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Home My WebLink About2011_08_09 CC PKT Brookings City Council Tuesday, August 9, 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. 4:30 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. Proposed 2012 Budget 2. City Council Member Ex-Officio Reports. 3. Joint Powers Board members’ Report. 4. City Council member introduction of topics for future discussion. 5. 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 stating 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 Resolution No. 90-11, a Resolution authorizing the City Manager to sign a midterm renewal / WINE operating agreement for BraVo’s, 610 Medary Avenue. D. Action on an Amendment to a Transfer of Real Property to Brookings Economic Development Corporation, Inc. for Economic Development Purposes. E. Action on Resolution No. 91-11, a Resolution authorizing a change order on building materials for the Forestry Dept. Pole Building Materials. F. Action on Resolution No. 93-11, a Resolution rejecting bids on the Bob Shelden Restroom/Concession Building Project. 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. City of Brookings August 9, 2011 Open Forum/Presentations/Reports 5. Open Forum. 6. SDSU Student Senate Report. Contract Awards / Change Orders 7. Action on Resolution No. 96-11, a Resolution authorizing change orders for the Joint City/County Government Center. Action: Motion to Approve, Request Public Comment, Roll Call 8. Action on Resolution No. 92-11, a Resolution awarding the contract for the purchase of an Animal Control Pickup. Action: Motion to Approve, Request Public Comment, Roll Call 9. Action on Resolution No. 95-11, a Resolution awarding the contract for the Airport Building Addition Project, 2011-03 BLD. Action: Motion to Approve, Request Public Comment, Roll Call Second Readings / Public Hearings 10. Ordinance No. 13-11: An ordinance rezoning the west 1,115 feet of the east 1,338 feet of the north 1,409 feet, excluding Lot C, Christie Addition and Outlots A, 1A, B, and 1B thereof; and the west 1,085 feet of the east 1,342 feet of the south 193 feet of the north 1,608 feet all in the NW¼ of Section 2-T109N-R50W from an A Agricultural District to a Residence R-3 District (20th Street South and Main Avenue South area). Action: Open & Close Public Hearing, Motion to Approve, Roll Call 11. Public hearing and action on Resolution No. 97-11, a Resolution amending the Vision 2020 Comprehensive Plan, pertaining to the Future Land Use Plan. Action: Open & Close Public Hearing, Motion to Approve, Roll Call 12. Action on a Video Lottery application for Gas ‘N Mor, 606 6th St., Brookings Developers, Inc. o ACTION: Motion to remove from the table – Roll Call o ACTION on the following May 24th Motion removed from the table: “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.” o Public Comment, Roll Call 13. Discussion regarding Restaurant Liquor License Fees. Action: Informational 14. Discussion and possible action on Resolution No. 94-11, a Resolution authorizing the City Manager to sign an On-Sale Liquor Operating Agreement with James Gardner, Brookings Steakhouse LLC (applied for), dba Whiskey Creek Steakhouse, SE corner of Block 1, Wiese Addition (corner of Highway 14 and 32nd Avenue). Action: Open & Close Public Hearing, Motion to Approve, Roll Call 15. Adjourn. City of Brookings August 9, 2011 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. 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 August 9, 2011 1 4:30 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. Proposed 2012 Budget TO: Mayor and City Council Members FROM: City Manager Jeff Weldon RE: Budget hearings We are scheduled to hold our council workshops pertaining to the 2012 budget on August 9th and August 23rd. We will hold the August 9th workshop from 4:30 p.m. until 6:00 p.m. You have the budget either in disk form or hardcopy. Please remember to bring your budget books with you to both meetings. For the August 9th meeting, we will focus on the departmental operating budgets and minor capital items. If time permits, we can start the preliminary discussion about some of the major capital expenditures of the Public Improvement Fund (75% second penny). For the August 23rd meeting, we will focus more specifically on the proposed capital expenditures of the Public Improvement Fund and focus almost exclusively on these items. Staff needs some specific policy direction from the Council on major capital expenditures before we consider budget adoption and this is the format with which to address these issues. The first and second reading of the budget adoption ordinance will be held during the September 13th and September 27th meetings respectively. If you have any questions before or between meetings about the budget, feel free to contact Finance Director Rita Thompson or myself. The proposed 2012 City of Brookings Budget 5-Year Capital Improvement Plan are available on the front page of the City’s website: www.cityofbrookings.org City of Brookings August 9, 2011 2 4:30 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. 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 August 9, 2011 3 4:30 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. 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 August 9, 2011 4 4:30 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. 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 August 9, 2011 5 4:30 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. Council Invites & Obligations. Date Day Event & Brief Description Time Location / Town / Address / Directions August 18 Thursday Campus / Community Forum 5:00 P.M. TBD August 23 Tuesday Council Meeting 5:00 p.m. Council Chambers 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 14 Friday City of Brookings Employee Recognition Event 6:00 p.m. Swiftel Center 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 8 Thursday Mayor’s Holiday Party 5:00 p.m. – 7:00 p.m. Swiftel Center December 13 Tuesday Council Meeting 5:00 p.m. Council Chambers December 20 Tuesday Council Meeting 5:00 p.m. Council Chambers 6 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 Resolution No. 90-11, a Resolution authorizing the City Manager to sign a midterm renewal / WINE operating agreement for BraVo’s, 610 Medary Ave. D. Action on an Amendment to a Transfer of Real Property to Brookings Economic Development Corporation, Inc. for Economic Development Purposes. E. Action on Resolution No. 91-11, a Resolution authorizing a change order on building materials for the Forestry Dept. Pole Building Materials. F. Action on Resolution No. 93-11, a Resolution rejecting bids on the Bob Shelden Restroom/Concession Building Project. Open Forum/Presentations/Reports 5. Open Forum. 6. SDSU Student Senate Report. Contract Awards / Change Orders 7. Action on Resolution No. 96-11, a Resolution authorizing change orders for the Joint City/County Government Center. Action: Motion to Approve, Request Public Comment, Roll Call 8. Action on Resolution No. 92-11, a Resolution awarding the contract for the purchase of an Animal Control Pickup. Action: Motion to Approve, Request Public Comment, Roll Call 9. Action on Resolution No. 95-11, a Resolution awarding the contract for the Airport Building Addition Project, 2011-03 BLD. Action: Motion to Approve, Request Public Comment, Roll Call Second Readings / Public Hearings 10. Ordinance No. 13-11: An ordinance rezoning the west 1,115 feet of the east 1,338 feet of the north 1,409 feet, excluding Lot C, Christie Addition and Outlots A, 1A, B, and 1B thereof; and the west 1,085 feet of the east 1,342 feet of the south 193 feet of the north 1,608 feet all in the NW¼ of Section 2-T109N-R50W from an A Agricultural District to a Residence R-3 District (20th Street South and Main Avenue South area). Action: Open & Close Public Hearing, Motion to Approve, Roll Call 11. Public hearing and action on Resolution No. 97-11, a Resolution amending the Vision 2020 Comprehensive Plan, pertaining to the Future Land Use Plan. Action: Open & Close Public Hearing, Motion to Approve, Roll Call 12. Action on a Video Lottery application for Gas ‘N Mor, 606 6th St., Brookings Developers, Inc. o ACTION: Motion to remove from the table – Roll Call o ACTION on the following May 24th Motion removed from the table: “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.” o Public Comment, Roll Call 13. Discussion regarding Restaurant Liquor License Fees. Action: Informational 14. Discussion and possible action on Resolution No. 94-11, a Resolution authorizing the City Manager to sign an On-Sale Liquor Operating Agreement with James Gardner, Brookings Steakhouse LLC (applied for), dba Whiskey Creek Steakhouse, SE corner of Block 1, Wiese Addition (corner of Highway 14 and 32nd Avenue). Action: Open & Close Public Hearing, Motion to Approve, Roll Call 15. Adjourn. City of Brookings August 9, 2011 7 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 Resolution No. 90-11, a Resolution authorizing the City Manager to sign a midterm renewal / WINE operating agreement for Bravo’s, 610 Medary Avenue. D. Action on an Amendment to a Transfer of Real Property to Brookings Economic Development Corporation, Inc. for Economic Development Purposes. E. Action on Resolution No. 91-11, a Resolution authorizing a change order on building materials for the Forestry Dept. Pole Building Materials. F. Action on Resolution No. 93-11, a Resolution rejecting bids on the Bob Shelden Restroom/Concession Building Project. *Matters appearing on the Consent Agenda are expected to be non-controversial and will be acted upon by the Council at one time, without discussion, unless a member of the Council or City Manager requests an opportunity to address any given item. Items removed from the Consent Agenda will be discussed at the beginning of the formal items. Approval by the Council of the Consent Agenda items means that the recommendation of the City Manager is approved along with the terms and conditions described in the agenda supporting documentation. ACTION: Motion to Approve, Request Public Comment, Roll Call City of Brookings August 9, 2011 8 CONSENT AGENDA #4 B. Action to approve City Council Minutes. The draft July 26th Brookings City Council minutes are enclosed for Council review and approval. City of Brookings August 9, 2011 9 Brookings City Council July 26, 2011 (unapproved) The Brookings City Council held a meeting on Tuesday, July 26, 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 and City Clerk Shari Thornes were also present. City Attorney Steve Britzman was absent. Gateway Project Update. Mike Struck, Community Development Director, updated the council on project designs and a 5-year budget estimate for the Gateway Project. Brookings Health Systems Financial Report. Brookings Health Systems representatives updated the council with a financial report and current and pending issues. Future Discussion Topics. Kubal requested the tabled action on the Gas N’ Mor video lottery license be scheduled for the August 9th meeting. REGULAR MEETING. Consent Agenda. A motion was made by Kubal, seconded by Thorpe, to approve the consent agenda: A. Action to approve the agenda. B. Action to approve the July 12th Council minutes. C. Action to approve a preliminary plat of a portion of the Christie Springs Addition in the NE¼ of the NW¼ of Section 2-T109N-R50W. D. Action to appoint the following volunteers to the City Sustainability Council: 1- year terms - Ryan Carda, Laura Hennen and Norma Nusz Chandler (terms expire 1/1/2013); 2-year terms – Justin Fjeldos, Donna Hess, and Arika Sanders (terms expire 1/1/2014); 3-year terms – Jane Hegland, Brooke Charity Sydow and Robert B. McGrath (terms expire 1/1/2015). E. Action on Resolution No. 84-11, concurring in the Placement of Stop Signs at Yorktown Drive and Westminster Drive at their Intersections with Christine Avenue. Resolution No. 84-11 - Concurring in the Placement of Stop Signs at Yorktown Drive and Westminster Drive at their Intersections with Christine Avenue Whereas, Section 82-373 of the Revised Ordinance of the City of Brookings, provides for approval by the City Council for placement of stop signs in locations other than along through streets. Now, Therefore, Be It Resolved that the City Council concurs in the recommendation of the Traffic Safety Committee and the City Manager and approves the placement of stop signs at Yorktown Drive and Westminster Drive at their intersections with Christine Avenue. On the motion, all present voted yes; motion carried. Resolution No. 85-11. A motion was made by Thorpe, seconded by Corbett, to approve Resolution No. 85-11, a Resolution Rejecting Bids for 2011-05SSI Pheasant Nest Detention Pond Project. Discussion: McClemans suggested a redesign of the property and review of other options. All present voted yes; motion carried. City of Brookings August 9, 2011 10 Resolution No. 85-11 - Resolution Rejecting Bids for 2011-05SSI Pheasant Nest Detention Pond Project Whereas, the City of Brookings opened bids for 2011-05SSI Pheasant Nest Detention Pond Project on Tuesday, July 19, 2011 at 1:30 pm at Brookings City Hall; and Whereas, the City of Brookings has received the following bids for 2011-05SSI Pheasant Nest Detention Pond Project: Rounds Construction Company, Inc., Brookings, SD $459,345.80. Whereas, the Opinion of Probable Cost from Banner Associates for this project was $237,397.00; and Now Therefore, Be It Resolved that the low bid of Rounds Construction Company, Inc, of Brookings, SD for the bid of $459,345.80 be rejected. First Reading – Ordinance No. 13-11. A first reading was held on Ordinance No. 13-11: An ordinance rezoning the west 1,115 feet of the east 1,338 feet of the north 1,409 feet, excluding Lot C, Christie Addition and Outlots A, 1A, B, and 1B thereof; and the west 1,085 feet of the east 1,342 feet of the south 193 feet of the north 1,608 feet all in the NW¼ of Section 2-T109N- R50W from an A Agricultural District to a Residence R-3 District (20th Street South and Main Avenue South area). Public Hearing: August 9, 2011. On-Off Sale Malt License LOCATION Transfer. A public hearing was held on a request to transfer an On-Off Sale Malt Beverage Alcohol License for Carpy’s Pub, Roger and Verla Carpenter, owners, from 720 22nd Avenue South to 714 22nd Avenue South, Brookings, South Dakota, (Legal Description: The east 77 ½’ of the west 145’ and the north 32’ 9” of the south 655’ of Lot 2, Brookings Mall Addition). No public comment. A motion was made by McClemans, seconded by Bezdichek, to approve. All present voted yes; motion carried. Temporary On-Sale Malt & Wine Application. A public hearing was held on a Temporary On-Sale Malt and On-Sale Wine Application for Downtown Brookings Inc. for the Taste of Brookings event on August 13th. No public comment. A motion was made by Kubal, seconded by Thorpe, to approve. Discussion: Corbett expressed concern about DBI competing with existing downtown businesses. All present voted yes; motion carried. Resolution No. 86-11. Thorpe recused herself and left the dias. A motion was made by Reed, seconded by Kubal, to approve Resolution No. 86-11, authorizing the City Manager to enter into a Liquor Operating Agreement with Michael D. Bailey, Bailey’s Shamrock, LLC (dba The Shamrock & Tappers Bar & Grill), expiring in one year. No public comment. All present voted yes; motion carried. Resolution No. 86-11 - Bailey’s Shamrock, LLC (dba The Shamrock & Tappers Bar & Grill) – 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 Michael D. Bailey, owner, Bailey’s Shamrock, LLC (dba The Shamrock & Tappers Bar & Grill), for the purpose of a liquor manager to operate the On-Sale Establishment or City of Brookings August 9, 2011 11 business for and on behalf of the City of Brookings at 1104 22nd Ave. South, also known as The Shamrock & Tappers Bar & Grill. 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 one year. LIQUOR OPERATING AGREEMENT Bailey’s Shamrock, LLC (dba The Shamrock & Tappers Bar & Grill) 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 Michael D. Bailey (dba The Shamrock & Tappers Bar & Grill), owner, hereinafter referred to as the “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: 1. This Agreement is made and entered into on a limited basis between the parties hereto to allow the Manager to operate a retail on-sale premises, pursuant to and in accordance with all of the terms and conditions of this Agreement in accordance with all State laws and City Ordinances now in effect and as may be enacted in the future. 2. The Manager shall be individually responsible for all operating expenses of said on-sale establishment, including but not limited to utilities, taxes, insurance and license fees, if any. The Manager shall furnish all equipment and fixtures necessary to operate the establishment. 3. The on-sale establishment shall be located upon real estate in the City of Brookings, South Dakota, described as: Block 1, Hyland Addition, City of Brookings, Brookings County, South Dakota 4. The Manager shall dispense only alcoholic beverages supplied by the Municipal off-sale establishment. City of Brookings August 9, 2011 12 5. This Agreement shall be in full force and effect for a period of one (1) year. This Agreement is not subject to an extension, and therefore terminates at the expiration of one (1) year from the date the Manager first sells alcoholic beverages pursuant to this Operating Agreement. 6. Either the Manager or the City may terminate this Agreement without cause upon ninety (90) days written notice served by either party upon the other. The City reserves the right to immediately suspend or revoke this Agreement without ninety (90) days written notice for alcohol related violations in accordance with the provisions of Resolution No. 25-88 or any amendments thereto or for any late payments for alcoholic beverages supplied by the Municipal off-sale establishment to be sold on the premises of Manager. 7. The Manager shall receive as full compensation for its services rendered, the net profit from the on-sale establishment under its management, and the sole profit to be derived by the City shall be the markup hereinafter set forth on alcoholic beverages furnished by the municipality to the Manager for the purposes of resale on the premises as above described. 8. The Manager shall pay to the City for all alcoholic beverages sold by the City to the Manager for resale on the above-described premises, the actual cost of distilled spirits and wine supplied by the City, plus eleven percent (11%) in excess of such cost; the Manager shall pay to the City for all malt beverages sold by the City to the Manager for resale on the above-described premises, the actual cost of malt beverages, plus ten percent (10%) in excess of such cost. The actual cost shall include cost price 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. 9. A complete and detailed record shall be maintained by the City of all alcoholic beverages supplied to the on-sale Manager and such alcoholic beverages so supplied shall be evidenced by pre-numbered invoices prepared in triplicate showing the date, quantity, brand, size and actual cost of such item, and such invoice shall bear the signature of the authorized representative of the on-sale Manager or its authorized representative. One copy thereof shall be retained by the Municipal off-sale establishment, one copy shall be retained by the on-sale establishment, and one copy shall be filed with the City Clerk. All copies shall be kept as permanent records and made available for reference and audit purposes. The Manager also agrees to maintain a complete record of all alcoholic beverages received from the City. 10. The Manager agrees to pay the CITY OF BROOKINGS an Operating Agreement Fee of Twenty-five Thousand and no/100 Dollars ($25,000.00) at or prior to the execution of this Agreement. The Manager shall be reimbursed by the City the sum of Twenty-two Thousand Five Hundred and no/100 Dollars ($22,500.00) if this Agreement is not extended beyond a term of one (1) year, however this provision does not create any obligation of the City to extend this Operating Agreement beyond its term of one (1) year. City of Brookings August 9, 2011 13 The Manager agrees to pay the CITY OF BROOKINGS, an Annual Renewal License Fee of One Thousand Five Hundred and no/100 Dollars ($1,500.00), which is due on or by January 1, 2012. The payment of the Annual Renewal License Fee will not extend the term of this Operating Agreement beyond the term provided herein. 11. The Manager agrees to keep the premises in a neat, clean and attractive appearance, and Manager further agrees to operate said on-sale establishment only on such days and at such hours as permitted by state law and city ordinances. 12. The Manager shall have the right to return, at any time, alcoholic beverages received from the City and to receive in return any deposit made for such alcoholic beverages; in the event of termination of the business, all unused alcoholic beverages, which may be resold without discount may be returned to the City and the Manager shall be reimbursed for the cost of such alcoholic beverages. 13. The Manager agrees to abide by the credit policies of the City and acknowledges, by execution of this Agreement, receipt of a copy of the credit policies of the City. The City reserves the right to change or terminate its credit policies at any time, but shall be required to provide written notice to Manager prior to the effective date of the change or termination date of the credit policies. 14. The Manager agrees to furnish the City upon demand, evidence of payment of the following: A. All salaries of on-sale employees; B. Social Security and withholding taxes on said employees; C. Worker’s Compensation insurance premiums covering said employees; D. Unemployment taxes on the payrolls of said employees; E. General liability insurance protecting both the City and Manager against claims for injury or damages to persons or property, said policy to have general liability limits 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; and H. The Federal stamp fee. 15. The Manager agrees to observe all Federal and State laws and all ordinances of the City of Brookings. 16. The City covenants and agrees to furnish the on-sale license to Manager pursuant to the terms and conditions of this Operating Agreement and the terms and conditions of the on-sale license. 17. The City has the right to make inspections and investigations of the premises during the hours of operation, and make audits and examinations of the records of the Manager relating to the on-sale establishment. 18. It is further specifically understood and agreed that the waiver of the rights of the City under this Agreement shall not constitute a continuous waiver, and any violation or breach of the terms City of Brookings August 9, 2011 14 of this agreement by the Manager shall constitute a separate and distinct offense and grounds for immediate termination and revocation of this Agreement. 19. This agreement shall not be assignable to another person or location without the written consent of the City. IN WITNESS WHEREOF, the parties hereto have executed this agreement this 26th day of July, 2011. Discussion: McClemans asked if applicants would be required to wait a year to reapply. Weldon did not think there would be a requirement to wait a year to reapply. It was clarified the one-year agreement commences from the time a business opens and the first drink is poured. Bezdichek asked if the city could require the existing operating agreement holders to pay the $25,000 fee now. Weldon noted that the other 15 businesses are in contractual agreements, but there may be an opportunity at time of renewal. Resolution No. 87-11. A motion was made by Reed, seconded by Kubal, to approve Resolution No. 87-11, authorizing the City Manager to enter into a Liquor Operating Agreement with Brennan and Lori Sullivan, The Brownstone Restaurant & Bar, at 313 Main Ave., expiring in one year. No public comment. All present voted yes; motion carried. Resolution No. 87-11 - The Brownstone Restaurant & Bar – 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 Brennan and Lori Sullivan, owners, The Brownstone Restaurant & Bar, 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 313 Main Ave., also known as The Brownstone Restaurant & Bar. 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 one year. LIQUOR OPERATING AGREEMENT Brennan and Lori Sullivan (dba The Brownstone Restaurant & Bar) 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 Brennan and Lori Sullivan (dba The Brownstone Restaurant & Bar), owners, hereinafter referred to as the “Manager”. WITNESSETH: WHEREAS, the City has been issued an on-sale alcoholic beverage license and is engaged in the sale of alcoholic beverages, and City of Brookings August 9, 2011 15 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: 1. This Agreement is made and entered into on a limited basis between the parties hereto to allow the Manager to operate a retail on-sale premises, pursuant to and in accordance with all of the terms and conditions of this Agreement in accordance with all State laws and City Ordinances now in effect and as may be enacted in the future. 2. The Manager shall be individually responsible for all operating expenses of said on-sale establishment, including but not limited to utilities, taxes, insurance and license fees, if any. The Manager shall furnish all equipment and fixtures necessary to operate the establishment. 3. The on-sale establishment shall be located upon real estate in the City of Brookings, South Dakota, described as: Lot 7, Block, 3, Original Plat Addition, City of Brookings, Brookings County, South Dakota. 4. The Manager shall dispense only alcoholic beverages supplied by the Municipal off-sale establishment. 5. This Agreement shall be in full force and effect for a period of one (1) year. This Agreement is not subject to an extension, and therefore terminates at the expiration of one (1) year from the date the Manager first sells alcoholic beverages pursuant to this Operating Agreement. 6. Either the Manager or the City may terminate this Agreement without cause upon ninety (90) days written notice served by either party upon the other. The City reserves the right to immediately suspend or revoke this Agreement without ninety (90) days written notice for alcohol related violations in accordance with the provisions of Resolution No. 25-88 or any amendments thereto or for any late payments for alcoholic beverages supplied by the Municipal off-sale establishment to be sold on the premises of Manager. 7. The Manager shall receive as full compensation for its services rendered, the net profit from the on-sale establishment under its management, and the sole profit to be derived by the City shall be the markup hereinafter set forth on alcoholic beverages furnished by the municipality to the Manager for the purposes of resale on the premises as above described. 8. The Manager shall pay to the City for all alcoholic beverages sold by the City to the Manager for resale on the above-described premises, the actual cost of distilled spirits and wine supplied by the City, plus eleven percent (11%) in excess of such cost; the Manager shall pay to the City for all malt beverages sold by the City to the Manager for resale on the above-described premises, City of Brookings August 9, 2011 16 the actual cost of malt beverages, plus ten percent (10%) in excess of such cost. The actual cost shall include cost price and transportation charges. The markup percentages provided in this Agreement are subject to change by the City of Brookings. In the event markup percentages are changed by Ordinance, then the markup percentages provided by City Ordinance shall supercede the markup percentages provided herein. The Manager further agrees that if either of the markup percentages shall be increased at any time by the City, the Manager shall pay the markup as so increased. 9. A complete and detailed record shall be maintained by the City of all alcoholic beverages supplied to the on-sale Manager and such alcoholic beverages so supplied shall be evidenced by pre-numbered invoices prepared in triplicate showing the date, quantity, brand, size and actual cost of such item, and such invoice shall bear the signature of the authorized representative of the on-sale Manager or its authorized representative. One copy thereof shall be retained by the Municipal off-sale establishment, one copy shall be retained by the on-sale establishment, and one copy shall be filed with the City Clerk. All copies shall be kept as permanent records and made available for reference and audit purposes. The Manager also agrees to maintain a complete record of all alcoholic beverages received from the City. 10. The Manager agrees to pay the CITY OF BROOKINGS an Operating Agreement Fee of Twenty-five Thousand and no/100 Dollars ($25,000.00) at or prior to the execution of this Agreement. The Manager shall be reimbursed by the City the sum of Twenty-two Thousand Five Hundred and no/100 Dollars ($22,500.00) if this Agreement is not extended beyond a term of one (1) year, however this provision does not create any obligation of the City to extend this Operating Agreement beyond its term of one (1) year. The Manager agrees to pay the CITY OF BROOKINGS, an Annual Renewal License Fee of One Thousand Five Hundred and no/100 Dollars ($1,500.00), which is due on or by January 1, 2012. The payment of the Annual Renewal License Fee will not extend the term of this Operating Agreement beyond the term provided herein. 11. The Manager agrees to keep the premises in a neat, clean and attractive appearance, and Manager further agrees to operate said on-sale establishment only on such days and at such hours as permitted by state law and city ordinances. 12. The Manager shall have the right to return, at any time, alcoholic beverages received from the City and to receive in return any deposit made for such alcoholic beverages; in the event of termination of the business, all unused alcoholic beverages, which may be resold without discount may be returned to the City and the Manager shall be reimbursed for the cost of such alcoholic beverages. 13. The Manager agrees to abide by the credit policies of the City and acknowledges, by execution of this Agreement, receipt of a copy of the credit policies of the City. The City reserves the right to change or terminate its credit policies at any time, but shall be required to provide written notice to Manager prior to the effective date of the change or termination date of the credit policies. City of Brookings August 9, 2011 17 14. The Manager agrees to furnish the City upon demand, evidence of payment of the following: A. All salaries of on-sale employees; B. Social Security and withholding taxes on said employees; C. Worker’s Compensation insurance premiums covering said employees; D. Unemployment taxes on the payrolls of said employees; E. General liability insurance protecting both the City and Manager against claims for injury or damages to persons or property, said policy to have general liability limits 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; and H. The Federal stamp fee. 15. The Manager agrees to observe all Federal and State laws and all ordinances of the City of Brookings. 16. The City covenants and agrees to furnish the on-sale license to Manager pursuant to the terms and conditions of this Operating Agreement and the terms and conditions of the on-sale license. 17. The City has the right to make inspections and investigations of the premises during the hours of operation, and make audits and examinations of the records of the Manager relating to the on-sale establishment. 18. It is further specifically understood and agreed that the waiver of the rights of the City under this Agreement shall not constitute a continuous waiver, and any violation or breach of the terms of this agreement by the Manager shall constitute a separate and distinct offense and grounds for immediate termination and revocation of this Agreement. 19. This agreement shall not be assignable to another person or location without the written consent of the City. IN WITNESS WHEREOF, the parties hereto have executed this agreement this 26th day of July, 2011. Discussion: Bezdichek stated the city needs to resolve the restaurant license fee issue; establish a fee now and not wait for legislative action. He suggested doubling the fee for the restaurant license to $50,000; with the liquor license remaining at $25,000. With restaurant licenses regulated more by the legislature than the city, there are also advantages such as greater flexibility, a greater license value, and a license which is ‘sellable’. Mayor Reed clarified the process has been started with the legislators and will be ongoing until an amount is agreed upon; $50,000 is a good starting figure. He asked for further discussion to be scheduled for the next council meeting. ACTION: A motion was made by McClemans, seconded by Bezdichek, to consider issuing the third license for at least a six month period. Public Comment: Garner Hansen urged the council City of Brookings August 9, 2011 18 to approve the motion. McClemans voted yes; Bezdichek, Corbett, Kubal, Niemeyer, and Reed voted no; motion failed. Thorpe returned to the dias. Street Width Request – Prairie Hills. Mills Development Corporation, the developer of “The Landing at Prairie Hills”, requested reducing the street width of the following city-dedicated streets, Goldenrod Trail, Sunflower Road and Chokecherry Lane from 31 feet to 28 feet. Staff recommended denial and the minimum street width of 31 feet back-to-back be retained as prescribed in the City’s subdivision regulations. A motion was made by Thorpe, seconded by Bezdichek, to approve the request to reduce the street width from 31 to 28 feet in “The Landing,” Prairie Hills Addition. Public Comment: Mills Development representatives recommended approval and disagreed with cited safety and snow removal concerns with narrower streets. Niemeyer and Thorpe voted yes; Bezdichek, Corbett, Kubal, McClemans and Reed voted no; motion failed. Resolution No. 88-11. A motion was made by Corbett, seconded by McClemans, to approve Resolution No. 88-11, a Resolution declaring Jurisdictional Change of County Road 77 (South Main Avenue) from 20th Street South to 32nd Street South. All present voted yes; motion carried. Resolution No. 88-11 - A Resolution declaring Jurisdictional change of County Road 77 (South Main Avenue) from 20th Street South to 32nd Street South Be It Resolved by the City Council of the City of Brookings, South Dakota (the “City”), as follows: Whereas, the City of Brookings transportation plan provides for improvements of South Main Avenue to a three-lane urban design (five-lane long term) with pedestrian ways and storm drainage. The proposed improvements would extend from 20th Street South to 32nd Street South. This road section is currently under the jurisdictional control of Brookings County; and Whereas, the purpose of this resolution is to accept the jurisdictional control by the City of Brookings of County Road 77 (South Main Avenue) from 20th Street South to 32nd Street South. Jurisdictional control will allow the City to plan, finance and construct the street improvements necessary to improve transportation, drainage and safety to accommodate current and future growth; and Whereas, SDCL §31-17-16 sets forth the procedure for assignment of responsibility for secondary highways on the boundary line of a municipality, and SDCL §9-45-1 authorizes a municipality to construct, maintain and repair roads within its jurisdiction, and Whereas, the County of Brookings, having removed the above-described highway from the County highway system, Now, Therefore, the City of Brookings hereby accepts responsibility for the highway described in this Resolution pursuant to applicable law, thereby including the above-described highway within its jurisdiction. City of Brookings August 9, 2011 19 Resolution No. 89-11. A motion was made by Kubal, seconded by McClemans, to approve Resolution No. 89-11, a Resolution Declaring Jurisdictional Change of County Road 16 (20th Street South) from Main Avenue West to Rio Grand Avenue. No public comment. All present voted yes; motion carried. Resolution No. 89-11 - A Resolution declaring Jurisdictional Change of County Road 16 (20th Street South) from Main Avenue west to Rio Grand Avenue Be It Resolved by the City Council of the City of Brookings, South Dakota (the “City”), as follows: Whereas, the City of Brookings long-range transportation plan provides for improvements of 20th Street to a three-lane urban design with pedestrian ways and storm drainage. The proposed improvements would extend from Main Avenue west to Rio Grand Avenue. This road section is currently under the jurisdictional control of Brookings County; and Whereas, the purpose of this resolution is to accept the jurisdictional control by the City of Brookings of County Road 16 (20th Street South) from Main Avenue west to Rio Grand Avenue. Jurisdictional control will allow the City to plan, finance and construct the street improvements necessary to improve transportation, drainage and safety to accommodate current and future growth; and Whereas, SDCL §31-17-16 sets forth the procedure for assignment of responsibility for secondary highways on the boundary line of a municipality, and SDCL §9-45-1 authorizes a municipality to construct, maintain and repair roads within its jurisdiction, and Whereas, the County of Brookings, having removed the above-described highway from the County highway system, Now, Therefore, the City of Brookings hereby accepts responsibility for the highway described in this Resolution pursuant to applicable law, thereby including the above-described highway within its jurisdiction. Parade Safety Issues. Council Member Kubal expressed safety concerns with passengers riding on tractors in parades and recommended prohibiting it. A motion was made by Reed, seconded by Kubal, to direct the city manager, through the parade permit process, to inform parade organizers that safety must be upheld with riders on tractors not allowed. All present voted yes; motion carried. Adjourn. A motion was made by McClemans, seconded by Bezdichek, to adjourn. All present voted yes; motion carried. Meeting adjourned at 7:50 p.m. CITY OF BROOKINGS ATTEST: Tim Reed, Mayor Shari Thornes, City Clerk City of Brookings August 9, 2011 20 CONSENT AGENDA #4 C. Action on Resolution No. 90-11, a Resolution authorizing the City Manager to sign a midterm renewal / WINE operating agreement for BraVo’s, 610 Medary Avenue. The City of Brookings enters into Wine Operating Agreements for a 10-year period with a renewal at five years. The Operating Agreement for BraVo’s, located at 610 Medary Avenue, is at the five-year point in the 10-year agreement. Resolution No. 90-11, would allow the City Manager to enter into the remaining five years of the agreement. Resolution No. 90-11 BraVo’s Operating Agreement Renewal - Wine 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 Kip Pharis, BraVo’s, 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 610 Medary Avenue, also known as BraVo’s. 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. Passed and approved this 9th day of August 2011. CITY OF BROOKINGS Tim Reed, Mayor ATTEST: Shari Thornes, City Clerk City of Brookings August 9, 2011 21 CONSENT AGENDA #4 D. Action on an Amendment to a Transfer of Real Property to Brookings Economic Development Corporation, Inc. for Economic Development Purposes The City Council approved Resolution No. 76-11 on June 14, 2011 authorizing the transfer of real property to the Brookings Economic Development Corporation, Inc. for economic development purposes. The resolution approved the transfer of 12 acres to the Brookings Economic Development Corporation, Inc.; two sections of the resolution identified a price per acre for the transfer of real property. These sections are as follows: 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 Twenty-nine thousand four hundred eighty-nine Dollars & zero cents ($29,489.00) 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 Eighteen thousand five hundred twenty-four Dollars & zero cents ($18,524.00) per acre. The reason for the difference in price is there is a shelter belt along the south property line of the Foster Addition. The Brookings Economic Development Corporation, Inc. agreed to purchase the shelterbelt for cost. The actual acreage of the shelter belt is 2.7 acres. Therefore, the Brookings Economic Development Corporation, Inc. requests the purchase price be amended to the following: A. Purchase 9.3 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 Twenty-nine thousand four hundred eighty-nine Dollars & zero cents ($29,489.00) per acre, and B. Purchase 2.7 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 Eighteen thousand five hundred twenty-four Dollars & zero cents ($18,524.00) per acre. Enclosed is the plat of Block 1 and 2 of the Foster Addition. There is a utility easement that lies on the north side of the shelter belt and continues north twenty feet. A motion to amend would equate to a reduction in price of $7,675.50 from the original proposal. Staff recommends approval. City of Brookings August 9, 2011 23 CONSENT AGENDA #4 E. Action on Resolution No. 91-11, authorizing a change order on building materials for the Forestry Dept. Pole Building Materials. On March 28, 2011, the City of Brookings awarded a contract to Pro-Build of Brookings in the amount of $28,336.94 for building materials for the Forestry Shop Addition currently being constructed by city park and forestry staff. Due to some minor building design changes it became necessary for a change in some dimension lumber and the insulation to be used, resulting in an additional charge of $503.39 to the original contract. Staff recommends approval. Resolution No. 91-11 A Resolution Authorizing Change Order and Final Payment for Forestry Pole Building Materials, Pro-Build Be It Resolved by the City Council that the following change order be allowed for Forestry Pole Building Materials: Change Order #1: Price adjustment for substitute insulation and change in length and dimension for 2x4 and 2x16 16 ft. BTR SDF lumber ADD $503.39 PAYMENT #2 (Final) on contract dated March 28, 2011 Bid Amount $28,336.94 Payment #1 (May 31, 2011) $27,372.93 BALANCE ON CONTRACT $ 963.61 CHANGE ORDER #1 ADD $ 503.39 FINAL PAYMENT $ 1,467.00 Plus Payment #1 $27,872.93 FINAL CONTRACT AMOUNT $28,839.93 Passed and approved this 9th day of August, 2011. CITY OF BROOKINGS _______________________ Tim Reed, Mayor ATTEST: ___________________________ Shari Thornes, City Clerk City of Brookings August 9, 2011 24 CONSENT AGENDA #4 F. Action on Resolution No. 93-11, a Resolution rejecting bids on the Bob Shelden Restroom/Concession Building Project. The city held a bid letting at 1:30 p.m. on Tuesday, July 12 at City Hall with the following bids received: General Construction Work Clark Drew Construction, Brookings $115,500 Gray Construction, Watertown $122,200 Ron Anderson Const., Sioux Falls $132,000 Rupp Masonry Const., Brookings $122,000 Daniels, Inc., Tea $150,900 Electrical Work Clites Electric, Brookings $16,580 Electric Const., Sioux Falls $23,461 Muth Electric, Brookings $15,669 P-3 Electric, Hayti $21,900 Perry Electric, Brookings $18,508 Plumbing Work Andor, Inc., Watertown $74,580, Alt. #1 $3,733 Brookings Plumbing & Htg., Brookings $46,450, Alt. #1 $2,850 Hander, Inc., Sioux Falls $53,160, Alt. #1 $2,975 Hurney Plumbing, Watertown $57,822, Alt. #1 $3,228 Kenner Plumbing & Htg., Brookings $51,000, Alt. #1 $2,425 Prairiesons, Inc., Brandon $59,956, Alt. #1 $2,399 Redlinger Bros., Watertown $58,650, Alt. #1 $1,860 The total of the three apparent low bids for General, Plumbing and Electrical is $177,619, which when combined with the estimated $13,000 cost of architectural/engineering services comes to $190,619. The current available funds for this project are $155,000. Therefore, staff recommends all bids be rejected and the project re-bid at a later date for construction in 2012. In the meantime, we will look at re-design and other options which might lower the cost. The current facility is serviceable and can continue in use; the re- build proposal was for a larger building, to include a family restroom, and a larger concession area. City of Brookings August 9, 2011 25 Resolution No. 93-11 Resolution Rejecting Bids for Bob Shelden Field Restroom/Concession Building Whereas, the City of Brookings opened bids for the Bob Shelden Field restroom/concession building on Tuesday, July 12th at 2:00 pm at Brookings City Hall; and Whereas, the City of Brookings has received the following bids for the three prime contracts: General Construction Work: Clark Drew Construction, Brookings for $115,500; Gray Construction, Watertown for $122,200; Ron Anderson Const., Sioux Falls for $132,000; Rupp Masonry Construction, Brookings for $122,000; Daniels, Inc., Tea for $150,900. Electrical Work: Clites Electric, Brookings for $16,580; Electric Construction, Sioux Falls for $23,461; Muth Electric, Brookings for $15,669; P-3 Electric, Hayti for $21,900; Perry Electric, Brookings for $18,508. Plumbing Work: Andor, Inc., Watertown for $74,580 and Alternate #1 for $3,733; Brookings Plumbing & Heating, Brookings for $46,450 and Alternate #1 for $2,850; Hander, Inc., Sioux Falls for $53,160 and Alternate #1 for $2,975; Hurney Plumbing, Watertown for$57,822 and Alternate #1 for $3,228; Kenner Plumbing & Heating, Brookings for $51,000 and Alternate #1 for $2,425; Prairiesons, Inc., Brandon for$59,956 and Alternate #1 for $2,399; Redlinger Bros., Watertown for $58,650 and Alternate #1 for $1,860. Whereas, the Opinion of Probable Total Cost from Banner Associates was $149,000, and the combined total of the apparent low bids (General - Clark Drew Construction at $115,500; Plumbing - Brookings Plumbing & Heating at $46,450; Electrical - Muth Electric at $15,669) is $177,619, Now Therefore, Be It Resolved that all bids for the Bob Shelden Restroom/Concession Building be rejected. Passed and approved this 9th day of August, 2011. CITY OF BROOKINGS ________________________________ ATTEST: Tim Reed, Mayor _________________________ Shari Thornes, City Clerk Bid Tab Bid Opening Time & Date: 2:00 pm, July 12, 2011 Project: Bob Shelden Field Restroom / Concession Brookings, South Dakota BAI. No. 21302.00.01 Bid Opening Location: City of Brookings, 311 3rd Avenue, Brookings, SD 57006 Bidder Acknowledged Addendum Number Bidder's Name and Address Bid Security (2 issued)Base Bid 2:00 PM Clark Drew Construction 1 Brookings, SD Bid Bond yes $115,500 2:00 PM Gray Construction 2 Watertown, SD Bid Bond yes $122,200 2:00 PM Ron Anderson Construction 3 Sioux Falls, SD Bid Bond yes $132,000 1:30 PM Rupp Masonry Construction 4 Brookings, SD Bid Bond yes $122,000 Stronghold Building & Supply 5 Pierre, SD Waltz Construction 6 Pierre, SD 2:00 PM Daniels, Inc. 7 Tea, SD Bid Bond yes $150,900 Bid Tab Bid Opening Time & Date: 2:00 pm, July 12, 2011 Project: Bob Shelden Field Restroom / Concession Brookings, South Dakota BAI. No. 21302.00.01 Bid Opening Location: City of Brookings, 311 3rd Avenue, Brookings, SD 57006 Bidder Acknowledged Addendum Number Bidder's Name and Address Bid Security (2 issued)Base Bid 1:30 PM Clites Electric 1 Brookings, SD Bid Bond yes $16,580 2:00 PM Electric Construction 2 Sioux Falls, SD Bid Bond yes $23,461 Kindt Electric, Inc 3 Brookings, SD 2:00 PM Muth Electric 4 Brookings, SD Bid Bond yes $15,669 1:30 PM P-3 Electric 5 Hayti, SD $21,900 1:30 PM Perry Electric 6 Brookings, SD Bid Bond yes $18,508 Bid Tab Bid Opening Time & Date: 2:00 pm, July 12, 2011 Project: Bob Shelden Field Restroom / Concession Brookings, South Dakota BAI. No. 21302.00.01 Bid Opening Location: City of Brookings, 311 3rd Avenue, Brookings, SD 57006 Bidder Acknowledged Addendum Number Bidder's Name and Address Bid Security (2 issued)Base Bid Bid Alternate #1 2:00 PM Andor, Inc. 1 Watertown, SD Bid Bond yes $74,580 $3,733 1:30 PM Brookings Plumbing & Heating 2 Brookings, SD 5% check yes $46,450 $2,850 Complete Plumbing 3 Brookings, SD 2:00 PM Hander, Inc. Plumbing & Heating 4 Sioux Falls, sD Bid Bond yes $53,160 $2,975 1:30 PM Hurney Plumbing 5 Watertown, SD Bid Bond yes $57,822 $3,228 2:00 PM Kenner Plumbing & Heating 6 Brookings, SD Bid Bond yes $51,000 $2,425 Krohmer Plumbing 7 Mitchell, SD 1:30 PM Prairiesons, Inc. 8 Brandon, SD Bid Bond yes $59,956 $2,399 2:00 PM Redlinger Bros. 9 Watertown, SD Bid Bond yes $58,650 $1,860 City of Brookings August 9, 2011 29 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 August 9, 2011 30 Contract Awards / Change Orders 7. Action on Resolution No. 96-11, a Resolution authorizing change orders for the Joint City/County Government Center. This project is the joint City-County Government Center currently under construction. Thus far, 13 change orders have been processed to date for several minor aspects of the project. The details of the change orders are attached. Each of these change orders have been approved by the Joint Powers Board and the Brookings County Board of Commissioners. We should also execute such change orders. Of the 13 change orders, it is an aggregate increase in the total project cost of $17,873 and this amount will come from the contingency line item in the budget. Resolution No. 96-11 A Resolution Authorizing Revisions to multiple contracts for the Joint City-County Government Center. Whereas, Brookings City and County have jointly agreed to construct and operate an intergovernmental center, and Whereas, the City Council of the City of Brookings and the County Board of Commissioners of Brookings County have mutually executed construction contracts, and Whereas, the Joint Powers Board has recommended the approval of 13 change orders to-date constituting an aggregate increase in the project of $17,873; and that the County Board has forthwith approved such change orders. Be It Resolved by the City Council that the change orders itemized and herewith described on the attached Modification Log be allowed for the Joint City-County Government Center. Passed and approved this 9th day of August, 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 August 9, 2011 33 Contract Awards / Change Orders 8. Action on Resolution No. 92-11, a Resolution awarding the contract for the purchase of an Animal Control Pickup. One bid was received on July 26th for the purchase of a 2011 ½ ton 4x4 pickup truck from Brookings Auto Mall, Brookings, SD in the amount of $27,530. The police department is requesting approval for the purchase of this vehicle to replace the current 2005 Ford Animal Control pickup from the department’s fleet as it has reached its 100,000 mile benchmark. This purchase was approved as part of the 2011 Budget. This pickup will be re- utilized and placed at the Swiftel Center. City Manager Introduction Action: Motion to Approve, Request Public Comment, Roll Call City of Brookings August 9, 2011 34 Resolution No. 92-11 Purchase of Animal Control Pickup Whereas, the City of Brookings opened bids for the purchase of a 2011 ½ ton 4x4 Animal Control Pickup on Tuesday, July 26, 2011 at 1:30 pm at Brookings City Hall; and Whereas, the City of Brookings received one bid from the following: Brookings Auto Mall, Brookings, SD in the amount of $27,530. Now Therefore, Be It Resolved that the low bid of $27,530 from Brookings Auto Mall, Brookings, SD be accepted. Passed and approved this 9th day of August, 2011. CITY OF BROOKINGS Tim Reed, Mayor ATTEST: Shari Thornes, City Clerk City of Brookings August 9, 2011 35 Contract Awards / Change Orders 9. Action on Resolution No. 95-11, a Resolution awarding the contract for the Airport Building Addition Project, 2011-03 BLD. This project entails work for the general construction of a 30’ x 46’ addition to the west side of the City of Brookings Airport Rescue & Fire Fighting building located at 509 West 2nd Street South. This project was bid as a lump sum project and involves earthwork, cast in place concrete, rough carpentry, overhead metal doors, asphalt shingles, siding, floor drains, and electrical work. The new garage bay will house the airport snow removal equipment, which is currently being stored in the Airport’s storage shed located outside of airport property on the north side of 2nd Street South. The bids were mailed to several local contractors and the bid letting was held on August 2, 2011. The City received the following bid: Clark Drew Construction, Inc., Brookings, SD $93,000.00 This project was originally budgeted at $80,000 for construction in 2010. The project was delayed until 2011 after the decision was made on the location of the future airport expansion. Due to upcoming future airport projects, we would like to proceed with this building expansion project this year before the major reconstruction work begins. The additional funding needed can be covered in the existing airport budget by the following: • After discussion with the low bidder, the City and Contractor feel a material substitution could be made for the interior wall covering which would reduce the cost of the project by approximately $4,500. This material substitution would be presented to the City Council on an upcoming change order deduction. • The Airport budget has funds available from the line item for runway improvements this year as the runway painting prices were very favorable and the crack repair needed this year is not extensive. This line item would cover the additional funds needed; approximately $8,500. By utilizing the airport budget as described above, the City recommends awarding the contract to Clark Drew Construction Co., Inc. of Brookings, SD for the low bid of $93,000. City Manager Introduction Action: Motion to Approve, Request Public Comment, Roll Call City of Brookings August 9, 2011 36 Resolution No. 95–11 Resolution Awarding Bids on Project 2011-03BLD Airport Building Addition Project Whereas, the City of Brookings opened bids for Project 2011-03BLD Airport Building Addition Project on Tuesday, August 2, 2011 at 1:30 pm at Brookings City Hall; and Whereas, the City of Brookings has received the following bids for Project 2011-03BLD Airport Building Addition Project: Clark Drew Construction, Inc., Brookings, SD $93,000.00 Now Therefore, Be It Resolved that the low bid of $93,000.00 for Clark Drew Construction, Inc., Brookings, SD be accepted. Passed and approved this 9th day of August, 2011. CITY OF BROOKINGS ____________________________ Tim Reed, Mayor ATTEST: ________________________ Shari Thornes, City Clerk City of Brookings August 9, 2011 37 Second Readings / Public Hearings 10. Ordinance No. 13-11: An ordinance rezoning the west 1,115 feet of the east 1,338 feet of the north 1,409 feet, excluding Lot C, Christie Addition and Outlots A, 1A, B, and 1B thereof; and the west 1,085 feet of the east 1,342 feet of the south 193 feet of the north 1,608 feet all in the NW¼ of Section 2-T109N-R50W from an A Agricultural District to a Residence R-3 District (20th Street South and Main Avenue South area). Applicant: Dean Christie/Oakwood Equity Group Proposal: Rezone approximately 38 acres for high-density residential development Background: This land was annexed into the city in March 2011. All the land is currently undeveloped. The Future Land Use Plan has designated a residential use for this parcel. Adjacent land abutting Main Avenue South has been planned for commercial zoning but would remain in the Ag District at this time. Surrounding land uses include low-density residential to the north and medium and high- density residential to the west. However, the west side is planned for single-family detached homes according to the preliminary plat. Land to the south is outside the city limits and is currently farmed. Specifics: The Residence R-3 District allows for a mix of residential densities. The district regulations indicate the variety of uses allowed. Developers often prefer the R-3 District because it gives them flexibility in creating smaller or variable lot sizes within an area even if the plan is for single-family dwellings. You may recall that we developed an R-1C District last year that provided an option for establishing single-family dwellings on lots with only 50 feet of frontage and 7,500 square feet of area. The preliminary plans for this area show a lower-density concept for the south 2/3 of the parcel. Recommendation: The Planning Commission voted 2 yes and 4 no to recommend not approving the original rezoning request. A 2/3rds majority of the full membership of the Council would be required to overturn the Commission and approve the original request. The Commission voted 6 yes and 0 no to recommend rezoning a portion of the land as stated in the ordinance. A simple majority vote by those Councilors present and voting would be required to concur with this recommendation. City Manager Introduction Action: Open & Close Public Hearing, Motion to Approve, Roll Call City of Brookings August 9, 2011 38 Ordinance No. 13-11 An Ordinance to Change the Zoning within the City of Brookings Be it ordained by the governing body of the City of Brookings, South Dakota, Section 1. That the real estate situated in the City of Brookings, County of Brookings, State of South Dakota, described as follows: The north 388 feet of the NE ¼ of the NW ¼ of Section 2-T109N-R50W, excluding the platted areas thereof, be and the same is hereby rezoned and reclassified from an A Agricultural District to a Residence R-3 District. In accordance with Section 94.7 of Article I of Ordinance 25-02 of the Code of Ordinances of Brookings, South Dakota, as said districts are more fully set forth and described in Articles III and IV of Ordinance No. 25-02 of the City of Brookings, South Dakota. Section 2. The permitted use of the property heretofore described be and the same is hereby altered and changed in accordance herewith pursuant to said Ordinance No. 25-02 of the City of Brookings, South Dakota. Section 3. All sections and ordinances in conflict herewith are hereby repealed. First Reading: July 26, 2011 Second Reading and Adoption: August 9, 2011 Published: CITY OF BROOKINGS ______________________________ Tim Reed, Mayor ATTEST: _________________________ Shari Thornes, City Clerk City of Brookings August 9, 2011 39 Planning Commission Brookings, South Dakota July 5, 2011 OFFICIAL MINUTES Chairperson Al Heuton called the regular meeting of the City Planning Commission to order on July 5, 2011, at 7:00 PM in the Council Chamber at City Hall. Members present were Wayne Avery, Hal Bailey, Mike Cameron, Donna DeKraai, Greg Fargen, and Heuton. Alan Gregg, John Sydow, and John Gustafson were absent. Others present were Jason Pederson, Wayne Wagner, John Mills, Alan Mack, Dave Fiedler, City Manager Jeff Weldon, Community Development Director Mike Struck, City Engineer Jackie Lanning, Planning and Zoning Administrator Dan Hanson, and others. Item #5 – Dean Christie has submitted a petition to rezone the west 1,115 feet of the east 1,338 feet of the north 1,409 feet, excluding Lot C, Christie Addition and Outlots A, 1A, B, and 1B thereof; and the west 1,085 feet of the east 1,342 feet of the south 193 feet of the north 1,608 feet all in the NW¼ of Section 2-T109N-R50W from an A Agricultural District to a Residence R- 3 District. (Bailey/Cameron) Motion to approve the rezoning. Bailey and Cameron voted aye. Avery, DeKraai, Fargen, and Heuton voted no. MOTION FAILED. (DeKraai/Bailey) Motion to rezone the north 388 feet of the NE¼ of the NW¼ of Section 2- T109N-R50W, excluding the platted areas thereof, from an A Agricultural District to a Residence R- 3 District. All present voted aye. MOTION CARRIED. SUMMARY OF DISCUSSION Item #5 – Jason Peterson, of Civil Design Inc., stated that the plan for the north area had changed. The proposal would involve seven 16-unit apartment buildings with detached, perimeter garages. Wayne Wagner, representing Oakwood Equity Group, stated that changes to the housing market regarding home mortgages could cause people to rent first. Their plan was to establish high- density housing on the north end and create lower residential densities as they moved south. The first phase would be the apartment complex since only the north end had access to sanitary sewer facilities. Wagner noted that the buildings would have a two-story design for center units and a one-story design for the end units. Perimeter garages on the north would be set down so only ½ of the wall would show towards the street. Landscaping and parking exceeded the minimum requirements. He added that a second phase would involve 4-plexes south of the apartment complex. John Mills, an adjacent property owner, felt the corner properties with the two homes and some additional land should be reserved for future commercial zoning. He recommended that enough land be zoned now so it could be property developed. He noted that additional right-of-way along City of Brookings August 9, 2011 40 Main Avenue South and the required buffer zones between residential and business districts should be taken into consideration since they would reduce the developable area. Peterson remarked that their plan called for a 27 foot setback between the garages and the east lot line. Some of this land could be rezoned in the future. Neighbors to the north of 20th Street South were concerned about drainage. Wagner said he was aware of their issues, and his project would be designed to take as much drainage as possible. This water would be directed around the apartment complex. The water within the complex would go to a detention pond along the south side. Heuton asked how the planned drainage swale and landscaping plan would work. Peterson stated that drain tile would allow the land to stay dry. Wagner added that they had designed a 30 foot setback into the project to facilitate a “trickle flow” and still be able to handle a large storm event. Fargen inquired if the original land use plan was similar to this one. Hanson replied that high- density was always proposed in the north end, but the density was lower on the original plan. Heuton felt that rezoning the entire area now could be premature. DeKraai asked for options. Hanson remarked that developers have favored the flexibility offered by the R-3 regulations since one-family, two-family, and apartments can be built under those regulations. There are other districts that could provide similar densities without the high-density component. He added that private covenants have been used in other recently developed subdivisions to control density too. Wagner stated their core product was affordable, energy efficient homes. He felt the R-3 was appropriate, and the property’s value would be controlled by the density allowed, and the development’s design. Heuton asked if Wagner was open to phased zoning. Wagner replied yes, as long as it did not impact the development timetable. Mills reiterated his concern that not enough land was set aside in the corner for a future business use. Wagner remarked that he would be willing to come back to the Planning Commission and rezone a portion of land in this area if the apartment complex plan worked out. City of Brookings August 9, 2011 52 Second Readings / Public Hearings 11. Public hearing and action on Resolution No. 97-11, a Resolution amending the Vision 2020 Comprehensive Plan, pertaining to the Future Land Use Plan. Proposal: Expand commercial district boundaries along 6th Street on the Future Land Use Map Background: The south campus neighborhood has generated considerable discussion over the last few months. Land use data, the resident questionnaire, and various land use scenarios have been presented. Based on that information, certain changes to the Comprehensive Plan may be appropriate. The Future Land Use Map was developed in conjunction with the policies established in the plan. A major focus has continued to be the “clustering” of commercially zoned land near major intersections. Specifics: The proposed expansion areas are extensions of existing Business B-2 Districts. The area adjacent to Medary Avenue would add 1.5 acres to the district. The area along 14th Avenue would add two (2) acres in an area that could be a candidate for an urban renewal project. It is also near a high population area on the SDSU campus. Recommendation: The Planning Commission voted 2 yes and 4 no to recommend that the Future Land Use Map not be updated as proposed. A 2/3rds majority of the full membership of the Council would be required to overrule the Planning Commission and approve the amendments. City Manager Introduction Action: Open & Close Public Hearing, Motion to Approve, Roll Call City of Brookings August 9, 2011 53 Resolution No. 97-11 A Resolution Amending the City of Brookings Vision 2020 Comprehensive Plan Whereas, the City Council of the City of Brookings, SD in accordance with SDCL 11-6-18 adopted the Vision 2020 Comprehensive Plan for the City of Brookings, SD; and Whereas, the City Council determined that the Future Land Use Map of said Comprehensive Plan should be amended and supersede the previously adopted Future Land Use Map of the Comprehensive Plan adopted February 11, 2002; and Whereas, the City Planning Commission of the City of Brookings, SD has recommended approval of the Vision 2020 Comprehensive Plan in accordance with SDCL 11-6-17; Now, Therefore, Be It Resolved by the City of Brookings, SD that the Future Land Use Map of the Vision 2020 Comprehensive Plan, as amended, is hereby adopted for the City of Brookings, with said map to supersede the previous Future Land Use Map. The Vision 2020 Comprehensive Plan shall be on file in the office of the City Clerk and is available for public inspection by any interested person. Passed and approved this 9th day of August, 2011. CITY OF BROOKINGS _________________________ Tim Reed, Mayor ATTEST: ____________________________ Shari Thornes, City Clerk City of Brookings August 9, 2011 62 Planning Commission Brookings, South Dakota July 5, 2011 OFFICIAL MINUTES Chairperson Al Heuton called the regular meeting of the City Planning Commission to order on July 5, 2011, at 7:00 PM in the Council Chamber at City Hall. Members present were Wayne Avery, Hal Bailey, Mike Cameron, Donna DeKraai, Greg Fargen, and Heuton. Alan Gregg, John Sydow, and John Gustafson were absent. Others present were Jason Pederson, Wayne Wagner, John Mills, Alan Mack, Dave Fiedler, City Manager Jeff Weldon, Community Development Director Mike Struck, City Engineer Jackie Lanning, Planning and Zoning Administrator Dan Hanson, and others. Item #7 – The City of Brookings has submitted amendments to the Vision 2020 Comprehensive Plan pertaining to the Future Land Use Plan. (Cameron/DeKraai) Motion to take the motion from the table. All present voted aye. MOTION CARRIED. The motion was voted on. DeKraai and Fargen voted aye. Avery, Bailey, Cameron, and Heuton voted no. MOTION FAILED. SUMMARY OF DISCUSSION Item #7 – Hanson provided the Commission with various data regarding the south campus neighborhood. This information had been discussed at several previous meetings. Two areas in the neighborhood had been proposed for commercial use on the Future Land Use Map. DeKraai remarked that some individuals in the neighborhood felt that additional commercial land was more desirable than having more apartment construction. Bailey inquired about SDSU’s intentions for 13th Avenue compared to the proposed plan for 14th Avenue. Hanson responded that there were major differences between the quality of homes and stability of the areas even though they were only a block apart. Bailey wondered if a commercial use on 14th Avenue would negatively impact 13th Avenue properties. Hanson felt that any commercial project would need to be regulated through aesthetic controls. Heuton favored protecting street corridors in regards to aesthetics. He was concerned that commercial developments have adequate green space and trees. He did not support changing the Future Land Use Plan at this time. Bailey felt that affordable housing in the form of older homes should be retained. He did not think there was an abundant supply now. The Commission discussed how areas could be developed and how the zoning ordinance could be modified or used in controlling various aspects of projects. The zoning ordinance has standard and overlay districts that could be applied to rezoning changes. DeKraai noted that future expansion by SDSU into the neighborhood would eliminate any control of the land through zoning. She felt that if there were an opportunity to direct changes through zoning, the Commission should consider it. Fargen felt a long range plan for the neighborhood was important. He suggested having conversations with residents in the area to get their input. City of Brookings August 9, 2011 63 Second Readings / Public Hearings 12. Action on a Video Lottery application for Gas ‘N Mor, 606 6th St., Brookings Developers, Inc. The City Council awarded a Video Lottery License to Lyle Prussman, Brookings Developers Inc., Gas ‘N Mor, 606 6th Street, Lots 5-7, Block 11, Second Addition, at their 5/24/2011 council meeting. A request was received on 6/14/2011 for reconsideration of this action. After some discussion, council action was tabled. Council tabled action on 6/14/2011. City Manager Introduction ACTION: Motion to remove from the table – Roll Call ACTION on the following May 24th Motion removed from the table: “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.” Public Comment, Roll Call City of Brookings August 9, 2011 64 6/14/11: 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. 6/14/11: 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. 6/28/11: Video Lottery. The City Council requested additional review of the state and local video lottery laws, policies and procedures. The City Attorney noted the city no longer has any authority to make license placement decisions for businesses with on-sale liquor. The only restriction options available are to limit the number issued to on-off sale malt and on-off sale wine license holders or by the location. The city currently has an ordinance which only allows 20 on-off sale malt and on-off wine establishments to have video lottery. No changes to the ordinance were proposed. 6/28/11: Resolution No. 77-11. A motion was made by Thorpe, seconded by Niemeyer, to approve Resolution No. 77-11, a Resolution establishing a policy pertaining to reconsideration actions. All present voted yes; motion carried. 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. City of Brookings August 9, 2011 67 Other Business 13. Discussion regarding Restaurant Liquor License Fees. Pursuant to the special City Council meeting held on August 3rd and direction from the July 26th City Council meeting, you expressed a public policy intent to establish the fee for the restaurant alcohol license. You currently have one “population” license remaining to be distributed if you wish, and pending the determination of the restaurant license fee, that could be issued as well. As you know, there is no statutory limit on the number of such restaurant licenses although the City Council could establish limits if you so choose. In addition to the two applicants that were rejected for the population liquor operating agreements on July 26th, we have received applications for the remaining population license from Whiskey Creek Wood Fire Grill & Steakhouse which is on this agenda, and from Buffalo Wild Wings which is on the agenda for August 23rd. Attached is an amendment to the current City Ordinance No. 30-08 which establishes a fee for a restaurant license which was struck down by the courts. The amendment deletes the previous fee of $1 per capita and the replacement amount needs to be added. (Section g-3-c) At the time of preparing this memo, staff has yet to determine a recommendation, but expect to have one by the Council meeting. The other amendment is a technical correction amendment which deletes the non-smoking requirement which is duplicative because state law now requires this so it is not necessary in this ordinance. Action: Informational City of Brookings August 9, 2011 68 Ordinance No. 30-08 XX-11 An Ordinance Establishing Procedure for the Issuance and Regulation of On- Sale Licenses for Full-Service Restaurants in the City of Brookings, South Dakota. Be It Ordained and Enacted by the City Council of the City of Brookings, State of South Dakota, as follows: I. Sec. 6-50. Full-Service On-Sale Restaurant Licenses. a. Definitions of Terms: Terms used in this ordinance mean: (1) “Bar,” any permanently installed counter within the restaurant area from which alcoholic beverages are regularly served to customers by a person who is tending bar or drawing or mixing alcoholic beverages; (2) “Full-service restaurant,” any restaurant at which a waiter or waitress delivers food and drink offered from a printed food menu to patrons at tables, booths, or the bar. Any restaurant that only serves fry orders or food such as sandwiches, hamburgers, or salads is not a full-service restaurant; (3) “Restaurant,” any area in a building maintained, advertised, and held out to the public as a place where individually priced meals are prepared and served primarily for consumption in such area and where not more than forty percent of the gross revenue of the restaurant is derived from the sale of alcohol or alcoholic beverages. The restaurant shall have a dining room or rooms, a kitchen, and the number and kinds of employees necessary for the preparing, cooking, and serving of meals. b. License Application Requirements: Documentation: An applicant for a full-service restaurant on-sale license shall provide sufficient documentation to the municipality with an application form provided by the municipality to prove that the primary source of revenue from the operation of the restaurant will be derived from the sale of prepared food and nonalcoholic beverages and not from the sale of alcoholic beverages. The supporting documentation concerning the primary source of revenue submitted pursuant to this section is confidential. c. Annual Reports: The full-service restaurant on-sale licensee shall submit an annual report and supporting documentation to the City on forms provided by the City of the annual sales of the full-service restaurant, which includes an oath verifying the validity of the information provided in the report. The report and the supporting documentation submitted pursuant to this section are confidential. The report shall contain the annual gross sales of the licensee for the following two categories: (i) Food and nonalcoholic beverage sales; and (ii) Alcoholic beverages sales. City of Brookings August 9, 2011 69 d. License Renewals: When renewing a full-service restaurant on-sale license, the City shall condition the license renewal upon receiving documentation that not more than forty percent of gross sales from the preceding twelve months operation of the full-service restaurant is derived from the sale of alcohol or alcoholic beverages. e. Only Retail, On-Sale Service Permitted: A full-service restaurant on-sale licensee may only serve alcoholic beverages for on-premise consumption in the bar and dining room area of the restaurant. f. Smoking Prohibited: No licensee that has a full-service restaurant on-sale license may allow smoking on the licensed premises. g. Full-Service Restaurant License Fees: (1) As required by State law, the license fee charged for a full-service restaurant on- sale license shall be at or above the current fair market value for such license as determined herein. However, any fair market value so established shall be a minimum of one dollar for each person residing within the City as measured by the last preceding decennial federal census. (2) The license fee shall be initially established by Resolution within ninety (90) days of the initial adoption of this ordinance. Subsequent changes in the license fee shall not be made for a period of ten (10) years from the effective date of adoption of this ordinance unless a population growth reported by the Federal decennial census requires an increase in the fee. (3) Fair Market Value for full-service restaurant license shall be established as follows: (a) Within 90 days of the effective date of this ordinance and as required by State statute, each licensee within the City who owns an on- sale license issued pursuant to SDCL 35-4-2 (4) or (6) as of January 1, 2008, and who purchased the license or had the license transferred to such licensee at anytime between January 1, 2003, and January 1, 2008, shall report the amount originally paid for the on-sale license to the City of Brookings City Manager on forms provided by the City. Any form submitted pursuant to this provision shall be signed under oath and shall include the documents establishing the amount originally paid for the on- sale license. If the transaction for the purchase of the on-sale license included real or personal property, the full market value of the real or personal property on the date of the original sale shall be deducted from the total transaction price to determine the amount paid by the licensee for the on-sale license. The burden of establishing the amount paid for the license shall be on the licensee. Any licensee contesting the fair market value of the real or personal property may appeal the valuation adopted by the City to circuit court. City of Brookings August 9, 2011 70 (b) For purposes of this section, the term, “Current Fair Market Value” means the documented price of the on-sale license most recently sold between January 1, 2003, and January 1, 2008, through an arm’s length transaction, less the value of any real or personal property included within the transaction. (c) In the event it is determined that under SDCL Chapter 35-4, no on- sale license has been purchased or transferred because such licenses are not transferable in a local option community, but may only be subject to an Operating Agreement, then the license fee shall nonetheless be set at or above the minimum of One ($1.00) dollar for each person residing within the City as measured by the last preceding decennial federal census. . h. Registry of Full-Service Restaurant On-sale Licensees: The City shall maintain a registry of each full-service on-sale restaurant license that is being offered for sale and the City shall furnish a copy of the registry to anyone who requests a new-full service restaurant on-sale license. The existing full-service restaurant on-sale licensee is responsible for registering with the City that the full- service restaurant on-sale license is for sale. i. Issuance of new Full-Service Restaurant Licenses restricted: The City may only issue a new license pursuant to this ordinance if no on-sale license is on the registry or a person desiring to purchase an on-sale license listed on the registry provides documentation showing that the person is unable to purchase the on-sale license at the price established in section g of this ordinance and on terms satisfactory to both the potential buyer and seller. The price of any on-sale license registered as “for sale” with the City shall be sold at the current fair market price set by the City pursuant to a Resolution adopted in accordance with section g (2) of this ordinance. II. Any or all ordinances in conflict herewith are hereby repealed. First Reading: Second Reading: Published: CITY OF BROOKINGS, SD ATTEST: Tim Reed, Mayor Shari Thornes, City Clerk City of Brookings August 9, 2011 72 SD Codified Laws Pertaining to Restaurant Liquor Licenses 35-1-1.1. Licensee includes municipal operating agreement holder--Number of agreements limited. For the purposes of this title, an entity that has entered into an operating agreement with a municipality pursuant to § 35-4-19 is a licensee. The number of operating agreements that a municipality may enter into may not exceed the maximum number of retail licenses of each type that may be issued pursuant to this title. Source: SL 2003, ch 188, § 1; SL 2009, ch 177, § 10. 35-4-19.1. Full-service restaurant on-sale license provisions applicable to municipalities and operating agreement holders. The provisions of §§ 35-4-110 to 35-4- 120, inclusive, apply to any municipality that enters into operating agreements pursuant to subdivision 35-4-19(2). Each operating agreement holder is a license holder for the purposes of §§ 35-4-110 to 35-4-120, inclusive, and when applying these provisions. Source: SL 2009, ch 177, § 11. 35-4-110. Definition of terms pertaining to full-service restaurant on-sale licenses. Terms used in this section and §§ 35-4-111 to 35-4-120, inclusive, mean: (1) "Bar," any permanently installed counter within the restaurant area from which alcoholic beverages are regularly served to customers by a person who is tending bar or drawing or mixing alcoholic beverages; (2) "Full-service restaurant," any restaurant at which a waiter or waitress delivers food and drink offered from a printed food menu to patrons at tables, booths, or the bar. Any restaurant that only serves fry orders or foodstuffs such as sandwiches, hamburgers, or salads is not a full-service restaurant; (3) "Restaurant," any area in a building maintained, advertised, and held out to the public as a place where individually priced meals are prepared and served primarily for consumption in such area and where at least sixty percent of the gross revenue of the restaurant is derived from the sale of food and nonalcoholic beverages. The restaurant shall have a dining room or rooms, a kitchen, and the number and kinds of employees necessary for the preparing, cooking, and serving of meals. Source: SL 2008, ch 189, § 2; SL 2009, ch 177, § 1. 35-4-111. Full-service restaurant on-sale licenses. Notwithstanding the provisions of § 35- 4-11 or 35-4-11.1 or the on-sale license fees established pursuant to subdivisions 35-4-2(4) and (6), the governing board of any incorporated municipality or the board of county commissioners of any county may, by ordinance, issue additional on-sale licenses for full-service restaurants if the municipality or county charges at least the minimum fee required by § 35-4-116. A full-service restaurant on-sale license issued in a municipality is subject to the license renewal fees as provided for in subdivision 35-4-2(4), and shall be treated for all other regulatory purposes City of Brookings August 9, 2011 73 in this title as a license issued pursuant to subdivision 35-4-2(4). A full-service restaurant on-sale license issued in a county is subject to the license renewal fees as provided for in subdivision 35-4-2(6), and shall be treated for all other regulatory purposes in this title as a license issued pursuant to subdivision 35-4-2(6). Source: SL 2008, ch 189, § 1; SL 2009, ch 177, § 2. 35-4-112. Documentation in support of initial application for full-service restaurant on-sale license. In the initial application, an applicant for a full-service restaurant on-sale license shall provide sufficient documentation to the municipality or county to prove that the primary source of revenue from the operation of the restaurant will be derived from the sale of prepared food and nonalcoholic beverages and not from the sale of alcoholic beverages. The supporting documentation concerning the primary source of revenue submitted pursuant to this section is confidential. Source: SL 2008, ch 189, § 3; SL 2009, ch 177, § 3. 35-4-113. Renewal of full-service restaurant on-sale license--Annual report. If the municipality or county is renewing a full-service restaurant on-sale license, the municipality or county shall condition the license renewal upon receiving documentation that at least sixty percent of gross revenue from the preceding twelve months operation of the full-service restaurant was derived from the sale of food and nonalcoholic beverages. The full-service restaurant on-sale licensee shall submit an annual report to the municipality or county on the revenues from the full-service restaurant that includes an oath verifying the validity of the information provided in the report. The report and the supporting documentation submitted pursuant to this section are confidential. The report shall contain the annual gross revenues of the licensee for the following two categories: (1) Food and nonalcoholic beverage gross revenues; and (2) Total gross revenues. Source: SL 2008, ch 189, § 4; SL 2009, ch 177, § 4. 35-4-114. On-premise consumption required. A full-service restaurant on-sale licensee may only serve alcoholic beverages for on-premise consumption in the bar and dining room area of the restaurant. Source: SL 2008, ch 189, § 5 City of Brookings August 9, 2011 74 35-4-115. Advertisement of full-service restaurant. A restaurant that has a full-service restaurant on-sale license may only be advertised or held out to the public as primarily a food eating establishment. No licensee that has a full-service restaurant on-sale license may allow smoking on the licensed premises. Source: SL 2008, ch 189, § 6. 35-4-116. Fees for additional on-sale licenses to full-service restaurants. Any municipality or county adopting the ordinance pursuant to § 35-4-111 may issue additional on-sale licenses to full-service restaurants. Any municipality adopting such ordinance shall charge at least one dollar for each person residing within the municipality as measured by the last preceding decennial federal census. Any county adopting such ordinance shall charge at least one dollar for each person residing within the county but outside the boundary of any municipality as measured by the last preceding decennial federal census. Each municipality or county shall set the on-sale license fee within ninety days of adopting the ordinance pursuant to § 35-4-111 or within thirty days after the resolution of any appeal pursuant to § 35-4-120. After the fee for an on-sale license issued pursuant to §§ 35-4-110 to 35-4-120, inclusive, has been determined, no municipality or county may change the fee for a period of ten years unless a growth in population reported by the federal decennial census requires an increase in the fee. Source: SL 2008, ch 189, § 7; SL 2009, ch 177, § 5. 35-4-117. Price of full-service restaurant on-sale license set at or above current fair market value. Any municipality or county adopting the ordinance pursuant to § 35-4-111 shall set the price of a new full-service restaurant on-sale license, pursuant to § 35-4-116, at or above the current fair market value. However, such full-service restaurant on-sale license fee may not be less than the minimum on-sale license fee provided for in subdivision 35-4-2(4) or (6). For purposes of this section, the term, current fair market value, means the documented price of the on-sale license most recently sold between January 1, 2003, and January 1, 2008, through an arm's-length transaction, less the value of any real or personal property included in the transaction. Each on-sale license holder as of January 1, 2008, who acquired the on-sale license within the last five years shall report to the municipality or county the date and price paid for its on-sale license. If there are no documented sales of on-sale licenses between January 1, 2003, and January 1, 2008, the municipality or county may request from any on-sale license holder within the municipality or county, the date and price originally paid for its on-sale license to determine the current fair market value. Source: SL 2008, ch 189, § 9; SL 2009, ch 177, § 6. City of Brookings August 9, 2011 75 35-4-118. Registry of full-service restaurant on-sale licenses. Each municipality or county adopting an ordinance pursuant to § 35-4-111 shall maintain a registry of each on-sale license that is being offered for sale at the price established in § 35-4-117 and furnish a copy of the registry to anyone who requests a new full-service restaurant on-sale license. The municipality or county may only issue a new license pursuant to §§ 35-4-110 to 35-4-120, inclusive, if no on-sale license is on the registry or a person desiring to purchase an on-sale license listed on the registry provides documentation showing that the person is unable to purchase the on-sale license at the price established in § 35-4-117 and on terms satisfactory to both the potential buyer and seller. The price of any on-sale license registered as, for sale, with the municipality or county shall be sold at the current fair market price set by the municipality or county pursuant to § 35-4-117. Nothing in §§ 35-4-110 to 35-4-120, inclusive, precludes the sale of an on-sale license by a licensee not listed on the registry. Source: SL 2008, ch 189, § 10; SL 2009, ch 177, § 7. 35-4-119. Registration that full-service restaurant on-sale license is for sale. The existing on-sale license holder is responsible for registering with the municipality or county that the on-sale license is for sale pursuant to § 35-4-118. Source: SL 2008, ch 189, § 11. 35-4-120. Certain licensees to report amount paid for other licenses--Objection to report--Hearing--Appeal. Upon the adoption of an ordinance pursuant to § 35-4-111, any person who purchased an on-sale license issued pursuant to subdivision 35-4-2(4) or (6) between January 1, 2003, and January 1, 2008, and who owned the license on January 1, 2008, shall report to the municipality or county that issued the license the amount paid for the license. If the municipality or county that issued the on-sale license adopts an ordinance pursuant to § 35-4-111, and requests from any other licensee the amount originally paid for any other on-sale license pursuant to § 35-4-117, the licensee shall report that amount to the municipality or county. The declared purchase price shall be made under oath and shall include the documents establishing the amount paid for the on-sale license. If the transaction included other personal property or real property, the full market value of such property on the date of the transaction shall be deducted from the total purchase price to establish the amount paid for the license. The person who owned the license on January 1, 2008, has the burden of establishing the amount paid for the license. If the amount reported is used to determine current fair market value pursuant to § 35-4- 117, any licensee who contends that the amount does not accurately reflect the fair market value of the license on the date of purchase may file an objection to the report. The objection shall be filed with the municipality or county within thirty days of the date the license fee is set pursuant to § 35-4-116. If an objection is filed, the governing board of the municipality or county shall conduct a hearing to determine the fair market value of the license. The determination of the governing board may be appealed to circuit court. City of Brookings August 9, 2011 76 Second Readings / Public Hearings 14. Discussion and possible action on Resolution No. 94-11, authorizing the City Manager to sign an On-Sale Liquor Operating Agreement with James Gardner, Brookings Steakhouse LLC (applied for), dba Whiskey Creek Steakhouse, SE corner of Block 1, Wiese Addition (corner of Highway 14 and 32nd Avenue). James Gardner, Brookings Steakhouse LLC, dba Whiskey Creek Steakhouse, has applied for a On-Sale Liquor Operating Agreement. All documents have been filed with the City pertaining to licensing requirements. City Manager Introduction Action: Open & Close Public Hearing, Motion to Approve, Roll Call City of Brookings August 9, 2011 79 Resolution No. 94-11 Brookings Steakhouse LLC (dba Whiskey Creek Steakhouse) – 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 Brookings Steakhouse LLC (dba Whiskey Creek Steakhouse), James Gardner, owner, for the purpose of a liquor manager to operate the On-Sale Establishment or business for and on behalf of the City of Brookings at SE corner of Block 1, Wiese Addition (corner of Highway 14 and 32nd Avenue), also known as Whiskey Creek Steakhouse. 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 one year. Passed and approved this 26th day of July 2011. CITY OF BROOKINGS Tim Reed, Mayor ATTEST: Shari Thornes, City Clerk City of Brookings August 9, 2011 80 LIQUOR OPERATING AGREEMENT Brookings Steakhouse LLC (dba Whiskey Creek Steakhouse) 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 Brookings Steakhouse LLC (dba Whiskey Creek Steakhouse), James Gardner, owner, hereinafter referred to as the “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: 1. This Agreement is made and entered into on a limited basis between the parties hereto to allow the Manager to operate a retail on-sale premises, pursuant to and in accordance with all of the terms and conditions of this Agreement in accordance with all State laws and City Ordinances now in effect and as may be enacted in the future. 2. The Manager shall be individually responsible for all operating expenses of said on-sale establishment, including but not limited to utilities, taxes, insurance and license fees, if any. The Manager shall furnish all equipment and fixtures necessary to operate the establishment. 3. The on-sale establishment shall be located upon real estate in the City of Brookings, South Dakota, described as: SE corner of Block 1, Wiese Addition, City of Brookings, Brookings County, South Dakota 4. The Manager shall dispense only alcoholic beverages supplied by the Municipal off-sale establishment. City of Brookings August 9, 2011 81 5. This Agreement shall be in full force and effect for a period of five (5) years with the Manager having the option and privilege of a five (5) year extension, subject to the approval of the governing body of the City of Brookings. 6. Either the Manager or the City may terminate this Agreement without cause upon ninety (90) days written notice served by either party upon the other. The City reserves the right to immediately suspend or revoke this Agreement without ninety (90) days written notice for alcohol related violations in accordance with the provisions of Resolution No. 25-88 or any amendments thereto or for any late payments for alcoholic beverages supplied by the Municipal off-sale establishment to be sold on the premises of Manager. 7. The Manager shall receive as full compensation for its services rendered, the net profit from the on-sale establishment under its management, and the sole profit to be derived by the City shall be the markup hereinafter set forth on alcoholic beverages furnished by the municipality to the Manager for the purposes of resale on the premises as above described. 8. The Manager shall pay to the City for all alcoholic beverages sold by the City to the Manager for resale on the above-described premises, the actual cost of distilled spirits and wine supplied by the City, plus eleven percent (11%) in excess of such cost; the Manager shall pay to the City for all malt beverages sold by the City to the Manager for resale on the above-described premises, the actual cost of malt beverages, plus ten percent (10%) in excess of such cost. The actual cost shall include cost price 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. 9. A complete and detailed record shall be maintained by the City of all alcoholic beverages supplied to the on-sale Manager and such alcoholic beverages so supplied shall be evidenced by pre- numbered invoices prepared in triplicate showing the date, quantity, brand, size and actual cost of such item, and such invoice shall bear the signature of the authorized representative of the on- sale Manager or its authorized representative. One copy thereof shall be retained by the Municipal off-sale establishment, one copy shall be retained by the on-sale establishment, and one copy shall be filed with the City Clerk. All copies shall be kept as permanent records and made available for reference and audit purposes. The Manager also agrees to maintain a complete record of all alcoholic beverages received from the City. City of Brookings August 9, 2011 82 10. The Manager agrees to pay the CITY OF BROOKINGS an Operating Agreement Fee of Twenty- five Thousand and no/100 Dollars ($25,000.00) at or prior to the execution of this Agreement. The Manager agrees to pay the CITY OF BROOKINGS, an Annual Renewal License Fee of One Thousand Five Hundred and no/100 Dollars ($1,500.00), which is due on or by January 1, 2012. The payment of the Annual Renewal License Fee will not extend the term of this Operating Agreement beyond the term provided herein. 11. The Manager agrees to keep the premises in a neat, clean and attractive appearance, and Manager further agrees to operate said on-sale establishment only on such days and at such hours as permitted by state law and city ordinances. 12. The Manager shall have the right to return, at any time, alcoholic beverages received from the City and to receive in return any deposit made for such alcoholic beverages; in the event of termination of the business, all unused alcoholic beverages, which may be resold without discount may be returned to the City and the Manager shall be reimbursed for the cost of such alcoholic beverages. 13. The Manager agrees to abide by the credit policies of the City and acknowledges, by execution of this Agreement, receipt of a copy of the credit policies of the City. The City reserves the right to change or terminate its credit policies at any time, but shall be required to provide written notice to Manager prior to the effective date of the change or termination date of the credit policies. 14. The Manager agrees to furnish the City upon demand, evidence of payment of the following: A. All salaries of on-sale employees; B. Social Security and withholding taxes on said employees; C. Worker’s Compensation insurance premiums covering said employees; D. Unemployment taxes on the payrolls of said employees; E. General liability insurance protecting both the City and Manager against claims for injury or damages to persons or property, said policy to have general liability limits 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; H. The Federal stamp fee. 15. The Manager agrees to observe all Federal and State laws and all ordinances of the City of Brookings. City of Brookings August 9, 2011 83 16. The City covenants and agrees to furnish the on-sale license to Manager pursuant to the terms and conditions of this Operating Agreement and the terms and conditions of the on-sale license. 17. The City has the right to make inspections and investigations of the premises during the hours of operation, and make audits and examinations of the records of the Manager relating to the on- sale establishment. 18. It is further specifically understood and agreed that the waiver of the rights of the City under this Agreement shall not constitute a continuous waiver, and any violation or breach of the terms of this agreement by the Manager shall constitute a separate and distinct offense and grounds for immediate termination and revocation of this Agreement. 19. This agreement shall not be assignable to another person or location without the written consent of the City. IN WITNESS WHEREOF, the parties hereto have executed this agreement this _____ day of August, 2011. CITY OF BROOKINGS, South Dakota A Municipal Corporation By: Jeffrey W. Weldon, City Manager ATTEST: Shari Thornes, Brookings City Clerk MANAGER By: Operating Agreement/Business Owner Representative City of Brookings August 9, 2011 84 City Council Policy Liquor Operating Agreements Adopted August 13, 2001 The City of Brookings is the holder of State Liquor Licenses for the sale of alcoholic beverages. The City of Brookings enters into operating agreements with business owners permitting them to sell alcoholic beverages purchased from the City. The City of Brookings established a policy for the consideration of additional operating agreements with the City. The policy establishes the criteria for applying for an available, but un-issued operating agreement. This addition to that policy will clarify the City Council‘s policy on the consideration of changes in existing operating agreements. 1. It is not the City‘s intention to allow operating agreements to be sold. 2. It is not the City‘s intention to have issued operating agreements be unused by the manager. Failure to use the agreement will be grounds for termination by the City. The city manager will report any inactive operating agreements to the City Council to consider the circumstances and for appropriate action. 3. Operating agreements are not assignable or transferable to another person or location by the named manager; only the City Council can assign or transfer an agreement to another person or location. 4. The purchaser of an establishment holding an operating agreement must apply for an assignment of that operating agreement. It is the City‘s intent to allow an assignment of an operating agreement to an applicant that passes the “character of the applicant” requirement as a new owner of an existing business in the same location. 5. The owner of an establishment holding an operating agreement must apply for an assignment of that operating agreement if there is a desire to move the business to a different location. It is the City‘s intent to allow an assignment of an operating agreement to a new location providing the location is suitable, “second tier criteria” is considered and the business identity is the same as in the initial application. 6. Unless the circumstances are as described in number 4 and 5 above, it is not the City‘s intent to allow the assignment of an operating agreement from one business to another or one location to another. In these instances, an application for a new operating agreement is necessary. City of Brookings August 9, 2011 85 Policy Establishing Criteria for the Issuance of Additional On-sale Liquor Licenses South Dakota Codified Laws (SDCL) limit the maximum number of on-sale liquor licenses and provides criteria for the issuance of licenses. Maximum Number of on-sale licenses SDCL 35-4-11 provides in part: The number of on-sale licenses issued may not exceed three each for the first one thousand of population or fraction thereof and not exceed one each of such licenses for each additional one thousand five hundred of population or fraction thereof. The quotas established in this section do not apply to malt beverage retailers. SDCL 35-4-1 defines ―population‖ as the number of inhabitants as determined by the last preceding federal census. A 1939 Attorney General Opinion states that “preliminary census Bulletins” are official. Criteria for Issuance of Alcoholic Beverage Licenses 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.” The City of Brookings is anticipating that the 2000 census will count a population of at least 17,501 people, allowing one additional On-Sale Liquor License. The population may increase by 2,731 which would allow two additional On-Sale Liquor Licenses. Several business people have expressed a desire to obtain an on-sale license when it becomes available. With this knowledge, the City Council of the City of Brookings desires to establish criteria for the issuance of licenses over the current fifteen issued. Currently, the fifteen license holders are: City of Brookings August 9, 2011 86 ON-SALE 1. 9 Bar On-Sale 2. Brookings Inn On-Sale (Convention) 3. Jim‘s Tap On-Sale 4. The Lantern Lounge On-Sale 5. Pheasant Lounge On-Sale 6. Prairie Lanes, Inc. On-Sale 7. The Ram & O‘Hare‘s On-Sale 8. Sully‘s On-Sale 9. Staurolite Inn & Suites On-Sale (Convention) 10. Danny‘s Lounge On-Sale 11. Ray‘s Corner On-Sale 12. Cubby‘s Sports Bar & Grill On-Sale 13. Applebee‘s On-Sale 14. Skinner‘s On-Sale 15. Bravo‘s On-Sale 16. Elks Club Club 17. VFW Club Club SDCL and case law support the premise that the decision to issue an alcoholic beverage license is discretionary. Therefore, the City of Brookings hereby establishes a two-tiered process to evaluate on-sale liquor applications. The first tier will 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 will 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. The City will check for compliance with the State requirement that the “character of the applicant” be acceptable. Upon finding evidence that the character of the applicant is acceptable and the location suitable, the City Council will consider second tier criteria. This process can include examining the best location for economic and tourism development, the best ancillary uses (restaurant, etc.) developed with the sale of liquor, the best location in accordance with the city long-range plan, the size of the facility, parking facilities, closeness to existing supplementing businesses and activities deemed important by the City Council. City of Brookings August 9, 2011 87 15. Adjourn.