HomeMy WebLinkAbout2011_06_28 CC PKT1
Brookings City Council
Tuesday, June 28, 2011
City Hall Council Chambers
311 Third Avenue
The City of Brookings is committed to providing a high quality of life for its citizens and fostering a
diverse economic base through innovative thinking, strategic planning, and proactive, fiscally responsible
municipal management.
5:00 p.m. WORK SESSION
Work sessions are open to the public. During the work session the city staff would brief the council on items for that
particular meeting, introduce future topics, and provide a time for Council members to introduce topics.
1. Pub Crawl.
2. Video Lottery.
3. City Council Member Ex-Officio Reports.
4. Joint Powers Board members’ Report.
5. City Council member introduction of topics for future discussion.
6. Council Invites & Obligations
*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 starting the issue, requested outcome, and time. A majority vote is required.
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 City Council minutes.
C. Action on volunteer appointment.
D. Action on Resolution No. 74-11, a Resolution authorizing the City Manager to
sign 10-year Liquor Operating Agreement for Ray’s Corner, 401 Main Avenue.
E. Action to approve a preliminary plat for John and Vicki Folkerts, Folkerts
Addition in the SW¼ of the SW¼ of Section 2-T109N-R50W.
Action: Motion to Approve, Request Public Comment, Roll Call
*Matters appearing on the Consent Agenda are expected to be non-controversial and will be acted upon by the Council at
one time, without discussion, unless a member of the Council or City Manager requests an opportunity to address any given
item. Items 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
5. Open Forum.
6. SDSU Student Senate Report.
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Contract Awards / Change Orders
7. Action on Resolution No. 75-11, a Resolution awarding a contract on City of Brookings
Garage Project 2011-02 BLD.
Action: Motion to Approve, Request Public Comment, Roll Call
Second Readings / Public Hearings
8. Public Hearing and action on Resolution No. 78-11, a Resolution Determining the
Necessity of Repairing or Installing Sidewalks in the City of Brookings at the Expense of
Abutting Property Owners, 2011-01SWR Sidewalk Repair Project.
Action: Open & Close Public Hearing, Motion to Approve, Roll Call
9. Public hearing and action on an On-Off Sale Malt Transfer for Carpy’s Pub, Roger and
Verla Carpenter, owners, from 700 22nd Avenue South to 1726/1728/1730 6th Street,
Brookings, South Dakota, Legal: S90’ of Outlot A; Outlot B; except the N90’ of the
W30’ thereof; Outlot C and D, all located in the NW1/4 of NE1/4, Sec. 25-T110N, R50,
West 5th p.m. and Sublot 5 of the Subdivision of Lot A, Block 1, Bane and Poole
Addition.
Action: Open & Close Public Hearing, Motion to Approve, Roll Call
Other Business:
10. Discussion and possible action on Resolution No. 77-11, A Resolution establishing a
policy pertaining to reconsideration actions.
Action: Motion to Approve, Request Public Comment, Roll Call
11. Action to appoint members to the Business Improvement District Board #1.
Action: Motion to Approve, Request Public Comment, Roll Call
12. Executive Session to consult with legal counsel on contractual matters.
Action: Motion to enter executive session – voice vote
Motion to leave executive session – voice vote
(Council will relocate to Main Floor meeting room for closed session)
13. Discussion on strategy for awarding liquor operating agreements.
Action: Motion to Approve, Request Public Comment, Roll Call
14. Discussion and possible action to award Liquor Operating Agreements.
Action: Motion to Approve, Request Public Comment, Roll Call
15. Adjourn.
Brookings City Council
Tim Reed, Mayor
Jael Thorpe, Deputy Mayor & Council Member
Council Members Tom Bezdichek, John Kubal, Mike McClemans, Keith Corbett, 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.
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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
If you require assistance, alternative formats, and/or accessible locations consistent with the Americans with
Disabilities Act, please contact Shari Thornes, City ADA Coordinator, at 692-6281 at least 3 working days prior to the
meeting.
City of Brookings
June 28, 2011
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5:00 P.M. WORK SESSION
Work Sessions are open to the public. During the work session the city staff would brief the council on
items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
1. Pub Crawl.
TO: Mayor and City Council Members
FROM: City Manager Jeff Weldon
RE: Discussion on the Pub Crawl
Pursuant to your previous direction, I sent a letter to all downtown
businesses informing them of the Council’s desire to have a work session
discussion concerning the Pub Crawl. Enclosed is the letter that was
mailed to interested parties. Also enclosed are comments received from
interested parties.
City of Brookings
June 28, 2011
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Jeffrey W. Weldon
City Manager
June 10, 2011
"Downtown Business"
"Address"
Brookings, SD 57006
Dear Downtown Business Leader,
The Brookings City Council has received an increased level of comments raised by citizens
concerning the Pub Crawl. We recognize this is an annual event embedded in tradition.
Nevertheless, concerns about potential adverse effects on other businesses and public safety
have been raised.
The City Council will be discussing the Pub Crawl at their Work Session on Tuesday, June 28,
2011 at 5:00 p.m. at the City Hall Council Chambers. You are invited to attend and will have
an opportunity to provide input relative to the Pub Crawl.
If you are unable to attend, the council meeting may be watched live on Cable Channel 9 or
live-streaming (http://cityofbrookings.granicus.com/MediaPlayer.php?publish_id=5) on the city
website. You are also invited to submit comments in writing to the address above or via email
at http://cityofbrookings.org/departments/manager/manform.php.
At this point, there is no specific directive under consideration, only a conversation about the
event. The City Council will determine future steps, if any, from the discussion at this meeting.
If you have any questions, please feel free to contact me.
Sincerely,
CITY OF BROOKINGS
Jeffrey W. Weldon
City Manager
City of Brookings
June 28, 2011
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5:00 P.M. WORK SESSION
Work Sessions are open to the public. During the work session the city staff would brief the council on
items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
2. Video Lottery.
The City Council has requested additional review of video lottery policies,
laws and procedures within the City of Brookings. The following
background information is enclosed for Council review.
• City Attorney Memo, dated April 15, 2011
• Video Lottery Licenses/Analysis of Quota Set by Brookings Ordinance
• Ordinance No. 05-11 (current ordinance)
• City Attorney Memo, dated March 15, 2011
• State Statutes
• Recent Circuit Court Decision
• Summary of Brookings Video Lottery Actions
City of Brookings
June 28, 2011
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To: Mayor and Council, Jeff Weldon, City Manager and
Shari Thornes, City Clerk
From: Steven J. Britzman, City Attorney
Date: April 15, 2011
Re: Video Lottery
I have prepared an analysis of video lottery licensing which accompanies this brief memo, and
the purpose of this memo is to explain my understanding of the choices available concerning the
regulation of video lottery. My previous memo on the topic outlines the reason for the revision
of our ordinance - that State law - particularly SDCL 42-7A-64 only allows regulation of video
lottery at on-sale malt and on-sale wine establishments and not upon any other type of
establishment. SDCL 42-7A-64 provides, in pertinent part, that a municipality in
establishments issued an on-sale malt beverage or on-sale wine license may
consider… “the following criteria for authorizing video lottery machine placement”:
the number of establishments currently licensed for video lottery; the proximity
of the business to other establishments licensed for video lottery; the type of
business and manner in which the applicant proposes to operate it; the location
of the business in relation to other businesses in residential areas, or activities
within the same general area; the extent to which minors frequent a business
connected to the one proposed; and the effect the proposed business has on
economic development.
Our proposed ordinance change limits the foregoing criteria to on-sale malt beverage
and on-sale wine licensees, consistent with the Circuit Court’s decision in the Sioux Falls
“video lottery zoning case”. As a result, our ordinance, which uses a quota system of 1
video lottery license per 880 residents, no longer applies to those holding operating
agreements or convention and club licenses, and we therefore only have 7 video licenses
issued under our current quota system, and if the quota remains the same, we could
therefore issue up to 19 more video lottery licenses. If that increase would appear to be
excessive when considering the foregoing criteria, it would be necessary to change the
quota to a larger number, thereby reducing the number of video lottery licenses available
to malt and on-sale wine establishments since we no longer count establishments
holding operating agreements, club licenses or convention facilities operating agreements
for purposes of the video lottery quota.
During the second reading, a change in the quota number could be made upon motion
to amend if the Council believes a revision is appropriate.
City of Brookings
June 28, 2011
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VIDEO LOTTERY LICENSES/ANALYSIS OF QUOTA SET BY BROOKINGS
ORDINANCE (from 4/26/11 City Council Agenda Packet)
Malt
Current Ordinance
7 Issued
1. Carpy’s Pub
2. Casino 2000
3. Oly’s Neighborhood Pub & Grill
4. PNP Pub
5. Schoon’s Pump N Pak South
6. Sixth Street Diner
7. South Main Diner
Revised Ordinance Currently under
Consideration (2nd Reading to be held
April 26th)/Same Quota
7 Issued
19 licenses available under
current quota due to elimination
of on-sale/convention licensees
from quota.
Wine
0 Issued
0 Issued
On-Sale Liquor/
Convention
Facility
15 Issued
1. Cubby’s Sports Bar & Grill
2. Danny’s
3. Elks Lodge
4. Jim’s Tap
5. Lantern Lounge
6. 9 Bar
7. Pheasant Café & Lounge
8. Ram & O’Hare’s
9. Ray’s Corner
10. Sully’s Irish Pub
11. Skinner’s Pub
12. VFW
13. Fireside Lounge, Inc.
14. Pavilion
15. Prairie Lanes
15 Issued
No limit on On-Sale or Convention
Video Lottery Licenses permitted
under State law.
Total Available
Under
Ordinance
22 (18,504 pop.)
1 License per 880 persons
26 (22,056 pop.)
1 License per 880 persons, on-sale and
convention facilities not subject to
quota or limitation per State law.
City of Brookings
June 28, 2011
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Ordinance No. 05-11 (FINAL)
An Ordinance Amending Section 6-6 of the Code of Ordinances
of the City of Brookings, South Dakota and pertaining to Video Lottery Machine
Placement 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. 6-6. Authorizations for video lottery machine placement.
(a) After the effective date of this Ordinance, not more than one authorization for a video
lottery machine placement for establishments issued an alcoholic beverage license
pursuant to subdivisions 35-4-2(12) and SDCL 35-4-2(16) who apply for video lottery
establishment authorization will be granted for each 2,206 persons, or a fraction thereof,
of the population of the city as determined each August 1 by the city planning
department. No establishment authorized for a video lottery machine placement may be
denied authorization in subsequent years solely by reason of any limitations of the
number of authorizations under the provisions of this section. The quota and the criteria
and requirements set forth in this section do not apply to any type of alcoholic beverage
licensee other than wine and malt beverage retailers.
(b) New video lottery sites shall be selected according to the following criteria and which
satisfy the requirements set forth in subsection (b)(3) of this section:
(1) The proximity of the proposed new video lottery site to other establishments which
have been licensed as video lottery establishments.
(2) The type of business the applicant proposes for the proposed new video lottery site and
the manner in which the applicant proposes to operate it.
(3) Consistent with state law, video lottery establishments shall be a bar, restaurant or
lounge which is primarily maintained and operated for the selling and consumption of
alcoholic beverages and food on the premises. In order to ensure that only bars,
restaurants and lounges are authorized as video lottery establishments, proposed new
video lottery establishments must derive 75 percent or more of their gross business
income, excluding video lottery income, from the sale of beverages, room rentals and
food which is prepared and consumed on the premises. Any applicant for authorization
as a video lottery establishment shall certify that the applicant complies with this
subsection. The city may require the applicant to provide proof through business
records of compliance with this requirement. Bona fide chartered veterans' organiza-
tions, religious, charitable or fraternal organizations are excluded from the requirements
of this subsection (b)(3).
City of Brookings
June 28, 2011
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(4) The location of the proposed new video lottery site to other businesses, residential
areas, or activities within the same general area.
(5) The extent to which minors frequent a business connected to the proposed new video
lottery site.
(6) The effect the proposed new video lottery site has on economic development.
II.
All ordinances in conflict herewith are hereby repealed.
First Reading April 5, 2011
Second Reading and Adoption April 26, 2011
Published April 29, 2011
CITY OF BROOKINGS
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
City of Brookings
June 28, 2011
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To: Jeff Weldon, City Manager and Shari Thornes, City Clerk
From: Steven J. Britzman, City Attorney
Date: March 15, 2011
Re: Video Lottery regulation - Brookings Ordinance Sec. 6-6
Discussion: In the year 2000, I believe, the City of Brookings adopted Ordinance 00-4 which
limited the number of video lottery establishments, based upon video lottery statute SDCL 42-
7A-64, which is set forth below.
Due to recent clarifications with respect to the interpretation of SDCL 42-7A-64 and with
respect to municipal powers concerning issues regulated by the State of South Dakota, it would
be appropriate to revise Brookings Ordinance 6-6 so the Ordinance is limited to wine and malt
beverage retailers and is not applicable to any other type of alcoholic beverage licensee.
I am providing a pdf copy of a decision I referred to in the most recent Council meeting, which
holds, in part, that 42-7A-64, a video lottery statute upon which our video lottery Ordinance
(Sec. 6-6) is based, is only applicable to wine and malt beverage retailers, and regulation of
video lottery by municipalities is otherwise prohibited. I agree, as a matter of law, with the
conclusions reached in this Sioux Falls video lottery decision.
Accordingly, a municipality cannot regulate the issuance of video lottery licenses at any other
types of alcoholic beverage establishments, such as those holding operating agreements.
Therefore, new Operating Agreements should be fully entitled to video lottery without
limitation.
SDCL 42-7A-64. State Lottery - Additional criteria for on-sale alcoholic beverage licensees
in video lottery licensed establishments. A municipality or county may consider, in addition to
the criteria for the issuance of an on-sale alcoholic beverage license, the following criteria for
authorizing video lottery machine placement in establishments issued an on-sale alcoholic
beverage license pursuant to subdivisions 35-4-2(12)1 and (16)2:
1 (12) Wine retailers, being both package dealers and on-sale dealers.
2 (16) Malt beverage retailers, being both package dealers and on-sale dealers.
(1) The number of establishments currently licensed for video lottery;
(2) The proximity of the business to other establishments licensed for video lottery;
(3) The type of business and manner in which the applicant proposes to operate it;
(4) The location of the business in relation to other businesses, residential areas, or
activities within the same general area;
(5) The extent to which minors frequent a business connected to the one proposed; and
(6) The effect the proposed business has on economic development.
City of Brookings
June 28, 2011
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(7) The governing board shall certify on each application filed with the department of
revenue for a license granted under subdivisions 35-4-2(12) and (16) whether the
business premises is authorized for video lottery machine placement. An existing video
lottery license may not be denied renewal or transfer based upon the criteria set forth
in this section. The lottery may issue a video lottery license to those establishments
certified pursuant to this section.
Notwithstanding the above provisions, a county or municipality may not restrict the number of
alcoholic beverage licenses issued under subdivisions 35-4-2(12) and (16) and certified for video
lottery to a number less than those licensed as video lottery establishments on March 1, 1994.
A copy of our current video lottery Ordinance:
Sec. 6-6. Authorizations for video lottery machine placement.
(a) Not more than one authorization for a video lottery machine placement as provided in
SDCL 42-7A-64 will be granted for each 880 persons, or a fraction thereof, of the population of
the city as determined each August 1 by the city planning department. No establishment
authorized for a video lottery machine placement may be denied authorization in subsequent
years solely by reason of any limitations of the number of authorizations under the provisions
of this section. The quota, as established in this section, does not limit other types of non-video
lottery licenses issued pursuant to SDCL 35-4-2; however, the quota and the criteria and
requirements set forth in this section do apply to any type of on-sale licensee including those
holding operating agreements, and on-sale malt and wine licensees who apply for video lottery
establishment authorization after the effective date of the ordinance from which this section is
derived.
(b) New video lottery sites shall be selected according to the following criteria and which
satisfy the requirements set forth in subsection (b)(3) of this section:
(1) The proximity of the proposed new video lottery site to other establishments which have
been licensed as video lottery establishments.
(2) The type of business the applicant proposes for the proposed new video lottery site and the
manner in which the applicant proposes to operate it.
(3) Consistent with state law, video lottery establishments shall be a bar, restaurant or lounge
which is primarily maintained and operated for the selling and consumption of alcoholic
beverages and food on the premises. In order to ensure that only bars, restaurants and lounges
are authorized as video lottery establishments, proposed new video lottery establishments
must derive 75 percent or more of their gross business income, excluding video lottery income,
from the sale of beverages, room rentals and food which is prepared and consumed on the
premises. Any applicant for authorization as a video lottery establishment shall certify that the
applicant complies with this subsection. The city may require the applicant to provide proof
through business records of compliance with this requirement. Bona fide chartered veterans'
organizations, religious, charitable or fraternal organizations are excluded from the
requirements of this subsection (b)(3).
City of Brookings
June 28, 2011
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(4) The location of the proposed new video lottery site to other businesses, residential areas,
or activities within the same general area.
(5) The extent to which minors frequent a business connected to the proposed new video
lottery site.
(6) The effect the proposed new video lottery site has on economic development.
City of Brookings
June 28, 2011
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CIRCUIT COURT OF SOUTH DAKOTA
SECOND JUDICIAL CIRCUIT
LINCOLN & MINNEHAHA COUNTIES
425 North Dakota Avenue
Sioux Falls, SD 57104-2471
CIRCUIT JUDGES COURT ADMINISTRATOR
Kathleen K. Caldwell, Presiding Judge Karl E. Thoennes III
William J. Srstka, Jr.
Peter H. Lieberman Staff Attorney
C. Joseph Neiles Jill Moraine
Stuart L. Tiede
Bradley G. Zell Telephone: 605-367-5920
Patricia C. Riepel Fax: 605-367-5979
Douglas E. Hoffman
Lawrence E. Long
Robin J. Houwman
December 8, 2010
Mr. Mark V. Meierhenry & Mr. William Blewett
Meierhenry Sargent, LLP
315 S. Phillips Avenue
Sioux Falls, SD 57104-6318
Mr. Mark J. Arndt
May & Johnson, PC
PO Box 88738
Sioux Falls, SD 57109-8738
Andrew L. Fergel
Chief Legal Counsel
S.D. Dept. of Revenue and Regulation
445 East Capitol Avenue
Pierre, SD 57501-3185
Re: Rick Law v. City of Sioux Falls v. South Dakota Lottery, a Division of the Department of Revenue
and Regulation, State of South Dakota, CIV 09-3125
Dear Counsel,
Plaintiff brought this declaratory action for a determination of the constitutionality of Sioux Falls
Municipal Ordinance 60-08. A hearing was held before me on November 15, 2010. The parties
entered a Stipulated Statement of Facts dated August 26, 2010, which I adopt and find to be
true. Having considered the evidence presented, having reviewed the record, and having read
the parties' written briefs and listened to the oral arguments of the parties, I my decision is as
follows.
FACTS
City of Brookings
June 28, 2011
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Rick Law ("Plaintiff'), a resident of the City of Sioux Falls ("City"), seeks to establish a business
within the City which would sell alcoholic beverages on-site and contain video lottery machines
for patrons. On February 8, 2007, Plaintiff filed an application to be placed on the City's retail
liquor license waiting list. He also submitted a $1,500 deposit to the City with his application.
On July 10, 2009, the City offered Plaintiff a retail liquor license, which the Plaintiff conditionally
accepted.
The City has enacted certain restrictions regarding the location of alcoholic beverage
establishments. One such restriction requires all new on-sale alcoholic beverage establishments
to seek a conditional use permit with the City Planning Commission before an on-sale alcoholic
beverage license can be issued. Under Sioux Falls Municipal Ordinance 60-08, Section 6,
Subdivision 4 ("Ordinance 60-08"), a conditional use permit for an on-sale alcoholic beverage
establishment may not be issued if video lottery machine placement is within 2,000 feet of "any
city park, other video lottery machine placement, or any elementary or secondary school
within the city[J" Plaintiff is considering three locations for his new business, all of which are
within 2,000 feet of a City park, elementary or secondary school, or other video lottery
machine placement. Therefore, if Plaintiff were to place his business in any of these locations, it
would not conform to the provisions of Ordinance 60-08.
Plaintiff has not yet applied for a conditional use permit with the City Planning Commission for
his business. Before applying for a conditional use permit, Plaintiff has brought this declaratory
action for a determination of the constitutionality of Ordinance 60-08. Plaintiff argues that state
law preempts local ordinances which attempt to regulate video lottery because the State of
South Dakota occupies the field of video lottery regulation. Plaintiff argues that Ordinance 60-
08 is, therefore, an unconstitutional exercise of municipal authority.
In an Order filed August 11, 2009, this Court allowed the South Dakota Lottery, a Division of
the South Dakota Department of Revenue and Regulation ("South Dakota Lottery"), to
intervene in this action. The South Dakota Lottery, aligning with the Plaintiff, contends that
Ordinance 60-08 violates the South Dakota Constitution.
In its Reply, the City argues that Ordinance 60-08 is not a regulation of video lottery. Rather,
the City contends that the ordinance is a zoning regulation. The City further argues that the
enactment of Ordinance 60-08 was a valid exercise of the police powers granted to the City
under South Dakota Law and the City's home rule charter.
LAW &ANALYSIS
The South Dakota Supreme Court has stated, '''[i]t is well settled in this state that any
legislative enactment ... is presumed reasonable, valid and constitutional. Thus, the party
attacking a municipal ordinance bears the heavy burden of overcoming this presumption of
validity by showing that the ordinance is both unreasonable and arbitrary.'" City of Pierre v.
Blackwell, 2001 S.D. 127, ¶9, 635 N.W.2d 581, 584 (quoting Fortier v. City of Spearfish, 433
N.W.2d 228,230-31 (S.D. 1988)). The Court will "presume that cities are familiar with their
local conditions and know their own needs; therefore, [the Court] will not substitute [its]
judgment for their decisions, unless they abuse their power." Marion v. Schoenwald, 2001
City of Brookings
June 28, 2011
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S.D. 95, ¶8, 631 N.W.2d 213,217 (citing Tillo v. City of Sioux Falls, 82 S.D. 411, 415, 147 N.W.2d
128, 130 (1966) (emphasis added).
"[C]ities have only those powers expressly granted to them by the Legislature." Elkjer v. City of
Rapid City, 2005 S.D. 45, ¶9, 695 N.W.2d 235, 239. The City argues that it has authority to
enact Ordinance 60-08 pursuant to its home rule charter, authorized by Article IX, § 2 of the
South Dakota State Constitution. The South Dakota Constitution expressly authorizes a home
rule entity to "exercise any legislative power or perform any function not denied by its charter,
the Constitution or the general laws of the state." S.D. Const. Art. IX, §2. Although courts
construe the powers and functions of home rule units liberally, home rule power is not
absolute. Bozied v. City of Brookings, 2001 S.D. 150, ¶11, 633 N.W.2d 196, 269. Courts must
consider a city's home rule authority in conjunction with the state's power to nullify or
preempt local action. Rantapaa v. Black Hills Chair Lift, 2001 S.D. 111, ¶21, 633 N.W.2d 196, 203.
A municipality may not pass an ordinance which conflicts with state law. Id.
"There are several ways in which a local ordinance may conflict with state law. In that event,
state law preempts or abrogates the conflicting local law." Id. at ¶23. "[O]ne way to determine
if a state law preempts a local ordinance is to look at whether the state law 'occup[ies] a
particular field to the exclusion of all local regulation.'" State ex reI. Jackley v. City of Colman, 2010
S.D. 81, ¶10, 2010 W.L. 4249631, *3 (quoting In re Yankton County Com'n, 2003 SD 109, ¶15,
670 N.W.2d 34, 39) (alterations in original). A court will find preemption if the state's statutory
scheme is "sufficiently comprehensive" so that it would be reasonable for the court to infer that
the Legislature did not intend for a city to enact supplementary regulations. Id.
The South Dakota Constitution grants the State and its Legislature exclusive regulatory
authority over video lottery owned and operated by the State. Specifically, Article III, § 25 of
the South Dakota Constitution states:
[I]t shall be lawful for the legislature to authorize by law a state lottery or video games of
chance, or both, which are regulated by the state of South Dakota, either separately by the
state or jointly with one or more states, and which are owned and operated by the state of
South Dakota, either separately by the state or jointly with one or more persons....
Furthermore, with the enactment of SDCL § 9-29-5, the South Dakota Legislature expressed its
intent to prohibit a municipality from utilizing its general police powers to regulate state lottery
operations. 89 Op. Att'y Gen. No. 37 (Dec. 21, 1989). The statute provides:
Any municipality may suppress gambling, gaming and gambling houses, lotteries and all
fraudulent devices and practices used for obtaining money or property. Any municipality may
enter any place where any such activity is practiced or allowed to be practiced, and seize and
destroy any instrument, device or thing used for such purpose found therein. The provisions of
this section do not apply to any lottery owned and operated by this state.
The interpretation of SDCL § 9-29-5 as a prohibition of municipal state lottery regulation "is
consistent with the Legislature's creation of the State Lottery Commission with its extensive
enforcement and regulatory powers as it relates to the operation of the State Lottery." 89 Op.
City of Brookings
June 28, 2011
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Att'y Gen. No. 37 (Dec. 21, 1989). Indeed, the Legislature has vested the "overall management
of the state lottery ... solely with the South Dakota Lottery," which is "under the direction of
the South Dakota Lottery Commission." SDCL § 42-7A-2. The South Dakota Lottery
Commission is granted plenary authority to "promulgate rules ... governing the establishment
and operation of a state lottery as necessary to carry out the purposes of [SDCL Ch. 42-7Al."
SDCL § 42-7A-21. South Dakota's Constitution and statutory scheme make it clear that the
state intends to occupy the field of video lottery and is charged with video lottery regulation to
the exclusion of municipal regulation. See 08 Op. Att'y Gen. No. 06 (July 21,2 008).
The City, however, argues that Ordinance 60-08 is not a regulation of video lottery. Rather, the
ordinance is a zoning regulation which the City has the authority to enact as part of its general
police powers. The relevant portion of §6 of Ordinance 60-08 provides as follows:
An on-sale alcoholic beverage establishment may be permitted provided it is found that the
location:
(4) Video lottery machine placement is not within 2,000 feet of any city park, other video
lottery machine placement, or any elementary or secondary school within the city as measured
from the closest point of the outside walk of either of such buildings or tenant space of the
boundary of any park ...
The ordinance's effect is to completely bar video lottery machine placement within the 2,000
foot buffer of any of the identified areas. There is no similar 2,000 foot requirement for on-sale
liquor establishments which do not contain video lottery machines. Hence, subsection (4) of
Ordinance 60-08 exclusively governs the placement of video lottery machines within the
municipality.
SDCL § 11-4-1 empowers municipalities to regulate the "location and use of buildings" in order
to promote the "health, safety, morals, or the general welfare of the community[.J" The statute
does not qualify the types of buildings municipalities are empowered to regulate. Under SDCL §
11-4-1, the City argues that it has the authority to regulate the placement of video lottery
machines within the municipality.
In Jackley v. City of Colman, the Court noted that individual statutes granting municipal authority
cannot be read alone. Instead, the statutes must be viewed "in the context of the broader
jurisdictional scheme." 2010 S.D. 81, ¶6, 2010 W.L. at *2. Hence, SDCL § 11-4-1 must be
viewed in the context of the State's entire video lottery statutory scheme. Preemption by field
occupation occurs "if the scheme of state regulation is sufficiently comprehensive to make a
reasonable inference that the Legislature left no room for supplementary city regulation." 2010
S.D. 81, ¶10, 2010 W.L. at *3.
The City cites City of Norfolk v. Tiny House, Inc. to support its argument that the State has not
occupied the field of video lottery placement. 281 S.E.2d 836 (Va. 1981). In Tiny House, a city in
Virginia sought to enjoin a restaurant, Tiny House, from selling alcoholic beverages until it
obtained a use permit required by city ordinance. Tiny House argued that state law preempted
the ordinance. Id. at 840. The Virginia Supreme Court held that there was little evidence to
indicate that the state intended to prohibit all local governments from utilizing zoning as a
City of Brookings
June 28, 2011
23
means of controlling the location and concentration of establishments selling alcoholic
beverages. Id. at 840-42.
In City of Norfolk, the state legislature had refrained from enacting any legislation governing the
placement of alcohol establishments within a city. In the present case, however, the Legislature
has enacted legislation governing the location of video lottery machines. SDCL § 42-7A-56
provides:
The Legislature hereby finds, and declares to be the public policy of this state that:
(1) The success of the South Dakota Lottery is dependent upon public confidence and trust
that it is conducted honestly and free from criminal and corruptive elements;
(2) Public confidence and trust can only be maintained by strict regulation of all persons, locations,
practices, associations, and activities related to the sale of lottery products and the operation,
manufacturing, and distribution of video lottery games and equipment....
(emphasis added). To promote this public policy of maintaining public confidence and trust
through the strict regulation of video lottery placement, SDCL § 42-7A-57 empowers the
Executive Director the South Dakota Lottery to "approve or disapprove any application for
license, as provided in § 42-7A-41, depending upon whether the executive director deems the
applicant a suitable person to hold the license and whether the executive director considers the
proposed location suitable..." (emphasis added).
In Jackley, the Court reviewed the state's comprehensive regulatory scheme regarding highways
in order to determine whether the state had occupied the field of trunk highway regulation.
2010 S.D. 81, ¶9, 2010 W.L. at *2. The Court noted that the Department of Transportation is
charged with "control and supervision" of the state trunk highways and that the State
Transportation Commission was created and given authority to regulate speed limits on these
highways. Id. The Court then concluded that the "delegation of control and supervision of state
trunk highways to state agencies demonstrates the Legislature's intent in this field." Id.
Here, the State has charged the South Dakota Lottery with the authority to regulate the field of
video lottery. SDCL § 42-7A-2. The State has expressly appointed the Executive Director the
South Dakota Lottery with the authority to consider the location of a video lottery
establishment in determining whether to "approve or disapprove any application for license."
SD.CL § 42-7A-57. This delegation of control demonstrates the Legislature's intent to occupy
the field of video lottery, including the location of video lottery establishments.
The Legislature has ceded limited and specific authority to municipalities to regulate video
lottery machine placement with the enactment of SDCL § 42-7A-64.l The statute states:
1 "[I]t is presumed that the legislature does not intend to insert surplusage in its enactments.
And, where possible, the law must be construed to give effect to all of its provisions." U.S. West
Communications, Inc. v. Public Utilities Com 'n of the State of South Dakota, 505 N.W.2d 115,123
(1993). To interpret SDCL § 11-4-1 as a grant of absolute municipal authority to govern the
City of Brookings
June 28, 2011
24
placement of video lottery machines would render SDCL § 42-7A-64 ineffectual. Such an
interpretation would be contrary to the principles of statutory interpretation.
A municipality or county may consider, in addition to the criteria for the issuance of an on-sale
alcoholic beverage license, the following criteria for authorizing video lottery machine
placement in establishments issued an on-sale alcoholic beverage license pursuant to
subdivisions 35-4-2(12) and (16):
(1) The number of establishments currently licensed for video lottery;
(2) The proximity of the business to other establishments licensed for video lottery;
(3) The type of business and manner in which the applicant proposes to operate it;
(4) The location of the business in relation to other businesses, residential areas, or activities
within the same general area;
(5) The extent to which minors frequent a business connected to the one proposed; and
(6) The effect the proposed business has on economic development.
SDCL § 35-4-2 establishes 19 different classes of licenses, including five on-sale license classes.
However, SDCL § 42-7A-64 does not authorize municipalities to regulate video lottery in all
on-sale establishments. The statute is limited to those on-sale alcoholic beverage establishments
which are licensed under SDCL § 35-4-2(12), an on-sale wine license for Sunday sales only, or
SDCL § 35-4-2(16), a combination on-sale and off-sale malt beverage license.2 Assuming this
statutory delegation is constitutional, SDCL § 42-7A-64 grants a municipality limited authority
to regulate the placement of video lottery machines.3
Considering the State of South Dakota's occupation of the field of video lottery regulation in
conjunction with the Legislature's enactment of SDCL § 42-7A64, it appears that the Legislature
intended to restrict municipal authority to govern the placement of video lottery machines.
Accordingly, Ordinance 60-08 must comply with the provisions of SDCL § 42-7A-64 in order
to be valid. Ordinance 6008 applies to all "on-sale" establishments. However, SDCL § 42"7A-64
only authorizes municipalities to regulate video lottery establishments that are licensed under
SDCL § 35-4-2(12) or (16). Hence, the City exceeded the authority granted to it by the
Legislature when it enacted Ordinance 60-08.
2 Most on-sale liquor licenses are subject to a limiting quota set forth under SDCL § 35-4-11.
However, the two classes of alcohol licenses affected by SDCL § 42-7A-64 are expressly
excluded from being subject to this quota. See SDCL § 35-4-11 ("The quotas established in this
section do not apply to licenses issued pursuant to subdivisions 35-4-2(12), (16) ..."). Thus,
SDCL § 42-7A-64 affirmatively grants municipalities limited authority to regulate the location
and concentration of video lottery in relationship to two specific classes of alcohol licenses that
are not statutorily subject to a limiting quota.
3 Plaintiff seeks a liquor license that would be classified under SDCL§ 35-4-2(4). This is not one
of the two types of liquor licenses that are subject to SDCL § 42-7A-64.
CONCLUSION
The City's home rule authority carries no additional regulatory authority over video lottery
beyond those narrow circumstances specifically authorized by the Legislature. It is clear from
the South Dakota Constitution and the South Dakota Codified Laws that the State occupies the
City of Brookings
June 28, 2011
25
field of video lottery regulation to the exclusion of local governments. The State's occupation of
the field of video lottery extends to the placement or location of video lottery machines.
Hence, Ordinance 60-08 is invalid except to the extent that the ordinance is consistent with
the specific provisions of SDCL § 42-7A-64. This Court adopts the parties' Stipulated Facts as
its Findings of Fact. Counsel for the Plaintiff shall prepare Conclusions of Law, and an Order
and Judgment consistent with and incorporating my written decision on this issue.
Sincerely,
Patricia C. Riepel
Circuit Court Judge
City of Brookings
June 28, 2011
26
City of Brookings
Summary of Video Lottery Actions
February 28, 2000 - Ordinance No. 4-00: An Ordinance regulating by population the placement of
Video Lottery Machines in the City of Brookings. Ordinance passed.
December 18, 2000 - Ordinance No. 31-00 – Video Lottery License Fees. Ordinance passed.
March 12, 2001 - Ordinance No. 05-01 – Video Lottery: amending Ordinance No. 04-00. Ordinance
passed.
February 14, 2006 - Review of Video Lottery Ordinance requested by Garner Hansen, Main Street Pub.
March 14, 2006 - Review of Video Lottery Ordinance. ACTION: A motion by Reitz, seconded by
Thomson, to place this item on a future agenda for discussion. Bartley, Bezdichek, Reitz and Thomson
voted yes, Munsterman voted no, motion carried.
March 22, 2011- City Attorney Video Lottery Opinion. Steve Britzman, City Attorney, provided a
briefing on the city’s video lottery ordinance and recent law development. In 2000, the City of
Brookings adopted Ordinance 04-00 which limited the number of video lottery establishments, based
upon video lottery statute SDCL 42-7A-64. Due to recent clarifications with respect to the
interpretation of SDCL 42-7A-64 and with respect to municipal powers concerning issues regulated by
the State of South Dakota, it would be appropriate to revise the Brookings Code Section 6-6 limiting it
to wine and malt beverage retailers and would not be applicable to any other type of alcoholic beverage
licensee.
Britzman provided a recent decision, which holds, in part, that 42-7A-64, a video lottery statute upon
which our video lottery Ordinance (Code Section 6-6) is based, is only applicable to wine and malt
beverage retailers, and regulation of video lottery by municipalities is otherwise prohibited. He agreed,
as a matter of law, with the conclusions reached in the Sioux Falls video lottery decision. Accordingly, a
municipality cannot regulate the issuance of video lottery licenses at any other types of alcoholic
beverage establishments, such as those holding operating agreements. Therefore, new Operating
Agreements should be fully entitled to video lottery without limitation.
There was council consensus for the city attorney to bring back a new ordinance at a future
meeting.
April 26, 2011 - Ordinance No. 05-11: amending Section 6-6 of the Code of Ordinances of the City of
Brookings, South Dakota and pertaining to Video Lottery machine placement in the City of Brookings,
South Dakota.
ACTION: A public hearing was held on Ordinance No. 05-11, an Ordinance amending Section 6-6 of
the Code of Ordinances of the City of Brookings, South Dakota and pertaining to Video Lottery
machine placement in the City of Brookings, South Dakota. A motion was made by Bartley, seconded
by Thorpe, to approve Ordinance No. 05-11. A motion was made by Bezdichek, seconded by Bartley,
to amend the population number to allow for 10 video lottery licenses. All present voted yes, motion
to amend carried. On the main motion as amended, all present voted yes, motion carried.
City of Brookings
June 28, 2011
27
5:00 P.M. WORK SESSION
Work Sessions are open to the public. During the work session the city staff would brief the council on
items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
3. City Council Member Ex-Officio Reports.
Pursuant to council direction, “City Council Member Ex-Officio Reports”
will be a standing agenda item at all Council Work Sessions. The Council
Members that serve as Ex-Officio members on the Brookings Health
System Board of Trustees and Utility Board will provide verbal reports
regarding recent meetings they have attended.
Brookings Municipal Utility Board:
1. Council Member Niemeyer
2. Council Member Corbett
Brookings Health Systems Board:
1. Council Member Kubal
2. Council Member McClemans
City of Brookings
June 28, 2011
28
5:00 P.M. WORK SESSION
Work Sessions are open to the public. During the work session the city staff would brief the council on
items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
4. Joint Powers Board Council Members’ Report.
Pursuant to council direction, “Joint Powers Board City Member Updates”
will be a standing agenda item at all Council Work Sessions. The Council
Members serving on the Joint Powers Board will provide verbal updates
regarding recent meetings they have attended.
Mayor Tim Reed & Council Member Kubal
City of Brookings
June 28, 2011
29
5:00 P.M. WORK SESSION
Work Sessions are open to the public. During the work session the city staff would brief the council on
items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
5. 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
frame. A majority vote is required.
City of Brookings
June 28, 2011
30
5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council
on items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
6. Council Invites & Obligations.
Date
Day Event &
Brief Description
Time Location / Town /
Address / Directions
July 4 Monday 4th of July Parade 12:00 p.m. line up
2:00 p.m. parade 3rd Street by City Hall
July 12 Tuesday Council Meeting 5:00 p.m. Council Chambers
July 14 Thursday 2011 Elected Officials
Workshop 9:30 a.m. Ramkota, Pierre
July 26 Tuesday Council Meeting 5:00 p.m. Council Chambers
August 9 Tuesday Council Meeting 5:00 p.m. Council Chambers
August 18 Thursday Campus / Community
Forum 5:00 P.M. TBD
August 23 Tuesday Council Meeting 5:00 p.m. Council Chambers
August 31 Wed Allyn Frerich’s
Retirement Event 5:00 p.m. Swiftel Center
September 13 Tuesday Council Meeting 5:00 p.m. Council Chambers
September
15-17
Thursday-
Saturday
NLC 19th Annual
Leadership Summit Minneapolis, MN
September 27 Tuesday Council Meeting 5:00 p.m. Council Chambers
October 4-7 Tuesday-
Friday
SDML Annual
Conference Sioux Falls, SD
October 11 Tuesday Council Meeting 5:00 p.m. Council Chambers
October 25 Tuesday Council Meeting 5:00 p.m. Council Chambers
November 8 Tuesday Council Meeting 5:00 p.m. Council Chambers
November
8-12
Tuesday-
Saturday
NLC Congress of
Cities Phoenix, AZ
November 22 Tuesday Council Meeting 5:00 p.m. Council Chambers
December 13 Tuesday Council Meeting 5:00 p.m. Council Chambers
December 20 Tuesday Council Meeting 5:00 p.m. Council Chambers
31
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 City Council minutes.
C. Action on volunteer appointment.
D. Action on Resolution No. 74-11, a Resolution authorizing the City Manager to sign 10-
year Liquor Operating Agreement for Ray’s Corner.
E. Action to approve a preliminary plat for John and Vicki Folkerts, Folkerts Addition in
the SW¼ of the SW¼ of Section 2-T109N-R50W.
Action: Motion to Approve, Request Public Comment, Roll Call
Open Forum/Presentations/Reports
5. Open Forum.
6. SDSU Student Senate Report.
Contract Awards / Change Orders
7. Action on Resolution No. 75-11, a Resolution awarding a contract on City of Brookings Garage
Project 2011-02 BLD.
Action: Motion to Approve, Request Public Comment, Roll Call
Second Readings / Public Hearings
8. Public Hearing and action on Resolution No. 78-11, a Resolution Determining the Necessity of
Repairing or Installing Sidewalks in the City of Brookings at the Expense of Abutting Property
Owners, 2011-01SWR Sidewalk Repair Project.
Action: Open & Close Public Hearing, Motion to Approve, Roll Call
9. Public hearing and action on an On-Off Sale Malt Transfer for Carpy’s Pub, Roger and Verla
Carpenter, owners, from 700 22nd Avenue South to 1726/1728/1730 6th Street, Brookings,
South Dakota, Legal: S90’ of Outlot A; Outlot B; except the N90’ of the W30’ thereof; Outlot
C and D, all located in the NW1/4 of NE1/4, Sec. 25-T110N, R50, West 5th p.m. and Sublot 5 of
the Subdivision of Lot A, Block 1, Bane and Poole Addition.
Action: Open & Close Public Hearing, Motion to Approve, Roll Call
Other Business:
10. Discussion and possible action on Resolution No. 77-11, establishing a policy on reconsideration
action (table action to next meeting if affected parties cannot attend or are not present).
Action: Motion to Approve, Request Public Comment, Roll Call
11. Action to appoint members to the Business Improvement District Board.
Action: Motion to Approve, Request Public Comment, Roll Call
12. Executive Session to consult with legal counsel on contractual matters.
Action: Motion to enter executive session – voice vote
Motion to leave executive session – voice vote
(Council will relocate to Main Floor meeting room for closed session)
13. Discussion on strategy for awarding liquor operating agreements.
Action: Motion to Approve, Request Public Comment, Roll Call
14. Discussion and possible action to award Liquor Operating Agreements.
Action: Motion to Approve, Request Public Comment, Roll Call
15. Adjourn.
City of Brookings
June 28, 2011
32
CONSENT AGENDA #4
4. Action to approve the following Consent Agenda Items: *
A. Action to approve the agenda.
B. Action to approve City Council minutes.
C. Action on volunteer appointment.
D. Action on Resolution No. 74-11, a Resolution authorizing
the City Manager to sign a 10-year Liquor Operating
Agreement for Ray’s Corner.
E. Action to approve a preliminary plat for John & Vicki
Folkerts, Folkerts Addition in the SW ¼ of the SW ¼ of
Section 2-T109N-R50W.
*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
City of Brookings
June 28, 2011
33
CONSENT AGENDA #4
B. Action to approve City Council Minutes.
The draft June 14th Brookings City Council minutes are enclosed for
Council review and approval.
City of Brookings
June 28, 2011
34
Brookings City Council
June 14, 2011 (unapproved)
The Brookings City Council held a meeting on Tuesday, June 14, 2011 at 5:00 p.m., at City Hall
with the following members present: Mayor Tim Reed, Council Members John Kubal, Mike
McClemans, Tom Bezdichek, Ope Niemeyer, Jael Thorpe and Keith Corbett. City Manager Jeff
Weldon, City Attorney Steve Britzman and City Clerk Shari Thornes were also present.
Brookings Municipal Utilities Quarterly Financial Report. Steve Meyer and Laura Julius,
Brookings Municipal Utilities representatives, presented to the Council BMU’s quarterly
financial report.
City of Brookings 5-Year Capital Improvement Plan. The Council reviewed the City’s
draft 2011-2015 capital improvement expenditure program.
REGULAR MEETING. Consent Agenda. Presentation of the audit report was moved
ahead of the annexation discussion. A motion was Kubal, seconded by Thorpe, to approve the
consent agenda:
A. Action to approve the agenda as amended.
B. Action to approve the May 24th, June 1st, and June 2nd City Council minutes.
C. Action on Resolution No. 66-11, a Resolution authorizing the City Manager to
sign midterm renewal / Wine Operating Agreement for The Shamrock, 1104
22nd Ave. So.
Resolution No. 66-11 - The Shamrock Wine Operating Agreement Renewal
BE IT RESOLVED by the City of Brookings, South Dakota, that the City Council hereby
approves a Lease Renewal Agreement for the Operating Wine Management Agreement
between the City of Brookings and Mike Bailey, The Shamrock, 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 1104 22nd Ave. So., also known as the Shamrock.
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.
D. Action on Resolution No. 67-11, a Resolution declaring bikes and miscellaneous
items as surplus items.
Resolution No. 67-11 - Appraising and Authorizing Sale of Surplus Property
Whereas, the City of Brookings has surplus items which are no longer necessary or useful
for City purposes and it is the desire of the City to dispose of same as surplus property;
Now, Therefore, Be It Resolved, that the attached listed property be declared surplus by
the City Council.
Further Be It Resolved by the City Council that the property be offered for sale at public
auction, date yet to be determined.
E. Action on Resolution No. 68-11, a Resolution removing uncollectible checks
from the Swiftel Center records.
City of Brookings
June 28, 2011
35
Resolution No. 68-11 - Uncollectible Checks Removed From Swiftel Center
Records
Whereas, The Swiftel Center has received a total amount of $3,431.27 in no account
checks: $391.91 – 04-2008 Corey & Heather Ridgway, $3,039.36 – 07-2009 Taylor
Companies/Kyle Haug; 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 $3,431.27 for the Swiftel Center 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.
On the motion, all present voted yes; motion carried.
Open Forum (RECONSIDERATION REQUEST). Sherry Fuller Bordewyk, Steve
Eliason, Nancy Bohlen, Mildred K. Hugghins, Bruce Willcock, Pam Merchant, and Jeff
Fischer asked that the City Council reconsider its May 24th action to award an on-off
sale malt beverage license and video lottery license to Gas ‘N Mor based on concerns
for safety, on-site alcohol consumption and increased traffic.
Steve Britzman, City Attorney, clarified this was the last opportunity for a
reconsideration motion. Reconsideration must occur at the next regular city council
meeting. There is no procedure for any later consideration.
A motion was made by Thorpe, seconded by Bezdichek, to reconsider the video lottery
action for Gas ‘N Mor. Discussion: Council discussion included allowing more time for
discussion on this topic and more review of options, evaluation of a video lottery strategy, review
of the recent court findings and the city’s current role in video lottery placement, existing video
lottery establishments on neighborhoods, potential alley vacation, review of applicant’s
qualifications including zoning and current licenses, and aesthetics. On the motion to
reconsider: Niemeyer, Reed, Thorpe and Corbett voted yes; Bezdichek, Kubal and
McClemans voted no, motion carried.
Video Lottery for Gas ‘N Mor - Motion for Reconsideration: (May 24, 2011 Motion):
“A motion was made by McClemans, seconded by Kubal, to approve a Video Lottery License for Gas ‘N
Mor, Brookings Developers, Inc., 606 6th Street.” A motion was made by Reed, seconded by
Thorpe, to table. On the motion, Bezdichek, Corbett, Niemeyer, Reed and Thorpe voted yes;
Kubal and McClemans voted no; motion carried to TABLE.
Resolution No. 69-11. A motion was made by Niemeyer, seconded by Corbett, to approve
Resolution No. 69-11, a Resolution awarding contracts for Sidewalk & Curb & Gutter
Replacement Project (2011-01SWR). All present voted yes; motion carried.
Resolution No. 69-11 - Resolution Awarding Bids on Project 2011-01SWR,
Curb & Gutter and Sidewalk Repair Project
City of Brookings
June 28, 2011
36
Whereas, the City of Brookings opened bids for Project 2011-01SWR Curb & Gutter and
Sidewalk Project on Tuesday, June 7, 2011 at 1:30 pm at Brookings City Hall; and
Whereas, the City of Brookings has received the following bids for Project
2011-01SWR Curb & Gutter and Sidewalk Project: Timmons Construction, Inc., Brookings, SD
$103,147.50, Concrete Contractors, Inc., Brookings, SD $120,730.00, and Owens Enterprises, Inc.,
Brookings, SD $117,247.50.
Now Therefore, Be It Resolved that the low bid of $103,147.50 for Timmons Construction, Inc.,
Brookings, SD be accepted.
Contract Award Brookings City and County Government Center #2. A motion was
made by Kubal, seconded by Corbett, to award the contracts for the Brookings City and
County Government Center, Bid Package #2 to: Contract #0833, Skold Specialty Contracting,
in the amount of $19,111; Contract #0930, Grazzini Brothers & Co., in the amount of $58,585;
Contract #0950, Gemini Acoustical, LLC, in the amount of $88,995; Contract #0965, Grazzini
Brothers & Co., in the amount of $203,809; Contract #0990, Ellis-Lieffort Painting, Inc., in the
amount of $153,200; Contract #1022, Skold Specialty Contracting, in the amount of $10,500;
Contract #1230, Clark Drew Construction, Inc., in the amount of $499,600; Contract #2305,
Tab Systems, Inc., in the amount of $20,200. All present voted yes; motion carried.
The following is a summary of all bids received on May 17th: Contract #0833 – Coiling Doors /
Sectional: Skold Specialty Contracting bid of $19,111, and Overhead Door Company of Sioux
Falls, Inc., bid of $18,625. Contract # 0930 – Tile: Grazzini Brothers and Company bid of
$58,585, and Syverson Tile & Stone, Inc., bid of $68,559. Contract #0950 – Acoustical Ceilings:
Gemini Acoustical, LLC bid of $88,995, F.M. Acoustical Tile bid of $95,200, Twin City Acoustics
bid of $102,600, and Dakota Acoustical Tile Co., Inc. bid of $112,185. Contract #0965 –
Resilient Flooring / Carpet: Grazzini Brothers and Co., bid of $203,809, Furniture Outlets USA
(dba Carpet One) bid of $207,842, and Ope Niemeyer Flooring LLC bid of $207,942. Contract
#0990 – Painting: Ellis-Lieffort Painting, Inc. bid of $153,200. Contract #1022 – Operable
Partitions: Skold Specialty Contracting bid of $10,500, Falewitch Construction Services bid of
$11,152, and Combined Building Specialties bid of $16,828. Contract #1230 – Manufactured
Casework / Woodwork: Clark Drew Construction, Inc. bid of $499,600. Contract #2305 –
Testing & Balancing: Tab Systems, Inc. bid of $20,200, SMB of Minnesota bid of $25,500,
Balancing Professionals, Inc. bid of $25,890, and Bal-Tech, Inc. bid of $68,000.
Resolution No. 70-11. A motion was made by Thorpe, seconded by Niemeyer, to approve
Resolution No. 70-11, a Resolution Authorizing the Sale of Surplus Real Estate to Brett
Behrends. No public comment. All present voted yes; motion carried.
Resolution No. 70-10 - Resolution Authorizing the Sale of Surplus Real Estate
to Brett Behrends
Be it Resolved by the City Council of the City of Brookings, South Dakota as follows:
Whereas, the City has declared the following described unimproved real property as surplus:
Lot Eight (8) in Block One (1) of Telkamp Industrial Addition to the City of Brookings, County
of Brookings, State of South Dakota.
City of Brookings
June 28, 2011
37
Whereas, an auction sale of the above-described property was conducted on May 26,
2011, and the highest bidder for the above-described parcel was Brett Behrends, and
Whereas, Brett Behrends has offered to purchase the above-described property for
the sum of $23,000.00, which the City of Brookings has determined is acceptable;
Now, Therefore, It Is Hereby Resolved by the City Council of the City of Brookings, South
Dakota, as follows: A) That the City convey title to the above-described property to Brett
Behrends following termination of the applicable referendum period; and B) That the Mayor,
City Clerk and City Manager are authorized to execute the documents required to convey title
of the above-described surplus real property to Brett Behrends.
Resolution No. 71-11. A motion was made by Thorpe, seconded by Bezdichek, to approve
Resolution No. 71-11, a Resolution Authorizing the Sale of Surplus Real Estate to Keith and
Cathy Vanderwal-Rounds. No public comment. All present voted yes; motion carried.
Resolution No. 71-11 - Resolution Authorizing the Sale of Surplus Real Estate
to Keith and Cathy Vanderwal-Rounds
Be It Resolved by the City Council of the City of Brookings, South Dakota as follows:
Whereas, the City has declared the following described unimproved real property as surplus:
Lot Twelve (12) in Block One (1) of Telkamp Industrial Addition to the City of Brookings,
County of Brookings, State of South Dakota.
Whereas, an auction sale of the above-described property was conducted on May 26,
2011, and the highest bidder for the above-described parcel was Keith and Cathy
VanderWal-Rounds, and
Whereas, Keith Rounds and Cathy VanderWal-Rounds have offered to purchase the
above-described property for the sum of $43,500.00, which the City of Brookings has
determined is acceptable;
Now, Therefore, It Is Hereby Resolved by the City Council of the City of Brookings, South
Dakota, as follows: A) That the City convey title to the above-described property to Keith
Rounds and Cathy VanderWal-Rounds following termination of the applicable referendum
period; and B) That the Mayor, City Clerk and City Manager are authorized to execute the
documents required to convey title of the above-described surplus real property to Keith
Rounds and Cathy VanderWal-Rounds.
Resolution No. 72-11. A public hearing was held on Resolution No. 72-11, authorizing the
City Manager sign an Operating Agreement for an On/Off Sale Wine License for Cenex Zip
Trip #63, 1005 6th Street. No public comment. A motion was made by McClemans, seconded
by Bezdichek, to approve Resolution No. 72-11. Discussion: It was clarified that this is an on-off
wine license and the city council can not limit the operating agreement to off-sale only. All present
voted yes; except Reed voted no; motion carried.
City of Brookings
June 28, 2011
38
Resolution No. 72-11 - Cenex Zip Trip #63 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 the Cenex Zip Trip #63 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 1005 6th Street.
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.
Temporary Liquor License – Ray’s Corner. A public hearing was held on a temporary
liquor application for Ray’s Corner for a wedding reception at the National Guard Armory on
August 20th. No public comment. A motion was made by Kubal, seconded by Corbett, to
approve. All present voted yes; motion carried.
Temporary Liquor Licenses – The Shamrock. A public hearing was held on Temporary
Liquor License requests for the Shamrock for the following events: 7/19 (party), 7/23, 8/6 (2),
9/2, 9/3 (2), 9/4, 9/10, 10/1, 10/29, 11/11 (wedding receptions), and 12/3/2011 (party). No
public comment. A motion was made by Kubal, seconded by Thorpe, to approve. All present
voted yes; motion carried.
On-Off Malt License – Wooden Legs Brewing Company. A public hearing was held on
an On-Off Malt License for Wooden Legs Brewing Company, 311 5th Street. Public Comment:
Paul Moriarty, neighbor, clarified that his parking lot will not be available for this business’s use. A
motion was made by McClemans, seconded by Kubal, to approve. All present voted yes;
motion carried.
Video Lottery Application – The Shamrock. A motion was made by Corbett, seconded
by Niemeyer, to suspend issuance of all new video lottery licenses until further discussion. On
the motion; Corbett and Niemeyer voted yes; Bezdichek, Kubal, McClemans, Reed and Thorpe
voted no; motion failed. A motion was made by Corbett, seconded by Reed, to approve a
Video Lottery application for the Shamrock, 1104 22nd Ave. So. No public comment. All
present voted yes; motion carried.
2010 City of Brookings Audit Report. A motion was made by Kubal, seconded by Thorpe,
to accept the 2010 City of Brookings Audit Report presented by Roger Watton, BKD CPAs &
Advisors. All present voted yes; motion carried.
Western Avenue future street project. Discussion was held on an annexation and future
street project along Western Avenue. Alfred Andrawis, Steve Gylling, Lyle Hawkinson and Paul
Moriarty gave public comment. The City Council directed the city manager to proceed by
contacting the property owners requesting a voluntary annexation.
Resolution No. 73-11. A motion was made by Thorpe, seconded by McClemans, to approve
Resolution No. 73-11, a Resolution giving approval to certain storm sewer facilities
improvements; giving approval to the issuance and sale of a Revenue Bond to finance, directly
City of Brookings
June 28, 2011
39
or indirectly, the improvements to the facilities; approving the form of the loan agreement and
the Revenue Bond and pledging revenues and collateral to secure the payment of the Revenue
Bond; and creating special funds and accounts for the administration of funds for operation of
the system and retirement of the Revenue Bond. No public comment. All present voted yes;
motion carried.
Resolution No. 73-11 - Resolution giving approval to certain storm sewer facilities improvements;
giving approval to the issuance and sale of a Revenue Bond to finance, directly or indirectly, the
improvements to the facilities; approving the form of the Loan Agreement and the Revenue Bond
and pledging revenues and collateral to secure the payment of the Revenue Bond; and creating
special funds and accounts for the administration of funds for operation of the system and
retirement of the Revenue Bond.
Whereas, one of the purposes of SDCL Chapter 9-40 (the “Act”) as found and determined by the
Legislature is to provide for financing the acquisition, maintenance, operation, extension or
improvement of any system or part of any system for the collection, treatment and disposal of
sewage and other domestic, commercial and industrial wastes; or any system for the control of
floods and drainage; or any combination thereof, together with extensions, additions, and
necessary appurtenances; and,
Whereas, a municipality is authorized to issue revenue bonds to defray the cost of extensions,
additions and improvements to any utility previously owned and is authorized to pledge the net
income or revenues from the system in accordance with Section 15 of the Act; and,
Whereas, the City of Brookings (the “City”) currently operates a storm sewer system for the
collection, treatment and disposal of sewage and other domestic, commercial and industrial
wastes; and for the control of floods and drainage and has determined that improvements to the
sewer facilities are necessary for the conduct of its governmental programs and qualifies as an
improvement, extension or addition to its sewer system; and,
Whereas, the City has determined to issue its revenue bonds to finance the improvements to its
storm sewer system for the purpose of collecting, treating and disposing of sewage and other
domestic, commercial and industrial wastes (the “System”) and has applied to the South Dakota
Conservancy District (the “District”) for a Clean Water State Revolving Fund Loan to finance the
improvements;
Whereas, the City has adopted rates and charges to be pledged, segregated and used for the
payment of the Revenue Bond.
Now, Therefore Be It Resolved by the City as follows:
SECTION 1. Definitions. The terms when used in this Resolution shall have the following
meanings set forth in this section unless the context clearly requires otherwise. All terms used in
this Resolution which are not defined herein shall have the meanings assigned to them in the
Loan Agreement unless the context clearly otherwise requires.
City of Brookings
June 28, 2011
40
“Act” means South Dakota Codified Laws Chapter 9-40.
“Loan” means the Loan made by the South Dakota Conservancy District to the City pursuant
to the terms of the Loan Agreement and as evidenced by the Revenue Bond.
“Project” means the City of Brookings Pheasant Nest Drainage Improvement Project as outlined
in the facilities plan.
“Revenue Bond” means the revenue bond or bonds issued the date of the Loan Agreement by
the City to the South Dakota Conservancy District to evidence the City’s obligation to repay
the principal of and pay interest and Administrative Expense Surcharge on the Loan.
“System” means the City’s system of collecting, treating and disposing of sewage and other
domestic, commercial and industrial wastes.
SECTION 2. Declaration of Necessity and Findings.
2.1. Declaration of Necessity. The City hereby determines and declares it is necessary to
construct and finance improvements to its System described as the Project.
2.2. Findings. The City does hereby find as follows:
2.2.1. The City hereby expressly finds that if the Project is not undertaken, the System
will pose a health hazard to the City and its inhabitants, and will make the City unable to
comply with state and federal law.
2.2.2. Because of the functional interdependence of the various portions of the System,
the fact that the System may not lawfully operate unless it complies with State and
federal laws, including SDCL Chapter 34A-2, and the federal Clean Water Act, and the
nature of the improvements financed, the City hereby finds and determines that the
Project will substantially benefit the entire System and all of its users within the meaning
of Sections 15 and 17 of the Act.
2.2.3. The City hereby determines and finds that for the purposes of the Act, including,
in particular, Sections 15 and 17 of the Act, that only the net income from the system as
improved, financed by the Revenue Bond, be pledged for its payment.
SECTION 3. Authorization of Loan, Pledge of Revenue and Security.
3.1. Authorization of Loan. The City hereby determines and declares it necessary to finance
up to $483,538 of the costs of the Project through the issuance of bonds payable from net
revenues of the system and other funds secured by the City. The City hereby determines that
because the Revenue Bond is issued in connection with a financing agreement described in SDCL
46A-1-49, pursuant to Section 15 of the Act no election is required to issue the Revenue Bond.
City of Brookings
June 28, 2011
41
3.2. Approval of Loan Agreement. The execution and delivery of the Revenue Obligation Loan
Agreement (the “Loan Agreement”), the form of which is on file with the City Finance Officer
(the “Finance Officer”) and open to public inspection, between the City as Borrower and the
District, are hereby in all respects authorized, approved and confirmed, and the Mayor and
Finance Officer are hereby authorized and directed to execute and deliver the Loan Agreement
in the form and content attached hereto, with such changes as the attorney for the City deems
appropriate and approves, for and on behalf of the City. The Mayor and Finance Officer are
hereby further authorized and directed to implement and perform the covenants and
obligations of the City set forth in or required by the Loan Agreement. The Loan Agreement
herein referred to and made a part of this Resolution is on file in the office of the Finance
Officer and is available for inspection by any interested party.
3.3. Approval of Revenue Bond. The issuance of a revenue bond in a principal amount not to
exceed $483,538 as determined according to the Loan Agreement in the form and content set
forth in Appendix B attached to the form of Loan Agreement (the “Revenue Bond”) shall be
and the same is, in all respects, hereby authorized, approved, and confirmed and the Mayor,
Finance Officer, and other appropriate officials shall be and are hereby authorized and directed
to execute and seal the Revenue Bond and deliver the Revenue Bond to the District, for and on
behalf of the City, upon receipt of the purchase price, and to use the proceeds thereof in the
manner set forth in the Loan Agreement. The Mayor and Finance Officer are hereby
authorized to approve the final terms of the Revenue Bond and their execution and delivery
thereof shall evidence that approval. The Revenue Bond shall be issued under the authority of
SDCL Chapter 9-40 and SDCL Chapter 6-8B, and the provisions of the Act are hereby
expressly incorporated herein as provided in Section 19 of the Act.
3.4. Pledge of Revenues. The Revenue Bond together with the interest thereon, shall not
constitute a charge against the City's general credit or taxing power, but shall be a limited
obligation of the City payable solely out of the Project Debt Service Account, which payments,
revenues and receipts are hereby and in the Loan Agreement pledged and assigned for the
equal and ratable payments of the Revenue Bond and shall be used for no other purpose than
to pay the principal of, interest and Administrative Surcharge on the Revenue Bond, except as
may be otherwise expressly authorized in the Loan Agreement (including the purpose of
securing Additional Bonds issued as permitted by the terms thereof). The City hereby
irrevocably pledges to the South Dakota Conservancy District all income and revenues of the
System, including, without limitation, fees, charges to users of the System, penalties and hook-
up fees, sign-up fees, proceeds of business interruption insurance, proceeds from the sale of
property constituting part of the System and investment income on all such revenues, but only
to the extent that the revenues exceed the amounts necessary to operate and maintain the
System, provided there shall be excluded from this pledge the proceeds of any federal or state
grant or loan, and the investment income therefrom, to the extent such exclusion is a condition
of such grant or loan. The City covenants and agrees to charge rates for all services from the
System or establish charges or rates which will be sufficient to provide for the payments upon
the Revenue Bond issued hereunder as and when the same become due, and as may be
necessary to provide for the operation and maintenance and repairs of the System, and
depreciation, and the Rate Ordinance shall be revised from time to time so as to produce these
amounts. The City hereby reserves the right to determine on a periodic basis the appropriate
City of Brookings
June 28, 2011
42
allocation of operation and maintenance expenses, depreciation, repair and reserves associated
with the facilities financed with the Revenue Bond, provided that such determination of
allocable operation and maintenance expenses shall in no event abrogate, abridge or otherwise
contravene the covenant of the City set forth in this Section 3 or any other covenant or
agreement in the Loan Agreement.
SECTION 4. Rates, Certification, Segregation and Review.
4.1. Rates and collection. There shall be charged rates for each fiscal year which shall ensure
that its Net Revenues Available for Debt Service will equal at least 110% of its System Debt
Service for such fiscal year.
4.2. Certification. In each fiscal year, or as soon as practicable, and in any event by the date of
the delivery of the unaudited financial statements required in the Loan Agreement, the City
shall (a) calculate its Net Revenues Available for Debt Service and System Debt Service for the
fiscal year, and (b) certify such figures to the South Dakota Conservancy District. The
certification described in clause (b) of the preceding sentence shall be substantially in the form
of the certificate attached as Appendix E to the Loan Agreement. If the City fails to meet the
Rate Covenant set forth in Section 6.4 of the Loan Agreement, the City 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.
4.3. Segregation. The Finance Officer shall set up bookkeeping accounts in accordance with
South Dakota Legislative Audit guidelines for the segregation of the revenue.
4.4. Periodic review. The storm sewer rates shall be reviewed from time to time, not less
than yearly, and shall be modified in order to produce such funds as are necessary and required
to comply with the Loan Agreement’s rate covenant and to pay principal of, interest and
Administrative Surcharge on the Revenue Bond when due. The rates may be set by ordinance
or resolution in accordance with this Section. The rate ordinance or resolution shall be
necessary for the support of government and shall be effective upon passage.
SECTION 5. Additional Bonds. As permitted by Sections 8 and 9 of the Act, Additional Bonds
payable from revenues and income of the System may be issued, as permitted in the Loan
Agreement, and no provision of this Resolution shall have the effect of restricting the issuance
of, or impairing the lien of, such additional parity bonds with respect to the net revenues or
income from the extensions, additions or improvements. The City shall have the right to issue
additional bonds secured by a lien subordinate to the lien from the Revenue Bond pursuant to
the Loan Agreement.
SECTION 6. Project Fund Accounts. For the purpose of application and proper allocation of
net income of the System and to secure the payment of principal, Administrative Surcharge and
interest on the Revenue Bond, the following mandatory asset segregations shall be included in
the sewer system account of the City and shall be used solely for the following respective
purposes until payment in full of the principal of and interest on the Revenue Bond:
City of Brookings
June 28, 2011
43
6.1. Project Revenue Account. There shall be deposited periodically into the Project Revenue
Account the net revenues as defined in Section 17 of the Act derived from the operation of the
Project collected pursuant to the Ordinances and resolutions of the City of Brookings, South
Dakota (collectively the “Rate Ordinance”). Moneys from the Project Revenue Account shall
be transferred periodically into separate funds and accounts as provided below.
6.2. Project Debt Service Account. Out of the revenues in the Project Revenue Account,
there shall be set aside no later than the 25th day of each month into the account designated
Project Debt Service Account, a sum sufficient to provide for the payment as the same become
due of the next maturing principal of, interest and Administrative Surcharge on the Revenue
Bonds and any reserve determined by the City’s governing body to be necessary. The amount
set aside monthly shall be not less than one-third of the total principal, interest, and
Administrative Surcharge payable on the following January 15, April 15, July 15, or October 15
and if there shall be any deficiency in the amount previously set aside, then the amount of such
deficiency shall be added to the current requirement.
6.3. Depreciation Account. There shall be established a General Depreciation Account. Out
of the revenues of the Project Revenue Account there shall be set aside each month into the
General Depreciation Account an amount determined by the Common Council to be a proper
and adequate amount for repair and depreciation of the Project.
6.4. Project Surplus Account. There shall be established the Project Surplus Account.
Revenues remaining in the Project Revenue Account at the end of any fiscal year after all
periodic transfers have been made therefrom as above required, shall be deemed to be surplus
and shall be transferred to the Project Surplus Account. If at any time there shall exist any
default in making any periodic transfer to the Project Debt Service Account, the Common
Council shall authorize the City Finance Officer to rectify such default so far as possible by the
transfer of money from the Project Surplus Account. If any such default shall exist as to more
than one account or fund at any time, then such transfer shall be made in the order such funds
and accounts are listed above.
When not required to restore a current deficiency in the Project Debt Service Account,
moneys in the Project Surplus Account from time to time may be used for any of the following
purposes and not otherwise:
a) To redeem and prepay the Revenue Bond when and as such Revenue Bond becomes
prepayable according to its terms;
b) To pay for repairs of or for the construction and installation of improvements or
additions to the System; and, if the balances in the Project Debt Service Account and
the Project Depreciation Account are sufficient to meet all payments required or
reasonably anticipated to be made there from prior to the end of the then current
fiscal year, then:
c) To be held as a reserve for redemption and prepayment of any bonds of the System
which are not then but will later be prepayable according to their terms; or
d) To be used for any other authorized municipal purpose designated by the Common
Council.
City of Brookings
June 28, 2011
44
e) No moneys shall at any time be transferred from the Project Surplus Account or any
other account of the Fund to any other fund of the City, nor shall such moneys at
any time be loaned to other municipal funds or invested in warrants, special
improvements bonds or other obligations payable from other funds, except as
provided in this Section.
SECTION 7. Approval of Paying Agent/Registrar. The Revenue Bond shall be payable at the
office of The First National Bank in Sioux Falls, Sioux Falls, South Dakota, hereby designated as
paying agent and registrar.
SECTION 8. Approval of Bond Counsel. Meierhenry Sargent LLP is hereby retained as Bond
Counsel with respect to the Revenue Bond.
SECTION 9. Tax Matters. The Interest on the Revenue Bond shall be excludable from gross
income for federal income tax purposes under the Internal Revenue Code of 1986, as amended
(“the Code”) and applicable Treasury Regulations (the “Regulations”).
SECTION 10. Covenants. The City hereby covenants and agrees with the District and other
owners of the Revenue Bond as follows:
10.1. The City will punctually perform all duties with reference to the Project, the System and
the Revenue Bond required by the constitution and laws of the State of South Dakota and by
this Resolution.
10.2. The City agrees and covenants that it will promptly construct the improvements included
in the Project.
10.3. The City covenants and agrees that pursuant to Sections 25 through 27 of the Act, the
lawful holders of the Revenue Bond shall have a statutory mortgage lien upon the Project and
the extensions, additions and improvements thereto acquired pursuant to the Act, until the
payment in full of the principal and interest on the Revenue Bond, and the City agrees not to
sell or otherwise dispose of the System, the Project, 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 distribution of water for
municipal, industrial, and domestic purposes within the City.
10.4. The City covenants and agrees with the District and other owners of the Revenue Bond
that it will maintain the System in good condition and operate the same in an efficient manner and
at a reasonable cost, so long as any portion of the Revenue Bond remains outstanding; that it will
maintain insurance on the System for the benefit of the holders of the Revenue Bond in an amount
which usually would be carried by private companies in a similar type of business; that it will
prepare, keep and file records, statements and accounts as provided for in this Resolution and the
Loan Agreement. The Revenue Bond shall refer expressly to this Resolution and the Act and shall
state that it is subject to all provisions and limitations thereof pursuant to Section 19 of the Act.
City of Brookings
June 28, 2011
45
SECTION 11. Depositories. The Finance Officer shall cause all moneys pertaining to the Funds
and Accounts to be deposited as received with one or more banks which are duly qualified
public depositories under the provisions of SDCL Ch. 4-6A, in a deposit account or accounts,
which shall be maintained separate and apart from all other accounts of the City, so long as any
of the Bonds and the interest thereon shall remain unpaid. Any of such moneys not necessary
for immediate use may be deposited with such depository banks in savings or time deposits.
No money shall at any time be withdrawn from such deposit accounts except for the purposes
of the Funds and Accounts as authorized in this Resolution; except that moneys from time to
time on hand in the Funds and Accounts may at any time, in the discretion of the City’s
governing body, be invested in securities permitted by the provisions of SDCL 4-5-6; provided,
however, that the Depreciation Fund 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 Fund or 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 therein.
SECTION 12. Consent to Appointment. In the event of mismanagement of the Project, a
default in the payment of the principal or interest of the Revenue Bond, or in any other
condition thereof materially affecting the lawful holder of the Revenue Bond, or if the revenues
of the Project are dissipated, wasted or diverted from their proper application as set forth in
the Loan Agreement, Revenue Bond, or herein, the City hereby consents to the appointment of
a receiver pursuant to Section 33 of the Act, and agrees that the receiver will have the powers
set forth therein, and in Sections 34 and 35 of the Act to operate and administer the Project,
and charge and collect rates as described therein.
SECTION 13. Severability. If any section, paragraph, clause or provision of this Resolution, the
Loan Agreement, the Revenue Bond, or any other Loan Document shall be held invalid, the
invalidity of such section, paragraph, clause or provision shall not affect any of the other provisions
of this Resolution or said Loan Agreement, Revenue Bond, or any other Loan Document.
SECTION 14. Authorization of City Officials. The Mayor, Finance Officer, City Attorney and
City officials shall be and they are hereby authorized to execute and deliver for and on behalf of
the City any and all other certificates, documents or other papers and to perform such other acts
as they may deem necessary or appropriate in order to implement and carry out the actions
authorized herein.
SECTION 16. Effective Date. This Resolution shall take effect on the 20th day following its
publication, unless suspended by a referendum.
Liquor Application Presentations. Council member Thorpe recused herself from the
discussion due to personal conflict and stepped down from the dias. Presentations were given
by the following applicants: (1) Mike Bailey representing Bailey’s Shamrock, LLC, dba The
Shamrock, Tapper’s Bar & Grill, 1004 22nd Avenue, Owners: Michael Daniel Bailey, Michael
Fred Bailey, Leane Jean Bailey. (2) Garner and Desiree Hansen, Gonz Productions, Inc. dba
Main Street Pub & Grill, 408 Main Avenue, Owner: Garner Hansen. (3) Katie Knutson and Jael
Thorpe, Old Market, LLC, dba Old Market Eatery, 424 5th Avenue, Owners: Katie Knutson and
City of Brookings
June 28, 2011
46
Jael Thorpe. (4) Brennan & Lorraine Sullivan, dba The Brownstone, 313 Main Avenue, Owners:
Brennan and Lorraine Sullivan. No action was taken. The City Council will hold discussion and
possible action at its June 28th meeting.
Executive Session. A motion was made by Corbett, seconded by Thorpe, to enter into
Executive Session at 9:32 p.m. for purposes of consulting with legal counsel on contractual
matters and pricing and marketing with the City Council, City Manager, City Attorney, Al
Heuton and Ryan Brunner, BEDC Representatives and City Clerk present. All present voted
yes; motion carried. A motion was made by Thorpe, seconded by Kubal, to exit Executive
Session at 9:44 p.m. All present voted yes; motion carried.
Resolution No. 76-11. A motion was made by Corbett, seconded by Kubal, to approve
Resolution No. 76-11, a Resolution authorizing the transfer of real property to Brookings
Economic Development Corporation, Inc. for Economic Development Purposes. No public
comment. All present voted yes; motion carried.
Resolution No. 76-11
A Resolution Authorizing the transfer of real property to Brookings Economic Development
Corporation, Inc. for Economic Development Purposes
Be It Resolved by the City Council of the City of Brookings, South Dakota as follows:
Whereas, the Brookings Economic Development Corporation, Inc. desires to:
A. Purchase approximately 10 acres of real property located in the south-west corner of the
Foster Addition to the City of Brookings, South Dakota, for the price of $294,890 Dollars &
zero cents ($29,489) per acre, and
B. Purchase approximately 2 acres of real property located in the south-west corner of
the Foster Addition to the City of Brookings, South Dakota, for the price of $37,048
Dollars & zero cents ($18,524) per acre, and
Whereas, for the express purpose of furthering economic growth and development of the City
of Brookings, South Dakota the Brookings Economic Development Corporation, Inc. agrees to
sell, convey or otherwise transfer said property to a legal entity which is, or will be, conducting
business in the City of Brookings, South Dakota, and
Whereas, it is in the best interests of the City of Brookings that the City provide its economic
development assistance in this matter to aid and assist with the completion of the aforesaid
transaction which will further economic development in the City of Brookings; and
Whereas, the City is authorized to enter into this transaction as an economic development
activity under the laws of the State of South Dakota;
Now Therefore, It Is Hereby Resolved by the City Council of the City of Brookings, South
Dakota, as follows:
City of Brookings
June 28, 2011
47
A. That the City convey title to, and hold, the above-described property to the Brookings
Economic Development Corporation, Inc. for the purposes of furthering economic growth
and development of the City of Brookings, South Dakota; and
B. That the Mayor, City Clerk and City Manager are authorized to execute the required
documents in accordance with this Resolution.
Adjourn. A motion was made by Corbett, seconded by Kubal, to adjourn. All present voted
yes; motion carried. Meeting adjourned at 9:46 p.m.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
City of Brookings
June 28, 2011
48
CONSENT AGENDA #4
C. Action on Volunteer Appointment.
Mayor Tim Reed has recommended the appointment of Matthew Glanzer
to the Park and Recreation Board in the high School Student position; term
expires 5/1/2012. This position is currently vacant.
Park and Recreation Board
Membership: 9
Term: 3 years for 7 members, 1 year for 2 student members
Residency: Not Required
Appointment: May 1st
Department: Park & Recreation
The Board provides advice to the Director of Parks, Recreation and
Forestry to assist in fulfilling the administering of the public park system,
recreation programs and city forestry program. The Board also advises the
City Council and makes recommendations on matters regarding park
capital improvements and planning.
City of Brookings
June 28, 2011
49
CONSENT AGENDA #4
D. Action on Resolution No. 74-11, a Resolution authorizing the City
Manager to sign a 10-year Liquor Operating Agreement for Ray’s
Corner.
The City of Brookings enters into Liquor Operating Agreements for a 10-
year period. The Operating Agreement for Ray’s Corner, located at 401
Main Ave., is at the 10-year renewal point. Resolution No. 74-11, would
allow the City Manager to enter into a 10-year agreement, with a renewal
held at mid-term: five years.
Resolution No. 74-11
Ray’s Corner – 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 Mike Fergen, Ray’s Corner, 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 401 Main Ave., also known as Ray’s Corner.
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.
Passed and approved this 28th day of June 2011.
CITY OF BROOKINGS
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
City of Brookings
June 28, 2011
50
AGREEMENT
Ray’s Corner
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
Ray’s Corner, Mike Fergen, owner, hereinafter referred to as “Manager.”
WITNESSETH;
WHEREAS, the City has been issued an on-sale alcoholic beverage license and is engaged in the
sale of alcoholic beverages, and
WHEREAS, the City desires to enter into an Operating Agreement on a limited basis with the
Manager for the purpose of operating an on-sale establishment or business for and on behalf of
the City pursuant to law, and
WHEREAS, the Manager has offered to have facilities in which to operate said on-sale
establishment solely upon the premises hereinafter described.
NOW, THEREFORE IT IS MUTUALLY AGREED AS FOLLOWS:
I.
This Agreement is made and entered into on a limited basis between the parties hereto allow
the Manager to operate a retail on-sale premises, pursuant to and in accordance with all of the
terms and conditions of this Agreement in accordance with all State laws and City Ordinances
now in effect and as may be enacted in the future.
II.
The Manager shall be individually responsible for all operating expenses of said on-sale
establishment, including but not limited to utilities, taxes, insurance, and license fees, if any.
The Manager shall furnish all equipment and fixtures necessary to operate the establishment.
III.
The on-sale establishment shall be located upon real estate in the City of Brookings, South
Dakota, described as:
East 119' of Lot 1, Block 6, Original Plat, City of Brookings, South Dakota
IV.
The Manager shall dispense only alcoholic beverages supplied by the Municipal off-sale
establishment.
V.
This Agreement shall be in full force and effect for 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.
City of Brookings
June 28, 2011
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VI.
Either the Manager or the City may terminate this Agreement without cause upon ninety (90)
days written notice served by either party upon the other. The City reserves the right to
immediately suspend or revoke this Agreement without ninety (90) days written notice for
alcohol related violations in accordance with the provisions of Resolution No. 25-88 or any
amendments thereto or for any late payments for alcoholic beverages supplied by the Municipal
off-sale establishment to be sold on the premises of Manager.
VII.
The Manager shall receive as full compensation for its services rendered, the net profit from the
on-sale establishment under its management, and the sole profit to be derived by the City shall
be the markup hereinafter set forth on alcoholic beverages furnished by the municipality to the
Manager for the purposes of resale on the premises as above described.
VIII.
The Manager shall pay to the City for all alcoholic beverages sold by the City to the Manager
for resale on the above-described premises, the actual cost of distilled spirits and wine supplied
by the City, plus eleven percent (11%) in excess of such cost; the Manager shall pay to the City
for all malt beverages sold by the City to the Manager for resale on the above-described
premises, the actual cost of malt beverages, plus ten percent t(10%) in excess of such cost. The
actual cost shall include cost price and transportation charges. The markup percentages
provided in this Agreement are subject to change by the City of Brookings. In the event
markup percentages are changed by Ordinance, then the markup percentages provided by City
Ordinance shall supercede the markup percentages provided herein. The Manager further
agrees that if either of the markup percentages shall be increased at any time by the City, the
Manager shall pay the markup as so increased.
IX.
A complete and detailed record shall be maintained by the City of all alcoholic beverages
supplied to the on-sale Manager and such alcoholic beverages so supplied shall be evidenced by
pre-numbered invoices prepared in triplicate showing the date, quality, brand, size, and actual
cost of such item, and such invoice shall bear the signature of the authorized representative of
the on-sale Manager or its authorized representative. One copy thereof shall be retained by
the Municipal off-sale establishment, one copy shall be retained by the on-sale establishment,
and one copy shall be filed with the City Clerk. All copies shall be kept as permanent records
and made available for reference and audit purposes. The Manager also agrees to maintain a
complete record of all alcoholic beverages received from the City.
X.
In consideration of the covenants herein contained, the Manager agrees to pay the CITY OF
BROOKINGS, One Thousand Five Hundred, and no/100 Dollars ($1,500.00), constituting the
Annual License Fee on or by January 1, 2012,and on or by the first day of each year thereafter
as long as this agreement shall remain in force and effect. 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. In addition, the Manager agrees to pay the federal stamp fee.
City of Brookings
June 28, 2011
52
XI.
The Manager agrees to keep the premises in a neat, clean and attractive appearance, and
Manager further agrees to operate said on-sale establishment only on such days and at such
hours as permitted by state law and city ordinances.
XII.
The Manager shall have the right to return, at any time, alcoholic beverages received from the
City and to receive in return any deposit made for such alcoholic beverages; in the event of
termination of the business, all unused alcoholic beverages, which may be resold without
discount may be returned to the City and the Manager shall be reimbursed for the of such
alcoholic beverages.
XIII.
The Manager agrees to abide by the credit policies of the City and acknowledges, by execution
of this Agreement, receipt of a copy of the credit policies of the City. The City reserves the
right to change or terminate its credit policies at any time, but shall be required to provide
written notice to Manager prior to the effective date of the change or termination date of the
credit policies.
XIV.
The Manager agrees to furnish the City upon demand, evidence of payment of the following:
A. All salaries of on-sale employees;
B. Social Security and withholding taxes on said employees;
C. Worker’s Compensation insurance premiums covering said employees;
D. Unemployment taxes on the payrolls of said employees;
E. General liability insurance protecting both the City and the Manager against claims
for injury or damages to persons or property, said policy to have general liability
limits of at least Five Hundred Thousand Dollars ($500,000.00) single limit, and One
Million Dollars ($1,000,000.00) aggregate, and a limitation of Fifty Thousand Dollars
($50,000.00) for damage to property. The general liability insurance limits are
subject to change and Manager agrees to change limits of insurance if required by
the City;
F. Rent and utility bills;
G. Any and all miscellaneous expenses, including taxes.
XV.
The Manager agrees to observe all Federal and State laws and ordinances of the City of
Brookings.
XVI.
The City covenants and agrees to furnish the on-sale license to Manager pursuant to the terms
and conditions of this Operating Agreement and the terms and conditions of the on-sale
license.
City of Brookings
June 28, 2011
53
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-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 28th day of
June, 2011.
CITY OF BROOKINGS, South Dakota
A Municipal Corporation
By:
Jeffrey W. Weldon, City Manager
ATTEST:
Shari Thornes, City Clerk
MANAGER
By:
City of Brookings
June 28, 2011
54
CONSENT AGENDA #4
E. Action to approve a preliminary plat for John and Vicki Folkerts,
Folkerts Addition in the SW ¼ of the SW ¼ of Section 2-T109N-
R50W.
Applicant: John and Vicki Folkerts
Proposal: Create a low-density residential subdivision
Background: This 21.45 acre parcel is bordered by Western Avenue on the west side.
Adjacent land to the north, east, and south is undeveloped. The land is in the Residence
R-1A District. Lot area minimums for this district are 100 foot frontage widths and
15,000 square feet per lot. Lots with individual on-site wastewater systems would need
20,000 square feet or .46 acres.
Specifics: The various elements of this subdivision plan are addressed below:
Street Design – All streets will be classified as local residential streets except for Acadia
Avenue. This road may provide a link between Larkspur Ridge Drive to the north and
Pine Avenue to the south. Therefore, it is recommended that the right-of-way width be
increased to 70 feet. Greene Street has a slight curve on the west end to maintain a
minimum setback from existing structures. However, it is likely the barn may be
removed prior to any adjacent development.
Land Design – The plan follows a standard grid system layout except for the acreage
surrounding the home. Corner lots would not be required to have extra width due to
their proposed size.
Open Space – A small playground park has been proposed on the north side of Greene
Street. There is no mandatory park land dedication ordinance so park land is negotiated
based on the need for open space. A small neighborhood park centrally located in the S½
of the ¼ section may be more beneficial.
Drainage Plan – Surface drainage generally flows to the existing pond shown on the plat.
The pond was not engineered to handle the flows from the subdivision but would be the
primary drainage facility in the drainage plan since it is the lowest area within the
acreage. City Engineer’s Comment: We will not require a drainage plan for the preliminary
plat. When we receive the final plat, we will review the layout and determine the extent
of any required drainage plan.
Recommendation: The Planning Commission voted 5 yes and 0 no to recommend
approval of the Preliminary Plat subject to a 70’ wide right-of-way width for Acadia
Avenue.
City of Brookings
June 28, 2011
55
Planning Commission
Brookings, South Dakota
June 7, 2011
OFFICIAL MINUTES
Chairperson Al Heuton called the regular meeting of the City Planning Commission to order
on June 7, 2011, at 7:00 PM in the Council Chamber at City Hall. Members present were
Wayne Avery, Donna DeKraai, Alan Gregg, John Sydow, and Heuton. Hal Bailey, Mike
Cameron, Greg Fargen, and John Gustafson were absent. Others present were Scott Hodges,
John Folkerts, Beverly Dobbs, Community Development Director Mike Struck, City Engineer
Jackie Lanning, Planning and Zoning Administrator Dan Hanson, and others.
Item #5 – John and Vicki Folkerts have submitted a preliminary plat of Folkerts Addition in the
SW¼ of the SW¼ of Section 2-T109N-R50W.
(Gregg/DeKraai) Motion to approve the preliminary plat
(Gregg/Avery) Amendment to the motion to add “subject to a 70 foot wide right-of-way for
Acadia Avenue”. All present voted aye. AMENDMENT CARRIED.
The motion, as amended, was voted on. All present voted aye. MOTION CARRIED.
SUMMARY OF DISCUSSION
Item #5 – Hanson pointed out several elements of the preliminary plan were addressed in the
staff report. He recommended that Acadia Avenue be widened to 70 feet since it had the
potential for serving as a collector street. The lots had sufficient size to meet the local R-1A
District regulations and state requirements for individual wastewater systems.
Heuton asked if future platting may result in reduced lot areas. Folkerts felt development was
more probable after the land was annexed. This would also provide for a municipal sewer
system which would allow smaller lots.
City of Brookings
June 28, 2011
59
Open Forum
5. 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.
6. SDSU Student Senate Report.
President – Mark York
Vice-President – Anthony Sutton
Administrative Assistant – Brooke Reiner
Finance Chair – Brian Gottlob
State & Local Chair – Jameson Berreth
SDSU Senate Website: http://www.wix.com/sdsu_sa/sa
City of Brookings
June 28, 2011
60
Contract Awards / Change Orders
7. Action on Resolution No. 75-11, a Resolution awarding contract
on City of Brookings Garage Project 2011-02 BLD.
This project entails work for the general construction of a new 73’ x 26’
vehicle storage garage at the new City-County Governmental site. The
garage is located on the City lot on the south side of Front Street between
5th Avenue and 6th Avenue, which is the previous substation site. The new
garage will house vehicles from the Motor Pool, Engineering and
Community Development departments. This project was bid as a lump
sum project and the project includes earthwork, cast in place concrete,
masonry, rough carpentry, gypsum board, thermal insulation, overhead
metal doors, asphalt shingles, floor drains and electrical work. The garage
walls will be a combination of smooth and split-face masonry block and the
structure will be a tan color. The garage will also have heat and floor
drains since it will house the engineering survey equipment.
The bid letting was held on June 21, 2011 and the City received the
following bids:
Clark Drew Construction, Inc., Brookings, SD $102,500.00
Cubb Construction, Inc., Volga, SD $106,925.00
Owens Enterprises, Inc., Brookings, SD $109,000.00
Rupp Inc., Brookings, SD $113,022.00
Mills Construction, Brookings, SD $118,500.00
Oakwood Equity Group, Brookings SD $123,000.00
Houtman Construction, Inc., Brookings, SD $134,000.00
The anticipated cost of this project was over $200,000 in the original bid
package when the garage was included with the City-County Governmental
Building project. The engineering staff designed the garage in-house with
some minor changes. This project did not have an engineer’s estimate;
however, Building Services Administrator Greg Miller estimated the cost of
the project to be approximately $108,000 based on local pricing.
Recommend awarding the contract to Clark Drew Construction Co., Inc.
of Brookings, SD for the low bid of $102,500.00.
City Manager Introduction
Action: Motion to Approve, Request Public Comment, Roll Call
City of Brookings
June 28, 2011
61
Resolution No. 75-11
Resolution Awarding Bids on Project 2011-02BLD
City of Brookings Garage Project
Whereas, the City of Brookings opened bids for Project 2011-02BLD City of Brookings Garage
Project on Tuesday, June 21, 2011 at 1:30 pm at Brookings City Hall; and
Whereas, the City of Brookings has received the following bids for Project
2011-02BLD City of Brookings Garage Project:
Clark Drew Construction, Inc., Brookings, SD $102,500.00
Cubb Construction, Inc., Volga, SD $106,925.00
Owens Enterprises, Inc., Brookings, SD $109,000.00
Rupp Inc., Brookings, SD $113,022.00
Mills Construction, Brookings, SD $118,500.00
Oakwood Equity Group, Brookings SD $123,000.00
Houtman Construction, Inc., Brookings, SD $134,000.00
Now Therefore, Be It Resolved that the low bid of $102,500.00 for Clark Drew Construction, Inc.,
Brookings, SD be accepted.
Passed and approved this 28th day of June 2011.
CITY OF BROOKINGS
________________________________
Tim Reed, Mayor
ATTEST:
_________________________
Shari Thornes, City Clerk
City of Brookings
June 28, 2011
62
Second Readings / Public Hearings
8. Public Hearing and action on Resolution No. 78-11, a Resolution
Determining the Necessity of Repairing or Installing Sidewalks in
the City of Brookings at the Expense of Abutting Property
Owners, 2011-01SWR Sidewalk Repair Project.
This project involves construction of miscellaneous concrete work in the
2011 sidewalk area, including existing sidewalks that are in need of repair
such as spalling concrete or have trip hazards. The 2011 project area is
located east of Medary Avenue between 6th Street and Orchard Drive. This
project has been bid and awarded to Timmons Construction, Inc. as the
contractor. This resolution is the first step in starting the assessment
project for the sidewalk repairs.
The property owners each received a notice of the sidewalk repair in the
fall of 2010 and were given the option of repairing their sidewalk
themselves or with their own contractor by June 1, 2011, or to be added
to the City repair project. The attached list of property owners includes
properties where the sidewalks were not replaced by the deadline as well
as those who volunteered to be on the City project. Each property owner
was mailed a notice of this meeting by receipt certified mail as required.
The contract prices for the project, including the 6% engineering and
administration fee are:
• Remove 4” thick Sidewalk: $1.59/Sq.Ft.
• Install 4” thick Sidewalk: $2.54 Sq.Ft.
• Adjust Curb Stop (if needed): $106.00/Ea.
The City Engineering staff has not received any protests for the sidewalks
on the repair list; however, the public hearing is a required step in the
assessment process. Approval of this resolution will authorize the City to
proceed with the sidewalk assessment project.
City of Brookings
June 28, 2011
63
Resolution No. 78-11
Resolution Determining the Necessity of Repairing or Installing Sidewalks in the
City of Brookings at the Expense of Abutting Property Owners
2011-01SWR Sidewalk Repair Project
Be It Resolved by the City Council of the City of Brookings, South Dakota, as follows:
1. It is hereby determined that sidewalk repairs or installation is necessary abutting the parcels
and lots of land in the City described in the Notice to Property Owners attached to this
Resolution and marked as 2011-01SWR Sidewalk Repair Project.
2. Such sidewalks shall be installed to the width and of the materials prescribed by Chapter 74,
“Streets, Sidewalks and other Public Places” and Article V. “Sidewalks”, and to the grade and in
accordance with the Plans and Specifications prepared in the office of the City Engineer.
3. The City Clerk has caused a copy of the Resolution and a Notice to Property Owners to be
mailed to each property owner by certified mail.
Passed and approved this 28th day of June 2011.
CITY OF BROOKINGS
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
NOTICE TO PROPERTY OWNERS
NOTICE IS HEREBY GIVEN to the owners of the property described in the foregoing
proposed resolution that the City Council will meet in the Council Chambers, City Hall,
Brookings, South Dakota, on Tuesday, June 28, 2011, at 6:00 o’clock PM, for the consideration
of the adoption of said resolution. At said time and place, the City Council will consider any
objections to the proposed resolution by owners of property liable to be assessed for
improvement.
Shari Thornes, City Clerk
City of Brookings
June 28, 2011
64
2011-01 Sidewalk List Updated: 6/13/11
Replacement Project Remove Install
Property Address Property Owner 4" P.C.C. 4" P.C.C.
(Sq.Ft.) (Sq.Ft.)
101 Lincoln Lane Steve Almos 50 50
109 12th Avenue Brash LLC 25 25
110 11th Avenue Dimitrios & Karen Theodosopoulos 125 125
113 Jefferson Avenue Daniel & Marlys Mielke 50 50
127 Jefferson Avenue South Jacqueline Bjerke 25 25
210 Medary Avenue Travis Anderson 25 25
227 22nd Avenue South Three Eagles of Brookings Inc. 100 100
302 Eastern Avenue South Edward Stanley Hruska III 25 25
302 19th Avenue South Kenneth & Debra Tiefenthaler 50 50
303 17th Avenue South Daniel & Victoria Wakeman 25 25
303 19th Avenue South Alden & Teresa Bortnem 75 75
319 20th Avenue Martha Marken (Life Estate) 75 75
321 21st Avenue South Dennis Miller 75 75
324 Dakota Avenue Thomas Manzer 25 25
330 Marian Avenue South Bryon & Valerie Eaton 50 50
337 22nd Avenue South Real Estate Company 1 25 25
402 17th Avenue Dolores Lengkeek 25 25
405 State Avenue Christopher & Erin Bauman 75 75
410 11th Avenue Bruce & Melinda Berdanier 50 50
410 20th Avenue Raymond & Violet Dorn 75 75
413 11th Avenue Vine Street Properties LLC 50 50
420 21st Avenue David & Mary McCaa 75 75
423 15th Avenue Donn & Sharon Hirrschoff 25 25
506 11th Avenue Orrin & Mary Erickson 25 25
1124 5th Street James & Carolyn Wakeman 25 25
1125 5th Street Chalon & Ashley Ragsdale 60 60
1202 3rd Street Sharon & Stephen Palo 75 75
1202 5th Street David Jensen 25 25
1347 5th Street Jay & Kathy Larsen 100 100
1353 5th Street Eileen Bell (FNB Trust - K Osborne) 25 25
1373 5th Street Kristen Salverson 75 75
1407 4th Street Kevin Hoseck 50 50
1808 Lincoln Lane Brett & Ronald Behrends 25 25
1824 Derdall Drive Kathy Dekraai 25 25
1908 Derdall Drive James & Betty Lusk 25 25
1916 Elmwood Drive Darnall Rentals LLC 25 25
1922 State Street Jeremy Feige 25 25
2028 Elmwood Drive John & Ruth Fink 50 50
City of Brookings
June 28, 2011
65
Second Readings / Public Hearings
9. Public hearing and action on an On-Off Sale Malt Transfer for
Carpy’s Pub, Roger and Verla Carpenter, owners, from 700 22nd
Avenue South to 1726/1728/1730 6th Street, Brookings, South
Dakota, Legal: S90’ of Outlot A; Outlot B; except the N90’ of
the W30’ thereof; Outlot C and D, all located in the NW1/4 of
NE1/4, Sec. 25-T110N, R50, West 5th p.m. and Sublot 5 of the
Subdivision of Lot A, Block 1, Bane and Poole Addition.
Roger and Verla Carpenter have applied to transfer their current On-Off
Sale Malt License for Carpy’s Pub from 700 22nd Ave. South to a new
location at 1726/1728/1730 6th Street. This transfer is for location only and
not ownership. Please note this alcohol transfer would also include their
video lottery license. If approved, this license would be effective
immediately and then subject to annual renewal.
A public hearing and City Council action are required for all alcohol related
items including the transfer of an existing business to a new location.
All the required documents have been submitted for this application. Staff
recommends approval.
State Statutes:
SDCL 35-2-1.2 provides all applications for retail licenses ...shall be submitted to the governing board of
the municipality within which the applicant intends to operate...The governing board: "shall have discretion
to approve or disapprove the application depending on whether it deems the applicant a suitable person
to hold such license and whether it considers the proposed location suitable."
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 of Brookings
June 28, 2011
66
City Ordinance:
Chapter 6, Article 2, Section 5-42 of the City Code of Ordinances pertaining to Application Review
Procedure.
Sec. 6-42. - Application review procedure
The city council shall review all applications submitted to the city for available on-sale alcoholic beverage
agreements and for all alcoholic beverage licenses in accordance with SDCL ch. 35-2 (SDCL 35-2-1 et
seq.) and in accordance with the following factors:
(1) Type of business which applicant proposes to operate. On-sale alcoholic beverage operating agreements
and alcoholic beverage 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.
(2) Manner in which the business is operated. On-sale alcoholic beverage operating agreements and
alcoholic beverage licenses may not be issued to establishments which are operated in a manner which
results in minors regularly frequenting the establishment.
(3) Extent to which minors are employed in such a place of business. On-sale alcoholic beverage
operating agreements and alcoholic beverage 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.
(4) Adequacy of the police facilities to properly police the proposed location. The city council shall
inquire of the city manager whether the police department can adequately police the proposed location.
(5) 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 alcoholic beverage
licenses.
(Code 1996, § 5-20)
State law reference— Local license approval, SDCL 35-2-1.2.
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: Motion to Approve, Request Public Comment, Roll Call
City of Brookings
June 28, 2011
67
Other Business
10. Discussion and possible action on Resolution No. 77-11, a
resolution establishing a policy pertaining to on reconsideration
actions.
Enclosed Resolution No. 77-11 would establish a policy that
supplements the current ordinance pertaining to reconsideration
actions. In the event the City Council votes in favor of
reconsideration, this policy would also require tabling final action to
the next regular meeting. This would only be in the event if the
original applicant was unable to attend or is not present at the time
of reconsideration/rescinding.
Resolution No. 77-11
City Council Policy: Reconsideration Actions
A Resolution establishing a policy pertaining to reconsideration actions
Adopted: June 28, 2011
WHEREAS, Brookings City Ordinance, Chapter 1, Article 2, Section 2-32, provides the
following procedure for reconsidering and/or rescinding of actions: “The city council
may elect to reconsider and/or rescind any action taken by the council on the same date
that such action is taken or at the next regularly scheduled city council meeting. A
motion to reconsider or rescind may only be made by a councilmember who voted with
the prevailing side,” and
WHEREAS, there is no statutory procedure for consideration at a later date; and
Now, Therefore, Be It Resolved, in the event the City Council votes to reconsider a
previous action taken, it shall be the policy of the Brookings City Council to table final
action to the next meeting if the original applicant cannot attend or is not present.
Adopted and approved this 28th day of June 2011.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
____________________________
Shari Thornes, City Clerk
City Manager Introduction
Action: Motion to Approve, Request Public Comment, Roll Call
City of Brookings
June 28, 2011
68
Other Business:
11. Action to appoint members to the Business Improvement
District Board.
On May 10, 2011, the City Council adopted enclosed Resolution No. 58-11, establishing
the boundaries for Business Improvement District #1 and enclosed Resolution No. 59-
11, providing the ability to create and appoint Business Improvement District Board
(BID) #1.
A Business Improvement District Board (BID) is responsible to prepare a plan of
improvements for a district and provide improvement recommendations to the City
Council. Appointments to a BID Board of Directors are made by the Mayor with the
advice and consent of the City Council. Members’ terms for each initial Board are
staggered with one position for 3 years, two positions for 2 years and two positions for
1 year.
Pursuant to Resolutions 58 and 59, Mayor Reed has recommended the following
appointment recommendations to the Business Improvement District Number #1
Board of Directors:
1) Lance Park
Hotel Owner, Days Inn
1 year term – expiring 01-01-2012
2) Tom Richter
Swiftel Center Executive Director
1 year term – expiring 01-01-2012
3) Tari Waterman
Hotel Manager: Hampton Inn & Suites, Fairfield Inn, Comfort Inn
2 year term – expiring 01-01-2013
4) Deb Garbers
Convention & Visitors Bureau Director
2 year term – expiring 01-01-2013
5) Bob Johnson
Member-At-Large
3 year term – expiring 01-01-2014
City of Brookings
June 28, 2011
69
Resolution No. 58-11
Resolution Designating Boundaries for Business Improvement District #1
Whereas, the City Council of the City of Brookings, South Dakota considers it appropriate that
a plan be developed for the improvement of public facilities and activities in certain areas of the
municipality, and
Whereas, one method of providing for the plan is the creation of a Business Improvement
District, and
Whereas, the boundaries of a proposed Business Improvement District must be established
before a district can be created, and
Whereas, the method of raising revenue shall be fair and equitable,
Now, Therefore, Be It Resolved by the City Council of the City of Brookings, South Dakota
that:
1. The boundaries of a proposed Business Improvement District #1 are hereby
established as non-contiguous properties to include all hotels/motels with 25 or
more rooms situated within the corporate limits of the city of Brookings.
Passed and approved this 10th day of May, 2011.
City of Brookings, SD
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
City of Brookings
June 28, 2011
70
Resolution No. 59-11
Resolution Establishing Business Improvement District #1 Board
Whereas, the City Council of the City of Brookings, South Dakota considers it appropriate that
a plan be developed for the improvement of public facilities and activities in certain areas of the
municipality, and
Whereas, one method of providing for the plan is the creation of a Business Improvement
District, and
Whereas, a Business Improvement District Board shall make recommendations to the City
Council for the establishment of a plan or plans for improvements within the district, and
Whereas, the method of raising revenue shall be fair and equitable,
Now, Therefore, Be It Resolved by the City Council of the City of Brookings, South Dakota
that:
1. There is hereby created a Business Improvement District Board which shall have the
powers established in SDCL 9-55-5 and 9-55-6. The Board shall be appointed by the
Mayor with the approval of the City Council.
2. The Board shall consist of five (5) members. The term of office shall be three years,
except at time of establishment, in which, two members shall serve for a one year
term, two members for a two year term and one member for a three year term.
Passed and approved this 10th day of May, 2011.
City of Brookings, SD
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
City of Brookings
June 28, 2011
71
Other Business:
12. Executive Session to consult with legal counsel on contractual
matters.
SDCL 1-25-2. Executive or closed meetings.
Executive or closed meetings may be held for the sole purpose of:
1. Discussing the qualifications, competence, performance, character or fitness
of any public officer or employee or prospective public officer or employee.
The term “employee” does not include any independent contractors;
2. Discussing the expulsion, suspension, discipline, assignment of or the
educational program of a student;
3. Consulting with legal counsel or reviewing communications from legal
counsel about proposed or pending litigation or contractual matters;
4. 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.
However, any official action concerning such matters shall be made at an open official
meeting. An executive or closed meeting shall be held only upon a majority vote of the
members of such body present and voting, and discussion during the closed meeting is
restricted to the purpose specified in the closure motion. Nothing in 1-25-1 or this
section may be construed to prevent an executive or closed meeting if the federal or
state Constitution or the federal or state statutes require or permit it. A violation of
this section is a Class 2 misdemeanor.
Action: Motion to enter executive session – voice vote
Motion to leave executive session – voice vote
(Council will relocate to Main Floor meeting room for closed session.)
City of Brookings
June 28, 2011
72
Other Business:
13. Discussion on strategy for awarding Liquor Operating
Agreements.
Having received and reviewed qualifying applications for liquor operating
agreements, it is recommended the City Council undertake a policy
discussion relative to a process by which the City Council would consider
awarding the available operating agreements.
City Manager Introduction
Action: Motion to Approve, Request Public Comment, Roll Call
City of Brookings
June 28, 2011
73
Other Business:
14. Discussion and possible action to award Liquor Operating
Agreements.
As a result of a population increase from the official 2010 Census, the City of Brookings
has three additional liquor operating agreements available to issue. An invitation to
apply was issued on May 3rd with a May 31st application deadline. The following four
applicants presented proposals to the City Council on June 14th.
1) Bailey’s Shamrock, LLC
Dba The Shamrock, Tapper’s Bar & Grill
1004 22nd Avenue
Owners: Michael Daniel Bailey, Michael Fred Bailey, Leane Jean Bailey
2) Gonz Productions, Inc.
Dba Main Street Pub & Grill
408 Main Avenue
Owner: Garner Hansen
3) Old Market, LLC
Dba Old Market Eatery
424 5th Avenue
Owners: Katie Knutson and Jael Thorpe
4) Brennan & Lorraine Sullivan
Dba – The Brownstone
313 Main Avenue
Owners: Brennan and Lorraine Sullivan
Pursuant to the adopted enclosed schedule, the City Council plans to discuss the
applications and may to choose to award one or more of the agreements at this time.
If the Council chooses to take action at this meeting, adoption of the enclosed
resolution will be needed to authorize the city manager to sign the standard ten year
on-sale liquor operating agreement.
City Manager Introduction
Action: Motion to Approve, Request Public Comment, Roll Call
City of Brookings
June 28, 2011
74
City of Brookings
Liquor Operating Agreement
Application Process Schedule
Adopted 4/26/11 (by consensus)
Feb 22nd City Council initial discussion regarding issue
March 8th City Council Meeting (WORK SESSION)
• Draft Process & Schedule
March 22nd City Council Meeting
• One-time license fee *
• Application fee increase from $25 to $100*
• Video Lottery ordinance revisions*
March 25th Resolutions Published
Res. 35-11: A Resolution increasing the Application Fee for new Liquor Operating Agreements
Res. 38-11: Resolution Establishing the License Fee for the Issuance of Operating Agreements in the City of
Brookings
April 5th City Council Meeting
• 1st reading – video lottery ordinance
April 7th City Council Special Planning Retreat
• Operating Agreement revisions*
• Liquor Policy revisions *
• Applicant Criteria *
• Transfer Fee Discussion – clarification on fee
o Types: Location, New Owner(s), Change in Corporate Structure,
Change in family ownership
• Finalize Process, Schedule & Application Packet
* items must be finalized for inclusion in application packet
April 14th Effective Date for Resolutions No 35 & 38
April 26th City Council Meeting
• 2nd reading – video lottery ordinance – amended and approved
• Action on operating agreement revisions – no change *
• Action on liquor related policies – no change *
• Applicant Criteria - no change *
• Transfer Fee Discussion – clarification on fee – Not discussed
o Types: Location, New Owner(s), Change in Corporate Structure,
Change in family ownership
• Finalize Process, Schedule & Application Packet – Approved
* items must be finalized for inclusion in application packet
April 29th Video Lottery Ordinance Published
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June 28, 2011
75
May 3rd Notifications
• Press release on availability of agreements issued to media
• Legal notice on availability of agreements sent to the newspaper
May 5th Publish Legal Notice on Availability
May 19th Video Lottery Ordinance Effective Date
May 24th City Council Meeting – Clarification on Transfer Fee Amount
May 31st Deadline for submission of complete applications and supporting materials
June 6th Publish Legal Notice regarding the Council public hearings
June 14th Action Meeting – City Council – presentations – no action
June 28th Action Meeting – City Council – for presentations (if needed) or action **
July 12th Action Meeting - Action to award agreement(s) (if needed) **
** Not official until final approval from State Department of Revenue
City of Brookings
June 28, 2011
76
Resolution No. _____-11
__________– 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 _______ (owner),
_____________(business) , 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 _______
(address), also known as ___________ (business name).
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.
Passed and approved this 28th day of June 2011.
CITY OF BROOKINGS
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
City of Brookings
June 28, 2011
77
Liquor Operating Agreement
_________ (business name)
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
_______ (owner), _____________(business) , hereinafter referred to as “Manager.”
WITNESSETH;
WHEREAS, the City has been issued an on-sale alcoholic beverage license and is engaged in the
sale of alcoholic beverages, and
WHEREAS, the City desires to enter into an Operating Agreement on a limited basis with the
Manager for the purpose of operating an on-sale establishment or business for and on behalf of
the City pursuant to law, and
WHEREAS, the Manager has offered to have facilities in which to operate said on-sale
establishment solely upon the premises hereinafter described.
NOW, THEREFORE IT IS MUTUALLY AGREED AS FOLLOWS:
I.
This Agreement is made and entered into on a limited basis between the parties hereto allow
the Manager to operate a retail on-sale premises, pursuant to and in accordance with all of the
terms and conditions of this Agreement in accordance with all State laws and City Ordinances
now in effect and as may be enacted in the future.
II.
The Manager shall be individually responsible for all operating expenses of said on-sale
establishment, including but not limited to utilities, taxes, insurance, and license fees, if any.
The Manager shall furnish all equipment and fixtures necessary to operate the establishment.
III.
The on-sale establishment shall be located upon real estate in the City of Brookings, South
Dakota, described as:
________________________ (legal description), City of Brookings, South Dakota
IV.
The Manager shall dispense only alcoholic beverages supplied by the Municipal off-sale
establishment.
V.
This Agreement shall be in full force and effect for 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.
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June 28, 2011
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VI.
Either the Manager or the City may terminate this Agreement without cause upon ninety (90)
days written notice served by either party upon the other. The City reserves the right to
immediately suspend or revoke this Agreement without ninety (90) days written notice for
alcohol related violations in accordance with the provisions of Resolution No. 25-88 or any
amendments thereto or for any late payments for alcoholic beverages supplied by the Municipal
off-sale establishment to be sold on the premises of Manager.
VII.
The Manager shall receive as full compensation for its services rendered, the net profit from the
on-sale establishment under its management, and the sole profit to be derived by the City shall
be the markup hereinafter set forth on alcoholic beverages furnished by the municipality to the
Manager for the purposes of resale on the premises as above described.
VIII.
The Manager shall pay to the City for all alcoholic beverages sold by the City to the Manager
for resale on the above-described premises, the actual cost of distilled spirits and wine supplied
by the City, plus eleven percent (11%) in excess of such cost; the Manager shall pay to the City
for all malt beverages sold by the City to the Manager for resale on the above-described
premises, the actual cost of malt beverages, plus ten percent t(10%) in excess of such cost. The
actual cost shall include cost price and transportation charges. The markup percentages
provided in this Agreement are subject to change by the City of Brookings. In the event
markup percentages are changed by Ordinance, then the markup percentages provided by City
Ordinance shall supercede the markup percentages provided herein. The Manager further
agrees that if either of the markup percentages shall be increased at any time by the City, the
Manager shall pay the markup as so increased.
IX.
A complete and detailed record shall be maintained by the City of all alcoholic beverages
supplied to the on-sale Manager and such alcoholic beverages so supplied shall be evidenced by
pre-numbered invoices prepared in triplicate showing the date, quality, brand, size, and actual
cost of such item, and such invoice shall bear the signature of the authorized representative of
the on-sale Manager or its authorized representative. One copy thereof shall be retained by
the Municipal off-sale establishment, one copy shall be retained by the on-sale establishment,
and one copy shall be filed with the City Clerk. All copies shall be kept as permanent records
and made available for reference and audit purposes. The Manager also agrees to maintain a
complete record of all alcoholic beverages received from the City.
X.
In consideration of the covenants herein contained, the Manager agrees to pay the CITY OF
BROOKINGS, One Thousand Five Hundred, and no/100 Dollars ($1,500.00), constituting the
Annual License Fee on or by January 1, 2012, and on or by the first day of each year thereafter
as long as this agreement shall remain in force and effect. 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. In addition, the Manager agrees to pay the federal stamp fee.
City of Brookings
June 28, 2011
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XI.
The Manager agrees to keep the premises in a neat, clean and attractive appearance, and
Manager further agrees to operate said on-sale establishment only on such days and at such
hours as permitted by state law and city ordinances.
XII.
The Manager shall have the right to return, at any time, alcoholic beverages received from the
City and to receive in return any deposit made for such alcoholic beverages; in the event of
termination of the business, all unused alcoholic beverages, which may be resold without
discount may be returned to the City and the Manager shall be reimbursed for the of such
alcoholic beverages.
XIII.
The Manager agrees to abide by the credit policies of the City and acknowledges, by execution
of this Agreement, receipt of a copy of the credit policies of the City. The City reserves the
right to change or terminate its credit policies at any time, but shall be required to provide
written notice to Manager prior to the effective date of the change or termination date of the
credit policies.
XIV.
The Manager agrees to furnish the City upon demand, evidence of payment of the following:
A. All salaries of on-sale employees;
B. Social Security and withholding taxes on said employees;
C. Worker’s Compensation insurance premiums covering said employees;
D. Unemployment taxes on the payrolls of said employees;
E. General liability insurance protecting both the City and the Manager against claims
for injury or damages to persons or property, said policy to have general liability
limits of at least Five Hundred Thousand Dollars ($500,000.00) single limit, and One
Million Dollars ($1,000,000.00) aggregate, and a limitation of Fifty Thousand Dollars
($50,000.00) for damage to property. The general liability insurance limits are
subject to change and Manager agrees to change limits of insurance if required by
the City;
F. Rent and utility bills;
G. Any and all miscellaneous expenses, including taxes.
XV.
The Manager agrees to observe all Federal and State laws and ordinances of the City of
Brookings.
XVI.
The City covenants and agrees to furnish the on-sale license to Manager pursuant to the terms
and conditions of this Operating Agreement and the terms and conditions of the on-sale
license.
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June 28, 2011
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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-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 28th day of
June, 2011.
CITY OF BROOKINGS, South Dakota
A Municipal Corporation
By:
Jeffrey W. Weldon, City Manager
ATTEST:
Shari Thornes, City Clerk
MANAGER
By:
City of Brookings
June 28, 2011
81
15. Adjourn