager agrees to furnish the City upon demand, evidence of payment of the following:
A. All salaries of on-off sale employees;
B. Social Security and withholding taxes on said employees;
C. Worker’s Compensation insurance premiums covering said employees;
D. Unemployment taxes on the payrolls of said employees;
E. General liability insurance protecting both the City and the Manager against claims for
injury or damages to persons or property, said policy to have general liability limits of at
least Five Hundred Thousand Dollars ($500,000.00) single limit, and One Million Dollars
($1,000,000.00) aggregate, and a limitation of Fifty Thousand Dollars ($50,000.00) for
damage to property. The general liability insurance limits are subject to change and
Manager agrees to change limits of insurance if required by the City;
F. Rent and utility bills;
G. Any and all miscellaneous expenses, including taxes.
XV.
The Manager agrees to observe all Federal and State laws and ordinances of the City of
Brookings.
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City of Brookings
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XVI.
The City covenants and agrees to furnish the on-sale license to Manager pursuant to the terms
and conditions of this Operating Agreement and the terms and conditions of the on-off sale
license.
XVII.
The City shall have the right to make inspections and investigations of the premises during the
hours of operation, and make audits and examinations of the records of the Manager relating to
the on-off sale establishment.
XVIII.
It is further specifically understood and agreed that the waiver of the rights of the City under
this Agreement shall not constitute a continuous waiver, and any violation or breach of the
terms of this Agreement by the Manager shall constitute a separate and distinct offense and
grounds for immediate termination and revocation of this Agreement.
XIV.
This agreement shall not be assignable to another person or location without the written
consent of the City.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 4th day of
December, 2012.
CITY OF BROOKINGS, South Dakota
A Municipal Corporation
By:
Jeffrey W. Weldon, City Manager
ATTEST:
Shari Thornes, City Clerk
MANAGER
By:
By:
December 4, 2012
City of Brookings
72
Second Readings & Public Hearings
19. (Tabled Item) Ordinance No. 25-12: An Ordinance amending the Zoning
Ordinance pertaining to the Conditional Use Permit process.
To: Mayor and City Council
Jeff Weldon, City Manager
From: Mike Struck, Community Development Director
Re: Proposed Amendments to the Conditional Use Permit Process
The City of Brookings Zoning Ordinance defines a conditional use as a use which,
because of its unique or varying characteristics, cannot be properly classified as a
permitted use in a particular district. After due consideration, as provided in this
ordinance, of the impact of such use upon neighboring land and of the public need for
the particular use at a particular location, such conditional use may or may not be
granted. A Conditional Use Permit is a permit issued by the City stating that a
conditional use complies with all conditions and standards set forth in this ordinance
and authorized by the respective authority. The Zoning Ordinance, in its entirety, can be
found in Chapter 94 of the Code of Ordinances located on the City’s webpage
www.cityofbrookings.org
Each Zoning District contains a list of permitted uses, permitted special uses, and
conditional uses and each must meet the density, area, yard, height requirements,
parking, signage, and landscaping requirements for that particular zoning district unless
expressly modified by the Board of Adjustment. A conditional use must also meet the
minimum standards developed for a particular use and the Planning Commission and/or
City Council may specify additional requirements in their discretion that are pertinent to
the conditional use. The attached document, Conditional Use Data October 2012, lists
the conditional uses identified in the Zoning Ordinance by their respective Zoning
Districts as well as the minimum standards that must be met when being considered for
a conditional use. In addition, the Planning Commission and/or City Council have the
discretion to add additional requirements pertinent to the specific Conditional Use
under consideration.
South Dakota Codified Law provides the following guidance on authorizing a Conditional
Use Permit:
11-4-4.1. Ordinance authorizing conditional use of real property--Content--Approval or
disapproval of request. A municipal zoning ordinance adopted pursuant to this chapter
that authorizes a conditional use of real property shall specify the approving authority,
each category of conditional use requiring such approval, the zoning districts in which a
conditional use is available, and the criteria for evaluating each conditional use. The
approving authority shall consider the stated criteria, the objectives of the
December 4, 2012
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73
comprehensive plan, and the purpose of the zoning ordinance and its relevant zoning
districts when making a decision to approve or disapprove a conditional use request.
The statute provides flexibility by the municipality to determine the approving authority.
This is in part due to the wide variety of methods utilized by municipalities in the
conditional use process.
The proposed amendments to the conditional use process will streamline the process
for those conditional use applications that meet the requirements of the zoning
ordinance and have little to no adverse impacts on the neighborhood in which the use is
to be located. A review of the conditional use requests since 2010 revealed 80% of the
requests had no opposition or adverse impacts. The proposed amendment language
would have allowed these requests if approved by the planning commission to obtain a
conditional use permit five business days after the planning commission’s
determination. However, the current process extends out an additional eight weeks
when factoring in the first and second reading and twenty day referral period of the
ordinance. Staff reviewed the conditional use process to determine if there were areas
where the process could be more efficient, in particular for those requests in which no
opposition or adverse impacts are apparent.
For conditional uses in which there is opposition or adverse impacts, aggrieved parties
can appeal the decision of the Planning Commission to the City Council. An appeal
hearing would be scheduled at a regularly scheduled City Council meeting following
public notice and posting of signs on the property of the proposed conditional use.
In addition to streamlining the approval process, other proposed changes include adding
additional criteria for the site plan to aid in the decision making process, making the
posting of signs on the property for an appeal mandatory, and major and minor plan
amendments. Minor plan amendments are intended to allow applicants the
opportunity to make minimal changes to their site plan, which have no external impacts
on adjacent property. Major amendments would follow the normal public hearing
process.
The following amendment was approved during the November 13th City Council
meeting.
Sec. 94-226.5 Appeal.
The decision rendered by the Planning Commission on a conditional use permit
may be appealed to the City Council. To appeal the decision, the applicant, or
any interested party may file a written appeal with the Community
Development Department within five (5) working days of the decision. An
interested party includes any person having an interest in the decision of the
Planning Commission, including any agency of government or member of the
City Council.
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During the November 20th City Council Study Session, the above amendment was
discussed relative to determining who would have standing to appeal a decision of the
Planning Commission. The amendment was proposed as a compromise, however, after
further discussion, it was advised by the City Attorney to revert to the original language
proposed in Sec. 94-226.5 Appeal.
The public notice and hearing requirements remain the same for the Planning
Commission. If an appeal is filed, then the public hearing process continues similar to
the current status whereas notice is published and a hearing is held at a regularly
scheduled City Council meeting. There is a small change in the signage postings for the
City Council public hearing in which the signs now become mandatory with a posting
date of seven days immediately prior to the public hearing. The previously language
was permissive.
Staff and the Brookings Historic Preservation Commission have met and propose the
following amendments to the ordinance:
Sec. 94-224. Information on Site Plan
17. Historic District/Place – provide completed review by SD State Historic
Preservation Office as required by Chapter 46 of the Municipal Code.
This addition will require an applicant, who has submitted an application for a
conditional use permit on property in a historic district or historic place, to
submit their data to the BHPC/SD SHPO for all applicable reviews. The reviews
would need to be completed prior to action by the PC.
Sec. 94-226.5 Appeal has been revised back to its original form except for the
change in the appeal time period from five (5) days to ten (10) days.
City Manager Introduction
Action: Action to Remove From Table, Resume Public Hearing, Roll Call
December 4, 2012
City of Brookings
75
Ordinance No. 25-12
An Ordinance Amending the Zoning Ordinance of the City of Brookings and pertaining to the
Conditional Use Permit Process for the Purposes of Administration of the Zoning Ordinance
Be it ordained by the Council of the City of Brookings, State of South Dakota: that Chapter 94,
Zoning shall be amended as follows:
Section 1.
ARTICLE V. CONDITIONAL USES
DIVISION 2. PERMIT
Sec. 94-221. Generally
The Planning Commission City Council may authorize by Conditional Use Permit the uses
designated in this chapter when located in a zoning district allowing such use. The Planning
Commission City Council shall impose such conditions as a part of the Conditional Use Permit as
are appropriate and necessary to insure compliance with the Comprehensive Plan and to protect
the public’s health, safety and general welfare. Unless expressly modified by the Board of
Adjustment, all regulations of the zoning district in which the use is located shall apply.
Sec. 94-222. Application
To obtain a Conditional Use Permit, the applicant shall file a written application on a form
furnished by the Community Development City Engineering Department. The application shall
be submitted on or before the 15th of any month prior to the next regularly scheduled Planning
Commission meeting. Every application shall contain the following information:
1. Legal description of the land upon which such conditional use is requested, together
with local street address
2. Name and address of each owner of the property
3. Name, address, phone number and signature of the applicant
4. Zoning district classification under which the property is regulated at the time of such
application
5. Be accompanied with a site plan unless waived by the Community Development City
Engineering Department
6. Any other information concerning the property as may be requested by the
Community Development City Engineering Department.
Sec. 94-223 Fees.
Upon the filing of any application for a Conditional Use Permit, the applicant shall pay to the City
the appropriate fee as designated in Chapter 66 of this code.
Sec. 94-224. Information on Site Plan.
(a) In addition to the following information, plans shall be drawn to scale upon substantial paper
or provided electronically cloth and shall be of sufficient clarity to indicate the location, nature,
and extent of the work proposed and show in detail that it will conform to the provisions of this
ordinance and all other relevant laws, ordinances, rules and regulations. The Community
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76
Development City Engineering Department may waive the submission of plans if the nature of
the work applied for is such that reviewing of plans is not necessary to obtain compliance with
this ordinance. The site plan shall contain the following:
1. The address of the property and the legal description
2. The name of the project and/or business
3. The scale and north arrow
4. All existing and proposed buildings or additions and uses
5. Dimensions of all buildings
6. Distance from all building lines to the property lines at the closest points
7. Building height and number of stories
8. Dimensions of all property lines
9. Parking lots or spaces - designate each space, give dimensions of the parking lot, stalls
and aisles
10. Perimeter screening - show height, location and type of material to be used any
fencing, walls or hedges
11. Landscape plantings - The landscaped setback and trees; indicate species, location,
and number of trees and material to be used for landscaping
12. Name and location of all adjacent streets, alleys, waterways and other public places
13. Interior screening – show height, location and type around parking lot and dumpster
14. Signage – indicate location of all freestanding signage
15. Lighting – show location and type of parking lot and exterior building wall lighting
16. Architecture – provide representative elevations of all buildings
17. Historic District/Place – provide completed review by SD State Historic Preservation
Office as required by Chapter 46 of the Municipal Code.
(b) Approved plans shall not be changed, modified, or altered without authorization from the
Planning Commission or City Council giving final approval, and all work shall be done in
accordance with the approved plans.
Sec. 94-225. Planning Commission Hearing.
(a) Setting of date. Upon the filing of an application for a Conditional Use Permit with the Zoning
Administrator Officer accompanied by the fee in the manner prescribed in Chapter 66 of this code,
the Zoning Administrator Officer shall set a date for public hearing. The date for a public hearing
shall be a day when the Planning Commission is regularly scheduled to meet as determined by the
rules, policies and regulations as adopted by the Planning Commission. Public notice for this
meeting and changes to be considered shall be given by publishing ten days in advance by
publication in a legal newspaper of the municipality, the date of the hearing and the time and
place when and where all persons interested shall be given an opportunity to be heard.
(b) Posting signs. Signs shall be posted on the property at least for a continuous period of
seven (7) days immediately prior to any public hearing held by the Planning Commission to
consider the application. Said signs shall be furnished by the City and posted by the applicant in
the numbers and locations prescribed by the Zoning Administrator Officer. Said signs shall be
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77
removed and disposed of properly within three days returned to the Zoning Officer one day
after the public hearing on the request.
Sec. 94-226. Planning Commission Decision Report.
The Planning Commission shall consider the stated criteria, the objectives of the comprehensive
plan, and the purpose of the zoning ordinance and its relevant zoning districts when making a
decision to approve or disapprove a conditional use request. submit to the City Council a final
report containing its recommendations on those applications for Conditional Use Permits which it
has considered. If no report is received from the Planning Commission in sixty-five (65) days, the
Conditional Use Permit shall be considered approved. The Planning Commission, in making its
determination on an application, may approve, modify, or deny said application.
Sec. 94-226.5 Appeal
Originally proposed on October 9, 2012:
The decision rendered by the Planning Commission on a conditional use permit
may be appealed to the City Council. To appeal the decision, the applicant or any
person aggrieved by said decision shall file a written appeal with the Community
Development Department within five (5) working days of the decision.
Amendment approved October 23, 2012:
The decision rendered by the Planning Commission on a conditional use permit
may be appealed to the City Council. To appeal the decision, the applicant or any
person aggrieved by said decision shall file a written appeal with the Community
Development Department within five (5) working days of the decision. An
interested party includes any person having an interest in the decision of the
Planning Commission, including any agency of government or member of the City
Council.
New Amendment proposed December 4, 2012: The following language is being
recommended by staff and the Brookings Historic Preservation Commission. The language
is the same as originally proposed in the ordinance with the exception of the time to file a
written appeal has been changed from five (5) to ten (10) working days.
The decision rendered by the Planning Commission on a conditional use permit
may be appealed to the City Council. To appeal the decision, the applicant or any
person aggrieved by said decision shall file a written appeal with the Community
Development Department within ten (10) five (5) working days of the decision.
Sec. 94-227. City Council Hearing.
When an appeal from the decision of the Planning Commission has been filed in accordance with
Sec. 94-226.5, the City Council shall conduct a public hearing to act on the application.
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(a) Publication of time and place. The City Council shall conduct a public hearing to act on all
applications which have been processed and forwarded to it for public hearing as provided in this
ordinance. The City Manager or designee shall cause to be published, ten days prior to the date of
the adoption of the ordinance, the time and place, when and where all persons interested shall be
given an opportunity to be heard.
(b) Posting signs. Notice of such hearing shall may also be required to be given by posting signs
on the property. Signs shall be posted on the property at least seven (7) days immediately prior
to any public hearing held by the City Council to consider the application. Said signs shall be
furnished by the City and posted by the appellant, if the appellant is the applicant, in the
numbers and locations prescribed by the Zoning Administrator. If the appellant is not the
applicant, said signs shall be posted by the Zoning Administrator or his designee. Said signs
shall be removed and disposed of properly within three days after the public hearing on the
request. If signs are required by the Zoning Officer, the regulations as set forth in Section 94-
225(b) shall apply.
(c) Hearing. At the public hearing on any application for a conditional use permit, the city
council shall review the decisions and recommendations of the planning commission of any
application coming before the city council as provided in this chapter. The city council, in
making its determination of such application, may amend the application in accordance with or
in modification or rejection of the decision recommendation of the Planning Commission.
Sec. 94-228. Amendments
Amendments shall be processed in the same manner as a Conditional Use Permit is processed.
The City Council or Planning Commission gives final approval, and all work shall be completed and
enforced in accordance with the approved plan. Approved plans shall not be amended without
approved authorization as noted below:
Plan Amendments
(a) Any approved conditional use plan or conditional use plan addendum may be amended as
provided in this section, or entirely withdrawn by the applicant. The Community
Development Department may approve administrative amendments to an approved plan
without notice or hearings, after consideration of the record from the original public
hearing on the plan.
(b) Minor changes to an approved conditional use plan shall be done administratively. Minor
changes may include minor relocation or reorientation of buildings, lot lines, or easements;
relocation of points of access; relocation of internal access and circulation; minor
relocation or rearrangement of parking areas; reduction in the designated parking spaces,
but not less than required under Division 4. Parking, Stacking, and Loading; and
reorientation of landscaping.
Major changes to an approved conditional use plan shall follow the public hearing approval
process. Major changes may include major relocation or reorientation of buildings or
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79
parking areas which have external impacts on adjacent property; and major reductions in
landscaping or screening, but not less than required under Section 94-399.
Sec. 94-229. Expiration.
(a) A conditional use permit shall expire one (1) year from the date upon which it becomes
effective if no significant work has commenced. Upon written request to the Community
Development Director and prior to the conditional use permit expiration date, a one-year
time extension for the conditional use permit may be granted, subject to the following
conditions:
(1) There was no public objection presented during the public hearing process for the
original conditional use permit;
(2) The land uses for the surrounding properties have not changed or significantly altered
since the original approval date for the conditional use permit;
(3) The project could not be substantially completed within the required one-year time
frame due to unforeseen circumstances related to engineering and environmental
studies or construction delays relating to specific elements of the project.
(b) A conditional use permit approved in accordance with Article V. Conditional Uses, shall
expire one year after the use discontinues on the premises, or the use is changed to
another permitted use in the underlying district.
Sec. 94-230. Preexisting Uses.
An existing use eligible for a Conditional Use Permit which was lawfully established on the effective
date of this title shall be deemed to have received a Conditional Use Permit as herein required and
shall be provided with such permit by the city upon request, and it shall not be a nonconforming
use, provided, however, for any enlargement, extension, or relocation of such existing use, an
application in accordance with this section shall be required.
Sec. 94-231. Reapplication.
No applicant requesting a Conditional Use Permit whose application includes the same or
substantially the same requirements for the same or substantially the same property as that which
has been denied by the Planning Commission or City Council shall be again considered by the
Planning Commission before the expiration date of six (6) months from the date of the final action
on the original petition.
Sec. 94-232. Permit Revocation
If the Community Development Director finds, at any time, that the terms, conditions, and
requirements of the conditional use permit have not been complied with, or that any phase
thereof has not been completed within the time required under said conditional use permit, or
any amendment thereto, the Director shall report this fact to the permittee and the Planning
Commission. The Planning Commission may, after conducting a public hearing, of which the
permittee shall be notified, submit a recommendation to the City Council for their consideration
and action. The City Council may, after a public hearing of which the permittee shall be notified,
revoke such conditional use permit for failure to comply with such terms, conditions, and
requirements, or take such other action as it may deem necessary to obtain compliance.
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Section 2.
Any or all ordinances in conflict herewith are hereby repealed.
First Reading:
Second Reading:
Published:
CITY OF BROOKINGS, SD
___________________________________
Tim Reed, Mayor
ATTEST:
________________________
Shari Thornes, City Clerk
December 4, 2012
City of Brookings
81
CONDITIONAL USE PERMIT HISTORY
(January 2010 - June 2012)
DATE REQUEST OPPOSITION/ PC RECOMMENDATION
ADVERSE IMPACTS
2-2-2010 Home Occupation none denied - non compliance
2-2-2010 Contractors Shop none approved
3-2-2010 Private Stable none approved
4-6-2010 Contractors Shop none approved
5-4-2010 Church in B-2 none approved
7-6-2010 Office in R-2 none approved
10-5-2010 Home Occupation none approved
12-7-2010 Home Occupation none approved
3-1-2011 Brewpub in B-1 none approved
3-1-2011 Office in R-2 none approved
8-2-2011 Office in R-2 yes - Substantial denied*
10-4-2011 Home Occupation yes - minor denied
12-6-2011 Apartment in R-2 none approved
2-7-2012 Home Occupation yes - minor approved
3-12-2012 Kennel in B-3 none approved
* Applicant withdrew request prior to CC meeting
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82
Conditional Use excerpts from the Zoning Ordinance
Definitions:
Conditional Use: A use which, because of its unique or varying characteristics, cannot be
properly classified as a permitted use in a particular district. After due consideration, as
provided in this ordinance, of the impact of such use upon neighboring land and of the public
need for the particular use at a particular location, such conditional use may or may not be
granted (See Conditional Use Permit)
Conditional Use Permit: A permit issued by the City or by Joint City and County authority stating
that a conditional use complies with all conditions and standards set forth in this ordinance and
authorized by the respective authority.
Sec. 94-122. AGRICULTURAL A DISTRICT
(e) Conditional Uses.
1. Airport
2. Quarry
3. Cemetery
4. Hot mix plant
5. Private or riding stable
6. Campground/RV Park
7. Animal Hospital
8. Kennel
Sec. 94-123. RESIDENCE R-1 RURAL ESTATE DISTRICT
(e) Conditional Uses.
1. Family day care
2. Major home occupation
3. Private lake
4. Private or riding stable
Sec. 94-124. RESIDENCE R-1A SINGLE-FAMILY
(e) Conditional Uses.
1. Agriculture
2. Major home occupation
3. Public recreation facility
4. Non-municipal library, museum, art gallery,
5. Private lake
6. Private stable
Sec. 94-125. RESIDENCE R-1B SINGLE-FAMILY
(e) Conditional Uses.
1. Vocational or trade school
2. Retirement or nursing home
3. Two family dwelling
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4. Group home
5. Major home occupation
6. Public recreation facility
7. Non-municipal library, museum, art gallery,
8. Private lake
9. Bed and breakfast establishment
Sec. 94-125.5. RESIDENCE R-1C SINGLE-FAMILY
(e) Conditional Uses.
1. Retirement or nursing home
2. Two family dwelling
3. Group home
4. Major home occupation
5. Public recreation facility
6. Bed and breakfast establishment
Sec. 94-126. RESIDENCE R-2 TWO-FAMILY DISTRICT
(e) Conditional Uses.
1. Vocational or trade school
2. Retirement or nursing home
3. Group home
4. Major home occupation
5. Public recreation facility
6. Non-municipal library, museum, art gallery, community center, private club or lodge
7. Domestic abuse shelter
8. Townhouse
9. Apartment or condominium
10. Office
11. Bed and breakfast establishment
12. Fraternity/Sorority
13. Day Care Facility
Sec. 94-127. RESIDENCE R-3 APARTMENT DISTRICT
(e) Conditional Uses.
1. Public recreation facility
2. Non-municipal library, museum, art gallery, community center, private club or lodge
3. Major home occupation
4. Vocational or trade school
5. Office
6. Bed and breakfast
Sec. 94-128. RESIDENCE R-3A APARTMENTS/MOBILE HOMES/ MANUFACTURED HOUSING.
(e) Conditional Uses.
1. Public recreation facility
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2. Non-municipal library, museum, art gallery, community center, private club or lodge
3. Major home occupation
4. Vocational or trade school
5. Office
6. Mobile home/manufactured housing park
7. Bed and breakfast establishment
Sec. 94-129. RESIDENCE RMH SINGLE-FAMILY AND MANUFACTURED HOUSING DISTRICT
(e) Conditional Uses.
1. Major home occupation
2. Public recreation facility
3. Non-municipal library, museum, art gallery, community center, private club or lodge
4. Retirement or nursing home
5. Vocational or trade school
Sec. 94-130. RB-4 NEIGHBORHOOD BUSINESS DISTRICT
(e) Conditional Uses.
1. Church
2. Gas dispensing station
Sec. 94-131. BUSINESS B-1 CENTRAL DISTRICT
(e) Conditional Uses.
1. Repair garage
2. Assembling and packaging
3. Apartments for the elderly
4. Broadcast Tower
5. Community Center
6. Drive-in Food Service
7. Brewpub
8. Church
Section 94-132. BUSINESS B-2 DISTRICT
(e) Conditional Uses. Conditional uses in the B-2 district are as follows:
1. Wholesale trade
2. Automobile service station
3. Repair garage
4. Assembling and packaging
5. Freight handling
6. Manufacturing, light
7. Domestic abuse shelter
8. Apartment
9. Small animal clinic
10. Church
11. Outdoor sales
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Sec. 94-133. BUSINESS B-2A OFFICE DISTRICT
(e) Conditional Uses.
5. Home occupation
6. Mixed business/residential use
7. Financial institution
8. Community center
Sec. 94-134. BUSINESS B-3 HEAVY DISTRICT.
(e) Conditional Uses.
1. Assembling and packaging
2. Freight handling
3. Manufacturing, light
4. Mixed business/residential use
5. Contractors shop and storage yard
6. Buy back center for recyclables
7. Household hazardous waste site
8. Light processing facility
9. Transfer site for recyclables
10. Day care facility
11. Kennel
12. Truck and trailer rentals
13. Farm Implement Sales
Sec. 94-135. BUSINESS B-4 HIGHWAY DISTRICT
(e) Conditional Uses.
1. Assembling and packaging operation
2. Freight handling
3. Manufacturing, light
4. Buy back center for recyclables
5. Household hazardous waste
6. Day care facility
7. Transfer site for recyclables
8. Kennel
9. Farm Implement sales
Sec. 94-135.5. BUSINESS B-5 PLANNED RESEARCH AND BUSINESS DISTRICT
(e) Conditional uses. Conditional Uses in the B-5 District are as follows:
1. Assembling and Packaging
a. An emphasis shall be placed on landscaping around parking lots, loading areas
and storage areas.
b. Special attention shall be given to minimizing noise and glare.
c. The site area ratio to building area ratio shall not be less than 2:1.
2. Recreation Facility
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a. Activities that attract spectators shall provide adequate accommodations for
crowds that may attend such events.
b. Consideration shall be given to the noise and traffic generated and the hours of
operation of any outdoor activities.
3. Restaurant
Sec. 94-136. INDUSTRIAL I-1 LIGHT DISTRICT
(e) Conditional Uses.
1. Kennel
2. Broadcast Tower
3. Outdoor Sales
4. Concrete Plant
5. SWECS
Sec. 94-137. INDUSTRIAL I-2 HEAVY DISTRICT.
(e) Conditional Uses.
1. Manufacture of acid, cement, lime, gypsum, plaster of paris, asphalt, explosives,
fertilizer, glue, sizing, paper, paint, turpentine, yeast, oils, alcohol, bleach or ammonia
2. Refining of fat, grease, lard, tallow or petroleum
3. Processing of grain, forage, toxic material, hides or furs
4. Distillation of products
5. Junkyard
6. Stockyards/slaughtering of animals
7. Rendering
8. Smelting
9. Boilerworks
10. Tank farm
11. Grain terminal
12. Farm store/feed store
13. Crematorium
14. Personal Health Services
15. Kennel
16. Broadcast Tower
17. Outdoor Sales
18. SWECS
DIVISION 3. CONDITIONAL USE STANDARDS
Sec. 94-251. Generally
Any conditional use approved by the Planning Commission or City Council shall conform to the
standards for such uses as set forth below. These standards shall be construed to be the minimum
requirements for any of the specified conditional uses and the Planning Commission or City
Council may require additional requirements in their discretion. In all cases, the impact of the
proposed use on the adjacent properties will be a significant consideration.
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Sec. 94-252. Agriculture
Agricultural uses in a residential zone shall be limited to the growing and cultivation of crops.
No equipment shall be stored on the premises.
Sec. 94-253. Airport
Airports shall be sited with consideration to all potential obstructions existing in the surrounding
area. Consideration shall also be given to future land use patterns within all approach zones.
Sec. 94-254. Animal Hospital
This use shall not be located in an area where it could have a negative impact on adjacent
properties due to its size, noise or the traffic generated from such use. The parking area shall be
designed to have a minimal impact on the surrounding residential properties.
Sec. 94-255. Apartment.
(a) Generally. Such uses shall not be located in an area where they could have a negative
impact on adjacent properties due to their size or the traffic generated from such use. The parking
area shall be designed to have a minimal impact on surrounding residential properties.
(b) For elderly. Special attention shall be given to the size and proximity of a parking
area devoted to such uses in the Central Business District.
Sec. 94-256 Assembling/Packaging Operation
These uses shall be of a design and scale which would not be detrimental to the neighborhood.
The parking area shall be designed to minimize the impact of the parking lot upon adjacent
properties. Provisions set forth in division 4 of article VI of this chapter shall be adhered to and
submitted prior to approval. No outdoor storage shall be permitted. Major access drives shall be
located on minor or collector streets whenever possible.
Sec. 94-257 Automobile Service Station
Such uses shall provide for an adequate number of parking spaces to store vehicles. No fuel
delivery pump shall be located within twenty (20) feet of any side lot line nor twenty-one (21) feet
of any front lot line. No fuel pump shall be located within fifty (50) feet of a lot line which lies next
to a residential district. All applicable laws and ordinances shall be complied with.
Sec. 94-258. Bed and Breakfast Establishment
Bed and breakfast establishments shall comply with the following conditions:
(1) They shall be limited to an accessory use within a single-family dwelling. Preference will
be given to buildings with historic or other unique characteristics.
(2) They shall be registered with the South Dakota Department of Health, maintain a guest
list and provide a smoke detector in each sleeping room.
(3) A site plan shall be submitted including the interior layout of the building and exterior
design of the premises.
(4) Not more than two (2) guest rooms shall be used for such purposes
(5) Off-street parking areas for guests shall be located so as to have a minimal impact on
adjacent residential property.
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(6) Signs shall be non-illuminated with a maximum area of three (3) square feet, a maximum
height of four (4) feet, and a setback from any lot line of six (6) feet.
(7) Meals shall be limited to a breakfast or a brunch. Meals shall be prepared in the owner’s
kitchen and served only to overnight registered guests. Cooking in any guest room is
prohibited.
(8) The length of stay of any registered guest shall not exceed fourteen (14) days during any
one hundred twenty (120) day consecutive period.
Sec. 94-260. Boilerworks
Such uses shall be located in areas where the impact of odors and noise on residential districts will
be minimized. Traffic to and from the site should not travel on residential streets.
Sec. 94-260.3 Brewpub
A brewpub shall comply with the following conditions:
1. The area used for brewing, including bottling and kegging, shall not exceed 25% of the
total floor area of a combined restaurant and drinking establishment and 50% of the
total floor area of a drinking establishment without restaurant services.
2. A malt beverage manufacturer’s license must be obtained per state law.
3. An alcohol beverage license must be obtained per city ordinance.
4. The brewery shall not produce more than 1,500 barrels of beer or ale per year. A barrel
contains thirty-one (31) gallons.
5. The method and frequency of grain shipments to the site shall be provided
6. The method and frequency of spent grain disposal shall be provided
Sec. 94-260.5. Broadcast Tower
Location of the tower shall be done with consideration for public safety in the event that the
tower would fall and to minimize adverse visual impact of broadcast towers through careful
design, siting, and screening. Care should be taken to avoid interference with any similar
broadcast use and in no event shall such tower be located in any airport flight path. The tower
shall be constructed in a manner that will make it inaccessible for unauthorized persons to
climb.
Sec. 94-261. Buy Back Center for Recyclables
Such facilities shall consist of a completely enclosed structure. A list of the types of recyclable
material to be collected shall be approved by the Deputy Health Officer.
Sec. 94-262. Campgrounds
Campgrounds for tents, tent trailers, and recreational vehicles should be sited with
consideration for access to the property. The following conditions shall be complied with:
1. Each campsite shall contain at least 2,000 square feet.
2. The campgrounds shall be supplied with a water supply and sewage disposal facilities,
including washing, toilets, and similar facilities, and all of which shall meet all applicable
city codes and regulations.
3. Front, side and rear yards of fifty (50) feet shall be maintained on the campground.
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4. The access to public roads and highways shall be paved or surfaced in a manner similar
to adjacent public roads and shall be approved by the city.
5. Access roads shall be provided to each campsite and all access roads shall have a
minimum unobstructed width of fourteen (14) feet for all one-way roads, and twenty
(20) feet for all two-way roads.
6. Campsites shall be used by the same persons as temporary/seasonal stays only and no
stay shall exceed sixty (60) days in any one calendar year.
7. No mobile homes/manufactured homes shall be located in any campground, except that
one shall be permitted as an office for the campground.
8. All campground operators shall keep accurate records as to the length of time a person
stays in the campground, and shall make said records available to any city official upon
request.
Sec. 94-263. Cemetery
This use shall have a minimum of 40 acres. An adequate road system with parking for mourners
shall be provided. Scattering areas or gardens shall be established within the interior of the
cemetery.
Sec. 94-264. Church
This use shall be located on a collector or arterial street. The parking area shall be designed to
have a minimal impact on surrounding residential properties. Due to the unique character of the
Business B-1 District, the establishment of the use in this district shall be subject to additional
standards that require a minimum of 15 on-premise parking spaces or a site location boundary
that is within 200 feet of a public parking lot.
Sec. 94-264.5. Community Center
Such uses shall be located in close proximity to a public parking lot in order to supplement the
parking needs of the use. All accessory activities associated with the use and the location of such
activities shall be shown on a building and site layout.
Sec. 94-264.8. Concrete Plant
This use shall not be located near or adjacent to uses that would be negatively impacted due to
fumes, dust, or runoff generated by its operation. Traffic to and from the site shall not travel on
residential streets to reach major transportation routes. Outdoor material storage areas shall be
located in the interior of the lot and away from any right-of-way. All runoff from the material
storage areas or generated by the operation shall be contained on-site.
Sec. 94-265. Condominium
Such uses shall not be located in an area where it could have a negative impact upon adjacent
properties due to its size or the traffic generated from such use.
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Sec. 94-266. Contractor Shop and Storage Yard
Such uses shall screen all outdoor storage from adjacent property. Service vehicles shall be
localized in an area on the lot which will minimize the impact upon adjacent uses. Any lighting of
the storage yard should be done in a way that will not cause a glare onto residential properties.
Sec. 94-267. Crematorium
This use shall include an adjacent holding facility but not a scattering area or garden. All applicants
shall comply with all applicable environmental standards.
Sec. 94-268. Day Care Facility, Nursery School
These uses shall be located where an adequate and safe playground can be provided. The pick-
up and drop-off areas shall be designed to provide a safe access to the facility and the site
should be convenient for clients.
Sec. 94-269. Distillation of Products
(a) Facilities for distillation of products and grain terminals shall be located in a manner which
minimizes the impact of odors from the plant on residential and recreation areas in the
city. These facilities should be located in areas where traffic to and from the site would
not travel on residential streets.
(b) This section also applies to:
(1) The manufacture of acid, cement, lime, gypsum, plaster of Paris, asphalt, fertilizer,
glue, sizing, paper, paint, turpentine, yeast, oils, alcohol, bleach or ammonia.
(2) Processing of grains, forage, toxic material, hides or furs.
(3) Refining of fats, grease, lard, tallow or petroleum.
(4) Smelting.
Sec. 94-270. Domestic Abuse Shelter
A shelter shall be a single housekeeping entity. The parking area shall be designed to minimize its
impact upon adjacent residential properties.
Sec. 94-270.2. Drive-in Food Service
This use shall be located where ample on-premise vehicle stacking is available. The site design
shall provide for clear sight angles for safe pedestrian and vehicular movement on and off the
site. All egress points shall be designed to permit right turns only in order to reduce traffic
conflicts. Menu boards, external illumination and intercommunication systems shall be
designed to have a minimal impact on adjacent property. The service window location shall be
not less than 50 feet from an adjacent property. The City Engineer and / or Traffic Safety
Committee shall review any proposal that causes a reduction in on-street parking and submit
their findings to the commission.
Sec. 94-270.5. Farm Implement Sales
These uses shall take special care to present an uncluttered appearance, allowing for the
attractive display of machinery that is for sale, while discouraging the outside storage of any
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equipment, parts or materials. Inoperable machinery kept only for parts sales shall be located
on the interior of the lot or screened from adjacent properties or a public right-of-way.
Sec. 94-271. Farm Store/Feed Store
The handling and storage of fertilizer and farm chemicals shall conform to all federal, state and city
codes. Consideration should be given to the location of these products on the lot.
Sec. 94-272. Financial Institution
Such uses shall locate any drive-up service window device in such a manner as to minimize its
impact on adjacent properties.
Sec. 94-273. Floodway Structure
Such structures shall be located so as not to have a negative impact upon adjacent property.
Sec. 94-274. Fraternity/Sorority houses
Such uses shall not be located in an area where they could have a negative impact on adjacent
properties due to their size or the traffic generated from such use. The parking area shall be
regulated according to Section 94-400, hard-surfaced parking, and Section 94-401, screened
parking.
Sec. 94-275. Freight Handling
Such uses shall be sited and designed in such a way as to minimize their impact on adjacent
properties. Freight loading areas shall be screened from adjacent residential areas. No outdoor
storage shall be permitted. Major access drives shall be located on minor or collector streets
whenever possible.
Sec. 94-276. Gas Dispensing Station
The site shall be designated to allow for the stacking of vehicles on the premises. No fuel delivery
pump shall be located within twenty (20) feet of any side lot line nor within twenty-one (21) feet
of any front lot line. No fuel pump shall be located within fifty (50) feet of a lot line which lies next
to a residential district. The applicant shall comply with all applicable laws and ordinances.
Sec. 94-277. Group Home
A group home shall generally be located in an area where the residents are close to services.
Applicants shall provide statements as to the type of supervision the home will have and be
prepared to present information on all anticipated physical changes to the structure.
Sec. 94-278. Home Occupation, Major
Major home occupations shall be in complete conformance with Section 94-362.
Sec. 94-279. Hot Mix Plant
Such uses shall be located in areas where the odor and noise will not be detrimental to adjacent
property owners. Traffic to and from the site shall not travel on minor residential streets.
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Sec. 94-280. Household Hazardous Waste Site
Such uses shall be within a completely enclosed building. The applicant shall comply with the
provisions of all applicable laws and ordinances.
Sec. 94-281. Junkyard
These uses shall generally be located in areas that are removed from the principal and minor
arterials of the city. Special consideration shall be given to the inclusion of screening around the
storage area.
Sec. 94-282. Kennel
This use shall be located in areas where the noise generated by such use would not be a nuisance
or detriment to adjacent properties. A fence separating the kennel operation from adjacent
properties shall be required. Kennels within 400 feet of a residential district are not allowed.
Kennels in conjunction with an animal hospital with indoor confinement may be established less
than 400 feet from a residential district.
Sec. 94-283. Light Processing Facility
Such uses shall be located in a manner which will minimize the impact of noise on residential
areas. These facilities should be located in areas where traffic to and from the site would not
travel on residential streets. The impact of this use shall be minimized through screening when
adjacent to main thoroughfares.
Sec. 94-284. Manufacture or Storage of Explosives
These uses shall be located in such a manner so as not to present a hazard to adjacent properties.
A site plan and other related information shall receive approval by the appropriate departments of
the City prior to establishing the use. Traffic to and from the site shall not travel upon residential
streets.
Sec. 94-285. Manufacturing (light)
These uses shall be of a design and scale which would not be detrimental to the neighborhood.
The parking area shall be designed to minimize the impact of the lot upon adjacent properties.
Provisions set forth in division 4 of article VI shall be adhered to and submitted prior to approval.
Sec. 94-286. Mixed Business/Residential Uses
Such business uses shall be only those uses permitted in the respective zoning district. Provisions
set forth in Section94-41 shall govern all residential uses.
Sec. 94-287. Mobile Home/Manufactured Home Park
This use shall be located in areas where it would be compatible with adjacent uses. Consideration
should be given to recreation area, storm shelters and landscaping. In addition, the park shall be
in conformance with Section 94-364.
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Sec. 94-288. Non-municipal Library, Museum, Art Galley, Community Center and Private Club
and Lodge
These uses shall be of a design and scale which would not be detrimental to the neighborhood.
The parking area shall be designed to minimize the impact of the lot upon adjacent properties.
Sec. 94-289. Off-street Parking, Off Site
The off-site parking shall be located within a 400 foot radius of the use it is intended to serve. The
parking shall be restricted by a written agreement and contain the number of spaces and length of
time such spaces are reserved.
Sec. 94-290. Office
Such uses shall be located on a collector or arterial street. Special attention shall be given to the
architectural compatibility with surrounding residential properties. Consideration shall be given to
the traffic generated by such use, the type of sign, the hours of operation and the character of the
use. Parking shall be screened from any adjacent residential area.
Sec. 94-290.5. Outdoor Sales
Such uses shall be located or arranged in a manner that will display larger vehicles away from a
residential district boundary line or by location toward the interior of the display lot. Larger
vehicles shall not prohibit or disrupt traffic flow within or through the display lot.
Sec. 94-291. Personal Health Services
These uses shall be located in areas where access to the facility is safe and convenient.
Consideration shall be given to siting these uses away from facilities which generate large
quantities of smoke, dust, noise or heavy truck traffic. (Ord. 30-00, 11/27/00)
Sec. 94-292. Private Lake
A private lake will be allowed in some cases to be created by the mining of sand, gravel or other
material. However, the mining shall be treated as a means to an end and any such plan shall
stipulate a deadline after which time the mining will be terminated. A reclamation plan for the
lake area and safety precautions to prevent public access to the site until such time as the mining
is completed shall be provided. The developer shall be required to provide satisfactory evidence
that the lake water will be of a sufficient level and quality to be an asset rather than a detriment to
the neighborhood. Adjacent development shall be graded in a manner that will not permit runoff
from the development to infiltrate the lake. The Planning Commission should examine whether or
not there is a need for public access to the lake. Furthermore, the developer shall offer assurance
that the lake will be constructed and maintained in the manner approved by the Planning
Commission.
Sec. 94-293. Quarry
This use shall be located where blasting, noise, dust or heavy truck traffic will not have a negative
impact on adjacent uses. Storage, stockpiling and processing shall be located on the interior
portion of the site.
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Sec. 94-294. Recreation Facilities
Such uses shall be designed in a manner which will minimize the impact of traffic, noise and glare
on the surrounding residential neighborhood.
Sec. 94-295. Rendering facilities
Such uses shall be located in areas where the impact of heat and odors on residential and
recreation areas will be minimized. Traffic to and from the site shall not travel on residential
streets. Such uses shall conform to all applicable laws and ordinances.
Sec. 94-296. Repair Garage
This use shall provide an adequate number of parking spaces to store vehicles and shall provide
an indoor storage area for parts and materials. This parking area shall be designed to minimize
the impact of the lot upon adjacent properties.
Sec. 94-297. Retirement or Nursing Home
Such uses shall be sited and designed in such a way as to minimize their impact on adjacent
residential uses. Special attention shall be given to parking, lighting, the height of the structure,
the traffic generated and similar problems. Parking should be screened from any adjacent
residential areas.
Sec. 94-298. Small Animal Clinic
Such use shall provide an area, sufficient in size and screened from view from adjacent uses, for
the walking of patients. The use shall be of a design and scale which would not be detrimental to
adjacent residential properties.
Sec. 94-299. Stable (private or riding)
These uses shall be established on lots with a minimum area of two acres and one acre of land
shall be provided for each horse located thereon. No pasture shall be located within the required
front yard setback and no horse shall be allowed to be kept within 125 feet of any building used
for human habitation other than by the owner of such animal. No fencing shall be made of
barbwire or connected to an electrical current.
Sec. 94-300. Stockyard/Slaughtering of Animals
Such uses shall be located in areas where the impact of odors and noise on residential and
recreation areas will be minimized. Traffic to and from the site should not travel on residential
streets. Such uses shall conform to all applicable laws and ordinances.
Sec. 94-301. Tank Farm
Such uses shall conform to all federal, state and city codes and shall be designed with perimeter
landscaping and/or fencing. These uses shall not be located adjacent to residential districts.
Sec. 94-301.4 Telecommunication Tower
Such uses shall be sited to minimize the visual impact on surrounding uses. The ability to
provide stealth design elements and adequately screen the tower base and equipment facilities
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from any residential buildings shall be given special consideration. Co-location is important in
minimizing the visual presence of towers within the community. Therefore, construction of any
new tower shall have the capacity to accommodate more than one provider. A tower designed
to accommodate up to three providers shall be allowed a maximum height of 120 feet. A tower
designed for up to two providers shall be allowed a maximum height of 100 feet.
Sec. 94-302. Townhouse
Such uses shall not be located in an area where they could have a negative impact on adjacent
properties due to their size or the traffic generated from such use.
Sec. 94-303. Transfer Site for Recyclables
Such facilities shall consist of a screened storage area where recyclable material is temporarily
stored. A list of the types of recyclable material to be collected shall be approved by the
Deputy Health Officer.
Sec. 94-303.5. Truck and Trailer Rentals
Display or storage shall be generally on the interior or rear of the lot. The land area shall be
sufficient enough to avoid backing maneuvers into the public right-of-way.
Sec. 94-304. Two-Family Dwelling
Such uses shall have one frontage abutting on an arterial or collector street.
Sec. 94-305. Vocational or Trade School
Such uses shall be sited and designed in such a way as to minimize their impact on adjacent
residential uses. Special attention shall be given to parking, lighting, the height of the structure,
the traffic generated and similar problems. Parking should be screened from any adjacent
residential areas.
Sec. 94-306. Wholesale Trade
Such uses shall have no outdoor display or outdoor storage of goods or materials.
Sec. 94-307. Wind Energy Conversion Systems, Small (SWECS)
Small wind energy conversion systems shall comply with Section 94-367
Notional league of Cities I Center for Research and Innovation
6. Your Regulatory Environment
Your regulatory enviro nment direccly impacts che ease of doing business in your cicy. For business
leaders, time is money; chey want co know char the regulatory process provides for timely, reliable and
transparent resolution of key issues. If your cicy's regulatory policies are riddled with delays, confusing
and redundant seeps and multiple approval processes, a prospective business may very well choose co
locate or expand in another community.
Local officials can improve che regulatory envi ronment for businesses by ensuri ng that the development
review process and ocher policies are streamlined and transparent. The key co success is ensuring con-
sistency and clarity about expectations, timelines, regulations, and costs. This will alleviate much of the
uncerraincy involved in economic development projects by allowing businesses to accurately anticipate
the timing of the process and to build their plans accordi ngly. In addition , a better regulatory envi ron-
ment can promote information-sharing and better communication with local businesses so you can
work together to identifY potencial chall enges or problems.
As a local elected official, your first step is to ensure that you have an understanding of the current regu-
latory system and where there may be problems. This will require you co gather input from che business
community about their frustrations and experiences. Working with your local c hamber of commerce
or ocher local business organizations may be helpful in chis process. To gain add itional perspective, you
may wane to co nsider going through the process yourself, as if you were a developer or a new business.
This will allow you co have firsthand knowledge of the time, costs, hassles and clarity of the process.
When examining your regulatory process, be mindful not co chrow che good ouc with che bad. Noc all
d evelopment is good development, and it is important that your regulatory processes reflect your long-
term economic development vision so you can safeguard against detrimental projects. The key for your
city is co find a balance and remove unnecessary delays and hurdl es, while still preserving che integrity
of the community's economic development vision and goals.
Taking Action, Asking Questions
• Are your lo cal agencies charged with r egulatory processes anuned to the needs of busi-
nesses, particularly efficiency and transparency concerns?
• Are there one-stop approvals or other ways to expedite review processes?
• How long does it cake co get a new development proposal in &one of a local planning board?
• Do businesses have access to clear information about lo cal regulations from one source?
• Is there a designated dey staff person who helps faci litate the process to ensure char things
go smoothly?
15
October 18, 2012
Shari Thornes, Brookings City Clerk
Brookings City & County Government Center
520 3rd Street, Suite 230
Brookings SD 57006
RE: SDCL 1-19A-11.1 Consultation for Conditional Use Permit
Dear Ms. Thornes:
The South Dakota State Historic Preservation Office (SD SHPO) of the South Dakota State Historical
Society takes the position that the issuance of a change of use permit within an existing zoning district is
an action subject to review under South Dakota Codified Law 1-19A-11.1.
Under SDCL 1-19A-11.1, the SD SHPO reviews any project the City undertakes which will encroach
upon, damage, or destroy any historic property included in the national register of historic places or the
state register of historic places. Our Administrative Rules (ARSD 24:52:00 [14]) define “project” as “an
activity, permit, plan, or action, including restoration or rehabilitation, which affects or may affect the
physical structure or physical setting of a historic property.”
A conditional use permit could lead to physical impacts on the setting of a historic property or to a
building itself. In the Brookings Zoning Ordinance (Chapter 94 of the Code of Ordinances), each
zoning district contains a list of permitted uses, permitted special uses, and conditional uses. The zoning
ordinance defines conditional use as “a use which, because of its unique or varying characteristics,
cannot be properly classified as a permitted use in a particular district. After due consideration, as
provided in this chapter, of the impact of such use upon neighboring land and of the public need for the
particular use at a particular location, such conditional use may or may not be granted.”
Other laws and regulations show that changes in use are of concern when it comes to historic
preservation. Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires Federal
agencies to take into account the effects of their undertakings on historic properties. Examples of
adverse effects in the Code of Federal Regulations include “change of the character of the property’s use
or of physical features within the property’s setting that contribute to its historic significance.” (36 CFR
Part 800.5 (2004). State law (SDCL 1-19B-45) enables local governments to adopt locally designated
historic districts and require a count y or municipality to obtain a Certificate of Appropriateness from the
local Historic District Commission prior to the approval of any change of zoning classification within
the local historic district. The Secretary of the Interior’s Standards for Rehabilitation also mention the
potential impacts of changes in use. Standard #1 says, “A property will be used as it was historically or
be given a new use that required minimal change to its distinctive materials, features, spaces, and spatial
relationships.” Further, State enabling law for conditional use requires the authority approving a
conditional use to consider the objectives of the City’s comprehensive plan (11-4-4.1). Preservation
concerns, which would include change of use, are prevalent in the spirit of the City of Brookings
Comprehensive Plan.
In sum, this letter serves to notify the City of Brookings that the State Historic Preservation Office of the
South Dakota State Historical Society considers the City’s issuance of any conditional use permit that
would damage, encroach upon, or destroy, any property included in the national register of historic
places or the state register of historic places, an action reviewable under SDCL 1-19A-11.1. Our office
is available to provide further guidance or training concerning the steps of the 11.1 review process.
Please feel free to contact our Restoration Specialist, Paul Porter, at (605) 773-6005 or
paul.porter@state.sd.us with any further questions.
Sincerely,
Jay D. Vogt
State Historic Preservation Officer
December 4, 2012
City of Brookings
99
Other Business
20. Public hearing and action on Resolution No. 165-12, a Resolution
approving a Special Assessment for Weed Cutting, Tree Removal, Debris
Removal, and Snow Removal.
The Brookings City Finance Office has attempted to collect these fees without success.
Invoices and letters have been sent to each property owner. The notice of the meeting
for the approval of these assessments listed in Resolution No. 165-12 has been
published. Once the resolution is approved the assessments will be certified to the
Brookings County Finance Office to be collected on their property tax as an assessment.
Resolution No. 165-12
Levy Assessment for Weed Cutting, Tree Removal, Debris Removal and Snow Removal
Whereas, the City Manager has submitted to the City Council Special Assessments against the
owner and legal description listed below as hereinafter set out for the cutting of weeds, tree
removal, debris removal, and snow removal;
Be It Resolved by the City Council of the City of Brookings, South Dakota, these fees be
assessed, in accordance with South Dakota Codified Law 9-30-5 as follows: Scott Hult, 203 8th
St. W., snow removal in the amount of $145.00; Joshua Dubro, 1615 Main Ave. So., tree
removal/Dutch Elm Disease in the amount of $1,407.26; and Daniel Stormo, 419 5th Ave. So.,
tree removal/Dutch Elm Disease in the amount of $1,617.87.
Passed and approved this 4th day of December, 2012.
CITY OF BROOKINGS
________________________
ATTEST: Tim Reed, Mayor
______________________
Shari Thornes, City Clerk
City Manager Introduction
Action: Open & Close Public Hearing, Motion to Approve, Roll Call
December 4, 2012
City of Brookings
100
Other Business
21. Action on Resolution No. 166-12, a Resolution relating to the
improvement of the Wastewater Collection System and Treatment
Facilities; Authorizing and directing the issuance and sale of a Revenue
Bond to pay the cost of said improvements; Defining the terms and
manner of payment of the Bond and the security thereof and approving
the form of Loan Agreement
DATE: November 26, 2012
TO: Brookings City Council
FROM: Steve Meyer, Executive Vice President / General Manager BMU
The enclosed resolution represents the final City Council approval of the $30.6 million
State Revolving Fund Loan used to finance wastewater system improvements.
The wastewater system improvements will include renovations to the wastewater plant,
collection system and equalization basins.
The loan will have a term of30 years at the interest rate of3.25%. The loan will be made
in the form of a surcharge revenue bond so it will have no impact on the constitutional
debt limit of the municipality.
On November 13, 2012, the Brookings Municipal Utilities Board approved a first reading
of a resolution providing for approval of this loan and the payments required to retire
the loan.
City Manager Introduction
Action: Motion to Approve, Request Public Comment, Roll Call
December 4, 2012
City of Brookings
101
Resolution No. 166-12
Resolution relating to the improvement of the Wastewater Collection System and
Treatment Facilities; Authorizing and directing the issuance and sale of a Revenue
Bond to pay the cost of said improvements; Defining the terms and manner of
payment of the bond and the security thereof and approving the form of Loan
Agreement.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BROOKINGS, SOUTH DAKOTA, AS
FOLLOWS:
SECTION 1. AUTHORIZATION AND FINDINGS.
1.01. The City of Brookings, South Dakota (the Issuer), operating through Brookings
Municipal Utility (BMU), currently operates a wastewater collection system and wastewater
treatment facilities (collectively, the Utility), for municipal, industrial and domestic purposes.
1.02. The Issuer is authorized to borrow money and issue its revenue bonds under
South Dakota Codified Laws, Chapters 9-40 (the Act) and 6-8B, in order to finance a portion of
the cost of improvements to the Utility, consisting of upgrades to the Utility’s wastewater
treatment plant and collection system and related improvements (the Improvements). The
Issuer is authorized to issue its obligations in order to defray the cost thereof, and to make all
pledges, covenants and agreements authorized by law for the protection of the holders of the
obligations, including, without limitation, those covenants set forth in SDCL, Sections 9-40-16
and 9-40-17. The obligations are payable from the Net Revenues of the Improvements, as
defined in 2.03 hereof.
1.03. BMU has, by resolution, covenanted and agreed to adopt and maintain special rates
or surcharges for the Improvements, in order to produce revenues to be pledged, segregated and
used for the operation and maintenance of the Improvements and payment of the revenue bonds
1.04. The execution and delivery of the Revenue Obligation Loan Agreement between
South Dakota Conservancy District (the District) and the Issuer (the Loan Agreement), the form
of which has been submitted to this Council, and the pledging of the loan payments thereunder
for the security of the State Revolving Fund revenue bonds of the Issuer, the interest thereon,
and the Administrative Expense Surcharge shall be, and they are, in all respects, hereby
authorized, approved and confirmed, and the Mayor and City Clerk are hereby authorized and
directed to execute and deliver the Loan Agreement in the form and content submitted to this
Council, with such changes that are not substantive as the Attorney for the Issuer deems
appropriate and approves, for and on behalf of the Issuer. The Mayor and City Clerk are hereby
further authorized and directed to implement and perform the covenants and obligations of
the Issuer as set forth in or required by the Loan Agreement.
1.05. The issuance of a revenue bond of the Issuer of not more than $30,600,000
principal amount (the Bond) is hereby authorized, approved and confirmed, and the Mayor,
City Clerk and other appropriate officials of the Issuer shall be authorized to execute and deliver
the Bond to the District, for and on behalf of the Issuer, upon receipt of the purchase price and
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City of Brookings
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to apply the proceeds thereof in the manner provided for in the Loan Agreement. The Finance
Manager is hereby authorized to approve the final terms of the Bond, and execution and
delivery of the Bond by the Mayor and City Clerk shall evidence such approval. The terms of
the Bond, as so executed and delivered, shall be deemed to be incorporated herein by
reference.
SECTION 2. FUNDS AND ACCOUNTS. For the purpose of application and proper allocation of
the income of the Improvements and to secure the payment of principal, interest, and
Administrative Expense Surcharge on the Bond, the following funds and accounts shall be used
solely for the following respective purposes until payment in full of the principal of and interest
on the Bond:
2.01. Pledge of Revenues of the Improvements. The Net Revenues of the Improvements
shall be pledged and appropriated to the payment of the Bond as set forth in the resolution
adopted by BMU.
2.02. Wastewater Fund; Bond Proceeds and Revenues Pledged and Appropriated. A
fund designated as the Wastewater Fund (the Fund) has been established and shall be
maintained as a separate and special bookkeeping account on the official books of the Issuer
until the Bond and any additional bonds (together referred to as the Bonds) payable from the
Net Revenues of the Improvements, as provided in Sections 3.02 through 3.04 hereof and
interest, Administrative Expense Surcharge and redemption premiums due thereon have been
fully paid, or the Issuer’s obligation with reference to the Bond has been discharged as provided
in this Resolution. All proceeds of the Bond and all other funds hereafter received or
appropriated for purposes of the Improvements are appropriated to the Fund. All gross
revenues derived from the operation of the Improvements are irrevocably pledged and
appropriated and shall be credited to the Fund as received. As described in Section 3.04
hereof, BMU shall impose a separate surcharge for the availability, benefit and use of the
Improvements as part of the Utility and shall aggregate the gross revenues derived from such
surcharge and the Improvements, together with the expenses of operation and maintenance of
the Improvements and the City shall account for them as provided in this Resolution; except as
expressly stated in this Resolution, the pledges, appropriations, covenants and agreements of
the City and the Accounts established within the Fund by the Resolution apply only to the
Improvements, its operations, revenues and expenses. The City finds that acquisition and
construction of the Improvements will benefit all present and future users of the Utility,
therefore the surcharge described in Section 3.04 shall be imposed on all current and future
users of the Utility. Such gross revenues shall include all gross income and receipts from rates
and charges imposed for the availability, benefit and use of the Improvements as now
constituted and of all replacements and improvements thereof and additions thereto, and from
penalties and interest thereon, and from any sales of property acquired for the Improvements
and all income received from the investment of such gross revenues; but not any taxes levied or
amounts borrowed or received as grants for construction of any part of the Improvements. The
Fund shall be subdivided into separate accounts as designated and described in Sections 2.03 to
2.07, to segregate income and expenses received, paid and accrued for the respective purposes
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described in those sections. The gross revenues received in the Fund shall be apportioned
monthly or as soon as possible after the first day of each month, commencing the first calendar
month following the delivery of the Bond, which apportionment is hereinafter referred to as
the “monthly apportionment.” The surcharge is divided into two components: a debt
retirement component (the “Debt Service Surcharge”), and an operation and maintenance
component (the “O&M Surcharge”).
2.03. Construction Account. The Construction Account shall be used only to pay as
incurred and allowed costs which under generally accepted accounting principles are capital
costs of the Improvements, and of such future reconstructions, improvements, betterments or
extensions of the Improvements as may be authorized in accordance with law; including but
not limited to payments due for work and materials performed and delivered under
construction contracts, architectural, engineering, inspection, supervision, fiscal and legal
expenses, the cost of lands and easements, interest accruing on the Bond during the first year
following the date of its delivery, if and to the extent that the Revenue Bond Account is not
sufficient for payment of such interest, reimbursement of any advances made from other Issuer
funds, and all other expenses incurred in connection with the construction and financing of any
such undertaking. To the Construction Account shall be credited as received all proceeds of the
Bond, all other funds appropriated by the Issuer for the Improvements, and all income received
from the investment of the Construction Account.
2.04. Operating Account. On each monthly apportionment there shall first be set aside
and credited to the Operating Account, as a first charge on the gross revenues derived from the
O&M Surcharge, such amount as may be required over and above the balance then held in the
Operating Account to pay the reasonable and necessary operating expenses of the
Improvements which are then due and payable, or are to be paid prior to the next monthly
apportionment. The term “operating expenses” shall mean the current expenses, paid or
accrued, of operation, maintenance and current repair of the Improvements, calculated in
accordance with generally accepted accounting principles, and shall include, without limitation,
administrative expenses of the Issuer relating solely to the Improvements, premiums for
insurance on the properties thereof, labor and the cost of materials and supplies used for
current operation and for maintenance, and charges for the accumulation of appropriate
reserves for current expenses which are not recurrent monthly but may reasonably be
expected to be incurred in accordance with generally accepted accounting principles. Such
operating expenses shall not include any allowance for depreciation or renewals or
replacements of capital assets of the Improvements and shall not include any portion of the
salaries or wages paid to any officer or employee of the Issuer, except such portion as shall
represent reasonable compensation for the performance of duties necessary to the operation
of the Improvements, nor any amount properly payable from any other account of the Fund.
The Net Revenues of the Improvements, as referred to in this Resolution, are hereby defined to
include the entire amount of such gross revenues remaining after each such monthly
apportionment, after crediting to the Operating Account the amount required hereby, including
sums required to maintain an operating reserve equal to one month’s estimated operating
expenses, plus the gross revenues derived from the Debt Service Surcharge.
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City of Brookings
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2.05. Revenue Bond Account. Upon each monthly apportionment there shall be set
aside and credited to the Revenue Bond Account, out of the Net Revenues of the
Improvements, an amount equal to one-third of the total sum of the principal, interest, and
Administrative Expense Surcharge to become due on the Bond on the next succeeding Loan
Payment Date (as defined in the Bond). Moneys from time to time held in the Revenue Bond
Account shall be disbursed only to meet payments of principal and interest on the Bond as such
payments become due; provided, that on any date when the outstanding Bond is due or
prepayable by its terms, if the amount then on hand in the Revenue Bond Account is sufficient,
with other moneys available for the purpose, to pay the Bond and the interest accrued thereon
in full, it may be used for that purpose. If any payment of principal, interest, or Administrative
Expense Surcharge becomes due when moneys in the Revenue Bond Account are temporarily
insufficient, such payment shall be advanced out of any Net Revenues theretofore segregated
and then on hand in the Replacement and Depreciation Account or the Surplus Account. In the
event that sufficient moneys are not available from the aforementioned sources the Issuer, to
the extent it may, at the time legally do so, may, but shall not be required to, temporarily
advance moneys to the Revenue Bond Account from other revenues of the Improvements or
from other funds of the Issuer on hand and legally available for the purpose, but any such
advance shall be repaid from Net Revenues of the Improvements within 24 months.
2.06. Replacement and Depreciation Account. There shall next be set aside and
credited, upon each monthly apportionment, to the Replacement and Depreciation Account
such portion of the Net Revenues, in excess of the current requirements of the Revenue Bond
Account (which portion of the Net Revenues is referred to herein as Surplus Net Revenues), as
BMU shall determine to be required for the accumulation of a reasonable reserve for renewal
of worn out, obsolete or damaged properties and equipment of the Improvements. Moneys in
this account shall be used only for the purposes above stated or, if so directed by BMU, to
redeem Bonds which are prepayable according to their terms, to pay principal, interest, and
Administrative Expense Surcharge when due thereon as required in Section 2.05 hereof, or to
pay the cost of improvements to the Improvements; provided, that in the event that the Issuer
shall hereafter issue bonds for the purpose of financing the construction and installation of
additional improvements or additions to the Improvements, but which additional bonds
cannot, upon the terms and conditions provided in Section 3, be made payable from the
Revenue Bond Account, Surplus Net Revenues from time to time received may be segregated
and paid into one or more separate and additional accounts for the payment of such bonds and
interest thereon, in advance of payments required to be made into the Replacement and
Depreciation Account.
2.07. Surplus Account. Any amount of the Surplus Net Revenues from time to time
remaining after the above required applications thereof shall be credited to the Surplus
Account, and the moneys from time to time in that account, when not required to restore a
current deficiency in the Revenue Bond Account as provided in Section 2.05 hereof, may be
used for any of the following purposes and not otherwise:
(a) to redeem and prepay principal of the Bond when and as such principal
becomes prepayable according to its terms;
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City of Brookings
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(b) if the balances in the Revenue Bond Account and the Replacement and
Depreciation Account are sufficient to meet all payments required or reasonably
anticipated to be made therefrom prior to the end of the current fiscal year, then;
(i) to pay for repairs or for the construction and installation of
improvements or additions to the Improvements;
(ii) to be held as a reserve for redemption and prepayment of principal of
the Bond which is not then but will later be prepayable according to its terms;
(iii) with the written consent of the District, transferred to one or more
specified funds of the Issuer.
No moneys shall at any time be transferred from the Surplus Account or any other account of
the Fund to any other fund of the Issuer, nor shall such moneys at any time be invested in
warrants, special improvement bonds or other obligations payable from other funds, except as
provided in this section.
2.08. Deposit and Investment of Funds. The Finance Manager shall cause all moneys
pertaining to the Fund to be deposited as received with one or more banks which are duly
qualified public depositories under the provisions of Chapter 4-6A, South Dakota Codified Laws,
in a deposit account or accounts, which shall be maintained so long as any of the Bonds and the
interest thereon shall remain unpaid. The deposit and investment of all moneys pertaining to
the Fund must, on the books and records of the Issuer, be maintained separate and apart from
all other funds of the Issuer. Any of such moneys not necessary for immediate use may be
deposited with such depository banks in savings or time deposits. No moneys shall at any time
be withdrawn from such deposit accounts except for the purposes of the Fund as authorized in
this Resolution; except that moneys from time to time on hand in the Fund may at any time, in
the discretion of the City Council, be invested in securities permitted by the provisions of South
Dakota Codified Laws, Section 4-5-6; provided, that the Replacement and Depreciation Account
may be invested in such securities maturing not later than ten years from the date of the
investment. Income received from the deposit or investment of moneys shall be credited to
the account from whose moneys the deposit was made or the investment was purchased, and
handled and accounted for in the same manner as other moneys in that account. The
investment of the moneys on deposit in the Revenue Bond Account is further restricted by the
provisions of Section 6.01 hereof. Deposits and securities described in this Section shall
constitute “Qualified Investments.”
2.09. Additional Revenues or Collateral. The Issuer reserves the right at any time to
pledge additional moneys, revenues or collateral as security for the Bond and any additional
bonds. Such pledge shall not be effective unless and until the Issuer receives, and provides to
the bond registrar an opinion of, nationally recognized bond counsel stating that such pledge
will not adversely affect the validity or tax exemption of the Bond and any additional bonds
then outstanding.
2.10. Appropriation of Other Moneys. The Issuer reserves the right in any year while the
Bond is outstanding to appropriate from moneys on hand and legally available for such purpose
in its cash reserve accounts such amounts as this Council may specify and direct that such
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amounts be used to pay principal, interest, and Administrative Expense Surcharge on the Bond.
Any such appropriation shall reduce the obligation of the Issuer to impose rates and charges
under Section 3.04 hereof.
2.11. Statutory Mortgage. The Issuer covenants and agrees that pursuant to SDCL 9-40-
28 and SDCL 9-40-29, the lawful holders of the Bond shall have a statutory mortgage lien upon
the Improvements and the extensions, additions and improvements thereto acquired pursuant
to the Act, until the payment in full of the principal, interest, and Administrative Expense
Surcharge on the Bond, and the Issuer agrees not sell or otherwise dispose of the Utility, the
Improvements, or any substantial part thereof, except as provided in the Loan Agreement and
shall not establish, authorize or grant a franchise for the operation of any other utility supplying
like products or services in competition therewith, or permit any person, firm or corporation to
compete with it in the collection and treatment of wastewater for municipal, industrial, and
domestic purposes within the Issuer.
SECTION 3. PRIORITIES, ADDITIONAL BONDS AND RATES AND CHARGES.
3.01. Priority of Bond Payments. If at any time the Net Revenues of the Improvements
are insufficient to pay principal, interest, and Administrative Expense Surcharge then due on
the Bond, any and all moneys then on hand shall be first used to pay the interest, and
Administrative Expense Surcharge accrued on the Bond, and the balance shall be applied
toward payment of the maturing principal of the Bond in order of their maturities, the earliest
maturing principal to be paid first, and pro rata in payment of principal maturing on the same
date.
3.02. Additional Bonds. The Issuer reserves the right to issue additional bonds, payable
from the Revenue Bond Account of the Fund, on a parity as to principal, interest, and
Administrative Expense Surcharge with the Bond in the manner and upon satisfaction of the
conditions and subject to the limitations set forth in the Loan Agreement.
3.03. Compliance with Loan Agreement. The Issuer will comply, so long as the Bond is
outstanding, and unpaid, with all of the provisions of the Loan Agreement, to the same extent
as though such provisions were set forth in this Resolution.
3.04. Rates and Charges. BMU has covenanted that it will maintain, revise, charge and
collect rates and other charges for all service furnished and made available by the
Improvements, according to schedules such that the gross revenues derived therefrom will be
sufficient, when combined with other available funds, to pay when due all expenses of the
operation and maintenance of the Improvements, and all principal, interest, and Administrative
Expense Surcharge on the Bond, to provide for the establishment and maintenance of adequate
reserves, to provide an allowance adequate for recurring renewals and replacements of the
Improvements, to satisfy the rate covenant provided in Section 6.4 of the Loan Agreement and
to fulfill the terms of all other agreements with holders of the Issuer’s bonds. The rates and
charges with respect to the Improvements shall be in the form of a separately stated surcharge
on the municipal utilities rate schedule; in calculating the surcharge BMU shall allocate to the
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Improvements its share of the expenses of operation and maintenance and allowances for
renewal and replacement (which amounts shall be derived solely from the gross revenues
produced by the O&M Surcharge) as well as the requirements to pay principal, interest, and
Administrative Expense Surcharge on the Bond (the Debt Service Surcharge shall at all times be
set at a level that will produce gross revenues at least equal to 110% of the maximum annual
principal, interest, and Administrative Expense Surcharge on the Bond in any future year) and
to repay the Utility or any other funds of the City for moneys advanced in accordance with
Section 2.05 hereof.
SECTION 4. AMENDMENTS.
4.01. Amendments Without Bondholder Consent. The Issuer reserves the right to
amend this Resolution from time to time and at any time, for the purpose of curing any
ambiguity or of curing, correcting or supplementing any defective provision contained herein,
or of making such provisions with regard to matters or questions arising hereunder as this
Council may deem necessary or desirable and not inconsistent with this Resolution, and which
shall not adversely affect the interest of the holder of the Bond, or for the purpose of adding to
the covenants and agreements herein contained, or to the gross revenues herein pledged,
other covenants and agreements thereafter to be observed and additional gross revenues
thereafter appropriated to the Fund, for the purpose of surrendering any right or power herein
reserved to or conferred upon the Issuer, or for the purpose of authorizing the issuance of
additional bonds in the manner and subject to the terms and conditions prescribed in Section 3.
Any such amendment may be adopted by resolution, without the consent of the holder of the
Bond.
4.02. Amendments With Bondholder Consent. With the consent of the holder of the
Bond as provided in Section 4.03, the Issuer may from time to time and at any time amend this
Resolution by adding any provisions hereto or changing in any manner or eliminating any of the
provisions hereof, or of any amending resolution, except that no amendment shall be adopted
at any time without the consent of the holder of the Bond which are then outstanding, if it
would extend the maturities of any Bond, would reduce the rate or extend the time of payment
of interest thereon, would reduce the amount or extend the time of payment of the principal or
redemption premium thereof, would give to any Bond any privileges over any other Bond,
would reduce the sources of gross revenues appropriated to the Fund, would authorize the
creation of a pledge of gross revenues prior to or on a parity with the Bond (except as is
authorized by Section 3), or would reduce the percentage in principal amount of the Bond
required to authorize or consent to any such amendment.
4.03. Notice and Consent. Any amendment adopted pursuant to Section 4.02 shall be
made by resolution, mailed to each holder of a Bond affected thereby, and shall become
effective only upon the filing of written consents with the Finance Manager, signed by the
holders of not less than two-thirds in principal amount of the Bonds which are then outstanding
or, in the case of an amendment not equally affecting all outstanding Bonds, by the holders of
not less than two-thirds in principal amount of the Bond adversely affected by such
amendment. Any written consent to an amendment may be embodied in and evidenced by
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one or any number of concurrent written instruments of substantially similar tenor signed by
bondholders in person or by agent duly appointed in writing, and shall become effective when
delivered to the Finance Manager. Any consent by the holder of any Bond shall bind the holder
and every future holder of the same Bond with respect to any amendment adopted by the
Issuer pursuant to such consent, provided that any bondholder may revoke his consent with
reference to any Bond by written notice received by the Finance Manager before the
amendment has become effective. In the event that unrevoked consents of the holders of the
required amount of Bonds have not been received by the Finance Manager within one year
after the mailing of any amendment, the amendment and all consents theretofore received
shall be of no further force and effect.
4.04. Proof. Proof of the execution of any consent, or of a writing appointing any agent
to execute the same, or of the ownership by any person of a Bond, shall be sufficient for any
purpose of this Resolution and shall be conclusive in favor of the Issuer if made in the manner
provided in this section. The fact and date of the execution by any person of any such consent
or appointment may be proved by the affidavit of a witness of such execution or by the
certificate of any notary public or other officer authorized by law to take acknowledgements
that the person signing such writing acknowledged to him the execution thereof. The amount
of Bonds held by any person by or for whom a consent is given, and the distinguishing numbers
of such Bond, and the date of holding the same, shall be proved by the bond register. The fact
and date of execution of any such consent may also be proved in any other manner which this
Council may deem sufficient; but this Council may nevertheless, in its discretion, require further
proof in cases where it deems further proof desirable.
SECTION 5. PAYMENT OF BOND.
5.01. General. When the liability of the Issuer on the Bond has been discharged as
provided in this section, all pledges, covenants and other rights granted by this Resolution to
the holder of the Bond shall cease.
5.02. Payment. The Issuer may discharge its liability with reference to any Bond which is
due on any date by depositing with the holder or holders thereof, or the paying agent or
agents, if any, for such Bond on or before that date a sum sufficient for the payment thereof in
full; or if any Bond shall not be paid when due, the Issuer may nevertheless discharge its liability
with reference thereto by depositing with the holder or holders thereof, or the paying agent or
agents, if any, a sum sufficient for the payment thereof in full with interest accrued to the date
of such deposit.
5.03. Prepayable Bonds. The Issuer may also discharge its liability with reference to any
prepayable Bond which is called for redemption on any date in accordance with its terms, by
depositing with the holder or holders thereof, or the paying agent or agents, if any, on or
before that date an amount equal to the principal, interest and redemption premium, if any,
which are then due thereon, provided that notice of such redemption has been duly given as
provided in the resolution authorizing the Bond.
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SECTION 6. TAX MATTERS.
6.01. Tax Matters.
(a) Covenant. The Issuer covenants and agrees with the holders from time to time of
the Bond that it will not take or permit to be taken by any of its officers, employees or agents
any action which would cause the interest on the Bond to become subject to taxation under the
Internal Revenue Code of 1986, as amended (the Code), and applicable Treasury Regulations
(the Regulations).
(b) Use of Improvements. The Issuer covenants and agrees that it will not, nor will it
permit any of its officers, employees or agents, to enter into any lease, use or other agreement
with any person other than a state or political subdivision or agency or instrumentality of a
state, relating to the use of the Improvements or the security for the Bond which might cause
the Bond to be considered a “private activity bond” within the meaning of Section 141 of the
Code.
(c) Investment of Moneys on Deposit in Revenue Bond Account. The Finance Manager
shall ascertain monthly the amount on deposit in the Revenue Bond Account. If the amount on
deposit therein ever exceeds by more than $100,000 the aggregate amount of principal and
interest due and payable from the Revenue Bond Account within 13 months thereafter, such
excess shall either (1) not be invested except at a yield equal to or less than the yield borne by
the Bond, or (2) be used to prepay and redeem principal installments of the Bond.
(d) Certification. The Mayor and City Clerk, being the officers of the Issuer charged with
the responsibility for issuing the obligations pursuant to this resolution, are authorized and
directed to execute and deliver to the purchaser a certification in order to satisfy the provisions
of Section 1.148-2(b) of the Regulations. Such certification shall state that on the basis of the
facts, estimates and circumstances in existence on the date of issue and delivery of the Bond as
therein set forth, it is not expected that the proceeds of the Bond will be used in such a manner
that would cause the Bond to be an arbitrage bond, and the certification shall further state that
to the best of the knowledge and belief of the officers there are no other facts, estimates or
circumstances that would materially change such expectation.
6.02. Tax-Exempt Status of the Bond and Rebate. The Issuer shall comply with
requirements necessary under the Code to establish and maintain the exclusion from gross
income under Section 103 of the Code of the interest on the Bond, including without limitation
(1) requirements relating to temporary periods for investments, (2) limitations on amounts
invested at a yield greater than the yield on the Bond, and (3) the rebate of excess investment
earnings to the United States.
6.03. Repeal. All provisions of all other ordinances, resolutions and other actions and
proceedings of the Issuer and of this Council which are in any way inconsistent with the terms
and provisions of this Resolution are repealed, amended and rescinded to the full extent
necessary to give full force and effect to the provisions of this Resolution.
December 4, 2012
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CITY OF BROOKINGS, SD
(SEAL)
By__________________________
Tim Reed, Mayor
Attest: _______________________
Shari Thornes, City Clerk
Adopted: December 4, 2012
Published: December 7, 2012
Effective: December 27, 2012
December 4, 2012
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111
SOUTH DAKOTA CONSERVANCY DISTRICT STATE REVOLVING FUND
REVENUE OBLIGATION LOAN AGREEMENT PROJECT INCOME
LOAN AGREEMENT made and entered into this 4th day of December, 2012, by and
between the State of South Dakota, acting through the South Dakota Conservancy District, a
governmental agency, and body politic and corporate of the State of South Dakota, and the
South Dakota Board of Water and Natural Resources, Joe Foss Building, 523 East Capitol Ave.,
Pierre, SD 57501-3181 (the “District”), and the City of Brookings, P.O. Box 270, Brookings, SD
57006, a political subdivision of the State of South Dakota (the “Borrower”), acting through the
Brookings Municipal Utilities.
WITNESSETH:
WHEREAS, pursuant to SDCL 46A-1-60.1, the State has established a state water
pollution control revolving fund program as authorized by the Clean Water Act as defined
herein, and a state drinking water revolving fund program as authorized by the Safe Drinking
Water Act as defined herein (the “Programs”), and provided that program subfunds (each, a
“Program Subfund” and collectively, the “Program Subfunds”) be created within the water and
environment fund established pursuant to SDCL 46A-1-60; that each Program Subfund be
maintained separately; and all federal, state and other funds for use in each such Program be
deposited into the related Program Subfund, including all federal grants for capitalization of
each such Program, all repayments of assistance awarded from each such Program Subfund,
interest on investments made on money in each such Program Subfund, proceeds of
discretionary bond issues allowed by SDCL 46A-1-31, and principal and interest on loans made
from each fund, that money in the Program Subfunds may be used only for purposes
authorized under federal law and that the Program Subfunds may be pledged or assigned by
the District and to or in trust for the holder or holders of the bonds of the District as permitted
by law and may be transferred to and held by a trustee or trustees pursuant to SDCL 46A-1-39;
and
WHEREAS, to fund the Programs, the United States Environmental Protection Agency
makes annual capitalization grants to the states for each Program, on the condition that each
state provide an appropriate match for such state's revolving funds; and
WHEREAS, the District has entered into an Amended and Restated Master Trust
Indenture dated July 1, 2004, as amended by the First Amendment to Amended and Restated
Master Trust Indenture dated October 1, 2005, a Second Amendment to Amended and Restated
Master Trust Indenture dated April 1, 2006, a Third Amendment to Amended and Restated
Master Trust Indenture dated March 1, 2008, the Series 2008 Supplemental Indenture dated as of
March 1, 2008, a Fourth Amended and Restated Master Trust Indenture dated August 1, 2009,
and a Fifth Amended and Restated Master Trust Indenture dated September 1, 2010 (as
hereafter amended or supplemented, the “Indenture”) with The First National Bank in Sioux
Falls, as Trustee (together with any successor trustee the “Trustee”) pursuant to which the
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District will, from time to time, issue bonds for the purpose of loaning the proceeds thereof to
Borrowers in furtherance of the Programs; and
WHEREAS, the District is authorized and empowered by the provisions of SDCL chapters
46A-1 and 46A-2, as amended (the “Act”), to purchase or otherwise finance, or provide for the
purchase or payment of bonds or other obligations, including the refinancing of obligations
previously issued or for projects previously completed, and to enter into financing
arrangements with eligible Borrowers to secure and provide for the payment of such loans; and
WHEREAS, the District is duly constituted as an instrumentality of the State exercising
public and governmental functions under the operation, management and control of the Board
of Water and Natural Resources of South Dakota (the “Board”), pursuant to the Act, and is
authorized to issue bonds and to make loans to eligible Borrowers through the purchase of
Loan Obligations as defined herein; and
WHEREAS, SDCL 46A-1-60.2 provides that funds from the Programs shall be disbursed
and administered according to rules enacted by the Board of Water and Natural Resources
pursuant to SDCL 46A-1-65, and the provisions of SDCL 46A-1-60 to SDCL 46A-1-60.3, inclusive;
and
WHEREAS, the Borrower has applied to the District for Program assistance for the
Project described herein and is authorized under applicable statutes, ordinances and
regulations to enter into this Loan Agreement, and to issue its Borrower Bond, as herein
defined, to the District for the purposes described herein, and pursuant to its powers under the
Act, the District desires to loan to the Borrower from the applicable Program Subfund the
amount necessary to enable the Borrower to finance, refinance or reimburse itself for the costs
of the Project; and
WHEREAS, loaning amounts from the applicable Program Subfund to the Borrower to
enable the Borrower to finance, refinance or reimburse itself for the costs of the Project, as
herein defined, will carry out the purposes of the Relevant Federal Act as defined herein; and
WHEREAS, the Borrower desires to borrow such amount from the District subject to the
terms and conditions and for the purposes set forth in this Loan Agreement, and the Borrower
is authorized under applicable laws, ordinances and regulations to enter into this Loan
Agreement and to issue the Borrower Bond for the purposes set forth herein; and
WHEREAS, the District will fund the Loan in part, directly or indirectly, with proceeds of
its State Revolving Fund Revenue Bonds (the “Bonds”) issued under the Indenture and in part,
directly or indirectly, with funds provided by the federal Environmental Protection Agency;
NOW THEREFORE, for and in consideration of the premises and the covenants and
representations herein contained, the parties mutually agree as follows:
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ARTICLE I
DEFINITIONS AND RULES OF INTERPRETATION
Section 1.1. Definitions. The following terms when used in this Loan Agreement shall
have the meanings indicated in this section unless the context clearly requires otherwise:
“Accountant” or “Accountants” means an independent certified public accountant or a
firm of independent certified public accountants to whom the District and Trustee make no
objection.
“Act” means SDCL chapters 46A-1 and 46A-2, as now in effect and as it may be from
time to time amended, together with any applicable rules promulgated by the Board
thereunder.
“Additional Bonds” means any of the Bonds of the District other than the Series 2004
Bonds, the Series 2005 Bonds, the Series 2008 Bonds, the Series 2009 Notes, the Series 2010
Notes, the Series 2010 Bonds, the Series 2012 Bonds or any Prior Bonds, authorized by a Series
Resolution and secured by the Master Indenture.
“Administrative Expense Surcharge” means a surcharge on the Loan charged by the
District to the Borrower at the rate set forth in Section 5.1, payable by the Borrower on the
same dates that payments of interest on the Loan are due.
“Authorized Representative” means, in the case of the District, the Chairman or
Secretary of the Board; in the case of the Borrower, the Mayor, the City Manager, City Clerk or
Finance Manager on behalf of the City and the General Manager of Brookings Municipal
Utilities on behalf of Brookings Municipal Utilities; and such additional persons as, at the time,
are designated by resolution to act on behalf of the Board or the Borrower, as the case may be.
“Board” means the South Dakota Board of Water and Natural Resources, a state agency
created pursuant to SDCL 1-40-5, both as such Board and as the South Dakota Conservancy
District, a governmental agency, body politic and corporate, created pursuant to SDCL 46A-2-1,
as set forth in SDCL 46A-2-5.
“Board Resolution” means Resolution No. 2012-___ adopted by the Board of Water and
Natural Resources on the ____ day of June, 2012 with respect to the Borrower, the Project, and
this Loan Agreement.
“Bond Counsel” means any Counsel acceptable to the District and the Trustee which is a
nationally recognized bond counsel. A Counsel is a nationally recognized bond counsel if it has
rendered a sole legal opinion in connection with the sale of state and municipal bonds (short-
term issues excluded) during the two-year period preceding the date of determination. The
legal opinion rendered may be on either publicly offered or privately placed bond issues.
Attorneys acting only as counsel to the underwriter do not qualify.
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“Bondholder” or “Holder” or similar terms, when used with respect to the Borrower
Bond, means the registered owner of the Borrower Bond.
“Bond Payment Date” means any date on which principal or interest or Redemption Price
(as defined in the Indenture) is due and payable on any Bonds.
“Bonds” means the Series 2004 Bonds, the Series 2005 Bonds, the Series 2008 Bonds,
the Series 2009 Notes, the Series 2010 Notes, the Series 2010 Bonds, the Series 2012 Bonds,
any Prior Bonds, and any Additional Bonds.
“Borrower” means the eligible public entity which has entered into this Loan Agreement
with the District.
“Borrower Bond” means the revenue bond or bonds issued the date of this Loan
Agreement by the Borrower to the District to evidence the Borrower’s obligation to repay the
principal of and pay interest and Administrative Expense Surcharge on the Loan.
“Borrower Resolution” means the Resolution adopted by the Borrower on the ____ day
of ___________, 2012 with reference to the Project, the Borrower Bond and this Loan
Agreement.
“Business Day” means any day which (i) is not a Saturday or Sunday, (ii) is not a day on
which banks in South Dakota are authorized or required by law to remain closed, and (iii) in the
case of notices to be given to, or other actions to be taken with respect to, a Credit Enhancer, is
not a day on which such Credit Enhancer is closed.
“Clean Water Act” means the Federal Clean Water Act, more commonly known as the
Clean Water Act (PL 92-500), as amended by the Water Quality Act of 1987 (PL 100-4), 33 U.S.C.
1251, et seq., any subsequent amendments thereto and any other applicable statutes
governing any Program funded hereunder, and includes the State Revolving Fund Program
Implementation Regulations, any amendments thereof issued pursuant thereto and any other
applicable regulations.
“Closing Date” means the date of execution and delivery of this Loan Agreement and
the Borrower Bond.
“Code” means the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder or officially proposed to be promulgated thereunder.
“Collateral Documents” means all resolutions authorizing the Borrower Bond or the
Project, including the Borrower Resolution, and any mortgage, security agreement, guaranty, or
other document or agreement received by the District securing the obligations of the Borrower
under this Loan Agreement and the Borrower Bond. If no Collateral Documents are entered
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into, then further reference to Collateral Documents in this Loan Agreement shall be of no force
and effect.
“Committed Amount” means the amount committed to be loaned to the Borrower by
the District pursuant to the terms of this Loan Agreement.
“Completion Certificate” means the certificate regarding completion of the Project
required by Section 3.4.
“Completion Date” means the date of completion of the Project as evidenced by a
Completion Certificate.
“Construction Advance” means an advance of the Committed Amount to pay costs of
the Project pursuant to Section 4.1 (a) or to reimburse the Borrower pursuant to Section 4.1 (c)
for costs of a Project not yet completed.
“Consultant” means a nationally recognized consultant or firm of consultants, or an
independent engineer or firm of independent engineers, or an Accountant, which in any case is
qualified and has skill and experience in the preparation of financial feasibility studies or
projections for facilities similar to the Borrower’s System or Project, as the case may be,
selected by the Borrower and satisfactory to the Trustee and the District.
“Counsel” means an attorney duly admitted to practice law before the highest court of
any state.
“Credit Enhanced,” when used with reference to any Bonds or Series of Bonds, means
Bonds or a Series of Bonds the payment of the principal of and interest on which is insured or
guaranteed by a Credit Enhancer.
“Credit Enhancement” or “Credit Facility” means any letter of credit, insurance policy,
guaranty bond or other instrument or agreement delivered to the Trustee to provide credit
enhancement for a Series of Bonds (or a portion of such Series). “Credit Enhancement” or
“Credit Facilities” means, collectively, all Credit Enhancement which is then in existence with
respect to any outstanding Bonds; references to Credit Enhancement, Credit Facility, Credit
Enhanced and Credit Enhancer shall be disregarded if no Bonds are, at such time, Credit
Enhanced and shall be disregarded with respect to any Bonds which are not Credit Enhanced.
“Credit Enhancer” means, with respect to any Bonds, the institution providing Credit
Enhancement for such Bonds.
“Debt” means (1) indebtedness of the Borrower for borrowed money or for the
deferred purchase price of property or services, and expressly including the obligation to pay
principal and interest on or with respect to revenue bonds, (2) the obligation of the Borrower as
lessee under leases which should be recorded as capital leases under generally accepted
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accounting principles, and (3) obligations of the Borrower under direct or indirect guarantees in
respect of, and obligations, contingent or otherwise, to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others
of the kinds referred to in subdivisions (1) and (2) above.
“District” means the South Dakota Conservancy District, a governmental agency, body
politic and corporate constituted as an instrumentality of the State of South Dakota exercising
public and essential governmental functions and created by the Act, or any body, agency or
instrumentality of the State of South Dakota which shall hereafter succeed to the powers,
duties or functions of the District under the Indenture and this Loan Agreement.
“District-EPA Agreements” means any and all capitalization grant agreements and other
agreements between the District or the South Dakota Department of Environment and Natural
Resources and the EPA relating to the Programs and the use of moneys governed by such
agreements.
“District Officer” means the Chairman or Secretary of the governing body of the District,
and, when used with reference to an act or document, also means any other person authorized
by resolution of the District to perform such act or sign such document. If authorized by
resolution of the District, a District Officer may delegate any portion of his authority as a District
Officer to another person and such person shall be deemed a District Officer for purposes of
exercising such authority.
“EPA” means the Environmental Protection Agency, an agency of the United States of
America, and any successor to its functions under the Relevant Federal Act, or any other agency
of the United States of America having jurisdiction with respect to the funding of Loans for the
Program.
“EPA Capitalization Grant” means a grant of funds to the State by the EPA under the
Relevant Federal Act and any grant made available by the EPA for deposit in the State Revolving
Fund pursuant to the Relevant Federal Act.
“Event of Default” means any event described in section 9.1 hereof.
“Governmental Unit” means governmental unit as such term is defined in Section 150(a)
of the Code.
“Indenture’ means the Amended and Restated Master Trust Indenture dated as of July 1,
2004, between the District and the Trustee, a First Amendment to Amended and Restated Master
Trust Indenture dated October 1, 2005, a Second Amendment to Amended and Restated Master
Trust Indenture dated April 1, 2006, a Third Amendment to Amended and Restated Master Trust
Indenture dated March 1, 2008, the Series 2008 Supplemental Indenture dated March 1, 2008, a
Fourth Amended and Restated Master Trust Indenture dated August 1, 2009, a Fifth Amended
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and Restated Master Trust Indenture dated September 1, 2010 and all Series Resolutions and
other supplements and amendments thereto, including the Series 2012 Resolution.
“Initial Loan Amortization Date” means _________ 1, 20__ or, if earlier, the earliest of
the following: (a) the first Loan Payment Date following the ninth month after the Initial
Operation Date, (b) the first Loan Payment Date following the date on which Borrower is
required to deliver the Completion Certificate pursuant to Section 3.4 of the Loan Agreement,
and (c) the first Loan Payment Date following the twenty-fourth month after the Closing Date.
“Initial Operation Date” means the date on which operation of the Project begins for the
purposes for which it was planned, designed and constructed.
“Loan” means the Loan made by the District to the Borrower pursuant to the terms of
this Loan Agreement and as evidenced by the Borrower Bond.
“Loan Agreement” means this Loan Agreement, including the Appendices and
amendments attached hereto.
“Loan Documents” means this Loan Agreement, the Borrower Bond and the Collateral
Documents, collectively.
“Loan Obligation” means any evidence of indebtedness or other obligation to repay a
loan, acquired by the District pursuant to the Loan Agreement, which is issued by a Public Entity
and payable from taxes, non-ad valorem sales taxes, or from rates, revenues, charges or
assessments, or distributions of revenue pursuant to a state appropriation or statutory or
constitutional provision, or payable from a pledge of property, or other amounts.
“Loan Payment Date” means the first day of January, April, July, and October of each
year, on which Loan Payments on the Borrower Bond are due as set forth herein.
“Loan Payments” means the payments of principal, interest and Administrative Expense
Surcharge on or with respect to the Loan pursuant to this Loan Agreement and the Borrower
Bond and all other payments required under this Loan Agreement and the Borrower Bond.
“Loan Proceeds Account” means the account of the District from which the Loan is to be
funded, whether such account is established with the Trustee or otherwise.
“Loan Term” means the period commencing with the Closing Date and continuing until
the Borrower Bond and interest thereon have been paid in full, or provision for such payment
has been made as provided herein, and all obligations hereunder have been satisfied.
“Nonexempt Person” means a Person which is not a Governmental Unit.
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“Opinion of Bond Counsel” means a written Opinion of Counsel by Bond Counsel
provided as required herein, which opinion shall comply with the requirements of Section 6.6
hereof.
“Opinion of Counsel” means a written opinion of Counsel selected by the Borrower and
acceptable to the District and, if the opinion pertains to a Series of Bonds all or a portion of which
is Credit Enhanced, the Credit Enhancer for such Series or portion thereof.
“Person” means any Private Person, Private Entity or Public Entity.
“Prior Bonds” means the unrefunded portion of the Series 1996A State Revolving Fund
Revenue Bonds and the Series 2001 State Revolving Fund Revenue Bonds issued under the
Clean Water Program, and the Series 1998A Drinking Water State Revolving Fund Revenue
Bonds and the Series 2001 Drinking Water State Revolving Fund Revenue Bonds issued under
the Drinking Water Program.
“Private Entity” means any nonprofit or cooperative corporation but not a public body
or political subdivision.
“Private Person” means any natural person, firm, partnership, association or corporation
but not a public body or political subdivision.
“Program” means any program now or hereafter described in the Act pursuant to which
the Board of Water and Natural Resources makes loans to private or public entities for various
environmental, health, or infrastructure purposes, including projects or purposes authorized by
either the Clean Water Act or by the Safe Drinking Water Act, whichever is applicable to the
Project herein described.
“Project” means the facilities, improvements and activities financed, or the cost of
which is being reimbursed to the Borrower pursuant to this Loan Agreement and the Borrower
Bond, as described in Appendix A hereto.
“Project Costs” means all those costs and expenses of the Project approved by the
District as eligible costs.
“Project Debt” has the meaning given such term in Section 6.5.
“Project Income” means the revenues produced by the Surcharge.
“Public Entity” means a state agency or a municipality, county, sanitary district, water
user district, water project district, township, irrigation district, watershed district, water
development district, conservation district, recycling and waste management district, or any
other political or administrative subdivision of state government recognized by state law.
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“Related Person” means related person, as such term is described in Section 147(a)(2) of
the Code.
“Relevant Federal Act” means the Clean Water Act or the Safe Drinking Water Act as
defined herein, whichever is applicable to the Project herein described.
“Safe Drinking Water Act,” means the federal Safe Drinking Water Act, 42 U.S.C. § 300f
et seq., including the Safe Drinking Water Act Amendments of 1996, any subsequent
amendments thereto and any other applicable statutes governing any Program funded
hereunder, and includes the EPA’s Drinking Water State Revolving Fund Program Guidelines,
any amendments thereof issued pursuant thereto, and any other applicable regulations.
“Series” means all Bonds issued under the Indenture on the same date and designated by
the District to be of the same Series.
“Series 2004 Bonds” means the District’s State Revolving Fund Revenue Bonds, Series
2004, issued pursuant to the Indenture.
“Series 2005 Bonds” means the District’s State Revolving Fund Revenue Bonds, Series
2005, issued pursuant to the Indenture.
“Series 2008 Bonds” means the District’s State Revolving Fund Revenue Bonds, Series
2008, issued pursuant to the Indenture.
“Series 2009 Notes” means the District’s State Revolving Fund Revenue Bond Anticipation
Notes, Series 2009, issued pursuant to the Indenture.
“Series 2010 Notes” means the District’s State Revolving Fund Revenue Bond Anticipation
Notes, Series 2010, issued pursuant to the Indenture.
“Series 2010 Bonds” means the District’s State Revolving Fund Revenue Bonds, Series
2010AB, issued pursuant to the Indenture.
“Series 2012 Bonds” means the District’s State Revolving Fund Revenue Bonds, Series
2012, issued pursuant to the Indenture.
“Series 2012 Resolution” means the Series Resolution adopted by the Board of Water and
Natural Resources on April 10, 2012 in connection with the issuance and sale of the Series 2012
Bonds.
“Series Resolution” means a resolution authorizing a series of Bonds to be issued under
and secured by the Indenture.
“State” means the State of South Dakota.
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“Subsequent Loan Amortization Date” means, if the Initial Loan Amortization Date
occurs prior to the first Loan Payment Date following the first month after the date on which
the Borrower is required to deliver the Completion Certificate pursuant to Section 3.4 of the
Loan Agreement, (i) the first Loan Payment Date following every sixth month after the Initial
Loan Amortization Date until the date in the following clause (ii) occurs and (ii) the Loan
Payment Date following the fifth month after the date on which the Borrower is required to
deliver the Completion Certificate pursuant to Section 3.4 of the Loan Agreement.
“Surcharge” means the special surcharge imposed by Brookings Municipal Utilities, by
resolution dated , 2012, for the availability, benefit and use of the Project as a part
of the System; the revenues derived from the Surcharge constitute the Project Income pledged
to the payment of the Borrower Bond.
“System” means the Borrower’s wastewater collection system and wastewater
treatment facilities.
“Trustee” means The First National Bank in Sioux Falls, Sioux Falls, South Dakota or any
successor thereto as trustee under the Indenture.
Section 1.2. Rules of Interpretation. For all purposes of this Loan Agreement, except
as otherwise expressly provided or unless the context otherwise requires: (a) the singular
includes the plural and the plural, the singular; (b) words importing any gender include the
other genders; (c) references to statutes are to be construed as including all statutory
provisions consolidating, amending or replacing the statute to which reference is made and all
regulations promulgated pursuant to such statutes; (d) references to "writing" include printing,
photocopy, typing, lithography and other means of reproducing words in a tangible visible
form; (e) the words "including," "includes" and "include" shall be deemed to be followed by the
words "without limitation"; (f) references to the introductory paragraph, preliminary
statements, articles, sections (or subdivisions of sections), exhibits, appendices, annexes or
schedules are to those of this Loan Agreement unless otherwise indicated; (g) references to
agreements and other contractual instruments shall be deemed to include all subsequent
amendments and other modifications to such instruments, but only to the extent that such
amendments and other modifications are permitted or not prohibited by the terms of this Loan
Agreement; (h) references to Persons, including the District and the Trustee, include their
respective successors and assigns permitted or not prohibited by the terms of this Loan
Agreement; (i) an accounting term not otherwise defined has the meaning assigned to it in
accordance with financial and reporting standards as promulgated by the Governmental
Accounting Standards Board, the Financial Accounting Standards Board, or an Other
Comprehensive Basis of Accounting, as applicable; (j) “or” is not exclusive but contemplates or
permits one or more or all of the alternatives conjoined; (k) provisions apply to successive
events and transactions; (l) references to documents or agreements which have been
terminated or released or which have expired shall be of no force and effect after such
termination, release or expiration; (m) references to mail shall be deemed to refer to first-class
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mail, postage prepaid, unless another type of mail is specified; (n) all references to time shall be
to Pierre, South Dakota time; (o) references to specific persons, positions or officers shall
include those who or which succeed to or perform their respective functions, duties or
responsibilities referred to in the Loan proceedings; (p) the terms “herein,” “hereunder,”
“hereby,” “hereto,” “hereof” and any similar terms refer to this Loan Agreement as a whole and
not to any particular article, section or subdivision hereof, and the term “heretofore” means
before the date of execution of this Loan Agreement, the term “now” means at the date of
execution of this Loan Agreement and the term “hereafter” means after the date of execution
of this Loan Agreement; and (q) references to payments of principal include any premium
payable on the same date.
ARTICLE II
REPRESENTATIONS AND COVENANTS
Section 2.1. Representations of the Borrower. The Borrower makes the following
representations:
(a) The Borrower is a Public Entity duly organized and existing under the laws of
the State; has taken all proper action, including adoption of the Borrower
Resolution, to authorize the execution, delivery and performance of its
obligations under the Loan Documents and the incurring of the debt represented
by the Borrower Bond in the maximum amount of the Committed Amount; and
has the necessary power and authority, together with all licenses and permits
required to own and operate the System and carry on its current activities with
respect to the System, and to enter into and consummate all transactions
contemplated by the Loan Documents, and to carry out its obligations hereunder
and thereunder.
(b) There is no action, suit, proceeding, inquiry or investigation at law or in
equity, by or before any judicial or administrative court, agency or body, pending
or threatened against the Borrower or its System, wherein an unfavorable
decision, ruling, or finding would materially adversely affect the validity or
enforceability of the Loan Documents or would materially adversely affect the
ability of the Borrower to comply with its obligations under the Loan Documents.
(c) No referendum petition has been filed with respect to any ordinance or
resolution of the Borrower relating to the Loan Documents, and the period for
filing any such petition has expired.
(d) Neither the execution and delivery of the Loan Documents, the
consummation of the transactions contemplated thereby, nor the fulfillment of,
or compliance with the provisions of the Loan Documents will conflict with or
result in the breach of any of the terms, conditions or provisions of the Act, or
any restriction, agreement, or instrument to which the Borrower is a party, or by
which it is bound, or result in the creation or imposition of any lien of any nature
upon any of the property of the Borrower under the terms of any such
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instrument or agreement, unless such conflict or breach has been waived or
consented to by the other parties to such instrument or agreement, nor will such
action result in the violation of any provisions of any laws, ordinances,
governmental rules and regulations, or court or other governmental orders to
which the Borrower, its property or operations are subject.
(e) No event of default has occurred in any agreement or instrument as to any
outstanding indebtedness of the Borrower for money borrowed, and no
condition, event or act exists which, with the lapse of time or the giving of
notice, would constitute an event of default under any such agreement or
instrument. The Borrower is not in violation of any term of any restriction,
agreement, indenture, ordinance, resolution, charter, or other instrument to
which it is a party or which it or its property may be bound, which violation
would materially adversely affect the transactions contemplated hereby or the
compliance by the Borrower with the terms of the Loan Documents.
(f) The Borrower has duly acquired and obtained those rights-of-way,
easements, permits, licenses, or other authorizations necessary for the conduct
of its activities, including the ownership and operation of the System and the
construction of the Project, except those licenses, permits and other
authorizations to be received upon completion of the Project, and agrees to
acquire all such authorizations in the future as may be required for its System
and the operation thereof, which failure to obtain might materially and
adversely affect the ability of the Borrower to operate its System as presently
operated, or the condition of the Borrower’s System, financial or otherwise, or
the Borrower’s ability to perform its obligations under the Loan Documents. The
management and control of the Borrower’s System is within the jurisdiction of
Brookings Municipal Utility, which has executed this Loan Agreement and any
other Loan Documents and agreed with the District and Trustee to abide by the
terms of this Loan Agreement and other Loan Documents, including approving
any necessary Surcharge rate increases.
(g) This Loan Agreement, the Borrower Bond, and any Collateral Documents to
which the Borrower is a party are the legal, valid and binding obligations and
agreements of the Borrower, enforceable against the Borrower according to
their terms, except as the enforceability thereof may be limited by laws relating
to bankruptcy, insolvency or other similar laws affecting creditors’ rights
generally and general principles of equity.
(h) The Project consists of the facilities, improvements and activities described
in Appendix A, as such Appendix may be amended from time to time.
(i) There is no fact that the Borrower has not specifically disclosed in writing to
the District that materially and adversely affects or, except so far as pending or
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proposed legislation or regulations that are a matter of general public
information, that will materially adversely affect the properties, operations and
finances of the Borrower’s System, its status as a Public Entity, its ability to own
and operate the System or the Project as a part thereof, in the manner it is
currently operated, or the Borrower’s ability to perform its obligations under the
Loan Documents, or to pledge any revenues or property to the payment of the
Loan Payments.
(j) The population of the Borrower, according to the most recent information
available from the U.S. Bureau of the Census, is 18,504. The Borrower’s best
estimate of its current population is 22,056 and the number of customers of
Borrower’s System as of the end of its most recent fiscal year is 6,876.
Section 2.2. Covenants of the Borrower. The Borrower covenants and agrees as
follows:
(a) The Borrower shall, at all times during the term of this Loan Agreement and
while any of the Borrower Bond is outstanding, keep and maintain with respect
to the Project and the System property and casualty insurance and liability
insurance with insurers licensed to do business in the State, or risk pool coverage
programs described in SDCL chapter 3-22, against such risks and in such amounts
as are customary in the State for entities of the same or similar size and type as
the Borrower, and similarly situated with facilities of the System’s type, and
provide proof of such coverage to the District.
(b) In the event of cancellation of coverage, the Borrower will promptly obtain
replacement insurance with the same or substantially similar coverage and
provide proof of such coverage to the District. In the event of a substantial
change in insurance, issuance of a new policy, renewal, replacement, or changes
in coverage, the Borrower will promptly provide written notice of such changes
to the District and provide a new certificate of insurance showing continuous
coverage in the amounts required. If the Project or any portion thereof has been
completed prior to Closing, the Borrower shall deliver to the District and Trustee
at Closing a certificate providing the information required by Section 2.2(a).
(c) The Borrower shall grant the District and its authorized representatives the
right at all reasonable times and upon reasonable notice, to enter upon the
property of the Borrower for the purpose of inspecting the System and/or any or
all books and records of the Borrower related to the System.
(d) The Borrower shall immediately upon the execution and delivery of this Loan
Agreement, at its own expense, cause this Loan Agreement, the Borrower Bond,
and any Collateral Documents granting a first security interest or a first lien in
revenues or property, and any financing statements or other documents relating
thereto to be filed, recorded, or registered in such manner and in such places as
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are specified by the District in writing, and to otherwise do such acts as are
reasonably deemed necessary or advisable by the District to fully perfect and
protect the validity and priority of the lien and security interest granted to the
District, and to continue the perfection of such security interest and lien. The
Borrower agrees to execute any further documents, agreements, instruments or
other writings that may be requested by the District for such perfection and
protection, including executing and filing continuation statements.
(e) The Borrower agrees to maintain the necessary and appropriate accounts,
records and books in which full and correct entries are made, capable of allowing
the preparation of annual financial statements prepared in accordance with
generally accepted financial and reporting standards promulgated by the
Governmental Accounting Standards Board, or the Financial Accounting
Standards Board, as appropriate, or an Other Comprehensive Basis of Accounting
as defined by the American Institute of Certified Public Accountants, and agrees
to maintain Project accounts as separate accounts as required by the Relevant
Federal Act. The District and its authorized representatives shall have the right to
inspect such books and accounts upon reasonable notice, during normal
business hours.
(f) The Borrower agrees that each year it shall prepare and send to the District:
(1) when adopted, its final budget, within 30 days of adoption; and,
(2) an unaudited statement of the financial position of the Borrower as
of the close of the fiscal year and the related statements of revenues and
expenses, cash flows, fund balances and changes in fund balances for
such fiscal year in accordance with financial and reporting standards
promulgated by the Governmental Accounting Standards Board, the
Financial Accounting Standards Board, or an Other Comprehensive Basis
of Accounting as appropriate, and certified by a responsible official of the
Borrower. Such statement shall be prepared by the Borrower within 120
days of the end of the Borrower's fiscal year.
In addition, Borrower shall send the District copies of any financial and
compliance audit required by state law within 15 days of issuance or acceptance
by the State Department of Legislative Audit. In addition, Borrower will send to
the District a copy of any internal control review report done by or submitted to
the State Department of Legislative Audit within 15 days after it has been issued
or accepted by the State Department of Legislative Audit. The Borrower agrees
to comply with the Single Audit Act of 1984 as amended.
The Borrower agrees to provide to the District, in connection with the issuance
and sale by the District of Additional Bonds or with any sale or other assignment
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by the District of any or all of its rights under the Loan Documents and the
Borrower Bond, any and all financial and other information and documents
which the District requests in order to prepare a preliminary or final official
statement or other disclosure document to be delivered to purchasers or
offerees of the Additional Bonds or of direct or indirect interests in any or all of
the rights of the District under the Loan Documents and the Borrower Bond.
The Borrower represents that any such information and documents supplied by
the Borrower, taken as a whole, will not contain any untrue or misleading
statement of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
(g) The Borrower agrees, whenever requested by the District, to provide and
certify, or cause to be provided and certified, such information concerning the
Borrower, its System, its finances, the Project, or such other topics as the District
from time to time reasonably considers necessary or appropriate, including such
information as necessary to enable the District or its authorized representatives
to make any reports required by state or federal law or regulation.
(h) After reasonable notice from the EPA, the Borrower shall make available to
the EPA such records as the EPA reasonably requires to review and determine
compliance with the Relevant Federal Act.
(i) The Borrower has complied and shall comply with all conditions and
requirements of the Relevant Federal Act pertaining to the Loan, Project or the
System, and covenants to comply with all representations, covenants, conditions
and agreements, if any, set forth in Appendix C hereto.
(j) The Borrower does not and shall not in the construction, maintenance and
operation of its System discriminate in any way on the basis of race, creed, color,
religion, sex or national origin.
(k) The Borrower will provide an Opinion of Bond Counsel in substantially the
form of Appendix D attached hereto prior to closing.
(l) The Borrower represents that within six months after the date of this Loan
Agreement, the Borrower expects to incur a substantial binding obligation to
commence or acquire the Project to be financed by the Loan and upon incurring
such binding obligation, agrees that work on or acquisition of the Project will
proceed with due diligence to completion. The Borrower further represents that
it expects to expend all proceeds of the Borrower Bond within three (3) years
after the date of this Loan Agreement.
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(m) The Borrower in the Borrower Resolution has designated the Borrower Bond
as a “qualified tax-exempt obligation” within the meaning of Section 265(b)(3) of
the Code.
ARTICLE III
PURCHASE OF BONDS
Section 3.1. Use of the Proceeds. The Borrower shall apply the proceeds of the Loan
from the District solely as follows:
(a) The Borrower shall apply the proceeds of the Loan solely to the financing,
refinancing or reimbursement of the costs of the Project as set forth in Appendix
A hereto. The Loan will be disbursed in accordance with Article IV hereof.
Unless the Project has been completed prior to closing, the Borrower agrees to
construct the Project with all reasonable dispatch and to use all reasonable
efforts to cause such construction to be completed and the Committed Amount
expended for the costs of the Project as soon as reasonably possible.
(b) No portion of the proceeds of the Loan shall be used to reimburse the
Borrower for costs paid prior to the date of this Loan Agreement of a Project the
construction or acquisition of which occurred or began earlier than July 1, 1993
for a drinking water project, or before March 7, 1985 for a clean water project. If
any proceeds of the Loan are to be used (1) to reimburse the Borrower for
expenditures made prior to the Closing or (2) to refinance taxable debt any of
the proceeds of which were used to reimburse the Borrower for expenditures
made prior to the Closing, the Borrower represents that it has complied with the
requirements of treasury regulation Section 1.150-2, or any successor thereto, so
that on the date such proceeds are disbursed they will be considered under such
Regulation to be proceeds of the Borrower Bond which have been spent.
(c) Any Debt being refinanced with proceeds of the Loan shall have been
incurred after July 1, 1993 for a Project the construction or acquisition of which
occurred or began after July 1, 1993 for a drinking water project, or incurred
after March 7, 1985 for a Project the construction or acquisition of which
occurred or began after March 7, 1985 for a clean water project.
Section 3.2. The Project. Set forth in Appendix A hereto is the Borrower’s description of
the purposes for which it intends to use the proceeds of the Loan. The property which has
been or is to be acquired, installed or improved, the construction which has been or is to be
undertaken, and the other activities, if any, to be funded, as described in Appendix A, are
herein referred to as the Project. The Project may consist of more than one facility or activity.
The Project may be amended by the Borrower with the prior written consent of the District.
Proposed amendments to the Project shall be submitted to the District in writing, stating the
reasons for the amendment and the impact of the amendment on the amount of Loan
proceeds required to complete the Project. The proposed amendment shall be accompanied
by an Opinion of Bond Counsel stating that the Project, as constituted after such amendment,
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could have been financed under the Act at the time of issuance of any Bonds the proceeds of
which funded the Loan, such amendment will not violate the Act or the laws governing the
issuance of the Borrower Bond, and such amendment will not adversely affect the exclusion of
interest on any of the Bonds and the Borrower Bond from gross income for purposes of federal
income taxation. Such an Opinion of Bond Counsel shall not be required for amendments which
do not affect the type of costs or facility to be constructed or the activity to be funded.
Section 3.3. Project Representations and Covenants. The Borrower hereby represents
and covenants that:
(a) all construction on the Project has complied and will comply with applicable
federal, state and local laws, regulations, ordinances, and standards;
(b) all construction will be done pursuant only to a fixed price contract, and that
the Borrower will obtain performance and payment bonds from the contractor
for each construction contract in the amount of 100% of the contract price and
will ensure that such bonds are maintained until the construction is completed;
(c) all land surveys will be conducted by a land surveyor registered in the State
of South Dakota, and the final plans and specifications will be prepared under
the supervision of a professional architect or engineer licensed and registered in
the State of South Dakota. All construction will be done in accordance with the
plans and specifications on file with the District, and all changes made in those
plans and specifications will be filed with the District. The Borrower will
maintain an “as built” set of plans and specifications and an acceptance
certificate completed by the architect or engineer in charge of the Project at its
principal place of business;
(d) the Project is the type of project permitted to be financed under the
applicable Program, the Act, and the laws governing the issuance of the Borrower
Bond.
Section 3.4. Completion of the Project. Upon completion of the Project, the Borrower
shall deliver to the District a Completion Certificate stating that the Project is complete,
indicating the amount of the Committed Amount which will be required to pay any remaining
Project costs, stating that all other costs and expenses of the Project have been paid, and that
there exists no lien or encumbrance with respect to the System, and releasing the remainder of
the Committed Amount, if any. If Appendix A describes more than one separate project as
making up the Project, a Completion Certificate shall be required for each project. The
Completion Certificate shall be accompanied by an acceptance certificate from the architect or
engineer in charge of inspecting and monitoring the construction of the Project for the
Borrower, stating that the construction was completed substantially in accordance with the
plans and specifications therefore.
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Section 3.5. Reduction of Project Costs. If all or a portion of the Project is canceled or
scaled back and the costs of the Project are thereby reduced, or if for any reason the Borrower
will not require the full Committed Amount, the Borrower shall promptly notify the District and
release the portion of the Committed Amount which will not be needed.
Section 3.6. Loan Term. The Borrower’s obligations under the Loan Documents shall
commence on the date hereof unless otherwise expressly provided in this Loan Agreement.
Provided, however, that the obligation to make payments as set forth herein and in the
Borrower Bond shall commence only upon the first disbursement of Loan proceeds. The
Borrower’s obligations shall terminate upon payment in full of all amounts due under the Loan
Documents. Provided, however, that the Borrower’s obligations as set forth in Sections 6.3(c),
7.1, 9.4 and 10.5 hereof shall survive such termination.
ARTICLE IV
LOAN TO THE BORROWER
Section 4.1. The Loan; Disbursement of Loan. The District agrees that upon satisfaction
of the terms and conditions set forth in this Loan Agreement and compliance by the Borrower
with those state laws dealing with the issuance of the Borrower Bond for the Project, it will loan
to the Borrower an amount up to $30,600,000 (the “Committed Amount”) in accordance with
the terms and conditions of this Loan Agreement, such Loan to be evidenced by the purchase
by the District from the Borrower of the Borrower Bond, for the purpose of financing,
refinancing, or reimbursing the Borrower for the eligible costs of the Project. The Loan shall be
disbursed as follows:
(a) The Loan proceeds will be disbursed to the Borrower based upon the
Borrower’s request for disbursements subject to satisfaction of the terms and
conditions of this Loan Agreement and satisfaction of all applicable
preconditions imposed upon the District, Borrower and Project by law. In order
to obtain a disbursement, the Borrower shall submit to the District a signed
request for disbursement on a form prescribed by the District, together with all
attachments required by such form. Disbursements may be obtained only for
those Project costs which have been legally incurred, and which are due and
payable, or have been paid by the Borrower. The Borrower will designate, by
duly adopted resolution, an official to certify on Borrower’s behalf that the
request submitted is correct and is a valid expenditure for the Project. The
District reserves the right, at its option, to disburse the funds directly to the
contractor or sub-contractor supplying the service or material for which the
payment is sought.
(b) For refinancings, a disbursement schedule complying with the requirements
of the Relevant Federal Act shall be established by the District and the Borrower
at Closing. The Loan amounts shall be disbursed directly to the holder of the
debt being refinanced according to such schedule. If the Borrower should repay
all or a portion of the debt to be refinanced from other sources or should
otherwise not need any portion of the Loan which was to have been used to
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refinance such debt, it shall inform the District and Trustee of such fact pursuant
to Section 3.5 and a new disbursement schedule shall be drawn up by the
District. The Trustee or District shall obtain a receipt from the holder of the debt
being refinanced for each disbursement made to pay or prepay a portion of such
debt.
(c) If all or a portion of a Loan is made to reimburse the Borrower for Project
costs paid by it prior to Closing, the Borrower shall present at Closing the items
required by Section 4.1 (a) relating to such costs. Such amounts shall be
disbursed to the Borrower pursuant to a disbursement schedule complying with
the requirements of the Relevant Federal Act and the Program established by
the District and the Borrower at the Closing.
(d) Notwithstanding anything else provided herein, the District shall not be
obligated to disburse Loans any faster or to any greater extent than it has
available for disbursement amounts derived from EPA Capitalization Grants,
proceeds of Bonds, State appropriated funds and other amounts in the Loan
Proceeds Account. The Borrower acknowledges that if Project Costs are incurred
faster than the Borrower projected at Closing, there may be delays in making
Loan disbursements for such costs because of the schedule under which EPA
makes EPA Capitalization Grant moneys available to the District. The District will
use its best efforts to obtain an acceleration of such schedule if necessary.
(e) The District shall note the disbursements on Schedule A to the Borrower Bond.
ARTICLE V
REPAYMENT OF LOAN
Section 5.1. Repayment. The Borrower shall repay the amounts loaned to it pursuant
to Section 4.1 hereof, plus interest on the unpaid amounts loaned at the rate of 2.75% per
annum, in Loan Payments, due at the times and in the amounts calculated as set forth below,
over a term of thirty (30) years from the Initial Loan Amortization Date. In addition, the
Borrower shall pay an Administrative Expense Surcharge on the outstanding principal amount
of the Loan at the rate of .50% per annum. Loan Payments will be in lawful money of the
United States and shall be paid to the District. Interest and Administrative Expense Surcharge
shall be calculated on the basis of a year of 360 days made up of 12 months of 30 days each.
The payments of principal, interest and the Administrative Expense Surcharge with respect to
the Loan shall be due on the dates and in the amounts shown in Schedule B to the Borrower
Bond, as such Schedule B shall be modified from time to time as provided below. The portion
of each such Loan Payment consisting of principal and the portion consisting of interest and the
amount of Administrative Expense Surcharge shall be set forth in Schedule B to the Borrower
Bond. Upon each disbursement of Loan amounts to the Borrower pursuant to Section 4.1
hereof, the Trustee shall enter or cause to be entered the amount advanced on Schedule A to
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the Borrower Bond under “Advances” and the total amount advanced under Section 4.1,
including such disbursement, under “Total Amount Advanced.”
If the advance was for refinancing pursuant to Section 4.1 (b) or reimbursement for a
completed Project pursuant to Section 4.1 (c), the District shall on the date of the advance
prepare Schedule B to the Borrower Bond, as follows, and send a copy of Schedule B to the
Borrower:
(a) The principal of the advance shall be repayable quarterly on the first day of
January, April, July, and October, subject to the requirements of this Section 5.1,
beginning on the first such date after the advance is made, and the amount of
each principal payment shall be calculated on the basis of substantially level
annual debt service over the remaining term of the Loan with combined interest
and Administrative Expense Surcharge at a rate of 3.25% per annum; and
(b) Interest and Administrative Expense Surcharge on the advance shall be
payable quarterly on the first day of January, April, July, and October, subject to
the requirements of this Section 5.1, beginning on the first such date after the
advance is made.
If the advance was made to pay costs of the Project pursuant to Section 4.1 (a) or to reimburse
the Borrower pursuant to Section 4.1 (c) for costs of a Project not yet completed (a
“Construction Advance”), interest and Administrative Expense Surcharge on such advance shall
accrue from the date the advance is made. On the Initial Loan Amortization Date, all interest
and Administrative Expense Surcharge accrued on all Construction Advances up to such date
shall be due and payable, and thereafter:
(a) Interest and Administrative Expense Surcharge on such advances shall be
payable quarterly on the first day of January, April, July, and October, subject to
requirements of this Section 5.1, beginning on the first such date after the Initial
Loan Amortization Date; and
(b) The principal of such advances shall be repayable quarterly on the first day of
January, April, July, and October, subject to the requirements of this Section 5.1,
beginning on the first such date after the Initial Loan Amortization date and the
amount of each principal payment shall be calculated on the basis of
substantially level annual debt service over the remaining term of the Loan with
combined interest and Administrative Expense Surcharge at a rate of 3.25% per
annum.
On each Subsequent Loan Amortization Date, if any, all interest and Administrative Expense
Surcharge accrued on all Construction Advances made since the Initial Loan Amortization Date
or the last Subsequent Loan Amortization Date, as the case may be, shall be due and payable,
and thereafter:
(a) Interest and Administrative Expense Surcharge on such advances shall be
payable quarterly on the first day of January, April, July, and October, subject to
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the requirements of this Section 5.1, beginning on the first such date after such
Subsequent Loan Amortization Date; and
(b) The principal of such advances shall be repayable quarterly on the first day of
January, April, July, and October, subject to the requirements of this Section 5.1,
beginning on the first such date after such Subsequent Loan Amortization Date,
and the amount of each principal payment shall be calculated on the basis of
substantially level annual debt service over the remaining term of the Loan with
combined interest and Administrative Expense Surcharge at a rate of 3.25% per
annum.
Once a Completion Certificate is required to be delivered pursuant to Section 3.4, the District
shall prepare or revise or cause to be prepared or revised Schedule B to the Borrower Bond and
the Trustee shall, after verifying the District’s calculations, send a copy of such Schedule B to
the Borrower. Such Schedule B shall be sent to the Borrower within one month after delivery
of the Completion Certificate. If further disbursements are to be made pursuant to Section 4.1
(b) and (c), the Trustee shall continue to revise Schedule B to the Borrower Bond in accordance
with the preceding paragraphs.
Past-due payments of principal, interest and Administrative Expense Surcharge shall bear
interest at the rate of 8% per annum, compounded on each Loan Payment Date, until paid.
Any payment of principal, interest or Administrative Expense Surcharge under this Section 5.1
shall be credited against the same payment obligation under the Borrower Bond.
Section 5.2. Other Amounts Payable. The Borrower shall also pay within 30 days of
receipt of a bill therefore, all reasonable expenses of the District with relation to this Loan, the
Loan Agreement, the Borrower Bond, and the Collateral Documents, including but not limited
to:
(a) the costs of reproducing the Loan Documents;
(b) the fees and disbursements of Bond Counsel and other counsel used by the
District in connection with the Loan Documents, and the administration,
interpretation or enforcement thereof;
(c) all taxes and governmental charges of any kind whatsoever which may at any
time be lawfully assessed or levied against or with respect to the execution and
delivery of the Loan Documents and the System, including all recording and filing
fees;
(d) all expenses, including attorney fees, relating to any amendment, waiver,
consents, collection proceedings, or enforcement actions in connection with or
with respect to the Loan Documents.
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Section 5.3. Prepayment. The Borrower shall not prepay any principal payment set
forth on Schedule B to the Borrower Bond unless the District consents in writing to such
prepayment. If the District consents to a prepayment, such prepayment must be accompanied
by payment of accrued interest and Administrative Expense Surcharge to the date of
prepayment on the amount of principal prepaid. If the Loan is prepaid in part, principal
payments shall be reduced in inverse order of maturity. A prepayment without the District’s
consent shall be returned to the Borrower.
Section 5.4. Obligations of the Borrower Unconditional. The obligations of the
Borrower to make the payments required by this Loan Agreement and the Borrower Bond and
to perform and observe any and all of the other covenants and agreements on its part
contained herein and therein shall be absolute and unconditional irrespective of any defense or
any rights of setoff, recoupment or counterclaim it may otherwise have against the District or
Bondholders. The Borrower agrees it will not (a) suspend, discontinue or abate any payments
required by the Loan Agreement or the Borrower Bond, (b) fail to observe any of its other
covenants and agreements in the Loan Documents, (c) seek judicial or other relief from the
obligation to make such payments or perform such covenants and agreements, or (d) terminate
this Loan Agreement, the Borrower Bond or the Collateral Documents for any cause
whatsoever, including, without limitation, failure to complete the Project, failure of
consideration, commercial frustration of purpose, destruction of or damage to the Project or
the System, any dispute with the District, any change in applicable laws and regulations, or any
failure of the District to perform any of its agreements, provided that nothing contained in this
section shall be construed to release the District from performance of its agreements on its part
contained in this Loan Agreement.
Section 5.5. Security for Loan Payments.
(a) The Borrower shall, as authorized by SDCL § 9-40-15, segregate the Project Income in
a separate account. For this purpose, the Borrower shall establish the Surcharge payable by each
customer of its System who receives or benefits from the services of the Project. Such charge or
surcharge shall be set at a level which, assuming a 10% delinquency rate, will produce Project
Income at the times and in amounts sufficient to pay when due the principal of and interest on
the Loan and the Administrative Expense Surcharges and all other payments under this Loan
Agreement and the Borrower Bond. The Borrower hereby pledges to the District for the payment
of the Loan Payments all Project Income, and the District acknowledges that the Loan Payments
are payable solely and only from the Project Income, in accordance with SDCL § 9-40-15. The
Borrower has not granted and shall not grant or permit to exist any other lien on the Project
Income without the written consent of the District, except for the parity debt set forth in
Appendix F hereto, and except as provided in Section 6.5., and that other than the liens granted
to secure the indebtedness set forth in Appendix F, it shall not grant or permit to exist any lien on
such revenues which is superior to the lien granted in this section.
(b) The Borrower recognizes that the statutory mortgage provisions of SDCL chapter 9-
40 are applicable to the Project, this Loan Agreement and the Borrower Bond. The District, as
holder of the Borrower Bond, shall have all the rights and remedies of a bondholder under SDCL
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chapter 9-40, including without limitation the statutory mortgage provisions, with respect to
the Project and the Project Income. The Borrower agrees that the rights and remedies may be
enforced by the Trustee.
Section 5.6. Limited Liability. All Loan Payments, and other payment obligations of the
Borrower pursuant to this Loan Agreement and the Borrower Bond shall be limited obligations
of the Borrower payable solely out of the Project Income pledged by the Borrower herein and
shall not be payable out of other revenues of the Borrower or the System. The obligations of
the Borrower shall never constitute indebtedness of the Borrower within the meaning of any
State constitutional provision or statutory limitation and shall never give rise to a pecuniary
liability of the Borrower or charge against its general credit or taxing power. Unless otherwise
permitted by law, the taxing powers of the Borrower may not be used to pay any Loan
Payment, and no funds or property of the Borrower, other than those described herein, may be
used to pay Loan Payments.
Section 5.7. Incorporation of SDCL Chapter 9-40. The Borrower is entering into this
Loan Agreement and issuing the Borrower Bond pursuant to SDCL chapter 9-40, and any acts
amendatory thereto, and SDCL chapter 6-8B, and all acts amendatory thereto, and the
Borrower Resolution and this Loan Agreement and the Borrower Bond are subject to the
provisions and limitations thereof, all of which are hereby incorporated herein by reference.
ARTICLE VI
SPECIAL COVENANTS
Section 6.1. Maintenance of the System. The Borrower shall maintain its System,
including the Project, in good condition and repair and make all necessary renewals,
replacements, additions, betterments and improvements thereto. The Borrower shall not grant
or permit to exist any lien on the System or the Project other than liens securing Debt where a
parity or superior lien secures this Loan Agreement and the Borrower Bond, provided that this
Section shall not be deemed violated if a mechanic’s or contractor’s lien is filed against the
property, as long as the Borrower uses its best efforts to obtain the discharge of such lien, and
promptly reports the filing of such lien, the proposed steps to discharge the lien, and the
discharge of the lien to the District.
Section 6.2. Maintenance of Existence. The Borrower shall maintain its corporate
existence as a Public Entity and Governmental Unit, except that it may (a) consolidate with or
merge into another Governmental Unit, (b) permit one or more Governmental Units to
consolidate with or merge into it; or (c) may transfer all or substantially all of its assets to another
Governmental Unit and then dissolve if the surviving, resulting or transferee entity (if other than
the Borrower) (i) is a Public Entity and Governmental Unit, (ii) assumes in writing all of the
obligations of the Borrower under the Loan Documents and the Borrower Bond, (iii) such action
does not result in any default in the performance or observance of any of the terms, covenants or
agreements of the Borrower under the Loan Documents and the Borrower Bond, (iv) such action
does not violate the Act or the Relevant Federal Act and would not adversely affect the exclusion
of interest on the Bonds and the Borrower Bond from gross income for federal income tax
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purposes, and (v) the Borrower delivers to the District and the Trustee on the date of such action
an Opinion of Bond Counsel that such action will not violate the Act or adversely affect the
exclusion of interest on the Bonds and the Borrower Bond from gross income for federal income
tax purposes.
The Borrower shall not transfer its System or any component thereof to any other Person
prior to the earlier of (a) the last date of the reasonably expected economic life of such
component (determined as of the date of this Loan Agreement) or (b) the last maturity date of
the Borrower Bond, unless the provisions of clauses (iii), (iv) and (v) of the preceding paragraph
are satisfied and, in addition, the District consents to such transfer.
Section 6.3. Covenants Relating to the Tax-Exempt Status of the Bonds. The Borrower
covenants and agrees that it will not use or permit to be used any of the funds provided by the
District hereunder or any other funds of the Borrower, directly or indirectly, in a manner that,
in the Opinion of Bond Counsel, would cause, or take any other action that would cause, any
Bond or the Borrower Bond to be an “arbitrage bond” within the meaning of Section 148 of the
Code or would otherwise cause the interest on the Bonds or the Borrower Bond to be included
in gross income for purposes of federal income taxation. In addition, the Borrower agrees that
it will not enter into, or allow any “related person” (as defined in Section 147(a) (2) of the Code)
to enter into, any arrangement, formal or informal, for the purchase of the Bonds or any other
obligations of the District in an amount related to the amount of the Loan or the portion of the
Loan derived directly or indirectly from proceeds of any Bonds or that, in the Opinion of Bond
Counsel, would otherwise cause any Bond or the Borrower Bond to be an “arbitrage bond”
within the meaning of Section 148 of the Code. The Borrower further covenants and agrees as
follows:
(a) The Borrower shall not use or permit the use of any portion of the Project or
the System directly or indirectly in any trade or business carried on by any Person
who is not a Governmental Unit. For the purpose of this subparagraph, use as a
member of the general public shall not be taken into account and any activity
carried on by a Person other than a natural person shall be treated as a trade or
business.
(b) Any portion of the Project or the System being refinanced or the cost of which
is being reimbursed was acquired by and is now and shall, during the term of the
Loan, be owned by the Borrower and not by any other Person. Any portion of the
Project or System being financed shall be acquired by and shall, during the term of
the Loan, be owned by the Borrower and not by any other Person.
Notwithstanding the previous two sentences, the Borrower may transfer the
Project or a portion thereof to another Governmental Unit which is also a Public
Entity if such transfer is otherwise permitted hereunder and if such organization
agrees with the District and the Trustee to comply with Sections 2.2 and 6.3 hereof
and if the District and the Trustee receive an Opinion of Bond Counsel that such
transfer will not violate the Act or the laws governing the issuance of the Borrower
Bond, or adversely affect the exclusion of interest on the Bonds and the Borrower
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Bond from gross income for purposes of federal income taxation. Except as
otherwise provided herein or in any Loan Documents, and except upon receipt of
the Opinion of Bond Counsel described in the preceding sentence, the Borrower
shall not sell or otherwise dispose of the Project or any component thereof prior
to the earlier of (a) the last date of the reasonably expected economic life of such
component (determined as of the date of this Loan Agreement) or (b) the last
maturity date of the Borrower Bond.
(c) The Borrower shall comply with the Arbitrage Rebate Instructions, if any,
delivered to it by the District at Closing, as such Instructions may be amended or
replaced by the District from time to time. The Arbitrage Rebate Instructions may
be amended or replaced by new Arbitrage Rebate Instructions delivered by the
District and accompanied by an Opinion of Bond Counsel addressed to the Trustee
and the Borrower to the effect that the use of said amended or new Arbitrage
Rebate Instructions will not adversely affect the excludability of interest on the
Bonds and the Borrower Bond from gross income of the recipients thereof for
federal income tax purposes. The Borrower agrees to make any and all arbitrage
rebate payments required to be made to the United States Department of
Treasury in connection with the Borrower Bond pursuant to Section 148(f) of the
Code.
(d) The Borrower agrees that during the Loan Term it will not contract with or
permit any Nonexempt Person to manage the Project or any portion thereof
unless (i) such management contract complies with the requirements of federal
income tax regulations Sections 1.141-1 through 1.141-16, and Rev. Proc. 97-13 or
any subsequent revenue procedures, revenue rulings or regulations promulgated
by the United States Department of Treasury or (ii) the District and the Trustee
shall have received an Opinion of Bond Counsel to the effect that such
management contract will not adversely affect the exclusion of interest on the
Bonds and the Borrower Bond from gross income for purposes of federal income
taxation.
(e) The Borrower may not lease the System or the Project or any portion thereof
to any Person except as follows: (1) the Borrower may lease all or any portion of
the Project or the System to a Governmental Unit which agrees in writing with the
Borrower and the Trustee not to cause any Event of Default to occur under this
Loan Agreement and (2) the Borrower may lease all or any portion of the Project
or the System to a Nonexempt Person pursuant to a lease which, in the Opinion of
Bond Counsel delivered to the District and the Trustee, will not adversely affect
the exclusion of interest on the Bonds and the Borrower Bond from gross income
for purposes of federal income taxation.
(f) The Borrower shall not change the use or nature of the Project or the System
unless (i) the action does not violate the Act or the Relevant Federal Act, and (ii) in
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the Opinion of Bond Counsel delivered to the District and the Trustee such change
will not adversely affect the exclusion from gross income of interest on the Bonds
or the Borrower Bond for federal income tax purposes.
(g) In connection with the Loan Agreement, neither the Borrower nor any
Related Person has on hand any funds which are legally required, pledged,
budgeted, earmarked or otherwise restricted (no matter where held or the
source thereof) to be used, directly or indirectly, for the purposes for which the
proceeds of the Loan are being lent to the Borrower. Accordingly, no portion of
the Loan will be used (i) directly or indirectly to replace funds of the District, the
Borrower or any Related Person to the District or the Borrower that are legally
required, pledged, budgeted, earmarked or otherwise restricted to the purpose
for which the Loan is being issued or (ii) to replace any proceeds of any prior
issuance of obligations by the District, the Borrower or any Related Person to the
District or the Borrower.
(h) The Borrower shall not use the proceeds of any tax-exempt obligation
(within the meaning of Section 103 of the Code) to pay any portion of the
principal of or interest on the Borrower Bond without the prior written consent
of the District.
Section 6.4 Rate Covenant. The Borrower shall impose the Surcharge and make any
necessary increases therein so that the Surcharge is always sufficient to provide in each fiscal year
Project Income equal to at least 110% of its Loan Payments and debt service payments on any
other Debt secured by Project Income for such fiscal year and any past-due Loan Payments and
debt service payments on any other Debt secured by Project Income and shall, as soon as
practicable and in any event by the date it is required to deliver unaudited financial statements to
the District pursuant to Section 2.2(f), (a) calculate its Project Income for such fiscal year and the
coverage ratio and (b) certify such figures to the District and the Trustee. The certification
described in clause (b) of the preceding sentence shall be substantially in the form of the
certificate attached hereto as Appendix E to this Loan Agreement. If the percentage specified in
clause (3) of the certificate required by the preceding sentence is less than 110%, then the
Borrower shall provide such further certifications as the District shall reasonably require to
determine the Borrower's compliance with the requirements of this Loan Agreement. Failure to
meet the coverage test is not an Event of Default if (a) coverage is at least 100% and (b) the
Borrower, within 30 days of its certification to the District, retains a Consultant to make
recommendations in a report to be delivered to the Borrower within 60 days of his being
retained, as to the actions required in order to achieve compliance and, upon receipt of the
report, takes the actions which are recommended (except to the extent it receives the written
consent of the District to not take any such actions). The Borrower shall supply the District with
quarterly reports on the actions it is taking to correct its coverage deficiency until it delivers an
annual coverage certificate showing compliance with the first sentence of this Section.
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Notwithstanding anything provided to the contrary in the preceding paragraph, if the
Borrower has issued Debt secured by Project Income to finance the construction of expansions to
the Project (“Expansion Debt”) and construction was not complete prior to the beginning of a
fiscal year, the coverage ratio called for in the previous paragraph shall be 110% with respect to
all Debt secured by Project Income, except such Expansion Debt and 100% for such Expansion
Debt, and capitalized interest funded from the proceeds of such Expansion Debt or other sources
shall be counted as Project Income in the period for which such capitalized interest is to be
applied to pay interest on the Expansion Debt.
Section 6.5. Additional Debt. The Borrower shall not incur any Debt which is a lien on or
constitutes a right to payment from the Project Income (“Project Debt”) which is superior to that
of this Loan Agreement and the Borrower Bond. The Borrower may incur Project Debt which is
on a parity with or subordinate to that of this Loan Agreement and the Borrower Bond if:
(a) Project Debt is incurred to pay or prepay or defease other Project Debt and the
maximum annual debt service of the new Project Debt is not greater than that of
the Project Debt being paid, prepaid or defeased; or
(b) Project Debt may also be incurred so long as prior to the issuance of such
Project Debt the Borrower has taken or caused to be taken any and all action
necessary to raise the surcharge described in Section 5.5 and taken or caused to
be taken any other necessary action so that the rate covenant set forth in Section
6.4 will be met for the 12 months following the incurrence of such Project Debt
and has delivered to the District and the Trustee a written forecast of a Consultant
showing that such rate covenant will be met during such 12 months, setting forth
in detail its calculations; provided, however, that, for expansions of the Project,
the Consultant’s forecast may state that, for such 12 months, both (1) Project
Income will equal at least 100% of debt service on all Project Debt and (2)
assuming that the expansion was complete and placed in service on the date of
the forecast and all other conditions expected to be in effect on the expected date
of completion were in effect on the date of the forecast, Project Income would
equal at least 110% of debt service on all Project Debt.
The Borrower may not incur Project Debt if the debt is variable rate debt, or if the principal and
interest on such debt in any fiscal year are more than 150% of the payment of principal and
interest for any other fiscal year, unless the District has consented in writing to the incurring of
such debt.
Section 6.6. Additional Tax Covenant and Requirements for an Opinion of Bond
Counsel.
(a) The Borrower acknowledges that the District has advised the Borrower that
the District intends to and reserves the right to have maximum flexibility to
allocate and reallocate from time to time the proceeds of the Bonds, the moneys
made available to the District pursuant to the District-EPA Agreements and all
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other funds in any manner which is advantageous to the District in its sole
discretion, and that accordingly, unless waived in writing by an Authorized
Representative of the District, the Borrower shall at all times treat the Loan as
having been funded by the District with the proceeds of Bonds, the interest on
which is intended to be excluded from gross income for federal income tax
purposes.
(b) Any Opinion of Bond Counsel provided in connection with this Loan
Agreement shall assume, for all purposes, that the Loan to the Borrower has
been funded out of proceeds of the Bonds, the interest on which is intended to
be excluded from gross income for federal income tax purposes.
ARTICLE VII
INDEMNIFICATION
Section 7.1. Indemnification. The Borrower shall indemnify and hold the District, its
members, officers, agents and employees harmless from and against any and all claims, liability,
actions, damages, demands, expenses, and losses, of any kind or character whatsoever,
resulting from or in any way connected with the condition, use, operation, management,
design, planning, construction, installation, management or financing of the Project, including
all costs, reasonable attorney fees, expenses and liabilities incurred in any action or proceeding
brought by reason of any such claim or demand. Borrower shall upon request defend any such
claim or demand on behalf of the District. Provided, however, that the foregoing does not
require the Borrower to indemnify the District, its members, officers, agents or employees from
any claim or demand arising solely from the intentional or willful misconduct or negligence of
the District, its members, officers, agents or employees.
Section 7.2. Indemnification of Trustee. The Borrower agrees to indemnify the Trustee
and to hold it harmless against any loss, liability or expense incurred without negligence or bad
faith on its part arising out of or in connection with the exercise or performance of any of its
powers or duties hereunder or under the Borrower Bond or any of the Loan Documents or,
insofar as such duties pertain to the Loan, under the Indenture.
ARTICLE VIII
ASSIGNMENT
Section 8.1. Assignment.
(a) The Borrower may not assign its rights and obligations under this Loan
Agreement, the Borrower Bond, or other Loan Document except as provided in
section 6.2 hereof.
(b) At any time after the total Committed Amount has been disbursed or
otherwise satisfied or reduced pursuant to this Loan Agreement, the rights of the
District under the Loan Agreement, the Borrower Bond and all other Loan
Documents and the obligations of the Borrower are freely assignable by the
District.
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(c) Notwithstanding the terms of Section 8.1(b), the District shall have the
unconditional right at any time to assign its rights under this Loan Agreement,
the Borrower Bond and all other Loan Documents to the Trustee to secure any
Bonds, except to the extent otherwise provided in the Indenture.
(d) The First National Bank in Sioux Falls or such other financial institution or
public official as shall be designated by the Borrower and approved by the
District shall serve as registrar for this Loan Agreement and the Borrower Bond,
and the registrar shall register the transfer of this Loan Agreement and the
Borrower Bond upon their presentation by the holder thereof endorsed for
transfer or with a separate document assigning the Bondholder’s interest in
them. Upon the direction of the District, at any time after the disbursement of
the total Committed Amount, the Borrower shall deliver to the District in
exchange for the Borrower Bond, several executed Borrower Bonds representing
in the aggregate the same debt as the initial Borrower Bond, but each of the
Borrower Bonds shall represent that portion of the Debt coming due on any one
date set forth in Schedule B to the initial Borrower Bond. Such Borrower Bonds
shall be substantially in the form of Appendix B hereto, but with the first
paragraph thereof replaced by the paragraph set forth in Appendix B-1 hereto,
and with Schedule A deleted and with Schedule B redesignated as Schedule A.
Section 8.2. Refunding Bonds. In the event Bonds are refunded by bonds which are not
Additional Bonds, the District may assign the Loan Documents and the Borrower Bond to secure
such refunding bonds, and all references in this Loan Agreement to Series 2012 Bonds, Bonds and
Additional Bonds shall be deemed to refer to the refunding bonds and any bonds of the District
issued on a parity with such refunding bonds (together, “Refunding Bonds”) or, in the case of a
crossover refunding, to the Series 2012 Bonds, Bonds and Additional Bonds and the Refunding
Bonds and references to the Trustee, Credit Enhancer and other terms herein shall be deemed to
refer to the trustee, credit enhancer or other party or document for the Refunding Bonds (or both
the Refunding Bonds and the Bonds prior to the crossover date of a crossover refunding) and the
District may assign the Loan Documents and the Borrower Bond to such trustee to secure the
Refunding Bonds. In the event Bonds are refunded by an issue of Additional Bonds, all references
in the Loan Documents to the Bonds so refunded shall be deemed to refer to such Additional
Bonds and any other Bonds then outstanding under the Indenture, or, in the case of a crossover
refunding, both the Bonds so refunded and such Additional Bonds.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.1. Events of Default Defined. Any one of the following shall constitute an
Event of Default under this Loan Agreement:
(a) The failure by the Borrower to pay or cause to be paid, when due, the Loan
Payments hereunder or under the Borrower Bond;
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(b) The failure by the Borrower to observe or perform any covenant, term,
condition or agreement hereunder, or under any other Loan Document, on its
part to be observed and performed (except for any covenant, term, condition or
agreement referred to in sections 9.1(a) and 9.1(c) through 9.1(j) hereof) for a
period of thirty (30) days after written notice, specifying such failure and
requesting that it be remedied, is given by the District to the Borrower; provided,
however, if by reason of force majeure the Borrower shall be unable in whole or
in part to carry out its obligations hereunder, and if the Borrower shall give
prompt written notice and full particulars of such force majeure to the District,
the Borrower shall not be deemed in default under this section 9.1(b) during the
continuation of such inability, provided that force majeure shall not excuse any
other Event of Default. The term “force majeure” as used herein shall include,
without limitation, acts of God, acts of public enemies, orders of any kind of the
government of the United States or the State, or any of their agencies,
departments, or officials, or any civil or military authority, strikes, lock-outs, or
other industrial disturbances, insurrections, riots, epidemics, landslides,
lightning, earthquakes, fire, hurricanes, storms, washouts, droughts, explosions,
breakage or accident to machinery, transmission pipes, canals, partial or entire
failure of utilities, or any other cause or event not reasonably within the control
of the Borrower;
(c) The dissolution or liquidation of the Borrower; the filing by the Borrower of a
voluntary petition under any bankruptcy, moratorium, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law;
the failure by the Borrower within sixty (60) days to lift any execution,
garnishment or attachment of consequence as will impair its ability to carry on
its operation of the System; the commission by the Borrower of any act of
bankruptcy; the filing against the Borrower of a petition under any bankruptcy,
moratorium, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law which is not dismissed in thirty (30) days; the
assignment of assets by the Borrower for the benefit of its creditors; the entry by
the Borrower into an agreement of composition with its creditors; the approval
by a court of competent jurisdiction of a petition applicable to the Borrower in
any proceeding for its reorganization under the provisions of any bankruptcy or
similar law; or the appointment of a receiver of the whole or a substantial
portion of Borrower’s property, including the System, unless such receiver is
released or discharged within sixty (60) days;
(d) any warranty or representation contained in the Loan Documents or in any
certificate or document furnished pursuant hereto or thereto is false or
misleading in any material respect;
(e) the District or its assigns shall fail to have a valid and enforceable first priority
perfected security interest in or lien on the revenues described herein (including
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any revenues pledged pursuant to the Borrower Resolution) or the Collateral
described herein or in the Collateral Documents, except as otherwise expressly
provided in section 5.5;
(f) the Borrower defaults on any agreement to which it is a party, evidencing,
securing or otherwise respecting any Project Debt if, as a result thereof, such
debt may be declared immediately due and payable, or other remedies may be
exercised with respect thereto or with respect to the System;
(g) any material provision of the Loan Documents or the Borrower Bond shall at
any time for any reason cease to be valid and binding on the Borrower, or the
obligor of any Collateral Documents, or shall be declared null and void, or the
enforceability or validity thereof shall be contested by the Borrower or the
obligor of any such Collateral Documents, or any governmental agency or
authority (other than the District), or the Borrower or the obligor of such
Collateral Documents, shall deny any further liability or obligation under any of
the Loan Documents or the Borrower Bond.
(h) Any event of default shall occur under the Collateral Documents;
(i) Any event occurs which permits a draw under a letter of credit or other third-
party guaranty securing the Loan; or
(j) Failure by the Borrower to comply with any condition or requirement of the
Relevant Federal Act pertaining to the Loan or the Project for a period of 30 days
after written notice, specifying such failure and requesting that it be remedied, is
given to the Borrower by the District, unless the District shall agree in writing to
an extension of such time or shall waive such failure in writing.
Section 9.2. Remedies on Default. Whenever any Event of Default has occurred and is
continuing, the District may take any one or more of the following remedial steps:
(a) Suspend the making of disbursements of the Loan pursuant to Section 4.1
hereof;
(b) Revoke or reduce the remainder of the Committed Amount, if any;
(c) Exercise the remedies available to a bondholder under the statutory
mortgage and other provisions of SDCL chapter 9-40, and other successor or
supplementary statutory provisions or laws;
(d) Pursue its remedies under the Borrower Bond and any Collateral Documents,
including the Borrower Resolution and the Borrower Bond; and
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(e) Take whatever other action at law or in equity may appear necessary or
desirable to collect amounts then due and thereafter to become due hereunder,
or to enforce the obligations, agreements or covenants of the Borrower under
the Loan Documents, or to enforce any other of the District’s rights hereunder.
Section 9.3. Remedies Cumulative. No remedy herein conferred upon or reserved to
the District is intended to be exclusive of any other available remedy, but each and every
remedy shall be cumulative and in addition to every other remedy given under this Loan
Agreement, or now or hereafter existing at law or in equity or by statute. No delay or omission
to exercise any right or power accruing upon any default shall impair any such right or power or
shall be construed as a waiver thereof, but any such right and power may be exercised from
time to time and as often as may be deemed expedient. In the event that any breach by the
Borrower is specifically waived in writing by the District, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other or subsequent breach.
Section 9.4. Attorney Fees and Collection Expenses. In the event the Borrower should
default under any of the provisions of the Loan Documents, and the District or Trustee should
employ attorneys or incur other expenses for the collection of the amounts payable hereunder
and thereunder, or the enforcement of performance or observance of any obligations or
agreements on the part of the Borrower, the Borrower shall, upon demand, pay to the District
the reasonable fees of such attorneys and such other expenses so incurred. Commencement of
an action to recover any amount payable shall be deemed a demand for the payment of such
fees and expenses incurred in the course of the action.
Section 9.5. Application of Moneys. Any moneys collected by the District pursuant to
Section 9.2 shall be applied first to pay attorney’s fees and other expenses owed by the
Borrower pursuant to Section 9.4; second to any interest and penalties due on the Loan; third
to pay principal due on the Loan; fourth to pay any other amounts due under the Loan
Documents, and fifth to pay principal and interest on the Loan, and other amounts due
hereunder, as they become due, such payments to be made in the same order as set forth in
this Section.
Section 9.6. Notice of Default. The Borrower agrees to give the Trustee and the District
prompt written notice if any petition referred to in Section 9.1(c) is filed or of the occurrence of
any other event or condition which constitutes, or would with the passage of time or notice and
the passage of time constitute, an Event of Default immediately upon becoming aware of the
existence thereof.
Section 9.7. Cooperation Agreement Relating to Bonds or other Financing of District. At
the request of the District or any holder of the Borrower Bond, and to the extent not already
required to be provided by the Borrower under this Loan Agreement, the Borrower Bond or any
of the other Loan Documents, the Borrower shall at no cost or expense to the District, use all
reasonable efforts to satisfy the market standards to which the District customarily adheres in
any then existing program or borrowing of the District or which may be reasonably required in
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the marketplace or by any nationally recognized rating agency or by any underwriter engaged
by the District or by any then holder of the Borrower Bond in connection with any sale or
multiple sales, from time to time, of Bonds or any interest (including any participation interest)
in the Borrower Bond or similar borrower bonds funded in connection with the Program so as
to permit or otherwise enable the successful rating, marketing and sale of such Bonds or other
interests (collectively referred to herein as “Financings”), including:
(a) provide current financial or other information with respect to the Borrower,
the Project, the System and the Borrower’s general financial condition, including
any information required to be provided to any purchasers of debt or other
securities in connection with the Financings, including information which the
District determines to be material to it or any such investors under any federal or
state securities laws, and to cooperate with the District, any such other holder
and any nationally recognized rating agency in connection with any such
Financings;
(b) agree to provide on a timely basis, and from time to time as requested by
the District, any information which the District reasonably believes is required to
be furnished to any broker dealer or other person by reason of the Securities and
Exchange Commission Rule 15c2-12, or any agreement or undertaking pursuant
to which the District is a party or which relates to any Bonds, Additional Bonds,
Refunding Bonds or any other Financing;
(c) provide or cause to be provided supplemental or confirming opinions of
Bond Counsel as to any matters which the District, any underwriter involved in
the Financings or any nationally recognized rating agency determines to be
relevant to the Financings; and
(d) agree to any amendments or supplements to this Loan Agreement, the
Borrower Bond or any other Loan Documents which the District, in its reasonable
judgment, determines to be necessary or appropriate in connection with such
Financings, so long as no such amendment or supplement shall increase the
aggregate amount of principal, interest and Administrative Expense Surcharge
payments payable on or with respect to the Borrower Bond on any payment
date specified therein or herein.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. Notices. All notices or other communications hereunder shall be in
writing and shall be sufficiently given and shall be deemed given when delivered, and if
delivered by mail, shall be sent by first class, registered or certified mail, postage prepaid, to the
parties at the following addresses:
To the District: South Dakota Department of Environment
and Natural Resources
Division of Financial and Technical Assistance
December 4, 2012
City of Brookings
144
523 East Capitol Ave.
Joe Foss Building
Pierre, SD 57501-3181
Attention: SRF Section
To the Borrower: City of Brookings
P. O. Box 270
Brookings, SD 57006
Attention: Finance Manager
and Brookings Municipal Utilities
P. O. Box 588
Brookings, SD 57006
Attention: General Manager
To the Trustee: The First National Bank in Sioux Falls
100 South Phillips, P. O. Box 5186
Sioux Falls, SD 57117-5186
Attention: Corporate Trust Department
Any of the above parties may, by notice given hereunder, designate any further or different
addresses to which subsequent notices, certificates and other communications shall be sent.
Section 10.2. Amendments and Modifications. The Loan Documents may not be
amended except in writing, which writing shall be expressly identified as a part hereof or
thereof, and which writing will be signed by an authorized representative of each of the parties.
Section 10.3. Severability. In the event that any provision of this Loan Agreement shall
be held unenforceable or invalid by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
Section 10.4. Binding Effect. This Loan Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
Section 10.5. Limited Liability. No recourse under or upon any obligation, covenant or
agreement contained in this Loan Agreement shall be had against any member of the governing
board, officer or employee, as such, past, present or future, of the District, Board or State,
either directly or through the District, Board or State, or against any member of the governing
body, officers or employees of the Borrower, past present or future, as long as such individual
was acting in good faith. Any and all personal liability of every nature, whether at common law
or in equity, or by statute or by constitution or otherwise, of any officer or member of the
governing body, or employee of the District, the Board, the State, or the Borrower is hereby
expressly waived and released by the Borrower and the District as a condition of and in
consideration for the execution of this Loan Agreement.
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Section 10.6. Execution Counterparts. This Loan Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall constitute one and the
same instrument.
Section 10.7. Benefit of Bondholders and Credit Enhancers; Compliance With Indenture.
All covenants, agreements and representations on the part of the Borrower and the District, as
set forth in this Loan Agreement, are hereby declared to be for the benefit of the Holders from
time to time of the Bonds and all Credit Enhancers. The Borrower covenants and agrees to do
all things within its power in order to comply with and to enable the District to comply with all
requirements and to fulfill and to enable the District to fulfill all covenants of the Indenture.
Each Credit Enhancer is a third-party beneficiary of those provisions herein which relate to the
making of payments or following the directions of or giving of notice to or consent by or the
performance of other acts to benefit it, and all such provisions shall be enforceable by each
Credit Enhancer.
Section 10.8. Payments Due on Holidays. If the date for making any payment or the last
date for performance of any act or the exercise of any right, as provided in this Loan Agreement,
shall be a legal holiday or a day on which banking institutions in the State are required or
authorized by law to remain closed, such payments may be made or act performed or right
exercised on the next succeeding day not a legal holiday or a day on which such banking
institutions are required or authorized by law to remain closed with the same force and effect as
if done on the nominal date provided in this Loan Agreement.
Section 10.9. Right of Others To Perform Borrower's Covenants. In the event the
Borrower shall fail to make any payment or perform any act required to be performed hereunder,
then and in each such case the District, the Trustee, any Credit Enhancer or the provider of any
Collateral Document may (but shall not be obligated to) remedy such default for the account of
the Borrower and make advances for that purpose. No such performance or advance shall
operate to release the Borrower from any such default and any sums so advanced by the District,
any Credit Enhancer, the Trustee or the provider of any Collateral Document shall be paid
immediately to the party making such advance and shall bear interest at the prime or corporate
base rate of the Trustee plus 2% (or, if this Loan Agreement no longer secures any Bonds, of
Citibank, N.A.) from the date of the advance until repaid. The District, any Credit Enhancer, the
provider of any Collateral Document and the Trustee shall have the right to enter the Project or
the facility or facilities of which the Project is a part or any other facility which is a part of the
Borrower’s System in order to effectuate the purposes of this Section.
Section 10.10. Applicable Law. This Loan Agreement shall be governed by and
construed in accordance with the laws of the State.
Section 10.11. No Trustee or Credit Enhancers if All Bonds Paid. If all the Bonds are paid
within the meaning of the Indenture, the Trustee will release to the District all its rights
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hereunder, and thereafter any right or duty of the Trustee or any Credit Enhancer hereunder shall
be the right or duty of the District.
STATE OF SOUTH DAKOTA
BOARD OF WATER AND NATURAL RESOURCES
BY: _____________________________________
(SEAL) Chairman, Board of Water and Natural Resources
ATTEST:
______________________________
Secretary, Board of Water
and Natural Resources
CITY OF BROOKINGS, SOUTH DAKOTA
as Borrower
BY: _____________________________
(SEAL) Mayor
ATTEST: COUNTERSIGNED BY:
_____________________________ ________________________________
City Clerk Resident Attorney
BROOKINGS MUNICIPAL UTILITIES
By ______________________________
Its General Manager
Accepted and Agreed to by:
THE FIRST NATIONAL BANK IN SIOUX FALLS,
As Trustee
By ______________________
Assistant Vice President
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Other Business
22. Presentation of 2012 Strategic Plan Report.
TO: Mayor and City Council Members
FROM: Jeff Weldon, City Manager
RE: Update on progress of 2012 Strategic Plan
Attached is my annual report on the progress of the 2012 Strategic Plan. As you recall,
you adopted five (5) primary issues as a result of the annual strategic planning process.
We also identified a comprehensive list of numerous departmental projects that needed
implementation and also competed for resources. The commentary provides a brief
description of the progress of each.
Action: Informational
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2012 STRATEGIC PLAN
CITY OF BROOKINGS
CURRENT STATUS:
2012 STRATEGIC PLAN AND OTHER MAJOR DEPARTMENTAL PROJECTS
34TH Avenue/20th Street Transportation Corridor
Continue to work with SDDOT to place project on the STIP, have not yet been successful.
Consider the viability of contractual lobbying services for federal agency funding.
Continue to lobby state and federal representatives on the project. Work with SDDOT
on funding alternatives. Reanalyzed DOT corridor study and updated traffic counts.
Airport Funding Plan
In light of federal funding cut-backs for general aviation airports, the CIP has been
revised to accommodate for this five percent cut which will affect the current project in
2013. The State made up for 2012 FAA shortfall.
Omnibus Economic Development Initiative
On-going recruitment continues for commercial, industrial job-producing companies
primarily to industrial where City has available land. Conclude arrangements for GHP
and Bel Brands in the Foster Park and the Commercialization Center in the Telkamp
Park. Continue working with Growth Partnership for research park in-fill development.
Retail and hospitality industry continue at a stable pace. The Convention & Visitor
Bureau has been re-organized and BID revenue stream has been implemented. The
community video through CGI Communications has been updated and launched. The
RFP for hotels was completed and work is proceeding with a developer on a new hotel
that could be attached to the Swiftel Center. The R & T Center was remodeled for new
tenants. In addition, the City successfully recruited an NAHL hockey franchise team as a
new small business. City and BEDC recruited several restaurants. I-29 Corridor project
has been stalled. Continue working with three large-scale residential and commercial
development projects; Christie Springs, Prairie Hills, and 25th Avenue Corridor.
Implementation of the branding program intensified.
Review of on-sale liquor operating agreements
Completed
Technology Master Plan
Completed
“Lean” Government Practices
This project did not get started as soon as staff had hoped. Mid-year, some staff had a
training session with Lean Management staff from a major local business to initiate the
project. An extensive literature search was completed and staff has begun informal
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training. This effort will need to be intensified in 2013 and staff recommends it continue
to be an on-going strategic planning item for 2013.
Government Center City Manager
Completed
County Resource Center options City Manager
Completed, awaiting County response.
Bel Brands digester construction City Manager/Comm. Development
About to start construction.
Gateway Project Community Development
Completed Phase I, Phase II ready for construction but delayed due to property transfer
complications that are now resolved, Phase III scheduled after DOT improvements.
South Campus Neighborhood re-zoning Community Development
Completed
Certification of TIF District 7 Community Development
Pending; costs and financing options are being analyzed.
Industrial Land sales Community Development
Completed three land sales, on-going
Nature Park, phases I & II Parks and Recreation
Phase I completed, Phase II being implemented.
Pheasant Nest Dog Park Parks and Recreation
In planning stages, construction delayed to 2013 for budget reasons.
Valley View Park Development Parks and Recreation
Property secured, development to occur in 2013.
Playground Equipment at three parks Parks and Recreation
Completed
Swiftel Center storage addition Swiftel Center
Completed
City Hall remodel for Police Dept. Police/City Manager
Completed
East Fire Station Training Center Fire/City Manager
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Completed
South Fire Station land procurement Fire/City Manager
Nearly completed, waiting for seller to return purchase agreement.
Ordinance re-codification City Clerk/City Attorney
Started this year, most work will be done in 2013.
Curbside recycling automation Solid Waste
Grant secured, carts ordered, ready to launch program.
Library inter-loan system upgrade Library
Delayed by SD Library Network
Collective bargaining agreement renewals Human Resources
Completed
Software module upgrades Finance/IT
Completed
Airport re-alignment Engineering
Phase I construction in progress, Phase II planned
32nd Avenue Engineering
Nearing completion. Late start due to EDA grants application. Final surfacing to be
done in 2014.
25th Avenue Engineering
Completed
20th Street Engineering
Stalled due to inability to secure easements, options being studied
Nelson pond storm drainage Engineering
Completed
Pheasant Nest storm drainage Engineering
Completed
Camelot Square storm drainage Engineering
Phase I nearing completion, Phase II slated for 2013
Weise Addition storm drainage Engineering
Completed
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Other Business
23. 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.
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24. Adjourn.