HomeMy WebLinkAbout2010_04_06 CC PKTCity Council Packet
April 6, 2010
Brookings City Council
Tuesday, April 6, 2010
City Hall Council Chambers
311 Third Avenue
5:00 p.m. – Work Session – Joint Session with County Commission
6:00 p.m. – Regular Meeting
Mission Statement:
The City of Brookings is committed to providing a high quality of life for its citizens and fostering a diverse economic base through
innovative thinking, strategic planning, and proactive, fiscally responsible municipal management.
5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council on items for that
particular meeting, introduce future topics, and provide a time for Council members to introduce topics.
1. Joint Session of City Council and County Commission to interview architect finalist.
2. City Council Member Ex-Officio Reports.
3. City Council member introduction of topics for future discussion. *
4. Council Invites & Obligations.
*Any Council member may request discussion of any issue at a future meeting only. Items cannot be added for
action at this meeting. A motion and second is required starting the issue, requested outcome, and time. A
majority vote is required.
6:00 P.M. REGULAR MEETING
1. Call to order.
2. Pledge of Allegiance.
3. Record of Council attendance.
4. Action to approve the following Consent Agenda Items *
A. Action to approve the agenda.
B. Approval of minutes.
C. Action on Resolution No. 38-10, awarding bids for 2010-03SSI, Village Square
Drainage Improvement Project
D. Action to Abate the 2010 Drainage Fee for Parcel No. 40055-00100-000-00, the
West 400’ of Block 1, of Bidco Addition for XTRA LLP.
E. Action to Abate the 2010 Drainage Fee for Parcel No. 40490-00800-001-00, Lot 1,
Eighth Railroad Addition for XTRA LLP.
F. Action to Abate the 2010 Drainage Fee for Parcel No. 40196-00400-000-00, Block 4
and Lot 3 except the E 400’ of Block 5, Gilkersons Addition, otherwise known as
201Daktronics Dr.
G. Action to Abate the 2010 Drainage Fee for Parcel No. 40597-00300-001-00, Lot 1A,
Block 3, Telkamp Industrial Addition, (no address).
H. Action to Abate the 2010 Drainage Fee for Parcel No. 40195-00500-002-00, Lot 2,
Block 5, Gilkersons Addition, otherwise known as 201 32nd Avenue.
I. Action on Resolution No. 39-10, a Resolution Amending the Brookings
Transportation Board of the City of Brookings.
J. Action on Resolution No. 42-10, a Resolution Amending the Visitor Promotions
Committee of the City of Brookings.
Motion to approve, request public comment, roll call
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* 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.
Presentations, Special Requests/Invites & Reports:
5. Open Forum.
6. SDSU Student Senate Report.
Informational
Contract Awards/Change Orders:
7. Action to award the contract for Landfill Trench 4 East to the low bid of R. L. Larson
Excavating, Inc. of St. Cloud, MN.
City Manager Introduction
Motion to approve – Request Public Comment - Roll Call
Ordinance First Readings:
8. Ordinance No. 16-10: An Ordinance Amending Section 62-34 of the Code of
Ordinances of the City of Brookings, South Dakota and pertaining to the Terms of
Office for the Park and Recreation Board in the City of Brookings, South Dakota.
Public Hearing – April 27th
** No vote is taken on the first reading of an Ordinance. The title of the Ordinance is read and the date for the public hearing is
announced.
Second Readings/Public Hearings
9. Ordinance No. 14-10: An Ordinance pertaining to an Application for a Conditional Use
for a Private Stable in the Residence R-1A District for Lot 18, Block 1, Nelson Second
Addition, address 1623 Medary Avenue South.
City Manager Introduction
Open & Close Public Hearing
Motion to approve – Roll Call
10. Ordinance No. 15-10: an Ordinance Amending the Zoning Ordinance of the City of
Brookings and pertaining to Location of Parking Spaces for the purposes of
Administration of the Zoning Ordinance.
City Manager Introduction
Open & Close Public Hearing
Motion to approve – Roll Call
11. Public hearing and action on a moving permit request from the Episcopal Church to
move a garage onto the South 90, Lots 1 and 2, Block 1, Skinner’s Second Addition, also
known as 519 8th Avenue.
City Manager Introduction
Open & Close Public Hearing
Motion to approve – Roll Call
Alcohol License Hearings
12. Public hearing and action on an On/Off Malt License for Taste of Europe, Dennis
Bielfeldt, owner, 1300 Main Avenue South, Legal: Block 4, Fishback Second Addition.
City Manager Introduction
Open & Close Public Hearing
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Motion to approve – Roll Call
13. Action on Resolution No. 40-10, authorizing the City Manager to sign an Operating
Agreement with Taste of Europe, Dennis Bielfeldt, owner, 1300 Main Avenue South for
an On/Off Wine License.
City Manager Introduction
Motion to approve – Request Public Comment - Roll Call
Other Business:
14. Action to approve a Joint Cooperative Agreement for County/City Administrative
Office Building.
City Manager Introduction
Motion to approve – Request Public Comment - Roll Call
15. Action on Resolution No. 41-10, authorizing the execution, terms, issuance, sale and
payment of Sales Tax Revenue Bonds in the aggregate principal amount of not to exceed
Seven Million Dollars ($7,000,000.00), of the City of Brookings of Brookings County,
South Dakota.
City Manager Introduction
Motion to approve – Request Public Comment - Roll Call
16. Action on Real Estate and Purchase Agreements for an undivided one-half (1/2) interest
in and to the Northeast One-fourth (NE¼), except Lots One (1) and Two (2) and
except Lots H-4, H-5 and the platted lots thereof, of Section Nineteen (19), Township
One Hundred Ten (110) North, Range Forty-nine (49) West of the 5th P.M., County of
Brookings, State of South Dakota.
City Manager Introduction
Motion to approve – Request Public Comment - Roll Call
17. Action to prioritize Strategic Plan Tier 3 Goals.
City Manager Introduction
Motion to approve – Request Public Comment - Roll Call
18. Executive Session for purpose of consulting with legal counsel about proposed or
pending contractual matters.
Motion to enter executive session – voice vote
Motion to leave executive session – voice vote
19. Adjourn.
Brookings City Council
Tim Reed, Mayor
Mike Bartley, Deputy Mayor & Council Member
Council Members Tom Bezdichek, John Kubal, Mike McClemans, Jael Thorpe, Julie Whaley,
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 @ 1pm, Thursday @ 7 pm, Friday @ 9 pm, and Saturday @ 1 pm.
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.
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5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council
on items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
1. Joint Session of City Council and County Commission to
interview architect finalist.
Pursuant to direction of the Building Committee, they are recommending the
architectural firm of Cannon Moss Brygger & Associates for a follow-up interview with
the City Council and County Commission. No action will be taken.
Estimate Time: 45 Minutes
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5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council
on items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
2. 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 and Utility Board will
provide verbal reports regarding recent meetings they have attended.
Utility Board: Council Members Bezdichek and Kubal
Health Systems Board: Council Members Whaley and Thorpe
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5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council
on items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
3. 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 starting the issue,
requested outcome, and time. A majority vote is required.
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5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council
on items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
4. Council Invites & Obligations.
Date
Day
Event &
Brief Description
Time
Location
Town
Address
Directions
April 7th Wednesday Annual District 2 Meeting 6:00 p.m. Dugout Restaurant
DeSmet, SD
April 9th Friday Brookings/Moody County
Lincoln Day
5:30 p.m. Social
Hour
Shamrock
April 12th Monday 2010 Legislative Wrap-Up
Luncheon
11:45 a.m. Days Inn
April 13th Tuesday City Council/School Board
Election
April 15th Thursday Election Canvassing 5:00 p.m. City Hall Meeting Room
April 20-21 Tuesday –
Wednesday
Governor’s Economic
Development Conference
12:00 noon on
April 20th
Best Western Ramkota,
Sioux Falls
April 27th Tuesday Council Meeting 5:00 p.m. Council Chambers
June 30th Wednesday Governor’s Ag Development
Summit
Sioux Falls Convention
Center
Sept. 23-25 Thursday –
Saturday
NLC 18th Annual Leadership
Summit “Leading the Charge
in Local Government”
Philadelphia, Pennsylvania
Nov. 29 –
Dec. 4th
Monday –
Saturday
NLC-Congress of Cities
Denver, CO
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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. Approval of minutes.
C. Action on Resolution No. 38-10, awarding bids for 2010-03SSI, Village Square Drainage Improvement
Project
D. Action to Abate the 2010 Drainage Fee for Parcel No. 40055-00100-000-00, the West 400’ of Block
1, of Bidco Addition for XTRA LLP.
E. Action to Abate the 2010 Drainage Fee for Parcel No. 40490-00800-001-00, Lot 1, Eighth Railroad
Addition for XTRA LLP.
F. Action to Abate the 2010 Drainage Fee for Parcel No. 40196-00400-000-00, Block 4 and Lot 3
except the E 400’ of Block 5, Gilkersons Addition, otherwise known as 201Daktronics Dr.
G. Action to Abate the 2010 Drainage Fee for Parcel No. 40597-00300-001-00, Lot 1A, Block 3,
Telkamp Industrial Addition, (no address).
H. Action to Abate the 2010 Drainage Fee for Parcel No. 40195-00500-002-00, Lot 2, Block 5,
Gilkersons Addition, otherwise known as 201 32nd Avenue.
I. Action on Resolution No. 39-10, a Resolution Amending the Brookings Transportation Board of the
City of Brookings.
J. Action on Resolution No. 42-10, a Resolution Amending the Visitor Promotions Committee of the
City of Brookings.
Presentations, Special Requests/Invites & Reports:
5. Open Forum.
6. SDSU Student Senate Report.
Contract Awards/Change orders:
7. Action to award the contract for Landfill Trench 4East to the low bid of R.L. Larson Excavating, Inc. of St.
Cloud, MN
City Manager Introduction, Motion to Approve, Request Public Comment, Roll Call
Ordinance First Readings – Public Hearings April 6th
8. Ordinance No. 16-10: An Ordinance Amending Section 62-34 of the Code of Ordinances of the City of
Brookings, South Dakota and pertaining to the Terms of Office for the Park and Recreation Board in the
City of Brookings, South Dakota. Public Hearing – April 27th
Second Readings/Public Hearings
9. Ordinance No. 14-10: An ordinance pertaining to an application for a Conditional Use for a private stable
in the Residence R-1A District for Lot 18, Block 1, Nelson Second Addition, address 1623 Medary
Avenue South.
10. Ordinance No. 15-10: An ordinance amending the zoning ordinance of the City of Brookings and
pertaining to Location of Parking Spaces for the purposes of administration of the zoning ordinance.
11. Public hearing and action on a moving permit request from the Episcopal Church to move a garage onto
the South 90, Lots 1 and 2, Block 1, Skinner’s Second Addition, also known as 519 8th Avenue.
City Manager Introduction, Open & Close Public Hearing, Motion to approve, Roll Call
Alcohol License Hearings
12. Public hearing and action on an On/Off Malt License for Taste of Europe, Dennis Bielfeldt, owner, 1300
Main Avenue South, Legal: Block 4, Fishback Second Addition.
City Manager Introduction, Open & Close Public Hearing, Motion to approve, Roll Call
13. Action on Resolution No. 40-10, authorizing the City Manager to sign an Operating Agreement with
Taste of Europe, Dennis Bielfeldt, owner, 1300 Main Avenue South for an On/Off Wine License.
City Manager Introduction, Motion to approve, Request Public Comment, Roll Call
Other Business:
14. Action to approve a Joint Cooperative Agreement for County/City Administrative Office Building.
City Manager Introduction, Motion to approve, Request Public Comment, Roll Call
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15. Action on Resolution No. 41-10, authorizing the execution, terms, issuance, sale and payment of Sales
Tax Revenue Bonds in the aggregate principal amount of not to exceed Seven Million Dollars
($7,000,000.00), of the City of Brookings of Brookings County, South Dakota.
City Manager Introduction, Motion to approve, Request Public Comment, Roll Call
16. Action on Real Estate and Purchase Agreements for an undivided one-half (1/2) interest in and to the
Northeast One-fourth (NE¼), except Lots One (1) and Two (2) and except Lots H-4, H-5 and the
platted lots thereof, of Section Nineteen (19), Township One Hundred Ten (110) North, Range Forty-
nine (49) West of the 5th P.M., County of Brookings, State of South Dakota.
City Manager Introduction, Motion to approve, Request Public Comment, Roll Call
17. Action to prioritize Strategic Plan Tier 3 Goals.
City Manager Introduction, Motion to approve, Request Public Comment, Roll Call
18. Executive Session for purpose of consulting with legal counsel about proposed or pending contractual
matters.
Motion to enter executive session – voice vote
Motion to leave executive session – voice vote
19. Adjourn.
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CONSENT AGENDA #4
4. Action to approve the following Consent Agenda Items *
A. Action to approve the agenda.
B. Approval of minutes.
C. Action on Resolution No. 38-10, awarding bids for 2010-03SSI, Village
Square Drainage Improvement Project
D. Action to Abate the 2010 Drainage Fee for Parcel No. 40055-00100-
000-00, the West 400’ of Block 1, of Bidco Addition for XTRA LLP.
E. Action to Abate the 2010 Drainage Fee for Parcel No. 40490-00800-
001-00, Lot 1, Eighth Railroad Addition for XTRA LLP.
F. Action to Abate the 2010 Drainage Fee for Parcel No. 40196-00400-
000-00, Block 4 and Lot 3 except the E 400’ of Block 5, Gilkersons
Addition, otherwise known as 201Daktronics Dr.
G. Action to Abate the 2010 Drainage Fee for Parcel No. 40597-00300-
001-00, Lot 1A, Block 3, Telkamp Industrial Addition, (no address).
H. Action to Abate the 2010 Drainage Fee for Parcel No. 40195-00500-
002-00, Lot 2, Block 5, Gilkersons Addition, otherwise known as 201
32nd Avenue.
I. Action on Resolution No. 39-10, a Resolution Amending the Brookings
Transportation Board of the City of Brookings.
J. Action on Resolution No. 42-10, a Resolution Amending the Visitor
Promotions Committee of the City of Brookings.
*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 Manager Recommendation: Approve
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CONSENT AGENDA #4
B. Approval of City Council Meeting minutes.
The draft March 23rd Brookings City Council minutes are enclosed for Council review
and approval.
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Brookings March 23, 2010
(unapproved)
The Brookings City Council held a meeting on Tuesday, March 23, 2010 at 5:30 p.m., at City Hall
with the following members present: Mayor Tim Reed, Council Members Julie Whaley, John
Kubal, Mike McClemans (via teleconference), Mike Bartley, Jael Thorpe, and Tom Bezdichek. City
Manager Jeff Weldon, City Attorney Steve Britzman, and City Clerk Shari Thornes were also
present.
Update on Flood Mitigation Efforts. City Manager, Jeff Weldon, gave an update on the
measures being taken in regards to flood mitigation.
City Council Member Ex-Officio Reports. A motion was made by Reed, seconded by
Bartley, to prepare an ordinance amendment to change the Park and Recreation Board
members terms from five years to three years. All present voted yes; motion carried.
Mayor Reed informed the Council that Jim Weiss was replacing Dean Kattelmann on the
Parking Ad Hoc Committee.
6:00 P.M. REGULAR MEETING.
Consent Agenda. A motion was made by Whaley, seconded by Bartley, to approve the
consent agenda as follows:
A. Action to approve the agenda.
B. Approval of the March 9th Council Meeting minutes.
C. Action on Resolution No. 33-10, STP – Urban System Priority List.
Resolution No. 33-10
STP-Urban System Priority List
Whereas, the City of Brookings has designated certain streets to be included in the
STP-Urban System of Streets as defined by the SDDOT; and
Whereas, the SDDOT has designated certain funds, Federal and State to be used for
construction, reconstruction and major repair of the STP-Urban System Streets; and
Whereas, the City of Brookings has been requested to establish a priority list of
projects to be considered for funding by the SDDOT;
Now, Therefore, the City of Brookings hereby resolves that the following projects be
considered in the order listed:
Year Project Location Year Type of Work Length Cost
2012 Medary Ave. S. from 2012 Milling & Asphalt Overlay 1.6 $1,000,000
6th St. to 15th St. S. 2012 & Pavement Markings
D. Action on Resolution No. 34-10, a Resolution for Funding Agreement for the
Brookings Area Transportation Plan Study.
Resolution No. 34-10
Resolution for Funding Agreement for Brookings Area Transportation Plan Study
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Whereas, the City of Brookings has identified the need to complete a comprehensive
transportation study; and
Whereas, it has been determined by the State of South Dakota that the project is
eligible for State Planning and Research Program funds; and
Whereas, the City of Brookings is the sponsoring applicant for funds; and
Whereas, the City is responsible for reimbursing the South Dakota Department of
Transportation twenty percent (20%) of the project costs up to a maximum of $35,000.
Therefore, Be It Resolved that the City of Brooking duly authorizes the City Manager of
the City of Brooking to sign all documents for the funding agreement between the SD
Department of Transportation and the City of Brookings for the Brookings Area
Transportation Plan Study.
E. Action on Resolution No. 35-10, appointing election judges for the April 13th
Joint City Council/School Board Election.
Resolution No. 35-10
Appointment of Election Judges
Whereas, a City of Brookings Municipal Election will be held on April 13, 2010 for the
positions of two Council members; and
Whereas, as required by SDCL 9-13-16.1, the City Council must appoint Election
Superintendents and Deputies and set their rate of compensation; and
Whereas, the following superintendents and deputies are hereby appointed at a rate of
$10.50 per hour for superintendents, $10.00 per hour for deputies, and a flat fee of
$20.00 for the April 12, 2010 Election School: RESOLUTION BOARD: David
Peterson, Larry Hult, and Karen Cook as Alternate; PRECINCT 1 - Tompkin’s Alumni
Center: Bobbe Bartley, Superintendent, Harol Widvey, Lois Widvey, and Madeline
Francis as Alternate; PRECINCT 2 - 1st Lutheran Church: Neva Jean Corlett,
Superintendent, Norma Linn, Leslie Tlustos, and Dona Kornbaum as Alternate;
PRECINCT 3 - City Hall: Verle Barg, Superintendent, Barb Woolworth, Russell Lokken,
and Yvonne Fetzer as Alternate; PRECINCT 4 - Ascension Lutheran Church: Sue
Knutzen, Superintendent, Marilyn Foerster, Sharon Anderegg, and Robert Bell as
Alternate; PRECINCT 5 – Bethel Baptist Church: Joann Kruse, Superintendent, Hazel
Hauff, Marlys Berkland, and Char Honkomp Alternate; and PRECINCT 6 – United
Church of Christ: John Grove, Superintendent, Dorothy Williamson, Charleen Forsyth,
ALTERNATE: Delores Canaday.
F. Action on Resolution No. 36–10, authorizing the City Manager to Sign a
Mutual Aid Agreement for South Dakota Solid Waste Landfill and Restricted
Use Sites.
Resolution No. 36-10
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Authorization for the City Manager to Sign a Mutual Aid Agreement for
South Dakota Solid Waste Landfill and Restricted Use Sites
Whereas, the City of Brookings recognizes that emergencies may require assistance in
the form of personnel, equipment, and supplies from outside our local area to manage
our solid waste and
Whereas, the City Of Brookings recognizes that in emergencies that other solid waste
operations in the state may also require assistance in the form of personnel, equipment,
and supplies and
Whereas, the City of Brookings recognizes the benefit of a Mutual Aid Agreement to
establish procedures and administration with other Solid Waste entities.
Therefore, Let It Be It Resolved by the City Council of the City of Brookings, South
Dakota, that the City Manager be authorized to sign the South Dakota Solid Waste
Landfill and Restricted Use Sites Mutual Aid Agreement.
South Dakota Solid Waste Landfill and Restricted Use Sites
Mutual Aid Agreement
This Agreement is made and entered into by public Solid Waste Landfills and Restricted
Use Sites that have, by executing this Agreement, manifested their intent to participate
in an Intrastate Program for Mutual Aid and Assistance.
This Agreement is authorized under SDCL 34-48 of the State of South Dakota, which
provides that Solid Waste Landfills and Restricted Use Sites may contract with each
other to provide services.
ARTICLE I. PURPOSE. Recognizing that emergencies may require assistance in the form
of personnel, equipment, and supplies from outside the area of impact, the signatory
landfills and restricted use sites established an Intrastate Program for Mutual Aid and
Assistance. Through the Mutual Aid and Assistance Program, Members coordinate
response activities and share resources during emergencies. This Agreement sets forth
the procedures and standards for the administration of the Intrastate Mutual Aid and
Assistance Program.
ARTICLE II. DEFINITIONS.
A. Emergency – A natural or human caused event or circumstance causing, or
imminently threatening to cause, loss of life, injury to person or property human
suffering or financial loss, and includes, but is not limited to, fire, explosion, flood, severe
weather, drought, earthquake, volcanic activity, spills or releases of oil or hazardous
material, contamination, utility or transportation emergencies, disease, blight, infestation,
civil disturbance riot, intentional acts, sabotage and war that is, or could reasonably be
beyond the capability of the services, personnel, equipment, and facilities of a Mutual Aid
and Assistance Program Member to fully manage and mitigate internally.
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B. Members – Any public or non-profit solid waste landfill or restricted use site that
manifest intent to participate in the Mutual Aid and Assistance Program by executing
this Agreement.
1. Requesting Member – A Member who requests aid or assistance under the
Mutual Aid and Assistance Program.
2. Responding Member –A Member who responds to a request for aid or
assistance under the Mutual Aid and Assistance Program.
3. Non-Responding Member – A Member who does not provide aid or
assistance during a Period of Assistance under the Mutual Aid and Assistance
Program.
4. Associate Member – Any non landfill participant, approved by the State
Steering Committee, that provides a support role to the mutual aid
agreement, for example the Department of Environment and Natural
Resources, South Dakota Office of Emergency Management, or the South
Dakota Solid Waste Management Association, who are members of the State
Steering Committee and do not officially sign the mutual aid agreement.
C. Authorized Official – An employee or officer of a Member landfill or restricted use
site who is authorized to:
1. Request assistance;
2. Offer assistance;
3. Refuse to offer assistance or
4. Withdraw assistance under this agreement.
D. Confidential Information – Any document shared with any signatory of this
Agreement that is marked confidential, including but not limited to any map, report,
notes, papers, opinion, or e-mail which relates to the system vulnerabilities of a
Member.
E. Period of Assistance –A specified period of time when a Responding Member Assists
a Re-questing Member The period commences when personnel, equipment, or supplies
depart from a Responding Member’s facility and ends when the resources return to
their facility (portal to portal). All protections identified in the agreement apply during
this period. The specified Period of Assistance may occur during response to or
recovery from an emergency, as previously defined.
F. National Incident Management System (NIMS) – A national, standardized approach to
incident management and response that sets uniform processes and procedures for
emergency response operations.
ARTICLE III. ADMINISTRATION.
A. Statewide Committee shall be established to organize and maintain the Mutual Aid
and Assistance Program. The Statewide Committee shall consist of one representative
from county landfills, one representative from municipal landfills, one representative
from landfill districts/non-profit landfills, one representative from restricted use sites,
and one representative from tribal landfills. Each representative shall be elected by the
Members of their respective group. Each Representative shall have one vote on the
Statewide Committee. In addition to representing the interests of the Members, the
Statewide Committee shall include representatives from South Dakota Office of
Emergency Management, South Dakota Solid Waste Management Association, and the
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South Dakota Department of Environment and Natural Resources. Representatives of
these organizations shall not have voting authority.
B. The Statewide Committee will elect the following officers from among its voting
members: a Chair, a Vice Chair and a Secretary. The term of all board members shall
be 2 years. A quorum shall be a majority of the voting members of the Statewide
Committee.
C. The Statewide Committee shall meet at least twice each year at a meeting place
designated by the Committee. The Statewide Committee may make, establish, and alter
rules and regulations for its procedure consistent with generally recognized principles of
parliamentary procedure. The Statewide Committee shall have the power to carry out
the purposes of this Agreement, including but not limited to the power to: adopt
bylaws; develop specific procedures and protocol for requesting assistance; develop
specific procedures and protocol for responding to a request for assistance; organize
meetings; operate a website; disseminate information; create informational brochures;
create subcommittees; maintain membership lists; maintain equipment and supply
inventory lists; and deal with membership issues.
ARTICLE IV. PROCEDURES. In coordination with South Dakota Office of Emergency
Management, South Dakota Solid Waste Management Association, and the South
Dakota Department of Environment and Natural Resources, the Statewide Committee
shall develop operational and planning procedures for the Mutual Aid and Assistance
Program. These procedures shall be reviewed and updated if necessary at least annually.
ARTICLE V. REQUESTS FOR ASSISTANCE. Member Responsibility: Members shall
identify an Authorized Official and alternates, and provide contact information including
24-hour access; maintain resource information made available by the utility for mutual
aid and assistance response. Such contact information shall be updated and provided to
the State Steering Committee annually or when changes occur.
In the event of an Emergency, a Member’s Authorized Official may request mutual aid
and assistance from a participating Member. Requests for assistance can be made orally
or in writing. When made orally, the request for personnel, equipment, and supplies
shall be prepared in writing as soon as practicable. Requests for assistance shall be
directed to the Authorized Official of the participating Member. Specific protocols for
requesting aid shall be provided in the operational planning procedures as required in
Article IV.
Response to a Request for Assistance: Members of the Mutual Aid and Assistance Program
are not obligated to respond to a request. After a Member receives a request for
assistance, the Authorized Official evaluates whether or not to respond, whether
resources are available to respond, or if other circumstances would hinder response.
Following this evaluation, the Authorized Official shall inform the Requesting Member as
soon as possible whether it has the resources to respond. If the Member is willing and
able to provide assistance, the Member shall inform the Requesting Member about the
type of available resources and the approximate arrival time of such assistance.
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Discretion of Responding Member’s Authorized Official: Execution of this Agreement does
not create any duty to respond to a request for assistance. When a Member receives a
request for assistance, the Authorized Official shall have absolute discretion as to
whether or not to respond, or the availability of resources to be used in such response.
An Authorized Member’s decisions on the availability of resources shall be final.
ARTICLE VI. RESPONDING MEMBER PERSONNEL. National Incident Management
System: When providing assistance under this Agreement, the Requesting
Landfill/Restricted Use Site and Responding Landfill/Restricted Use Site shall be
organized and shall function under the National Incident Management System.
Control: Responding Member personnel shall remain under the direction and control of
the Responding Member. The Requesting Member’s Authorized Official shall coordinate
response activities with the designated supervisor(s) of the Responding Member(s).
Whenever practical, Responding Member personnel must be self sufficient for up to 72
hours.
Food and Shelter: When possible, the Requesting Member shall supply reasonable food
and shelter for Responding Member personnel. If the Requesting Member is unable to
provide food and shelter for Responding personnel, the Responding Member’s
designated supervisor is authorized to secure the resources necessary to meet the
needs of its personnel. Except as provided below, the cost for such resources must not
exceed the State per diem rates for that area. To the extent Food and Shelter costs
exceed the State per diem rates for the area, the Responding Member must
demonstrate that the additional costs were reasonable and necessary under the
circumstances. Unless otherwise agreed to in writing, the Requesting Member remains
responsible for reimbursing the Responding Member for all reasonable and necessary
costs associated with providing food and shelter.
Communication: The Requesting Member shall provide Responding Member personnel
with radio equipment as available, or radio frequency information to program existing
radio in order to facilitate communications with local responders and utility personnel.
Also cell phones may be used if agreeable to the Requesting Member. If cell phones are
used, then significant phone numbers will be exchanged, and any costs for roaming
charges will be reimbursed by the Requesting Member.
Status: Unless otherwise provided by law, the Responding Member’s officers and
employees retain the same privileges, immunities, rights, duties, and benefits as provided
in their respective jurisdictions.
Licenses and Permits: To the extent permitted by law, Responding Member personnel
who hold licenses, certificates or permits evidencing professional, mechanical, or other
skills shall be allowed to carry out activities and tasks relevant and related to their
respective credentials during the specified Period of Assistance.
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Right to Withdraw: The Responding Member’s Authorized Official retains the right to
withdraw some or all of its resources at any time for any reason in the Responding
Member’s sole and absolute discretion. Notice of intention to withdraw must be
communicated to the Requesting Member’s Authorized Official as soon as possible.
ARTICLE VII. COST REIMBURSEMENT. The Requesting Member shall reimburse the
Responding Member for each of the following categories of costs incurred during the
specified Period of Assistance as agreed by both parties; provided that any Responding
Member may assume in whole or in part such loss, damage, expense, or other cost, or
may loan such equipment or donate such ser-vices to the Requesting Member without
charge or cost.
Personnel: The Responding Member shall be reimbursed by the Requesting Member for
personnel costs incurred for work performed during the specified Period of Assistance.
Responding Member personnel costs shall be calculated according to the terms
provided in their employment contracts or other conditions of employment. The
Responding Member’s designated supervisor(s) must keep accurate records of work
performed by personnel during the specified Period of Assistance. Requesting Member
reimbursement to the Responding Member should also consider all personnel costs,
including salaries or hourly wages, costs for fringe benefits, and indirect costs.
Equipment: The Requesting Member shall reimburse the Responding Member for the
use of equipment during the specified Period of Assistance, including, but not limited to,
reasonable rental rates, all fuel, lubrication, maintenance, transportation, and
loading/unloading of loaned equipment. All equipment shall be returned to the
Responding Member in good working order as soon as it is practicable and reasonable
under the circumstances. As a minimum, rates for equipment use must be based on the
Federal Emergency Management Agency’s (FEMA) Schedule of Equipment Rates. If a
Responding Member uses rates different from those in the FEMA Schedule of Equipment
Rates, the Responding Member must provide such rates orally or in writing to the
Requesting Member prior to supplying the equipment. Mutual written agreement on
which rates are used shall be completed prior to dispatch of the equipment.
Reimbursement for equipment not referenced on the FEMA Schedule of Equipment
Rates must be developed based on actual recovery of costs. If Responding Member
must lease a piece of equipment while its equipment is being repaired, Requesting
Member shall reimburse Responding Member for such rental costs.
Materials and Supplies: The Requesting Member shall reimburse the Responding Member
in kind or at actual replacement cost, plus handling charges, for use of expendable or
non-returnable supplies. The Responding Member shall not charge direct fees or rental
charges to the Requesting Member for other supplies and reusable items that are
returned to the Responding Member in a clean, damage-free condition. Reusable
supplies that are returned to the Responding Member with damage must be treated as
expendable supplies for purposes of cost reimbursement.
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Payment Period: The Responding Member shall provide an itemized invoice to the
Requesting Member for all expenses it incurred as a result of providing assistance under
this Agreement. The Responding Member shall send the itemized invoice not later than
ninety (90) days following the end of the Period of Assistance. The Responding Member
may request additional periods of time within which to submit the itemized invoice, and
Requesting Member shall not unreasonably withhold consent to such request. The
Requesting Member shall pay the bill in full on or before the forty-fifty (45th) day
following the billing date. The Requesting Member may request additional periods of
time within which to pay the itemized bill, and Responding Member shall not
unreasonably withhold consent to such request, provided, however, that full payment
shall occur not later than one-year after the date a final itemized bill is submitted to the
Requesting Member. Unpaid bills become delinquent upon the forty-sixth (46th) day
following the billing date, and, once delinquent, the bill accrues interest at the rate of
twelve (12%) per cent per annum.
Records: Each Responding Member and their duly authorized representatives shall have
access to a Requesting Member’s books, documents, notes, reports, papers and records
which are directly pertinent to this Agreement for the purposes of reviewing the
accuracy of an invoice. Each Requesting Member and their duly authorized
representatives shall have access to a Responding Member’s books, documents, notes,
reports papers and records which are directly pertinent to this Agreement for the
purposes of reviewing the accuracy of an invoice. Such records shall be maintained for
at least three (3) years or longer where required by law.
ARTICLE VIII. DISPUTES. Members must first try negotiation for any controversy or
claim arising out of or relating to this Agreement, including, but not limited to, alleged
breach of an Agreement. If unsuccessful then the members must attempt resolution
through mediation by arranged mediator.
ARTICLE IX. REQUESTING MEMBER’S DUTY OF INDEMNIFY. The Requesting
Member shall defend and fully indemnify and hold harmless the Responding Member, its
officers and employees, from all claims, loss, damage, injury, and liability of every kind,
nature, and description, directly or indirectly arising from Responding Member’s work
during a specified Period of Assistance.
The Requesting Member’s duty to indemnify is subject to, and shall be applied consistent
with, the conditions set forth in Article X.
ARTICLE X. SIGNATORY INDEMNIFICATION. In the event of a liability, claim,
demand, action, or proceeding of whatever kind or nature arising as a result of a
response pertaining to this Agreement, the Members who receive assistance and the
Members who provide assistance shall have a duty to defend, indemnify, save and hold
harmless all Non-Responding Members, their officers, agents and employees from any
liability, claim, demand, action, or proceeding of what-ever kind or nature arising out of
a Period of Assistance.
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ARTICLE XI. WORKER’S COMPENSATION CLAIMS. The Responding Member is
responsible for providing worker’s compensation benefits and ad-ministering worker’s
compensation for its employees. The Requesting Member is also responsible for
providing worker’s compensation benefits and administering worker’s compensation for
its employees.
ARTICLE XII. NOTICE. A Member who becomes aware of a claim or suit that in any
way, directly or indirectly contingently or otherwise, affects or might affect other
Members of this Agreement shall provide prompt and timely notice to the Members
who may be affected by the suit or claim. Each Member reserves the right to participate
in the defense of such claims or suits as necessary to protect its own interests.
ARTICLE XIII. INSURANCE. Members of this Agreement shall maintain an insurance
policy that covers activities that it may undertake by virtue of membership in the Mutual
Aid and Assistance Program.
ARTICLE XIV.CONFIDENTIAL INFORMATION. To the extent provided by law, any
Member or Associate Member shall maintain in the strictest confidence and shall take all
reasonable steps necessary to prevent the disclosure of any Confidential Information
disclosed under this Agreement. If any Member, Associate Member, third party or
other entity requests or demands, by subpoena or otherwise, that a Member or
Associate Member disclose any Confidential Information under this Agreement, the
Member or Associate Member shall immediately notify the owner of the Confidential
Information and shall take all reasonable steps necessary to prevent the disclosure of
any Confidential Information by asserting all applicable rights and privileges with respect
to such information and shall cooperate fully in any judicial or administrative proceeding
relating thereto.
ARTICLE XV. EFFECTIVE DATE. This Agreement shall be effective after the Landfill’s
authorized official executes the Agreement and the Statewide Committee Chair
receives the Agreement. The Statewide Committee Chair shall maintain a master list of
all members of the Mutual Aid and Assistance Program.
ARTICLE XVI. WITHDRAWAL. A Member may withdraw from this Agreement by
providing written notice of its intent to with-draw to the Statewide Chair. Withdrawal
takes effect sixty (60) days after the authorized officials receive notice. Withdrawal
from this Agreement shall in no way affect a Requesting Member’s duty to reimburse a
Responding Member for cost incurred during a Period of Assistance, which duty shall
survive such withdrawal.
ARTICLE XVII. AMENDMENTS. No provision of this Agreement may be modified,
altered or rescinded by individual parties to this Agreement. Amendments to this
Agreement may be necessary due to programmatic operational changes, to support the
agreement. Amendments require a simple majority vote of Members. The Statewide
Committee Chair shall provide written notice to all Members of approved amendments
to this Agreement. Approved amendments take effect sixty (60) days after the date
upon which notice is sent to the Members.
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ARTICLE XVIII. SEVERABILITY. The parties agree that if any term or provision of this
Agreement is declared by a court of competent jurisdiction to be illegal or in conflict
with any law, the validity of the remaining terms and provisions shall not be affected, and
the rights and obligations of the parties shall be construed and enforced as if the
Agreement did not contain the particular term or provision held to be invalid.
ARTICLE XIX. PRIOR AGREEMENTS. This agreement supersedes all prior Agreements
between Members to the extent that such Prior Agreements are inconsistent with this
Agreement.
ARTICLE XX. PROHIBITION ON THIRD PARTIES AND ASSIGNMENT OF
RIGHTS/DUTIES. This Agreement is for the sole benefit of the Members and no person
or entity must have any rights under this Agreement as a third-party beneficiary
Assignments of benefits and delegations of duties created by this Agreement are
prohibited and void.
ARTICLE XXI. INTRASTATE AND INTERSTATE MUTUAL AID AND ASSISTANCE
PROGRAMS. To the extent practicable, Members of this Agreement shall participate in
Mutual Aid and Assistance activities conducted under the State of South Dakota
Intrastate Mutual Aid and Assistance Program and the Interstate Emergency
Management Assistance Compact (EMAC). Members may voluntarily agree to
participate in an interstate Mutual Aid and Assistance Program for landfills through this
Agreement if such a Program were established.
Now, therefore, in consideration of the covenants and obligations set forth in this
Agreement, the Landfill or Restricted Use Site listed here manifests its intent to be a
Member of the Intra-state Mutual Aid and Assistance Program for Solid Waste Landfills
and Restricted Use Sites by executing this Agreement on this 23rd day of March 2010.
G. Action on Resolution No. 37-10, authorizing the City Manager to sign an
application for a Grant from the State Solid Waste Management Program.
Resolution No. 37–10
Authorization for the City Manager to Sign an Application for a Grant
from the State Solid Waste Management Program
Whereas, the City of Brookings Landfill has a need for constructing Trench 4 East and a
leachate collection system and
Whereas, the request will be a $300,000.00 grant from the Solid Waste Management
Program.
Therefore, Let It Be It Resolved by the City Council of the City of Brookings, South Dakota,
that the City Manager be authorized to sign a grant application for the landfill project.
On the motion, all present voted yes; motion carried.
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First Reading – Ordinance No. 13-10. A first reading was held on Ordinance No.
13-10, an Ordinance pertaining to an Application for a Conditional Use for a Major
Home Occupation (House Cleaning Service) within the City of Brookings for Lot 17,
Block 2, Bane and Poole Addition, address 309 State Avenue. Public Hearing: April 6,
2010.
First Reading – Ordinance No. 14-10. A first reading was held on Ordinance No.
14-10, an Ordinance pertaining to an Application for a Conditional Use for a Private
Stable in the Residence R-1A District for Lot 18, Block 1, Nelson Second Addition,
address 1623 Medary Avenue South. Public Hearing: April 6, 2010.
First Reading – Ordinance No. 15-10. A first reading was held on Ordinance No.
15-10, an Ordinance amending the Zoning Ordinance of the City of Brookings and
pertaining to Location of Parking Spaces for the purposes of Administration of the
Zoning Ordinance. Public Hearing: April 6, 2010.
Ordinance No. 12-10. A public hearing was held on Ordinance No. 12-10, an Ordinance
Amending the Guidelines for Publication of Minutes of the City Council of the City of
Brookings, South Dakota. A motion was made by Bezdichek, seconded by Thorpe, to approve
Ordinance No. 12-10. A motion to amend was made by Reed, seconded by Thorpe, to reword
Item D as follows: Agreements or documents approved at such meeting shall be published and be
made available for public inspection at City Hall. On the amendment, all present voted yes, except
Kubal abstained, motion carried. A motion to amend was made by Bartley, seconded by Whaley, to
insert the following statement: “Sec. 2-100 Publication of Minutes. The minutes of the City Council
shall be published in the official legal newspaper of the city, and available online, within thirty days
after each meeting, providing, at a minimum, the following information:”.. On the amendment, all present
voted yes, except Kubal abstained, motion carried. On the main motion with both amendments, all
present voted yes, with Kubal abstained, motion carried.
Off-Sale Malt Beverage Transfer. A public hearing was held to approve an Off-Sale Malt
Beverage Transfer from Cenex Petroleum, Inc. to CHS, Inc., for businesses located at 1005 6th
Street and 3045 LeFevre Drive. A motion was made by Bezdichek, seconded by Thorpe, to
approve. All present voted yes; motion carried.
Adoption of the 2010 Strategic Plan. A motion was made by Whaley, seconded by
Thorope, to approve the 2010 Strategic Plan. All present voted yes; motion carried.
Ordinance No. 03-10. A motion was made by Reed, seconded by Bartley, to approve the
substitute language for Ord. 03-10, as presented on March 9th. A friendly amendment was
made to insert the section as underlined below, both Reed and Bartley agreed to the friendly
amendment. On the motion, all present voted yes, except Whaley and Bartley voted no,
motion carried.
Ordinance No. 03-10
An Ordinance Amending Section 78-38 of the Code of Ordinances of the City of
Brookings, South Dakota and Pertaining to the Use of Municipal Sales, Service and Use Tax
Revenue in the City of Brookings, South Dakota.
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Be It Ordained by the Governing Body of the City of Brookings, South Dakota, as follows:
I. Sec. 78-38. Use of revenue.
(a) Any revenues received pursuant to sections 78-32(a) and 78-33 in excess of the amount
received if the rate of tax in section 78-32(a) is one percent may be used only in the following
manner:
(1) Seventy-five percent of such revenues may be used only for capital improvements which
involve the construction and financing of public improvements designated by ordinance or
resolution of the city council following a public hearing. The term "construction and financing,"
as used in this section, shall include land acquisition, architectural and engineering fees,
construction costs and debt retirement. The term "public improvements," as used in this
section, shall include infrastructure and buildings either new or modified, improvements owned
by the city, joint county-municipal improvements, joint school district-municipal improvements
as authorized by SDCL ch. 6-3 (SDCL 6-3-1 et seq.), and improvements constructed pursuant
to a joint powers agreement with the state and South Dakota State University as authorized by
SDCL ch. 1-24 (SDCL 1-24-1 et seq.). Any improvement project authorized by the city council
under this subsection (a) shall be subject to referendum.
(2) Twenty-five percent of such revenues may be used only for capital improvements,
including lease purchase agreements of realty, land acquisition, the programmed chip sealing,
street maintenance, specialized equipment, the transfer to the special 911 fund authorized by
SDCL 34-45-12, the purchasing of firefighting vehicles, public safety and equipment, and debt
retirement related thereto.
(b) Any revenues received under section 78-32(b) shall be used only for the purposes as
defined and set forth in SDCL 10-52A-2.
II. All ordinances in conflict herewith are hereby repealed.
Adjourn. A motion was made by Kubal, seconded by Whaley, to adjourn. All present voted
yes; motion carried. Meeting adjourned at 6:48 p.m.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
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April 6, 2010
CONSENT AGENDA #4
C. Action on Resolution No. 38-10, awarding bids for 2010-03SSI,
Village Square Drainage Improvement Project.
The Village Square Drainage Improvement Project is one of the drainage improvement
projects identified in the Storm Drainage Master Plan and the project was designed by
Civil Design, Inc. The project is located on 8th Street and will run to the north 300 feet,
between the Village Square Apartments and the Garden Village Condominiums. The
project will entail removing the existing six foot wide valley gutter and installing a new
12’ wide concrete valley gutter and is scheduled to be completed by this fall.
The City held a bid letting at 1:30 PM on Tuesday, March 23, 2010 at City Hall and the
following bids were received:
T & R Contracting, Inc., Sioux Falls, SD $74,074.65
Brooks Construction Co., Inc., Sioux Falls, SD $81,854.00
Smith & Smith Construction Co., Inc., Tea, SD $82,879.00
Concrete Contractors, Inc., Brookings, SD $88,880.00
Carl V. Carlson Company, Tea, SD $92,757.92
Clark Drew Construction, Inc., Brookings, SD $93,477.00
Yungwirth Construction, Inc., SD $127,500.31
The low bid of $74,074.65 was approximately 42% lower than Civil Design Inc.’s
engineer’s estimate of $127,500.31. Recommend awarding the contract to the low bid
of $74,074.65 with T & R Contracting, Inc., of Sioux Falls, SD.
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April 6, 2010
Resolution No. 38-10
Resolution Awarding Bids for 2010-03SSI Village Square
Drainage Improvement Project
Whereas, the City of Brookings opened bids for 2010-03SSI Village Square Drainage
Improvement Project on Tuesday, March 23, 2010 at 1:30 pm at Brookings City Hall; and
Whereas, the City of Brookings has received the following bids for 2010-03SSI Village Square
Drainage Improvement Project:
T & R Contracting, Inc., Sioux Falls, SD $74,074.65
Brooks Construction Co., Inc., Sioux Falls, SD $81,854.00
Smith & Smith Construction Co., Inc., Tea, SD $82,879.00
Concrete Contractors, Inc., Brookings, SD $88,880.00
Carl V. Carlson Company, Tea, SD $92,757.92
Clark Drew Construction, Inc., Brookings, SD $93,477.00
Yungwirth Construction, Inc., SD $127,500.31
Now Therefore, Be It Resolved that the low bid of T & R Contracting, Inc., Sioux Falls, SD, for
the bid of $74,074.65 be accepted.
Passed and approved this 6th day of April 2010.
CITY OF BROOKINGS
________________________________
Tim Reed, Mayor
ATTEST:
_________________________
Shari Thornes, City Clerk
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CONSENT AGENDA #4
D. Action to Abate the 2010 Drainge Fee for Parcel No. 40055-
00100-000-00, the West 400’ of Block 1, of Bidco Addition for
XTRA LLP.
The City received a request from Steve Hogie, Partner for XTRA LLP, for a site study of
Parcel Number 40055-00100-000-00, which is the location of the former storage yard
for Rainbow Play Systems located on the northeast corner of Railroad Street and
Western Avenue. This is a 2.56 acre lot that has been vacated by Rainbow Play Systems
and was sold to XTRA LLP. Since the lot is vacant, this would merit a change in the
drainage fee. The Runoff Weighting Factor for vacant property is “1”, which results in
the following:
2010 drainage fee charged: $1,022.51
2010 drainage fee recalculated: $60.22
Amount to be abated from 2010 taxes: $962.29
This motion will approve the abatement of $962.29 from the drainage fee for Parcel No.
40055-00100-000-00.
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CONSENT AGENDA #4
E. Action to Abate the 2010 Drainage Fee for Parcel No. 40490-
00800-001-00, Lot 1, Eighth Railroad Addition for XTRA LLP.
The City received a request from Steve Hogie, Partner for XTRA LLP, for a site study of
Parcel Number 40490-00800-001-00, which is the location of the former storage yard
for Rainbow Play Systems located on the northeast corner of Railroad Street and
Western Avenue, contiguous to the north side of Parcel No. 40055-00100-000-00. This
is a 0.50 acre lot that has been vacated by Rainbow Play Systems and was sold to XTRA
LLP. Since the lot is vacant, this would merit a change in the drainage fee. The Runoff
Weighting Factor for vacant property is “1”, which results in the following:
2010 drainage fee charged: $200.70
2010 drainage fee recalculated: $11.81
Amount to be abated from 2010 taxes: $188.89
This motion will approve the abatement of $188.89 from the drainage fee for Parcel No.
40490-00800-001-00.
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April 6, 2010
CONSENT AGENDA #4
F. Action to Abate the 2010 Drainage Fee for Parcel No. 40196-
00400-000-00, Block 4 and Lot 3 except the E 400’ of Block 5,
Gilkersons Addition, otherwise known as 201 Daktronics Drive.
The City received a request from Daktronics, Inc. for a site study of Parcel Number
40196-00400-000-00, Block 4 and Lot 3 Except the E400’ of Block 5 of Gilkersons
Addition, otherwise known as 201 Daktronics Drive. This is a 16.79 acre lot that had a
change in drainage fee after the site study verified the actual percentage of impervious
area which changed the runoff weighting factor to 16.8, which results in the following:
2010 drainage fee charged: $7,957.64
2010 drainage fee recalculated: $6,635.01
Amount to be abated from 2010 taxes: $1,322.63
This motion will approve the abatement of $1,322.63 from the drainage fee for Parcel
No. 40196-00400-000-00.
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April 6, 2010
CONSENT AGENDA #4
G. Action to Abate the 2010 Drainage Fee for Parcel No. 405-97-
00300-001-00, Lot 1A, Block 3, Telkamp Industrial Addition (no
address).
The City received a request from Daktronics, Inc. for a site study of Parcel Number
40597-00300-001-00, Lot 1A, Block 3, Telkamp Industrial Addition which has no
address. This is a 28.0 acre lot that had a change in drainage fee after the site study
verified the actual percentage of impervious area which changed the runoff weighting
factor to 1.0 since the lot was grassland, which results in the following:
2010 drainage fee charged: $12,349.26
2010 drainage fee recalculated: $658.63
Amount to be abated from 2010 taxes: $11,690.63
This motion will approve the abatement of $11,690.63 from the drainage fee for Parcel
No. 40597-00300-001-00.
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April 6, 2010
CONSENT AGENDA #4
H. Action to Abate the 2010 Drainage Fee for Parcel No. 40195-
00500-002-00, Lot 2, Block 5, Gilkersons Addition, otherwise
known as 201 32nd Avenue.
The City received a request from Daktronics, Inc. for a site study of Parcel Number
40195-00500-002-00, Lot 2, Block 5, Gilkersons Addition, otherwise known as 201 32nd
Avenue. This is a 5.02 acre lot that had a change in drainage fee after the site study
verified the actual percentage of impervious area which changed the runoff weighting
factor to 10.73, which results in the following:
2010 drainage fee charged: $2,007.82
2010 drainage fee recalculated: $1,267.02
Amount to be abated from 2010 taxes: $740.80
This motion will approve the abatement of $740.80 from the drainage fee for Parcel No.
40195-00500-002-00.
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CONSENT AGENDA #4
I. Action on Resolution No. 39-10, a Resolution Amending the
Brookings Transportation Board of the City of Brookings
Resolution No. 39-10 is a minor modification to the term length and appointment timing
for the SDSU student representative on the Brookings Transportation Board. To
better accommodate student schedules, the term length will be reduced from a three
year to a one year term and appointments will be made in May rather than January. An
alternate will also be appointed. The term length and May date is consistent with other
city board student appointments.
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April 6, 2010
Resolution No. 39-10
A Resolution Amending the Brookings Transportation Board
for the City of Brookings
Whereas, in order to identify opportunities for improved transportation efficiency as measured
by increased levels of service or decreased cost, especially through coordination among
transportation providers in Brookings, and further to provide oversight and evaluation of the
success of coordinated transportation efforts, and to provide advice and information to other
organizations on a regular or as needed-basis, the City of Brookings hereby creates a Brookings
Transportation Board,
Now Therefore Be It Resolved by the City Council of the City of Brookings, South Dakota, as
follows:
Brookings Transportation Board
Section 1. Creation/Name. There is hereby created a transportation board for the City of
Brookings. The transportation board will be referred to as the Brookings Transportation
Board.
Section 2. Purpose/Mandate. The purpose of the Brookings Transportation Board is to
identify opportunities for improved efficiency as measured by increased levels of service or
decreased cost, especially through coordination among transportation providers in Brookings.
The Brookings Transportation Board shall provide oversight and evaluation of the success of
coordinated transportation efforts as well as provide advice and information to other
organizations on a regular or as needed-basis.
Section 3. Manner of appointment, composition, terms.
(a) Members of the Brookings Transportation Board shall be appointed by the Mayor,
with the advice and consent of the City Council, for three-year terms that
commence in January, except the SDSU Student Association position (and
alternate) shall serve a one year term commencing in May. Members may
be appointed for additional terms not exceeding three years each and one year for
SDSU student position. The initial terms of office shall be staggered in 1, 2 and 3
year increments.
(b) The Brookings Transportation Board shall consist of thirteen (13) members, who
shall be appointed with due regard to representation from the following areas:
1. City of Brookings
2. County of Brookings
3. Brookings Health Systems
4. Brookings Committee for People who have Disabilities
5. Brookings Public School System
6. East Central Mental Health
7. Downtown Brookings Inc.
8. South Dakota State University Administration
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April 6, 2010
9. South Dakota State University Student Association (and appointed
alternate)
10. South Dakota Department of Vocational Rehabilitation
11. ADVANCE
12. Senior Activity Center
13. Citizen-At-Large
(c) Ex-officio, non-voting members shall be appointed to serve on the Brookings
Transportation Board from the following areas: City (City Engineer, ADA
Coordinator), all transportation service providers.
Section 4. Qualifications of members. The members of the Brookings Transportation
Board shall not hold any elective office in city government.
Section 5. Vacancies. Any vacancy in the membership of the Brookings Transportation
Board shall be filled for the unexpired term in the same manner as provided for appointment.
Section 6. Meetings; chairman. The Brookings Transportation Board shall regularly hold
meetings at such times and places as it shall determine. It shall select a chair from its members,
and such other officers as it deems appropriate, to serve for a term of one year.
Section 7. Quorum. A majority of the members of the Brookings Transportation Board shall
constitute a quorum for the transaction of its business.
Section 8. Duties; powers. The Brookings Transportation Board shall have the following
powers and duties:
(a) Advise the City Council, City Manager and staff concerning transportation matters
with the city of Brookings and surrounding area.
(b) Advise the City Council, City Manager and staff concerning the city’s public
transportation budgetary needs and uses; review policies and operations of public
transit providers who receive public funds; and suggest changes to policies and
operations of public transit providers to reflect needs of the community.
(c) Facilitate coordination of public transit providers.
Passed and approved on the 6th day of April, 2010.
CITY OF BROOKINGS
ATTEST:
Tim Reed, Mayor
Shari Thornes, City Clerk
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April 6, 2010
CONSENT AGENDA #4
J. Action on Resolution No. 42-10, a Resolution Amending the
Visitor Promotions Committee of the City of Brookings.
Resolution No. 42-10 is also a minor modification to the term length and appointment
timing for the three SDSU student association representatives on the Brookings Visitor
Promotions Committee. To better accommodate student schedules, the term length
will be reduced from a three years to a one year term and appointments will be made in
May rather than January. An additional change will be to make the SDSU Student
Senate Vice President a standing member on the committee. The term length and May
date is consistent with other city board student appointments.
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April 6, 2010
Resolution No. 42-10
A Resolution Amending the Visitor Promotions Committee of the
City of Brookings, South Dakota.
Be It Resolved by the City Council of the City of Brookings, South Dakota as follows:
Sec. 1. Creation, purposes.
The Visitor Promotions Committee (hereafter also referred to as the “VPC” or "Committee")
is hereby created for the following purposes:
(1) To attract out of town visitors for events with economic impact and to attract
attention and the expenditures of out of town visitors to the City of Brookings
and the surrounding area.
(2) The Visitor Promotions Committee shall also provide marketing counsel and
advice to the Director of the Brookings Area Convention and Visitors Bureau
(“CVB Director”) and the Brookings Area Chamber of Commerce Board of
Directors.
Sec. 2. Composition and manner of selection of members.
The Committee shall consist of eleven (11) members: 5 at-large, 3 SDSU Student Association, 1
Chamber of Commerce, 1 Downtown Brookings, Inc., 1 Swiftel Center Advisory Committee.
The members shall be appointed by the Mayor, with the advice and consent of the City
Council. In making the initial appointments to the VPC, the Mayor shall consider as prospective
members those members who are currently serving on the Chamber’s Visitor Promotions
Committee. The Mayor shall follow the City’s standard appointment process through public
advertising and an application. The Mayor shall also consider recommendations for members
from the organizations referenced above.
Sec. 3. Visitor Promotions Committee Communication, Reporting and
Accountability.
The VPC shall report to the City Manager and shall maintain close communication with the City
Manager with respect to the implementation of its annual program, and shall report to the City
Manager in such form and frequency as shall by mutually agreeable. The VPC is directly
responsible for the VPC finances, and is accountable to the Brookings City Council for the
performance of the VPC.
Sec. 4. Subcommittees.
The VPC may form subcommittees to advance its work. At a minimum, subcommittees must
have at least three (3) members, exclusive of any ex-officio members of the VPC. A majority of
the subcommittee members present shall constitute a quorum. Formal subcommittee
recommendations must be approved by a simple majority vote of subcommittee members
present. Subcommittee chairs or their designee will report regularly to the VPC about their
meetings, deliberations, and recommendations. The VPC is responsible for providing oversight
of all subcommittee work.
Sec. 5. VPC Chairperson and Vice-Chairperson.
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The Chairperson and the Vice-Chairperson of the VPC shall be elected from among the VPC
members to each serve a term of one year. The Chairperson shall cooperate with and maintain
close communication with the CVB Director and Community Events Coordinator to
accomplish the goals and objectives of the VPC. The VPC shall preside during meetings of the
VPC.
The Vice Chairperson will preside during meetings in the absence of the Chairperson.
Sec. 6. Community Events Coordinator/Duties/Supervision.
A Community Events Coordinator is now employed by the Chamber to perform substantial
services for the Visitor Promotions Committee, including the following:
(1) Planning in cooperation with the Director of the Brookings Area
Convention/Visitors Bureau; and
(2) Fostering engaged conversation of members of the VPC to reach solutions and
goals, direct performance of VPC committee members and such other action as is in
the best interest of the VPC.
(3) The Community Events Coordinator shall also prepare a promotional and event
development program designed to accomplish the goals set forth above and the
overall mission of the VPC. The program shall include the details of the methods to
be used to achieve visitor attraction, the financial resources needed and such other
information as the VPC may deem appropriate.
The Community Events Coordinator position is funded by the City of Brookings, through the
3rd B Sales Tax revenues (Resolution 83-04). The process of recruitment and selection of the
Community Events Coordinator position shall hereafter include both the Chamber and the
VPC or a subcommittee of the VPC.
The VPC shall cooperate with and maintain close communication with staff assigned to assist
the VPC. In particular, the VPC shall work closely with the Community Events Coordinator.
Sec. 7. Convention Visitors Bureau Director Assistance.
In performing the VPC activities pursuant to this agreement, it is anticipated that the Director
of the Brookings Area Convention/Visitors Bureau (“CVB”) will also be instrumental in
providing assistance to the VPC. The VPC shall cooperate with and work closely with the CVB
Director in performing its work.
Sec. 8. Terms - vacancies - residency of members.
The members of the VPC shall serve without compensation for terms of three (3) years with a
limit of two (2) full terms. With the exception of the Student Association members,
of which shall be appointed for one year terms commencing in May. The Student
Association Vice President will be one of the three positions on the committee.
Vacancies on the Committee shall be appointed by the Mayor, with advice and consent of the
City Council, following the appointment procedure provided above.
Members may reside outside city limits.
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Sec. 9. Quorum --organization.
A quorum shall consist of six (6) members. The VPC shall adopt, amend, or rescind such rules
as shall be necessary for the conduct of its meetings.
Sec. 10. Budget and funding.
The VPC shall submit to the City its annual proposed budget that has been officially adopted by
the VPC, for the implementation of the Visitor Promotions Committee program. The VPC
budget shall be in such detail and format as specified by the City. Funding for the Visitor
Promotions Committee activities shall be paid from the “3rd” B sales tax revenues after
expenditures budgeted and set forth in the City Resolution 83-04 have been paid or reserved
for payment in accordance with Resolution 83-04. The City agrees to pay one-twelfth of the
annual amount each month to the VPC for the activities and services provided under this
agreement.
Sec. 11. Meetings of the Committee.
The Committee shall hold at least ten (10) regular meetings each year, which shall at all times
be open to the public, unless legal cause exists to close a meeting. All committee meeting
agendas must be submitted to the City Clerk to comply with public notification requirements.
Sec. 12. Removal for cause.
The VPC shall follow the City’s adopted Code of Ethics Administrative Process for Complaints
about a Volunteer Committee, Commission or Board Member if a member is being considered for
removal from the Committee.
Sec. 13. Commencement, reporting.
The Committee shall commence its proceedings following adoption of this Resolution.
Sec. 14. Ex Officio Members.
The Chamber Exec. Vice President, the CVB Director, the Downtown Brookings, Inc. Program
Manager and the General Manager of the Swiftel Center shall serve as ex-officio members of
the VPC. Ex-officio members shall not have any voting rights and are intended to provide
resources as needed by the VPC.
Passed and approved on the 6th day of April, 2010.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
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April 6, 2010
Presentations/Reports/Special Requests
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 – Brett Monson
Vice-President – Erin Kennedy
Administrative Assistant – Kate Wegehaupt
Finance Chair – Anthony Sutton
State & Local Chair – Eric Haiar
http://studentorgs.sdstate.org/studentsassociation/Default.htm
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City Council Packet
April 6, 2010
Contract Awards/Change Orders
7. Action to award the contract for Landfill Trench 4 East to the low
bid of R. L. Larson Excavating, Inc. of St. Cloud, MN.
Staff recommends awarding the contract for Landfill Trench 4 East to the low bid of R.
L. Larson Excavating, Inc. of St. Cloud, MN in the amount of $1,130,000.00.
Background. The Landfill Trench 4 East is a construction project to excavate the next
area of the landfill and put in the liner and leachate collection field on the floor of the
excavation. This particular construction project is more complicated than most
projects because it begins the second leachate collection field with a 10,000 gallon
underground tank. The landfill is designed with two leachate drainage fields; each field
will drain half of the landfill when the landfill is completed. There is approximately 30
years of life left on the current landfill design. Two hundred forty (240) acres permitted
out of the 320 acres the City owns at this site. When the present landfill design is
completed in 30 years or so there is still room to do another complete design that
could add 20-40 years of life in the future, depending on future landfill tonnages.
These construction projects are built every five years. They are designed not only to
give space from the excavation work, but to be the floor as we build above grade. The
location of this project is in the middle of the landfill. The projects are designed to be
done in a sequential order so that the overall landfill project can be built in a logical
order to maintain maximum capacity. It is imperative to proceed with this project this
year to keep the overall landfill construction on schedule.
The construction work has a third party, Banner Associates, for Quality Assurance
(project inspection). The Quality Assurance by a third party is a requirement of the
South Dakota Department of Environment and Natural Resources for all landfill
construction projects.
Cost
The bid price was over the estimate for construction. However, there are cash
reserves for the next trench ($200,000) put away which could be drawn upon. These
reserves can be replaced in 2012. In the 2012 Capital Improvement Plan, it was not
budgeted for contributing any cash to the trench reserve in case this happened; it
allowed a spot to make up any funds needed for this project.
The City has applied for a $300,000 Solid Waste Grant. However, we cannot count on
that money; but if we receive the entire grant or part of the grant, it would help cover
our needs.
Finally, there is an additional reserve cash of $750,000 for a scheduled loader purchase
in 2011. Some of this money could be used as a last resort.
Estimate Actual
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City Council Packet
April 6, 2010
Engineering (Design Costs) $ 80,000 $74,957 (so far)
Project Inspection (Quality Assurance) $ 40,000 $45,680
Legal Services $ 5,000 $ -0-
Construction $745,000 $1,130,000
Contingency $ 10,000 $ -0-
Total $880,000 $1,250,637
The difference is $370,637.00. However, the bids seem to be competitive so staff
recommends going forward knowing we will use some of our cash reserves.
BID TAB
Construction of Landfill Trench 4E
Tuesday, March 30, 2010
Amount of Bid Bid Bond
1) R. Larson Excavating, Inc. $1,130,000.00 BB
St. Cloud, MN 56304
2) Loiseau Construction, Inc. $1,152,661.00 BB
Flandreau, SD 57028
3) Clausen Construction $1,236,632.61 BB
Watertown, SD 57201
4) Rounds Construction, Inc. $1,250,000.00 BB
Brookings, SD 57006
5) Lidel Construction, Inc. $1,254,834.70 BB
Chester, SD 57016
6) RS Halstead Corp. $1,337,875.00 BB
Harrisburg, SD 57032
7) Mathiowetz Construction $1,339,806.04 BB
Sleepy Eye, MN 56085
8) Bates Construction Co. $1,345,000.00 BB
Twin Brooks, SD 57269
9) Veit & Company, Inc. $1,541,673.00 BB
Rogers, MN 55374
10) Frattalone Companies $1,702,870.00 BB
St. Paul, MN 55117
City Manager Introduction
ACTION: Motion to approve, Request Public Comment, Roll Call
CITY MANAGER RECOMMENDATION: Approve
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City Council Packet
April 6, 2010
Ordinance First Readings
8. Ordinance No. 16-10: An Ordinance Amending Section 62-34 of
the Code of Ordinances of the City of Brookings, South Dakota
and pertaining to the Terms of Office for the Park and Recreation
Board in the City of Brookings, South Dakota.
Public Hearing – April 27th
Ordinance No. 16-10 is a minor modification to the Park and Recreation Board
ordinance to reducing the term length requirements for volunteer members from five
years to three years to be consistent with other city volunteer boards, committee and
commissions.
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City Council Packet
April 6, 2010
Ordinance No. 16-10 (MARKED)
An Ordinance Amending Section 62-34 of the Code of Ordinances of the
City of Brookings, South Dakota and Pertaining to the Terms of Office for the Park
and Recreation Board in the City of Brookings, South Dakota.
Be It Ordained by the Governing Body of the City of Brookings, South Dakota, as
follows:
I.
Sec. 62-34. Terms of office.
Members of the park and recreation board shall serve five three-year terms, except
the high school and college student members shall be appointed for terms of one year each.
The terms of office for members serving five three-year terms shall be established so the term
of one member shall expire each year for three years, and the terms of two members shall
expire each year for two years. All terms shall expire on the date of the first regular meeting of
the city council in May.
II.
All ordinances in conflict herewith are hereby repealed.
First Reading: April 6, 2010
Second Reading:
Published:
CITY OF BROOKINGS, SD
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
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City Council Packet
April 6, 2010
Second Readings/Public Hearings
9. Ordinance No. 14-10: An Ordinance pertaining to an Application
for a Conditional Use for a Private Stable in the Residence R-1A
District for Lot 18, Block 1, Nelson Second Addition, address
1623 Medary Avenue South.
Applicant: Cliff Kurtz
Proposal: Establish a private stable on a low-density residential lot
Background: Stables are split into two categories, private or riding. The intended
difference was that a private stable consisted solely of the landowner’s animals while a
riding stable included animal from others who would pay boarding fees, etc. The
definitions are as follows:
• Stable: Any premises or part thereon where horses or other equine animals are
sheltered and fed.
• Stable, Private: Any lot or building or part thereon where horses or other equine
animals are maintained, trained or cared for by the landowner for the sole purpose of
pleasure.
• Stable, Riding: Any lot or building or part thereon where horses or any equine animals
are maintained, boarded, trained or cared for in return for remuneration.
A private stable is permitted as a conditional use only in the Ag, R-1, and R-1A Districts.
These districts have greater minimum lot area requirements which relates more closely
with the standards for this use. These standards are as follows:
Sec. 94-299. Stable (private or riding):
These uses shall be established on lots with a minimum area of two acres and one acre
of land shall be provided for each horse located thereon. No pasture shall be located
within the required front yard setback and no horse shall be allowed to be kept within
125 feet of any building used for human habitation other than by the owner of such
animal. No fencing shall be made of barbwire or connected to an electrical current.
Specifics: The petitioner is proposing to establish a stable with a corral in the southeast
corner of his lot. City land adjacent to this corner will remain undeveloped due to the
need to maintain a drainageway along the east side and additional storm water storage
on the south side. The stable will be about 130 feet from the nearest residentially
developed lot to the north. There is also a tree belt and garage that provides some
screening along the north lot line.
Recommendation: The Planning Commission voted 6 yes and 0 no to recommend
approval of this Conditional Use subject to the conditions stated in the ordinance.
City Manager Introduction
ACTION: Open & Close Public Hearing, Motion to Approve, Roll Call
CITY MANAGER RECOMMENDATION: Approve
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City Council Packet
April 6, 2010
Ordinance No. 14-10
An ordinance pertaining to an application for a Conditional Use
for a private stable in the Residence R-1A District.
Be it ordained by the governing body of the City of Brookings, South Dakota that said
Conditional Use shall be approved for a private stable on Lot 18, Block 1, Nelson Second
Addition with the following conditions:
1. The Conditional Use Permit shall be granted only to the applicant
2. The private stable shall be restricted to one horse
All sections and ordinances in conflict herewith are hereby repealed.
First Reading: March 23, 2010
Second Reading: April 6, 2010
Published: April 9, 2010
CITY OF BROOKINGS
__________________________
ATTEST: Tim Reed, Mayor
________________________________
Shari Thornes, City Clerk
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City Council Packet
April 6, 2010
Planning Commission
Brookings, South Dakota
March 2, 2010
OFFICIAL MINUTES
Chairperson Alan Gregg called the regular meeting of the City Planning Commission to order
on March 2, 2010, at 7:00 PM in the Council Chamber at City Hall. Members present were
Wayne Avery, Mike Cameron, Donna DeKraai, Greg Fargen, Al Heuton, Dave Kurtz, and
Gregg. Larry Fjeldos and John Gustafson were absent. Also present were Cyle Wooten, Cliff
Kurtz, Community Development Director Mike Struck, and Planning and Zoning Administrator
Dan Hanson.
Item #4 – Cliff Kurtz has submitted an application for a Conditional Use to establish a private
stable on Lot 18, Block 1, Nelson Second Addition (1623 Medary Avenue South).
(Fargen/Heuton) Motion to approve the Conditional Use.
(Cameron/DeKraai) Amendment to the motion to add the following conditions:
1. The Conditional Use Permit shall be granted only to the applicant.
2. The private stable shall be restricted to one horse.
All present voted aye. AMENDMENT CARRIED.
The motion, as amended, was voted on. All present voted aye. MOTION CARRIED.
SUMMARY OF DISCUSSION
Item #4 – Cliff Kurtz, owner of the property, stated he wanted to establish a stable on his lot
for a Welsh pony. He had a BS degree in Animal Science so care and maintenance would not be
a problem. He showed several photos of his property and nearby properties. The stable and
corral would be in the southeast corner next to a drainageway and open space.
DeKraai was concerned about the potential for manure to enter the drainageway. Kurtz
stated the land was flat, and he could landscape to make sure any runoff stayed on his property.
DeKraai recommended that, if approved, the Conditional Use should be limited to the
applicant. Cameron concurred and felt only one horse should be permitted.
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City Council Packet
April 6, 2010
Second Readings/Public Hearings
10. Ordinance No. 15-10: An Ordinance amending the Zoning
Ordinance of the City of Brookings and pertaining to Location of
Parking Spaces for the purposes of Administration of the Zoning
Ordinance.
Off-site Parking - Off-site parking is permitted, with restrictions, for residential,
commercial and industrial uses. The proposed changes clarify the regulations by
separating a residential use from business and industrial uses. No substantive changes
were made for business and industrial uses. The primary change for residential uses is
the elimination of off-site parking for a low or medium density residential use.
Recommendation: The Planning Commission voted 7 yes and 0 no to recommend
approval of the amendments.
City Manager Introduction
ACTION: Open & Close Public Hearing, Motion to Approve, Roll Call
CITY MANAGER RECOMMENDATION: Approve
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City Council Packet
April 6, 2010
Ordinance No. 15-10
An Ordinance Amending the Zoning Ordinance of the City of Brookings and
pertaining to Location of Parking Spaces for the purposes of administration of the
Zoning Ordinance
Be it ordained by the Council of the City of Brookings, State of South Dakota that Chapter 94,
Zoning, of the Code of Ordinances, shall be amended as follows:
Section 1.
Section 94-431 Location of Parking Spaces
The following parking regulations shall apply:
(1) Off-street parking spaces provided on adjacent property other than the same
property as the use is located shall be permitted as follows:
a. Where an increase in the number of spaces is required by a change or enlargement of
a residential use, or where such spaces are provided by two (2) or more buildings or
establishments or are used jointly by two (2) or more buildings or establishments, the
required spaces, if not contiguous, may shall be located on the same property as the
use not to exceed three hundred feet (300’) from the building or use served.
Exception: Parking spaces required for an apartment complex, which consists of
three (3) or more buildings, may be provided within three hundred feet (300’) of
the lot or building for which they are required if the complex and parking lot are
contiguous.
b. Where an increase in the number of spaces is required by a change or enlargement of a
business or industrial use, or where such spaces are provided by two (2) or more
establishments or are used jointly by two (2) or more establishments, the required
spaces, if not contiguous, may be located not to exceed three hundred feet (300’)
from the use served.
c. The joint use of off-street parking spaces for two or more business or industrial
buildings or uses shall be permitted provided the total number of spaces is not less
than the sum of the required spaces of the various individual uses. The joint use of
parking spaces shall be permitted for uses that are not open, used or operated during
the same hours.
d. A request for off-site, off-street parking for a business or industrial use shall be
accompanied by an appropriate reciprocal easement agreement guaranteeing the
continued availability of such spaces for as long as the use or uses exist.
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April 6, 2010
e. Off-site required off-street parking shall not be separated from the use it serves by an
arterial or collector street. The requirements of section 94-365 shall also apply.
Section 2. Any or all ordinances in conflict herewith are hereby repealed.
First Reading: March 23, 2010
Second Reading: April 6, 2010
Published: April 9, 2010
CITY OF BROOKINGS, SD
___________________________________
Tim Reed, Mayor
ATTEST:
________________________
Shari Thornes, City Clerk
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City Council Packet
April 6, 2010
Planning Commission
Brookings, South Dakota
March 2, 2010
OFFICIAL MINUTES
Chairperson Alan Gregg called the regular meeting of the City Planning Commission to order
on March 2, 2010, at 7:00 PM in the Council Chamber at City Hall. Members present were
Wayne Avery, Mike Cameron, Donna DeKraai, Greg Fargen, Al Heuton, Dave Kurtz, and
Gregg. Larry Fjeldos and John Gustafson were absent. Also present were Cyle Wooten, Cliff
Kurtz, Community Development Director Mike Struck, and Planning and Zoning Administrator
Dan Hanson.
Item #5 – The City of Brookings has submitted amendments to the Zoning Ordinance
pertaining to off-site parking for certain residential uses.
(Heuton/Cameron) Motion to approve the amendments. All present voted aye.
MOTION CARRIED.
SUMMARY OF DISCUSSION
Item #5 – Hanson noted that the proposed ordinance was deferred from the February
meeting. The Commission had requested a modification that would eliminate off-site parking for
low and medium-density residential uses. The revision would require that all minimum parking
spaces be on the same lot as the use.
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City Council Packet
April 6, 2010
Second Readings / Public Hearings
11. Public hearing and action on a moving permit request from the
Episcopal Church to move a garage onto the South 90, Lots 1 and
2, Block 1, Skinner’s Second Addition, also known as 519 8th
Avenue.
Proposal: This request is to move a two-stall garage from a nearby residential lot to the
Episcopal Church parsonage at 591 8th Avenue.
Background: The Episcopal Church parsonage is located directly south of the church.
There is an alley that abuts the parsonage’s property along the south lot line. The
garage is currently located one block south and one block west of the parsonage and
has been used as a private residential garage.
Specifics: The building is a 22’ x 24’ two-stall garage with a gable roof and lap siding. It
was constructed at its current location in 1966. The garage will be located in the
southwest corner of the parsonage lot and will be accessed from the alley.
City Manager Introduction
ACTION: Open & Close Public Hearing, Motion to Approve, Roll Call
CITY MANAGER RECOMMENDATION: Approve
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Alcohol License Hearings
12. Public hearing and action on an On/Off Malt License for Taste of
Europe, Dennis Bielfeldt, owner, 1300 Main Avenue South, Legal:
Block 4, Fishback Second Addition.
The City of Brookings has received an application for an on-off sale Malt Beverage
License for Taste of Europe, 1300 Main Avenue South, from Dennis Bielfeldt, owner.
legal description: Block 4, Fishback Second Addition. All the required documents have
been submitted for this application. A public hearing and action by the local governing
body is required to approve a Malt Beverage License. This license would be effective
immediately until June 30, 2010 and then subject to an annual renewal. If approved, the
application would be forwarded to the State Department of Revenue for final action and
issuance of the license.
Further Information: SDCL 35-2-1.2 provides all applications for retail licenses …shall
be submitted to the governing board of the municipality within which the applicant
intends to operate…The governing board: “shall have discretion to approve or
disapprove the application depending on whether it deems the applicant a suitable
person to hold such license and whether it considers the proposed location suitable.”
SDCL 35-2-6.2 provides the “character” requirements for alcoholic beverage licensees:
“Any license under this title…must be a person of good moral character, never
convicted of a felony, and, if a corporation, the managing officers thereof must have like
qualifications.”
Procedure for issuance of licenses: Procedurally, SDCL 35-2-3 provides that “no license
for the on or off-sale at retail of alcoholic beverages…shall be granted to an applicant
for any such license, except after public hearing, upon notice.” SDCL 35-2-5 provides
the procedure for the time and place of hearing and for publication of notice. If an
application for a license is refused, “no further application may be received from a
person until after the expiration of one year from the date of a refused application.”
City Ordinances:
Listed below is Chapter 5, Article 2, Section 5-20 of the City Code of Ordinances
pertaining to Application Review Procedure.
The City Council shall review all applications submitted to the City for available On-Sale
Alcoholic Beverage Agreements and for On-Sale Malt Beverage and Wine Licenses in
accordance with SDCL 35-2 and in accordance with the following factors:
(a) Type of business which applicant proposes to operate: On-Sale Alcoholic
Beverage Operating Agreements and On-Sale Malt Beverage and Wine Licenses
may not be issued to convenience grocery stores, gas stations, or other stores
where groceries or gasoline are sold unless it can be established that minors do
not regularly frequent the establishment.
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(b) The manner in which the business is operated: On-Sale Alcoholic Beverage
Operating Agreements and On-Sale Malt Beverage and Wine Licenses may not
be issued to establishments which are operated in a manner which results in
minors regularly frequenting the establishment.
(c) The extent to which minors are employed in such a place of business: On-Sale
Alcoholic Beverage Operating Agreements and On-Sale Malt Beverage and Wine
Licenses may not be issued to convenience grocery stores, gas stations, or other
stores where groceries or gasoline are sold and which regularly employ minors.
(d) The adequacy of the police facilities to properly police the proposed location:
The City Council shall inquire of the Police Chief whether the Police
Department can adequately police the proposed location.
(e) Other factors: The hours that business is conducted shall be considered by the
City Council in its review of applications for on-sale alcoholic beverage operating
agreements and on-sale malt beverage and wine licenses
Summary: SDCL and case law support the premise that the decision to issue an
alcoholic beverage license is discretionary. The City can assess the character of the
applicant and whether the location is suitable. A person convicted of a felony is
prohibited from applying for a license; therefore, a convicted felon would fail the
character test. In determining suitable location, the Council may involve the
determination of whether the location is suitable consistent with the procedure
developed through South Dakota Case Law. This includes the manner in which the
business is operated; the extent to which minors frequent or are employed in such
place of business; the adequacy of the police facilities to properly police the proposed
location, and other factors associated with the sale of alcoholic beverages.
City Manager Introduction
ACTION: Open & Close Public Hearing, Motion to Approve, Roll Call
CITY MANAGER RECOMMENDATION: Approve
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Alcohol License Hearings
13. Action on Resolution No. 40-10, authorizing the City Manager to
sign an Operating Agreement with Taste of Europe, Dennis
Bielfeldt, owner, 1300 Main Avenue South for an On/Off Wine
License.
Dennis Bielfeldt, owner of Taste of Europe, has applied for a wine operating agreement
for his new business located at 1300 Main Avenue South. An operating agreement is
required for wine licenses. Resolution No. 40-10 allows the City Manager to enter into
the first five years of the 10-year agreement effective through 2015. This license would
be subject to annual state renewal in December. The Brookings Police Department does
not have any concerns regarding this application. If approved, the application would be
forwarded to the State Department of Revenue for final action and issuance of the
license.
Listed below is specific information related to a wine license request and other procedures that are
following with an application. Note that restaurant requirements for wine have been eliminated in
state law.
City Ordinances:
Listed below is Chapter 5, Article 2, Section 5-20 of the City Code of Ordinances pertaining to
Application Review Procedure. The City Council shall review all applications submitted to the City
for available On-Sale Alcoholic Beverage Agreements and for On-Sale Malt Beverage and Wine
Licenses in accordance with SDCL 35-2 and in accordance with the following factors:
(a) Type of business which applicant proposes to operate: On-Sale Alcoholic Beverage
Operating Agreements and On-Sale Malt Beverage and Wine Licenses may not be
issued to convenience grocery stores, gas stations, or other stores where groceries
or gasoline are sold unless it can be established that minors do not regularly
frequent the establishment.
(b) The manner in which the business is operated: On-Sale Alcoholic Beverage
Operating Agreements and On-Sale Malt Beverage and Wine Licenses may not be
issued to establishments which are operated in a manner which results in minors
regularly frequenting the establishment.
(c) The extend to which minors are employed in such a place of business: On-Sale Alcoholic
Beverage Operating Agreements and On-Sale Malt Beverage and Wine Licenses
may not be issued to convenience grocery stores, gas stations, or other stores
where groceries or gasoline are sold and which regularly employ minors.
(d) The adequacy of the police facilities to properly police the proposed location:
The City Council shall inquire of the Police Chief whether the Police Department
can adequately police the proposed location.
(e) Other factors: The hours that business is conducted shall be considered by the City
Council in its review of applications for on-sale alcoholic beverage operating
agreements and on-sale malt beverage and wine licenses.
City Manager Introduction
ACTION: Motion to Approve, Request Public Comment, Roll Call
CITY MANAGER RECOMMENDATION: Approve
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Resolution No. 40-10
Taste of Europe
Wine Operating Agreement
Be It Resolved by the City of Brookings, South Dakota, that the City Council hereby
approves a Lease Agreement for the Operating Liquor Management Agreement for wine
between the City of Brookings and the Taste of Europe 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 1300 Main Avenue South.
Be It Further Resolved that the City Manager be authorized to execute the Agreement
on behalf of the City, which shall be for a period of five (5) years and renewal for
another five (5) years.
Passed and approved this 6th day of April 2010.
CITY OF BROOKINGS
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
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Other Business
14. Action to approve a Joint Cooperative Agreement for
County/City Administrative Office Building.
Attached is a Joint Powers Agreement (JPA) between the City and County of Brookings
which provides for the authority to oversee the construction of said project as well as
anticipating some of the issues which will need to be addressed during occupancy upon
completion of the building.
This document is authorized and derives much of its power and authority in South
Dakota Codified Law Chapter 1-24 (see enclosed). As more details get addressed
regarding the various aspects of operating and maintaining the building, this document
will likely need to be amended as the construction issues will no longer be relevant.
This document has been prepared and reviewed by legal counsel for both the City and
County and is recommended for approval to the County Board and City Council by the
Joint Building Committee.
City Manager Introduction
ACTION: Motion to Approve, Request Public Comment, Roll Call
CITY MANAGER RECOMMENDATION: Approve
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Statutory Authority: This agreement is made pursuant to the authority granted by SDCL § 1-24-1 to
1-24-23, inclusive and 6-3-2.
6-3-2. Execution of agreement for common building--Contents and filing--Amendment and
supplementation. The agreement referred to in § 6-3-1 shall be set forth in writing, approved by
resolutions of the governing bodies of the participating political subdivisions and executed by their
officers thereunto duly authorized, and shall state the purposes for which the building or improvement
shall be used, the estimated cost thereof, the estimated amount of such cost to be borne by each
subdivision, the proportion and method of allocating the expenses of operation and maintenance of such
building or improvement, and the disposition to be made of any revenues to be derived therefrom; and
copies of such written agreement shall be filed and kept of public record by the recording officers of
each participating subdivision. Such agreement may be amended or supplemented from time to time by
action of the governing bodies of the participating subdivisions, and all such amendments or supplements
shall be filed with the recording officers of the respective subdivisions.
Source: SL 1949, ch 447, § 2; SDC Supp 1960, § 65.0715.
SDCL 1-24-1 to 1-24-23, inclusive.
1-24-1. Definition of terms. Terms used in this chapter mean:
(1) "Participating public agency," any public agency which has elected to participate in a pool
arrangement;
(2) "Public agency," any county, municipality, township, school district, consumers power district or
drainage district of the State of South Dakota; any agency of South Dakota state government or of the
United States; any political subdivision of this state; any political subdivision of another adjacent state;
and any Indian tribe;
(3) "State," a state of the United States and the District of Columbia;
(4) "State agency," each association, authority, board, commission, committee, council, department,
division, office, officer, task force, or other agent of the state vested with the authority to exercise any
portion of the state's sovereignty; provided that the term shall not include the legislative or judicial
branch of the government of the state or units of local government, including but not limited to
counties, townships, municipalities, chartered governmental units, or school or other special districts, or
Indian tribes.
Source: SL 1966, ch 187, § 1; SL 1970, ch 9; SL 1974, ch 13; SL 1974, ch 14, § 1; SL 1975, ch 14, § 1; SL
1976, ch 12; SL 1991, ch 11, § 1.
1-24-2. Joint exercise of powers authorized--Exceptions. Any power or powers, privileges, or authority
exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly
with any other public agency of this state and jointly with any public agency of any other state or of the
United States to the extent that the laws of such other state or of the United States permit such joint
exercise or enjoyment. Any agency of South Dakota state government when acting jointly with any
public agency may exercise and enjoy all of the powers, privileges, and authority conferred by §§ 1-24-2
to 1-24-9, inclusive, upon a public agency. The provisions of this section do not apply to the power to
tax or police powers, unless jointly held or otherwise authorized by law.
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Source: SL 1966, ch 187, § 2; SL 1986, ch 19; SL 1990, ch 17.
1-24-3. Agreements for cooperative action authorized--Approval by governing bodies. Any two or
more public agencies may enter into agreements with one another for joint or cooperative action
pursuant to the provisions of §§ 1-24-2 to 1-24-9, inclusive. Appropriate action by ordinance, resolution,
or otherwise pursuant to law of the governing bodies of the participating public agencies shall be
necessary before any such agreement may enter into force.
Source: SL 1966, ch 187, § 3.
1-24-4. Contents of agreement. Any such agreement shall specify the following:
(1) Its duration;
(2) The precise organization, composition, and nature of any separate legal or administrative entity
created thereby together with the powers delegated thereto, provided such entity may be legally
created;
(3) Its purpose or purposes;
(4) The manner of financing the joint or cooperative undertaking and of establishing and maintaining a
budget therefor;
(5) The permissible method or methods to be employed in accomplishing the partial or complete
termination of the agreement and for disposing of property upon such partial or complete termination;
and
(6) Any other necessary and proper matters.
Source: SL 1966, ch 187, § 4.
1-24-5. Provisions for control agency and property. In the event that the agreement does not establish
a separate legal entity to conduct the joint or cooperative undertaking, the agreement shall, in addition
to the items enumerated in § 1-24-4, contain the following:
(1) Provision for an administrator or a joint board responsible for administering the joint or
cooperative undertaking. In the case of a joint board public agencies party to the agreement shall be
represented; and
(2) The manner of acquiring, holding, and disposing of real and personal property used in the joint
or cooperative undertaking.
Source: SL 1966, ch 187, § 5.
1-24-6. Agreements to be approved by state agency. In the event that an agreement made pursuant to
§§ 1-24-2 to 1-24-9, inclusive, shall deal in whole or in part with the provision of services or facilities
with regard to which an officer or agency of the state government has constitutional or statutory
powers of control, the agreement shall, as a condition precedent to its entry into force, be submitted to
the state officer or agency having such power of control and shall be approved or disapproved by him or
it as to all matters within his or its jurisdiction.
Source: SL 1966, ch 187, § 7; SL 1973, ch 8.
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1-24-6.1. Agreements filed with attorney general and Legislative Research Council--Time. A copy of
any agreement entered into pursuant to this chapter to which any state agency is a party shall be filed
with the attorney general and the Legislative Research Council not more than fourteen days after being
executed.
Source: SL 1975, ch 14, § 2; SL 1976, ch 13; SL 1980, ch 15, § 4; SL 1980, ch 16.
1-24-7. Appropriation of funds and services to carry out agreement. Any public agency entering into an
agreement pursuant to §§ 1-24-2 to 1-24-9, inclusive, may appropriate funds and may sell, lease, give, or
otherwise supply the administrative joint board or other legal or administrative entity created to
operate the joint or cooperative undertaking by providing such personnel or services therefor as may be
within its legal power to furnish.
Source: SL 1966, ch 187, § 8.
1-24-8. Contracts for service by public agencies. Any one or more public agencies may contract with
any one or more other public agencies to perform any governmental service, activity, or undertaking
which any public agency entering into the contract is authorized by law to perform; provided, however,
that such contract shall be authorized by the governing body of each party to the contract. Such
contract shall set forth fully the purposes, powers, rights, objectives, and responsibilities of the
contracting parties.
Source: SL 1966, ch 187, § 9; SL 1974, ch 14, § 2.
1-24-9. Agencies not relieved from obligations by agreement. No agreement made pursuant to §§ 1-24-
2 to 1-24-8, inclusive, shall relieve any public agency of any obligation or responsibility imposed upon it
by law except that to the extent of actual and timely performance thereof by a joint board or other legal
or administrative entity created by an agreement made hereunder, which performance may be offered in
satisfaction of the obligation or responsibility.
Source: SL 1966, ch 187, § 6.
1-24-10. Severability of provisions. If a part of this chapter is invalid, all valid parts that are severable
from the invalid part remain in effect. If a part of this chapter is invalid in one or more of its applications,
the part remains in effect in all valid applications that are severable from the invalid applications.
Source: SL 1966, ch 187, § 10.
1-24-11. "Pool arrangement" defined. For the purposes of §§ 1-24-11 to 1-24-17, inclusive, a pool
arrangement is any joint power agreement, pool, consortium, or other arrangement or collection of
public agencies, whether or not formed under or pursuant to chapter 1-24 and whether or not a
separate legal entity, by which one or more public agencies have provided for the payment of claims,
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liabilities, or other expenses or otherwise provided for or obtained coverage for property, personal
injury, and workers compensation claims or group life, health, or accident coverage.
Source: SL 1991, ch 11, § 2.
1-24-12. Authorization for and establishment of enforceability and validity of pool arrangements--
Government immunity. The provisions of this chapter are applicable to and authorize and establish the
enforceability and validity of pool arrangements entered into by participating public agencies to provide
for payment of valid claims against participating public agencies and their officers and employees for
liability they may incur which is not avoidable under the tenth or eleventh amendments of the United
States Constitution, including liability coverage for property, personal injury and workers compensation
claims and group life, health and accident coverage. Nothing in §§ 1-24-11 to 1-24-17, inclusive,
constitutes an abrogation, change, waiver or modification of the doctrine of governmental or sovereign
immunity created by any statute, judicial opinion, ordinance, resolution or tort claims act nor may §§ 1-
24-11 to 1-24-17, inclusive, create any cause of action in federal court or under federal law. A pool
arrangement authorized by §§ 1-24-11 to 1-24-17, inclusive, may provide coverages, services or benefits
only for or on behalf of the participating public agencies in any given pool arrangement.
Source: SL 1991, ch 11, § 3.
1-24-13. Resolution or ordinance authorizing payment of premiums pursuant to pool arrangement--
Payment. If a public agency participates in a pool arrangement which is funded by the health and
educational facilities authority pursuant to § 1-24-14, then the obligation to pay premiums and other
amounts pursuant to such pool arrangement shall be sufficiently authorized and evidenced by a duly
authorized resolution or ordinance approved and filed as provided by §§ 1-24-6 and 1-24-6.1 and no
further proceedings, notice or approval may be required to evidence such obligations. On and after the
date of such approval and filing, the obligation of any participating public agency to pay premiums or
other obligations described in such resolution, ordinance or other instrument relating to the pool
arrangement shall be deemed a noncancelable current expense for services rendered to and benefits
received by such participating public agency in the year such premium or other obligations shall become
payable notwithstanding the year in which such resolution, ordinance or other instrument relating to the
pool arrangement was adopted or executed, and whether or not such obligations are supported by an
irrepealable tax levy and whether or not such participating public agency has exercised any contractual
right to cancel participation in the pool arrangement for any future fiscal year or portion thereof.
Source: SL 1991, ch 11, § 4.
1-24-14. Funding arrangements with health and educational facilities authority. Any public agency may
enter into one or more pool arrangements with other public agencies and may enter into funding
arrangements with the health and educational facilities authority and other public agencies, including
agreements pursuant to which a public agency agrees to pay premiums and other charges for coverage
or other benefits provided by such pool arrangement.
Source: SL 1991, ch 11, § 5.
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1-24-15. Agreements for investment of public moneys. Any public body or participating public agency
may enter into agreements or other arrangements for the investment of public moneys or other funds
with the authority under the provisions of § 1-16A-19 so long as the agreement or other arrangement
relates to a loan, lease or other financing which is authorized to be undertaken by the authority under
chapter 1-16A.
Source: SL 1991, ch 11, § 6.
1-24-16. Election when agreement pledges full faith and credit of public agency. The election provisions
of chapter 6-8B apply if a public agency issues any obligation or enters into any agreement in connection
with a pool arrangement which includes an express pledge of the full faith and credit of the public agency
and, in support thereof, a specific irrepealable covenant of the public agency to levy taxes in a future
fiscal year in an amount necessary to pay premiums or other obligations in connection with such pool
arrangement. If any such obligation or agreement does not include an express pledge of the full faith and
credit of the public agency and a specific irrepealable covenant to levy taxes in a future fiscal year in an
amount necessary to pay premiums or other such obligations in connection with such pool arrangement,
then no election may be required to issue such obligations or enter into such agreements.
Source: SL 1991, ch 11, § 10.
1-24-17. Pool arrangement, agreement, or financing not to be considered insurance or insurance
company. No pool arrangement and no agreement or financing in connection therewith may be
considered insurance nor may any such pool arrangement, agreement, or financing be considered to be
an insurance company under the laws of South Dakota nor may any such pool arrangement, agreement,
or financing be under the jurisdiction of the commissioner of insurance.
Source: SL 1991, ch 11, § 13.
1-24-19. Political subdivisions authorized to form separate administrative or legal entity.
Notwithstanding the provisions of Titles 7, 9, and 13, two or more political subdivisions, or any
combination thereof, may form an agreement pursuant to this chapter to establish an administrative or
separate legal entity upon a motion approved by a majority vote of all participating governing bodies.
Such agreement may be entered into for economic development purposes or to provide greater
efficiency or improved services among the governing bodies entering into the agreement. The governing
body of the joint entity shall be composed of the elected officials from the participating governing
bodies. The agreement shall set forth the portion of support provided by each governing body. The joint
entity may not levy property taxes, but may operate enterprise functions, set fees for services, employ
staff, and own real or personal property. The joint entity may borrow funds to finance the purchase of
real or personal property or to construct facilities. Any financing by bonds or other method shall
require approval by more than sixty percent of the members of each participating governing board. The
joint entity may enter into multiyear contracts. The joint entity shall follow all statutory requirements
for public notice of meetings, publication of minutes, open meetings, the letting of public contracts,
conflict of interest, disposal of surplus property, and audits.
Source: SL 1995, ch 7, § 1.
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1-24-20. Reciprocal interstate agreements for purpose of law enforcement. Any two or more public
agencies with law enforcement powers may enter into reciprocal interstate agreements to allow their
respective certified law enforcement officers to cross state lines to provide assistance to the requesting
agency.
Source: SL 1997, ch 9, § 1.
1-24-21. Liability of law enforcement officers acting in reciprocal capacity. Any certified law
enforcement officer acting under a reciprocal interstate law enforcement agreement shall be treated as a
law enforcement officer of the requesting agency for liability purposes while in its jurisdiction and shall
have the same authority as any other certified law enforcement officer of the requesting agency. A
certified law enforcement officer is any employee of the public agency who is certified as a law
enforcement officer under its state laws and is responsible for the prevention and detection of crime
and the enforcement of criminal or traffic laws in their respective jurisdictions.
Source: SL 1997, ch 9, § 2.
1-24-22. Agreements of parties to an interstate law enforcement agreement. In addition to the other
requirements in chapter 1-24, the parties to an interstate law enforcement agreement shall agree to the
following:
(1) That all law enforcement officers subject to the agreement shall be trained and certified as law
enforcement officers in accordance with the laws of the state where such officers are employed, and if
so trained and certified shall have the authority to act as a law enforcement officer within the
jurisdiction of the requesting agency while responding to the request; and
(2) Any law enforcement officer responding to a request shall be treated as a law enforcement
officer of the requesting agency for liability purposes while in its jurisdiction, and the requesting agency
shall obtain and maintain liability coverage for those certified law enforcement officers responding to
requests.
Source: SL 1997, ch 9, § 3.
1-24-23. Approval of Governor required for reciprocal agreements. All reciprocal interstate law
enforcement agreements must be approved by the Governor.
Source: SL 1997, ch 9, § 4.
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JOINT COOPERATIVE AGREEMENT FOR COUNTY/CITY ADMINISTRATIVE
OFFICE BUILDING
Agreement made April ____, 2010, between Brookings County, SD, a South Dakota County
(the “County”) and the City of Brookings, South Dakota a municipality under South Dakota law
(the “City”).
WHEREAS, County and City are in need of additional space for administrative offices; and
WHEREAS, the parties believe that combining their offices in a single building will enhance the
ability of both to serve the public; and
WHEREAS, pursuant to Resolution ________ passed by the County on
_________________________, 2010 and Resolution ________ passed by the City on
_________________________, 2010 authorize the officers of the respective entities to
enter into this agreement.
NOW THEREFORE, the parties agree as follows:
Section One
Statutory Authority
This agreement is made pursuant to the authority granted by SDCL § 1-24-1 to 1-24-23,
inclusive and 6-3-2.
Section Two
Purpose of the Agreement and Use of the Building
This agreement is intended to specify terms and conditions under which County and City will
purchase land together and construct, equip and maintain an administrative building for the joint
and common use of the County and City to house the County’s Offices and the City’s
Administrative Offices. Further, it is the intent of both Parties that this Agreement may be
amended and supplemented prior to the beginning of, or during the construction period.
Section Three
Acquisition of Property
County and City are negotiating the purchase of the properties as set forth in Exhibit “A”
attached hereto and by this reference incorporated herein. County and City shall each be
obligated to pay one-half of the costs of such property acquisition, including purchase prices,
closing costs and demolition costs. Upon closing all of such properties shall be titled in the
names of County and City jointly.
Section Four
Building Name and Use
The name of the building shall be the BROOKINGS GOVERNMENT CENTER.
The building shall be used to house the administrative functions of the County and City and for
such other purposes as the County and City deem appropriate.
Section Five
Estimated Cost and Financing
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The estimated cost of the joint building is not to exceed 12 Million Dollars which shall be born
by each party as stated herein. It is anticipated that County has sufficient funds set aside to
purchase said properties and pay for its share of the construction of the building by
appropriation. It is anticipated that City will issue sales tax bonds and appropriate the bond
proceeds to pay its share of the purchase of said properties and the construction of the
building.
Section Six
Allocation of Construction Costs
A) Each party shall pay for the general cost of constructing the joint administrative building an
allocated share based upon their respective square footage of separate office area as it relates
to the combined square footage of both separate office areas. The general cost of constructing
the joint administrative building for the purposes of such payment allocation shall include the
following:
1. All costs of architects, engineers and construction manager;
2. Site preparation and footings;
3. All exterior walls, windows and doors;
4. The roof and floor structure;
5. All heating and air conditioning systems;
6. All load-bearing walls;
7. Utility service (electrical, plumbing, telephone, security systems, and related wiring
and lighting), excluding utility work in the separate areas of each party; and
8. All costs relating to common areas, including hallways, bathrooms,
commission/council chambers and other combined meeting rooms.
9. Parking lots, exterior lighting, signage and landscaping.
B) Each party shall pay in full the costs of construction regarding each party’s separate office
area, including:
1. All utility service serving only each separate area;
2. All non-load bearing walls and similar dividers;
3. All finish work, trim, painting, carpeting, lighting and ceilings; and
4. All equipment.
C) Each party shall timely pay its respective share of the construction costs as they become
due under the construction contracts.
Section Seven
Design Approval
The Joint Committee shall work with the architect to develop plans for the building layout,
exterior, common areas, landscaping and parking lots. Such plans shall be submitted for
approval to the County Commission and the City Council upon completion of the schematic
design phase and upon completion of the design development phase. The County Commission
shall have the sole and final approval of the design and interior finishing of the County’s
separate area and the City Council shall have the sole and final approval of the design and
interior finishing of the City’s separate area.
Section Eight
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Furniture, Fixtures and Equipment
The City and County will each pay for their own furniture, fixtures and equipment necessary
for their operations in the Center. Each Party shall pay for furniture, fixtures and equipment
necessary for the joint areas and the general operation of the building based upon the same
allocation as for construction costs under Section Six (A) above.
Section Nine
Insurance
Liability insurance shall be procured jointly, if necessary, by the County and the City to protect
said governmental units from any and all claims for bodily injury, including death and property
damage arising out of the use or operation of the facility. In addition, fire and extended
coverage insurance in an amount not less than the cost of construction, shall be obtained by the
County and the City, which will insure the owners of the building in case of fire, catastrophe, or
other damage to the building, fixtures, and/or equipment contained in the facility. Each Party
shall pay for the cost of such insurance based upon the same allocation as for construction
costs under Section Six (A) above. Each Party shall pay for any insurance on its separately
owned furniture, fixtures and equipment.
Section Ten
Portion and Method of Allocating Expenses of Operation and Maintenance
Each party shall pay for all costs of maintenance, repairs, utility and capital replacement for its
separate areas. The costs of maintenance, repairs, utilities and capital replacement of the
building exterior, roof, heating and air conditioning systems, grounds, parking lot and common
areas shall be allocated between the Parties based upon the same allocation as for the
construction costs under Section Six (A) above.
Section Eleven
Management of Common Areas
The City Manager shall be responsible for the management and scheduling of jointly used areas
of the building. The County Commission and the City Council shall always have priority as to
the use of the Commission/Council Chambers. Any fees generated by the use of the common
areas of the building shall be applied to the costs of maintenance and upkeep of such common
areas.
Section Twelve
Personnel
The City shall control the personnel and operations of its offices and the County shall control
the personnel and operations of its offices; except as specifically agreed to within the terms of
this Agreement or any other agreement between the Parties.
Section Thirteen
Building/Advisory Committee
A building advisory committee, consisting of four (4) members, two (2) from the County and
two (2) from the City, shall meet periodically as necessary for the purpose of discussing
problems or difficulties during the planning, design and construction of the building; and the
continued operation of the building and grounds. The City Manager and the County
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Commission Assistant shall be non-voting members of such committee. Such committee shall
have general authority concerning the planning, design and construction of the building and the
continued operation of the building, provided, however, that the following matters are subject
to approval by both the County Commission and the City Council:
Hiring architects and engineers;
Approval of final design and plans;
Bidding all contracts;
All bonds and financing; and
Annual operation budget.
Section Fourteen
Disposition of Revenue Derived from Building
In the event that there exists any revenues derived from the operations of the building, the
County and City shall retain such revenues as are attributable to the space under its control.
Section Fifteen
Termination
This agreement shall continue until otherwise terminated by the parties by mutual agreement.
Section Sixteen
Partial Invalidity
In any one or more of the provisions of this Agreement, or of any exhibit or attachment
thereto, shall be held invalid, illegal, or unenforceable in any respect, by final decree of any
court of lawful jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other
provision hereof, or of any exhibit or attachment thereto, but the Bond Resolution, and the
exhibits and attachments thereto, shall be construed the same as if such invalid, illegal, or
unenforceable provision had never been contained herein, or therein, as the case may be.
Section Seventeen
Agreement Open to Public Inspection
This agreement shall be filed and copies hereof kept as an open record with the County Finance
Officer and City Clerk and shall be open to public inspection.
Section Eighteen
Amendments
This agreement may be amended and supplemented from time to time by the action of the
governing bodies of the County and City. All amendments or supplements shall be filed in
accordance with Section Seventeen.
IN WITNESS WHEREOF, the parties have executed this agreement the day and year first
above written.
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Other Business
15. Action on Resolution No. 41-10, authorizing the execution, terms,
issuance, sale and payment of Sales Tax Revenue Bonds in the
aggregate principal amount of not to exceed Seven Million
Dollars ($7,000,000.00), of the City of Brookings of Brookings
County, South Dakota.
Attached is the bond resolution that has been prepared by Toby Morris of Northland
Securities, who is our financial advisor; and Todd Meierhenry of Meierhenry and
Sergeant, who is our bond counsel. This document provides for the issuance of debt
backed by payments of second penny revenue for our share of the construction costs of
the new Brookings Government Center.
Mr. Morris is proceeding with funding through the federal stimulus program of Build
America Bonds and Recovery Zone bonds for this project. This program still allows for
the possibility of local lenders to participate in the debt issuance.
Mr. Morris will be at the City Council meeting to discuss the attached informational
slides as well as present the resolution and answer questions.
City Manager Introduction
ACTION: Motion to Approve, Request Public Comment, Roll Call
CITY MANAGER RECOMMENDATION: Approve
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RESOLUTION NO. 41-10
Resolution Authorizing the Execution, Terms, Issuance, Sale and Payment of Sales
Tax Revenue Bonds in the Aggregate Principal Amount of not to exceed Seven
Million Dollars ($7,000,000), of the City of Brookings of Brookings County, SD.
Whereas, the City of Brookings (the “City”) and Brookings County (the “County”) are
intending to construct an Intergovernmental Administration Building to facilitate the efficient
use of governmental services; and
Whereas, the City and County intent to enter into an agreement for the joint use and
operation of the Intergovernmental Building; and
Whereas, each governmental entity must provide funds for the construction thereof; and
Whereas, the City of Brookings is authorized by the provisions of SDCL §§10-52-2.10 to issue
Sales Tax Revenue Bonds to fund capital improvements and land acquisition pursuant to the
provisions of Chapter 16 of the Revised Ordinances of Brookings, South Dakota; and
Whereas, the City Council has determined and does hereby declare that is necessary and in the
best interest of the City to issue Sales Tax Revenue Bonds for the purpose of providing funds
by appropriation to (i) acquire real property; (ii) construction of new Intergovernmental
Administration Building; and (iii) pay the Costs of Issuance of the Bonds described herein.
Now Therefore, Be It Resolved by the City Council of the City of Brookings of
Brookings County, as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definition of Terms.
In addition to the words and terms elsewhere defined in this Bond Resolution, the following
words and terms as used herein, whether or not the words have initial capitals, shall have the
following meanings, unless the context or use indicates another or different meaning or intent,
and such definitions shall be equally applicable to both the singular and plural forms of any of
the words and terms herein defined:
"Act" means collectively SDCL Chapter 6-8B and Chapter 10-52, as amended.
"Authorized Officer of the City" means the Mayor and the Finance Officer, or, in the case of
any act to be performed or duty to be discharged, any other member, officer, or employee of
the City then authorized to perform such act or discharge such duty.
"Bond Counsel" means Meierhenry Sargent LLP, a firm of attorneys recognized as having
experience in matters relating to the issuance of state or local governmental obligations.
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"Book-Entry Form" or "Book-Entry System" means a form or system, as applicable, under which
physical certificates in fully registered form are issued to a Depository or to its nominee as
Registered Owner, with the certificated certificates being held by and "immobilized" in the
custody of such Depository, and under which records maintained by persons, other than the
City or the Registration Agent, constitute the written record that identifies, and records the
transfer of the beneficial "book-entry" interests in those Bonds.
"Bond Insurer" means a municipal bond insurance company which has the highest rating for the
rating agencies.
"Bond Payment Date" means each June 1 and December 1 in the years 2011 through 2030.
"Bond Purchase Agreement" means the agreement between the City and the Underwriter for
the purchase of the Bonds.
"Bond Resolution" means the within Resolution, duly adopted by the City Council on the date
hereof, as it may be amended from time to time.
"Bondholder", "Holder" and "Registered Owner" means the registered owner of a Bond,
including any nominee of a Depository.
"Bonds" mean not to exceed $7,000,000 of Sales Tax Revenue Bonds, Series 2010A, dated the
Closing Date, or such other designation or date as shall be determined by the City Council
pursuant to Section 8.1 hereof, authorized and issued under the Bond Resolution.
"City" means the City of Brookings, Brookings County, South Dakota, a home rule form of
municipality organized under the State of South Dakota.
"City Council" means the City Council of the City elected pursuant to the provisions of the
SDCL Title 9.
"City Finance Officer" means the City Finance Officer of the City appointed pursuant to the
provisions of South Dakota Codified Laws Title 9 or, in the absence of such appointment or in
the event the person so appointed is unable or incapable of acting in such capacity, the person
appointed by the City Council to perform the duties otherwise performed by the City Finance
Officer, or his/her designee.
"Closing Date" means the date the Bonds are exchanged for value.
"Code" means the Internal Revenue Code of 1986, as amended, and the applicable regulations
of the United States Department of Treasury promulgated thereunder as in effect on the date
of issuance of the Bonds.
"Costs of Issuance" means all costs, fees, charges and expenses incurred in connection with the
issuance of the Bonds, including costs for bond insurance and rating agency fees.
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"Debt" means (1) indebtedness of the City for borrowed money or for the deferred purchase
price of property or services, and expressly including the obligation to pay principal and interest
on or with respect to revenue bonds, (2) the obligation of the City as lessee under leases which
should be recorded as capital leases under generally accepted accounting principles, and (3)
obligations of the City under direct or indirect guarantees in respect of, and obligations,
contingent or otherwise, to purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of others of the kinds referred to in
subdivisions (1) and (2) above.
"Depository" means any securities depository that is a clearing agency under federal laws
operating and maintaining, with its participants or otherwise, a Book-Entry System, including,
but not limited to DTC.
"DTC Participant(s)" means securities brokers and dealers, banks, trust companies and clearing
corporations that have access to the DTC system.
"DTC" means the Depository Trust Company, a limited purpose company organized under the
laws of the State of New York, and its successors and assigns.
"Improvements" means the acquisition of real property and construction of Intergovernmental
Administration Building.
"Interest Payment Dates" means each June 1 and December 1, commencing June 1, 2011.
“Intergovernmental Administration Building” means the joint County and City Building built
"Letter of Representation" means the Issuer Letter of Representations or Blanket Issuer Letter
of Representations to DTC of the City.
"Mayor" means the Mayor elected pursuant to the provisions of SDCL § 9-8-1 or his or her
designee acting on his or her behalf pursuant to the Charter.
“Minimum Reserve” means the lesser of (i) 10% of the original principal amount of, (ii) the
maximum annual debt service on or, (iii) 125% of the average annual debt service on, all
Outstanding Bonds having a parity lien on the Pledged Revenues.
"Official Statement" and "Preliminary Official Statement" means that Official Statement and
Preliminary Official Statement described in Section 8.2 hereof pertaining to the sale of the
Bonds.
"Original Issue Discount or O.I.D." means the difference between the issue price and the stated
redemption price at maturity. The stated redemption price is determined without regard to
optional call dates.
"Original Issue Premium or O.I.P." means the difference between the issue price and the stated
redemption price at maturity. The stated redemption price is determined without regard to
optional call dates.
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"Outstanding", "Bonds Outstanding", or "Outstanding Bonds" means, as of a particular date all
Bonds issued and delivered under this Bond Resolution except: (1) any Bonds paid or
redeemed or otherwise canceled by the City at or before such date; (2) any Bond for the
payment of which cash, equal to the principal amount thereof with interest to date of maturity,
shall have theretofore been deposited prior to maturity by the City for the benefit of the
Owner thereof; (3) any Bond for the redemption of which cash, equal to the redemption price
thereof with interest to the redemption date, shall have theretofore been deposited with the
Registration Agent and for which notice of redemption shall have been mailed in accordance
with this Bond Resolution; (4) any Bond in lieu of or in substitution for which another Bond
shall have been delivered pursuant to this Resolution, unless proof satisfactory to the City is
presented that any Bond, for which a Bond in lieu of or in substitution therefor shall have been
delivered, is held by a bona fide Underwriter, as that term is defined in Article 8 of the Uniform
Commercial Code of the State, as amended, in which case both the Bond in lieu of or in
substitution for which a new Bond has been delivered and such new Bond so delivered therefor
shall be deemed Outstanding; and, (5) any Bond deemed paid under the provisions of Article VII
of this Resolution, except that any such Bond shall be considered Outstanding until the maturity
or redemption date thereof only for the purposes of being exchanged, transferred, or
registered.
"Person" means an individual, partnership, corporation, trust, or unincorporated organization,
or a governmental entity or agency or political subdivision thereof.
“Pledged Revenues” means the Sales Tax.
"President" means the President of the City Council who may act for the Mayor in the absence
of the Mayor.
"Purchase Agreement" means the Bond Purchase Agreement authorized pursuant to and
described in Section 8.1 hereof by and between the City and the Underwriter.
"Rating Agency" means one or more of the following rating agencies: Standard & Poor's Credit
Market Services, Moody's Investors Service Inc. and Fitch IBCA, Inc.
"Record Date" means such dates set forth in the Bond Purchase Agreement.
"Registration Agent" means Wells Fargo Bank, NA, Minneapolis, Minnesota, its successor or
successors hereafter appointed in the manner provided in Article VI hereof.
"Resolution" means this Bond Resolution.
"Reasonably Require Reserve" means an amount, if required, which will comply with the
Internal Revenue Regulations specifying the maximum amount in a reserve fund permitted to be
invested without regard to investment yield.
"Sales Tax" means the City two percent tax on the gross receipts of all persons engaged in
business within the jurisdiction of the City who are subject to the South Dakota Retail
Occupational Sales and Service Tax, SDCL ch. 10-45 and the two percent upon all transactions
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or use, storage and consumption which are subject to the South Dakota Use Tax Act, SDCL
ch. 10-46 imposed by Chapter 78 of the City of Brookings Code.
"Schedule" means the principal and interest payment schedule for the Bonds.
“Surety” means a company licensed to do surety business in the State of South Dakota.
"Underwriter" means Northland Securities, Inc. acting for and on behalf of itself and such
securities dealers as it may designate.
Section 1.2. References to Resolution.
The words "hereof", "herein", "hereunder", and other words of similar import refer to this Bond
Resolution as a whole.
Section 1.3. References to Articles, Sections, Etc.
References to Articles, Sections, and other subdivisions of this Bond Resolution are to the
designated Articles, Sections, and other subdivisions of this Bond Resolution as originally
adopted.
Section 1.4. Headings.
The headings of this Bond Resolution are for convenience only and shall not define or limit the
provisions hereof.
ARTICLE II
FINDINGS
Section 2.1
It is hereby found, declared a necessity and determined by the City Council that all limitations
upon the issuance of Bonds have been met and the Bonds are being authorized, issued and sold
in accordance with the provisions of the Act.
ARTICLE III
AUTHORITY, PLEDGE, LEVY AND ACCOUNTS
Section 3.1 Authority.
In order to fund the acquisition and construction of the Improvements there shall be issued
pursuant to, and in accordance with, the provisions of the Act, the Bond Resolution, and other
applicable provisions of law, Sales Tax Revenue Bonds of the City in the aggregate principal
amount as finalized by the Bond Purchase Agreement.
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Section 3.2 Pledge of Sales Tax.
The Sales Tax shall be and is hereby irrevocably pledged to the prompt and full payment of the
principal, premium and interest on each and all of said Bonds as such principal, premium and
interest respectively become due.
Section 3.3. Collection of Taxes.
Pursuant to SDCL § 10-52-2.10, the City does hereby pledge, provide and agree that it will
continue to impose and collect the non-ad valorem tax so long as the Bonds are outstanding.
The governing body shall also pledge so much of the collections of the taxes as may be
necessary to pay the principal, premium and interest on the bonds and to maintain any debt
service reserve established for the Bonds.
Section 3.4. Accounts.
(a) Special Revenue Fund. The Finance Officer has established and will maintain the Special
Revenue Fund as a separate and special account in the financial records of the City until all
Bonds issued and made payable therefrom, and interest due thereon, have been duly paid or
discharged. All collections of the Sales Tax shall be credited, as received, to the Special Revenue
Fund. Within the Special Revenue Fund are various separate accounts to be maintained by the
City.
(b) Construction Account. There is hereby created and established as an account of the Special
Revenue Fund, a “Construction Account” There shall be credited to the Construction Account
the proceeds from the sale of the Bonds remaining after (a) the deposit to the Reserve Account
required by Section 3.05, and (b) payment of the (i) underwriter’s discount, (ii) original issue
discount and (iii) any other expenses of issuing the Bonds. All moneys credited to the
Construction Account shall be applied solely to the payment of the costs of the Improvements.
For the purposes of this Resolution, “costs of the Improvements” shall include costs of
acquiring, constructing, and installing the Improvements including costs of labor, services,
materials and supplies, financial, architectural, engineering, legal, accounting and other
professional expenses relating to the Improvements, the costs of acquisition or properties,
rights, easements, or other interest in properties, insurance premiums, and the costs of
publishing, posting or mailing notices in connection with the Improvements. All sums derived
from the investment of moneys in the Construction Account shall remain in and become part
of such fund. Upon completion of the Improvements and when all costs of the Improvements
have been paid, any balance remaining in the Construction Account shall be credited to the
Principal and Interest Account hereinafter established.
(c) Principal and Interest Account. There is hereby created and established as an account of the
Special Revenue Fund, a “Principal and Interest Account.” Immediately upon delivery of the
Bonds, there shall be credited to the Principal and Interest Account the amount of accrued
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interest received from the Underwriter. Commencing on the date specified in the Bond
Purchase Agreement, there shall be withdrawn from the Special Revenue Fund at least monthly
and credited to the Principal and Interest Account an amount which will equal at least one-sixth
(1/6th) of the interest becoming due on the next succeeding payment date and one-twelfth
(1/12th) of the principal becoming due on the next succeeding payment dates with respect to
the Outstanding Bonds. In all events there shall be credited to the Principal and Interest
Account amounts sufficient to pay the principal of and interest on the Outstanding Bonds as the
same become due.
(d) Reserve Account. There is hereby created and established as an account of the Special
Revenue Fund, a “Reserve Account.” There shall be credited to the Reserve Account from the
proceeds of the Bonds, an amount equal to the Minimum Reserve. Thereafter, in the event that
the amount on deposit in the Reserve Account shall thereafter fall below the Minimum Reserve,
additional deposits shall be made from the Pledged Revenues to the Reserve Account until the
Minimum Reserve is again reached. Upon the issuance of any parity lien bonds, the Minimum
Reserve established in this section shall be increased to an amount equal to the combined
maximum annual debt service on the Outstanding Bonds. The balance required shall be funded
on the delivery date of the parity lien bonds. Moneys credited to the Reserve Account may be
used only for the payment of principal of and interest on the Outstanding Bonds and shall be
used only in the event that there are insufficient moneys in the Principal and Interest Account
to meet such principal and interest payments promptly when due. The interest from any
investment of the Reserve Account may be transferred from time to time to the Construction
Account, provided that after completion of the Improvements such interest shall be transferred
to the Principal and Interest Account. No transfer of investment income shall be made from the
Reserve Account at any time when the balance therein is less than the Minimum Reserve. Such
investments shall be subject to the limitations of South Dakota law.
(e) Subordinate Lien Bonds. After making the above required payments, any remaining Pledged
Revenues may be used for the payment of the principal of and interest on any additional sales
tax revenue bonds having a lien which is subordinate to the lien of the Outstanding Bonds, and
for a reserve fund as additional security for the payment of such subordinate lien bonds.
(f) Other Expenditures. The remaining Pledged Revenues may be used for any legally
authorized purpose.
ARTICLE IV
FORM, TERMS, EXECUTION, AND TRANSFER OF BONDS
Section 4.1. Authorized Bonds.
The aggregate principal amount of Bonds that may be issued under the Bond Resolution shall
not exceed Seven Million and No/100 Dollars ($7,000,000).
Section 4.2. Form of Bonds; Execution.
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(a) The Bonds are issuable only as fully registered Bonds, without coupons, in any
denomination. All Bonds issued under the Resolution shall be substantially in the form set forth
in Exhibit A attached hereto, and by this reference incorporated herein as fully as though
copied.
(b) The Bonds shall be executed in such manner as may be prescribed by applicable law in the
name and on behalf of the City with the manual or facsimile signature of the Mayor, attested by
the manual or facsimile signature of the City Finance Officer, and approved as to form and
countersigned by a Resident Attorney by his manual or facsimile signature.
(c) In the event any officer whose manual or facsimile signature shall appear on any Bonds shall
cease to be such officer before the delivery of such Bonds, such manual or such facsimile
signature shall nevertheless be valid and sufficient for all purposes as if he or she had remained
in office until such delivery. Any Bonds may bear the facsimile signature of, or may be manually
signed by, such individuals who, at the actual time of the execution of such Bonds, were the
proper officers of the City to sign such Bonds, although on the date of the adoption by the City
of this Resolution, such individuals may not have been such officers.
(d) In the event that the Bonds are issued as Build America Bonds under Section 54AA of the
Code or Recovery Zone Economic Development Bonds under Section 1400U of the Code,
then the form of the Bonds shall comply with the requirements thereof.
Section 4.3 Maturities, Interest Rates, and Certain Other Provisions of Bonds.
(a) The Bonds shall become due and payable and be subject to the terms and conditions as are
set forth in the Bond Purchase Agreement.
(b) The Bonds shall be designated "Sales Tax Revenue Bonds, Series 2010A," or such other
designation as shall be determined by the City Council pursuant to Section 8.1 hereof. The
Bonds shall bear interest from their date or from the most recent interest payment date to
which interest has been paid or duly provided for, until the principal amount of the Bonds is
paid, such interest (computed upon the basis of a 360-day year of twelve 30-day months) being
payable on Interest Payment Dates. Interest on each Bond shall be paid by wire transfer, check
or draft of the Paying Agent, payable in lawful money of the United States of America, to the
person in whose name such Bond is registered at the close of business on the Record Date.
The principal of the Bond shall be payable in lawful money of the United States of America at
the principal office of the Paying Agent on the Bond Payment Date. Each Bond shall state that it
is issued pursuant to the Act.
(c) The Registration Agent shall make all interest payments with respect to the Bonds on
each interest payment date directly to the registered owners as shown on the bond registration
records maintained by the Registration Agent as of the close of business on the Record Date by
wire transfer, check or draft mailed to such owners at their addresses shown on said bond
registration records, without, except for final payment, the presentation or surrender of such
registered Bonds, and all such payments shall discharge the obligations of the City in respect of
such Bonds to the extent of the payments so made. Payment of principal and premium, if any,
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on the Bonds shall be made upon presentation and surrender of such Bonds to the Registration
Agent as the same shall become due and payable.
Section 4.4 Negotiability of Bonds.
All Bonds issued under this Resolution shall be negotiable, subject to the provisions for
registration and transfer contained in this Resolution and in the Bonds.
Section 4.5 Registration, Transfer and Exchange of Bonds.
(a) The Bonds are transferable only by presentation to the Registration Agent by the registered
owner, or his legal representative duly authorized in writing, of the registered bond(s) to be
transferred with the form of assignment on the reverse side thereof completed in full and
signed with the name of the registered owner as it appears upon the face of the bond(s)
accompanied by appropriate documentation necessary to prove the legal capacity of any legal
representative of the registered owner. Upon receipt of the bond(s) in such form and with such
documentation, if any, the Registration Agent shall issue a new bond or bonds to the assignee(s)
in $5,000 denominations, or integral multiples thereof, as requested by the registered owner
requesting transfer. The Registration Agent shall not be required to transfer or exchange any
bond during the period commencing on a Record Date and ending on the corresponding
interest payment date of such bond, nor to transfer or exchange any bond after the publication
of notice calling such bond for redemption has been made, nor to transfer or exchange any
bond during the period following the receipt of instructions from the City to call such bond for
redemption; provided, the Registration Agent, at its option, may make transfers after any of said
dates. No charge shall be made to any registered owner for the privilege of transferring any
Bonds, provided that any transfer tax relating to such transaction shall be paid by the registered
owner requesting transfer. The person in whose name any bond shall be registered shall be
deemed and regarded as the absolute owner thereof for all purposes and neither the City nor
the Registration Agent shall be affected by any notice to the contrary whether or not any
payments due on the Bonds shall be overdue. Bonds, upon surrender to the Registration Agent,
may, at the option of the registered owner, be exchanged for an equal aggregate principal
amount of Bonds of the same maturity in any authorized denomination or denominations.
(b) Except as otherwise provided in this subsection or in the Bond Purchase Agreement, the
Bonds shall be registered in the name of Cede & Co., as nominee of DTC, which will act as
securities depository for the bond. References in this Section to a Bond or the Bonds shall be
construed to mean the Bond or the Bonds that are held under the Book-Entry System. One
Bond for each maturity shall be issued to DTC and immobilized in its custody. Unless otherwise
provided herein, a Book-Entry System shall be employed, evidencing ownership of the Bonds in
authorized denominations, with transfers of beneficial ownership affected on the records of
DTC and the DTC Participants pursuant to rules and procedures established by DTC.
Each DTC Participant shall be credited in the records of DTC with the amount of such DTC
Participant’s interest in the Bonds. Beneficial ownership interests in the Bonds may be
purchased by or through DTC Participants. The holders of these beneficial ownership interests
are herein referred to as the "Beneficial Owners." The Beneficial Owners shall not receive the
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Bonds representing their beneficial ownership interests. The ownership interests of each
Beneficial Owner shall be recorded through the records of the DTC Participant from which
such Beneficial Owner purchased its Bonds. Transfers of ownership interests in the Bonds shall
be accomplished by book entries made by DTC and, in turn, by DTC Participants acting on
behalf of Beneficial Owners. SO LONG AS CEDE & CO., AS NOMINEE FOR DTC, IS THE
REGISTERED OWNER OF THE BONDS THE REGISTRATION AGENT SHALL TREAT CEDE
& CO., AS THE ONLY HOLDER OF THE BONDS FOR ALL PURPOSES UNDER THIS
RESOLUTION, INCLUDING RECEIPT OF ALL PRINCIPAL OF, PREMIUM, IF ANY, AND
INTEREST ON THE BONDS, RECEIPT OF NOTICES, VOTING AND REQUESTING OR
DIRECTING THE REGISTRATION AGENT TO TAKE OR NOT TO TAKE, OR
CONSENTING TO, CERTAIN ACTIONS UNDER THIS BOND RESOLUTION.
Payments of principal, interest, and redemption premium, if any, with respect to the Bonds, so
long as DTC is the only owner of the Bonds, shall be paid by the Registration Agent directly to
DTC or its nominee, Cede & Co., as provided in the Letter of Representation. DTC shall remit
such payments to DTC Participants, and such payments thereafter shall be paid by DTC
Participants to the Beneficial Owners. Neither the City nor the Registration Agent shall be
responsible or liable for payment by DTC or DTC Participants, for sending transaction
statements or for maintaining, supervising or reviewing records maintained by DTC or DTC
Participants.
In the event that (1) DTC determines not to continue to act as securities depository for the
Bonds or (2) the City determines that the continuation of the Book-Entry System of evidence
and transfer of ownership of the Bonds would adversely affect their interests or the interests of
the Beneficial Owners of the Bonds, the City may discontinue the Book-Entry System with
DTC. If the City fails to identify another qualified securities depository to replace DTC, the
City shall cause the Registration Agent to authenticate and deliver replacement Bonds in the
form of fully registered Bonds to each Beneficial Owner.
NEITHER THE CITY NOR THE REGISTRATION AGENT SHALL HAVE ANY
RESPONSIBILITY OR OBLIGATIONS TO ANY DTC PARTICIPANT OR ANY BENEFICIAL
OWNER WITH RESPECT TO (i) THE BONDS; (ii) THE ACCURACY OF ANY RECORDS
MAINTAINED BY DTC OR ANY DTC PARTICIPANT; (iii) THE PAYMENT BY DTC OR
ANY DTC PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER IN
RESPECT OF THE PRINCIPAL OF AND INTEREST ON THE BONDS; (iv) THE DELIVERY
OR TIMELINESS OF DELIVERY BY DTC OR ANY DTC PARTICIPANT OF ANY NOTICE
DUE TO ANY BENEFICIAL OWNER THAT IS REQUIRED OR PERMITTED UNDER THE
TERMS OF THIS BOND RESOLUTION TO BE GIVEN TO BENEFICIAL OWNERS, (v) THE
SELECTION OF BENEFICIAL OWNERS TO RECEIVE PAYMENTS IN THE EVENT OF ANY
PARTIAL REDEMPTION OF THE BONDS; OR (vi) ANY CONSENT GIVEN OR OTHER
ACTION TAKEN BY DTC, OR ITS NOMINEE, CEDE & CO., AS OWNER.
SO LONG AS A BOOK-ENTRY SYSTEM OF EVIDENCE OF TRANSFER OF OWNERSHIP OF
ALL THE BONDS IS MAINTAINED IN ACCORDANCE HEREWITH, THE PROVISIONS OF
THIS RESOLUTION RELATING TO THE DELIVERY OF PHYSICAL BONDS SHALL BE
DEEMED INAPPLICABLE OR BE OTHERWISE SO CONSTRUED AS TO GIVE FULL EFFECT
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TO SUCH BOOK-ENTRY SYSTEM. IF THE PROVISIONS OF THE LETTER OF
REPRESENTATION SHALL BE IN CONFLICT WITH THE PROVISIONS OF THIS
RESOLUTION AS SAID PROVISIONS RELATE TO DTC, THE PROVISIONS OF THE LETTER
OF REPRESENTATION SHALL CONTROL.
Section 4.6 Mutilated, Lost, Stolen, or Destroyed Bonds.
(a) In the event any bond is mutilated, lost, stolen, or destroyed, the City may execute, and
upon the request of an Authorized Officer of the City the Registration Agent shall authenticate
and deliver, a new bond of like maturity, interest rate, and principal amount, and bearing the
same number (but with appropriate designation indicating that such new bond is a replacement
bond) as the mutilated, destroyed, lost, or stolen bond, in exchange for the mutilated bond or
in substitution for the bond so destroyed, lost, or stolen. In every case of exchange or
substitution, the bondholder shall furnish to the City and the Registration Agent: (1) such
security or indemnity as may be required by them to save each of them harmless from all risks,
however remote; and, (2) evidence to their satisfaction of the mutilation, destruction, loss, or
theft of the subject bond and the ownership thereof. Upon the issuance of any bond upon such
exchange or substitution, the City and the Registration Agent may require the Owner thereof
to pay a sum sufficient to defray any tax or other governmental charge that may be imposed in
relation thereto and any other expenses, including printing costs and counsel fees, of the City
and the Registration Agent. In the event any bond which has matured or is about to mature
shall become mutilated or be destroyed, lost, or stolen, the City may, instead of issuing a bond
in exchange or substitution therefor, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated bond) if the Owner thereof shall pay all
costs and expenses, including attorneys fees, incurred by the City and the Registration Agent in
connection herewith, as well as a sum sufficient to defray any tax or other governmental charge
that may be imposed in relation thereto and shall furnish to the City and the Registration Agent
such security or indemnity as they may require to save them harmless and evidence to the
satisfaction of the City and the Registration Agent the mutilation, destruction, loss, or theft of
such bond and of the ownership thereof.
(b) Every bond issued pursuant to the provisions of this section shall constitute an additional
contractual obligation of the City (whether or not the destroyed, lost, or stolen bond shall be
found at any time to be enforceable) and shall be entitled to all the benefits of this Bond
Resolution equally and proportionately with any and all other Bonds duly issued under this
Bond Resolution.
(c) All Bonds shall be held and owned upon the express condition that the provisions of this
Section are exclusive, with respect to the replacement or payment of mutilated, destroyed, lost,
or stolen Bonds, and, to the maximum extent legally permissible, shall preclude all other rights
or remedies, notwithstanding any law or statute now existing or hereafter enacted to the
contrary.
Section 4.7 Authentication.
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The Registration Agent is hereby authorized to authenticate and deliver the Bonds to the
Underwriter or as it may designate upon receipt by the City of the proceeds of the sale thereof,
to authenticate and deliver Bonds in exchange for Bonds of the same principal amount delivered
for transfer upon receipt of the bond(s) to be transferred in proper form with proper
documentation as hereinabove described. The Bonds shall not be valid for any purpose unless
authenticated by the Registration Agent by the manual signature of an officer thereof on the
certificate set forth herein on the bond form.
Section 4.8 Qualification for DTC.
The Registration Agent is hereby authorized to take such actions as may be necessary from
time to time to qualify and maintain the Bonds for deposit with DTC, including but not limited
to, wire transfers of interest and principal payments with respect to the Bonds, utilization of
electronic book entry data received from DTC in place of actual delivery of Bonds and
provision of notices with respect to Bonds registered by the DTC (or any of its designees
identified to the Registration Agent) by overnight delivery, courier service, telegram, telecopy
or other similar means of communication. No such arrangements with DTC may adversely
affect the interest of any of the Owners of the Bonds, provided, however, that the Registration
Agent shall not be liable with respect to any such arrangements it may make pursuant to this
section.
Section 4.9 Bond Insurer or Surety. The Mayor and Finance Officer are authorized to
enter into an agreement with a Bond Insurer or Surety as may be required under the Purchase
Agreement. Any terms or conditions of the Bond Insurer or Surety shall be attached to this
resolution and incorporated herein as if stated in full.
Section 4.10. Rating Agency. The Mayor and Finance Officer are authorized to enter into
an agreement with a Rating Agency as may be required under the Purchase Agreement. Any
terms or conditions of the Rating Agency shall be attached to this resolution and incorporated
herein as if stated in full.
Section 4.11. Taxable Bonds.
All or any portion of the Bonds may, subject to the parameters set forth above, be issued as
Build America Bonds or Recovery Zone Economic Development Bonds and in connection
therewith, each of Authorized Officer of the City is authorized to make, for and on behalf of
and as the act of the City, any and all designations or irrevocable elections, to execute and
deliver any agreements, Bonds or other instruments to or with the federal government or any
agency thereof or the State of South Dakota or any agency thereof, and to take any other
actions necessary for the Bonds, the holders of the Bonds and the City to receive any benefits,
funds or federal subsidies available under Code.
ARTICLE V
REDEMPTION OF BONDS PRIOR TO MATURITY
Section 5.1 Redemption.
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(a) Redemption. The Bonds shall be redeemable as set forth in the Bond Purchase
Agreement.
ARTICLE VI
REGISTRATION AGENT
Section 6.1. Appointment and Acceptance of Duties.
(a) The City hereby authorizes the City Finance Officer to appoint the Registration Agent
with respect to the Bonds and authorizes and directs the Registration Agent to maintain bond
registration records with respect to the Bonds, to authenticate and deliver the Bonds as
provided herein, either at original issuance, upon transfer, or as otherwise directed by the City,
to effect transfers of the Bonds, to give all notices of redemption as required herein, to make all
payments of principal and interest with respect to the Bonds as provided herein, to cancel and
destroy Bonds which have been paid at maturity or upon earlier redemption or submitted for
exchange or transfer, to furnish the City at least annually a certificate of destruction with
respect to Bonds canceled and destroyed, and to furnish the City at least annually an audit
confirmation of Bonds paid, Bonds Outstanding and payments made with respect to interest on
the Bonds. The Mayor and the City Finance Officer, or either of them is hereby authorized to
execute and the City Finance Officer is hereby authorized to attest such written agreement
between the City and the Registration Agent as they shall deem necessary or proper with
respect to the obligations, duties and rights of the Registration Agent. The payment of all
reasonable fees and expenses of the Registration Agent for the discharge of its duties and
obligations hereunder or under any such agreement is hereby authorized and directed.
Section 6.2. Permitted Acts and Functions.
The Registration Agent may become the Owner of any Bonds, with the same rights as it would
have if it were not a Registration Agent. The Registration Agent may act as an Underwriter or
fiscal agent in connection with the sale of the Bonds or of any other securities offered or issued
by the City.
Section 6.3. Resignation or Removal of the Registration Agent and Appointment of
Successors.
(a) The Registration Agent may at any time resign and be discharged of the duties and
obligations created by the Bond Resolution by giving at least sixty (60) calendar days’ written
notice to the City Finance Officer. The Registration Agent may be removed at any time by the
City Finance Officer, provided that such removal does not constitute a breach of any
contractual agreement with any such Registration Agent, by filing written notice of such
removal with such Registration Agent. Any successor Registration Agent shall be appointed by
the City Finance Officer and shall be a trust company or a bank having the powers of a trust
company, having a combined capital, surplus, and undivided profits aggregating at least Forty
Million Dollars ($40,000,000), willing to accept the office of Registration Agent on reasonable
and customary terms and authorized by law to perform all the duties imposed upon it by the
Bond Resolution.
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(b) In the event of the resignation or removal of the Registration Agent, such Registration
Agent shall pay over, assign and deliver any monies and securities held by it as Registration
Agent, and all books and records and other properties held by it as Registration Agent, to its
successor, or if there be no successor then appointed, to the City Finance Officer until such
successor be appointed.
Section 6.4. Merger or Consolidation of Registration Agent.
Any corporation or association into which the Registration Agent may be converted or merged,
or with which it may be consolidated, or to which it may sell or transfer its trust business and
assets as a whole, or substantially as a whole, or any corporation or association resulting from
any such conversion, sale, merger, consolidation, or transfer to which it is a party shall be and
become successor Registration Agent hereunder and shall be vested with all the trusts, powers,
discretion, immunities, privileges, and other matters as was its predecessor, without the
execution or filing of any instrument or any further act, deed, or conveyance on the part of any
of the parties hereto, anything herein contained to the contrary notwithstanding. Upon any such
conversion, merger, consolidation, sale or transfer, the City Finance Officer shall have the right
and option, upon notice to such converted, merged, consolidated or acquiring entity, to remove
such entity and appoint a successor thereto pursuant to the procedures and requirements set
forth in Section 6.3 hereof.
ARTICLE VII
ADDITIONAL BONDS
The City may issue additional bonds (the “Parity Bonds”) payable from the Pledged Revenues
and having a lien upon such revenues on a parity with the Bonds and the Outstanding Parity
Bonds providing that:
1. the City is current in the payment of principal and interest on the Outstanding
Bonds and is current in the collections required for the Principal and Interest Account and the
Reserve Account.
2. the City is in compliance with all covenants of outstanding sales tax revenue bonds
and
3. the Pledged Revenues collected by the City in the last preceding fiscal year are
sufficient to cover 1.25 times the combined average annual principal and interest requirements
on the Outstanding Bonds and the proposed Parity Bonds.
ARTICLE VIII
SALE OF BONDS AND DEPOSIT OF PROCEEDS
Section 8.1. Sale of Bonds.
The Bonds shall be sold to the Underwriter at a price of not less than 98% of par less any
Original Issue Discount on the Bonds plus accrued interest. The Mayor and the Finance Officer,
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or either of them, in consultation with the Underwriter, is authorized to make such changes in
the structuring of the terms and sale of the Bonds as they shall deem necessary. In this regard,
they, or either of them, in consultation with the Underwriter, are authorized to cause to be
sold an aggregate principal amount of the Bonds less than that authorized herein, to sell any or
all of the Bonds as term Bonds with annual mandatory redemption requirements which will
produce substantially the same annual principal reductions as authorized herein, to change the
dated date of the Bonds, and to adjust principal and interest payment dates and redemption
dates of the Bonds. The form of the bond set forth in Exhibit A attached hereto shall be
conformed to reflect any changes, if any, as hereinbefore mentioned. The Mayor and the City
Finance Officer, or either of them, are hereby authorized to execute and the City Finance
Officer is authorized to attest the Bond Purchase Agreement with the Underwriter providing
for the purchase and sale of the Bonds. The Bond Purchase Agreement shall be in form and
content acceptable to the Mayor and City Finance Officer, the execution thereof by either of
them to constitute conclusive evidence thereof, and approved as to form and legality by the
City’s attorney; provided the Bond Purchase Agreement effects the sale of the Bonds in
accordance with the provisions of this Resolution, and is not inconsistent with the terms
hereof. The Mayor and the City Finance Officer are authorized to cause the Bonds to be
authenticated and delivered by the Registration Agent to the Underwriter and to execute,
publish, and deliver all Bonds and documents, including the Official Statement, and closing
Bonds and documents, as they shall deem necessary in connection with the sale and delivery of
the Bonds.
Section 8.2. Official Statement.
The Mayor, Finance Officer, and the Underwriter are hereby authorized and directed to
provide for the preparation and distribution of a Preliminary Official Statement describing the
Bonds in the form of the Preliminary Official Statement. After the Bonds have been sold, the
Mayor and Finance Officer shall make such completions, omissions, insertions and changes in
the Preliminary Official Statement not inconsistent with this resolution as are necessary or
desirable to complete it as a final Official Statement for purposes of Rule 15c2-12(e)(3) of the
Securities and Exchange Commission. The Mayor and Finance Officer shall arrange for the
delivery to the Underwriter the Official Statement within seven business days after the Bonds
have been sold in an electronic format as prescribed by the MSRB.
The Mayor and Finance Officer are authorized, on behalf of the City, to deem the Preliminary
Official Statement and the Official Statement in final form, each to be final as of its date within
the meaning of Rule 15c2-12(b)(1), except for the omission in the Preliminary Official Statement
of certain pricing and other information allowed to be omitted pursuant to such Rule 15c2-
12(b)(1). The distribution of the Preliminary Official Statement and the Official Statement in final
form shall be conclusive evidence that each has been deemed in final form as of its date by the
City except for the omission in the Preliminary Official Statement of such pricing and other
information.
Section 8.3. Disposition of Bond Proceeds.
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The proceeds of the sale of the Bonds shall be deposited in the Sales Tax Fund. The cost shall
include costs incident to the issuance and sale of the Bonds pursuant to SDCL 6-8B-20 and
capitalized interest, if any.
Section 8.4. Tax Matters.
(a) Notwithstanding Sections 8.4(b) through 8.4(f), any series of Bonds which are
designated Build America Bonds or Recovery Zone Economic Development Bonds shall
be issued in accordance with the rules and regulation provided therefore. Prior to
closing of the Bonds, the officers of the City shall review the issue price of the Bonds as
reported on http://emma.msrb.org to make sure that the bonds are being sold in
accordance with the Code.
(b) The City covenants and agrees with the registered owners from time to time of the
Bonds that it will not take or permit to be taken by any of its officers, employees or
agents any action which would cause the interest on the Bonds to become includable in
gross income for federal income tax purposes under the Code and applicable Treasury
Regulations (the "Regulations"), and covenants to take any and all actions within its
powers to ensure that the basic interest on the Bonds will not become includable in
gross income for federal income tax purposes under the Code and the Regulations.
(c) The Mayor and the City Finance Officer, being the officers of the City charged with the
responsibility for issuing the Bonds pursuant to this Resolution are hereby authorized
and directed to execute and deliver to the Underwriter thereof a certificate in
accordance with the provisions of Section 148 of the Code, and Section 1.148-2(b) of
the Regulations, stating that on the basis of facts, estimates and circumstances in
existence on the date of issue and delivery of the Bonds, it is reasonably expected that
the proceeds of the Bonds will be used in a manner that would not cause the Bonds to
be "arbitrage bonds" within the meaning of Section 148 of the Code and the
Regulations.
(d) The City shall file with the Secretary of the Treasury a statement concerning the Bonds
containing the information required by Section 149(e) of the Code.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Failure to Present Bonds.
(a) Subject to the provisions of Section 4.7 hereof, in the event any Bond shall not be
presented for payment when the principal or redemption price hereof becomes due, either at
maturity or at the date fixed for prior redemption thereof or otherwise, and in the event
monies sufficient to pay such Bond shall be held by the Registration Agent for the benefit of the
Owner thereof, all liability of the City to such Owner for the payment of such Bond shall
forthwith cease, determine, and be completely discharged. Whereupon, the Registration Agent
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shall hold such monies, without liability for interest thereon, for the benefit of the Owner of
such Bond who shall thereafter be restricted exclusively to such monies for any claim under the
Resolution or on, or with respect to, said Bonds.
(b) If any Bond shall not be presented for payment within a period of five years following the
date when such Bond becomes due, whether by maturity or otherwise, the Registration Agent
shall, subject to the provisions of any applicable escheat or other similar law, pay to the City any
monies then held by the Registration Agent for the payment of such Bond and such Bond shall
(subject to the defense of any applicable statute of limitation) thereafter constitute an
unsecured obligation of the City.
Section 9.2. Payments Due on Saturdays, Sundays, and Holidays.
In any case where the date of maturity or interest on or principal of any Bonds, or the date
fixed for redemption of any Bonds, shall be a Saturday or Sunday or shall be, at the place
designated for payment, a legal holiday or a day on which banking institutions similar to the
Registration Agent are authorized by law to close, then the payment of the interest on, or the
principal, or the redemption price of, such Bond need not be made on such date but must be
made on the next succeeding day not a Saturday, Sunday, or a legal holiday or a day upon which
banking institutions similar to the Registration Agent are authorized by law to close, with the
same force and effect as if made on the date of maturity or the date fixed for redemption, and
no interest shall accrue for the period after such date.
Section 9.3. Miscellaneous Acts.
The appropriate officers of the City are hereby authorized, empowered, and directed to do any
and all such acts and things, and to execute, acknowledge, deliver, and, if applicable file or
record, or cause to be filed or recorded, in any appropriate public offices, all such documents,
instruments, and certifications, in addition to those acts, things, documents, instruments, and
certifications hereinbefore authorized and approved, as may, in their discretion, be necessary or
desirable to implement or comply with the intent of the Bond Resolution, or any of the
documents herein authorized and approved, or for the authorization, issuance, and delivery by
the City of the Bonds.
Section 9.4. Amendment.
The City Council is hereby authorized to make such amendments to the Bond Resolution as
will not impair the rights of the Bondholders.
Section 9.5. No Recourse Under Bond Resolution or on Bonds.
All stipulations, promises, agreements, and obligations of the City contained in the Resolution or
any supplemental resolutions shall be deemed to be the stipulations, promises, agreements, and
obligations of the City and not of any officer, director, or employee of the City in his or her
individual capacity, and no recourse shall be had for the payment of the principal of or interest
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on the Bonds or for any claim based thereon or on the Resolution against any officer, director,
or employee of the City or against any official or individual executing the Bonds.
Section 9.6. Partial Invalidity.
If any one or more of the provisions of the Bond Resolution, or of any exhibit or attachment
thereto, shall be held invalid, illegal, or unenforceable in any respect, by final decree of any court
of lawful jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other
provision hereof, or of any exhibit or attachment thereto, but the Bond Resolution, and the
exhibits and attachments thereto, shall be construed the same as if such invalid, illegal, or
unenforceable provision had never been contained herein, or therein, as the case may be.
Section 9.7. Continuing Disclosure.
The City hereby covenants and agrees that it will provide financial information and material
event notices as required by Rule 15c2-12 of the Securities Exchange Commission for the
Bonds. The Mayor is authorized to execute at the Closing of the sale of the Bonds, an agreement
for the benefit of and enforceable by the owners of the Bonds specifying the details of the
financial information and material event notices to be provided and its obligations relating
thereto. Failure of the City to comply with the undertaking herein described and to be detailed
in said closing agreement, shall not be a default hereunder, but any such failure shall entitle the
owner or owners of any of the Bonds to take such actions and to initiate such proceedings as
shall be necessary and appropriate to cause the City to comply with its undertaking as set forth
herein and in said agreement, including the remedies of mandamus and specific performance.
Section 9.8. Post Issuance Compliance.
The City does hereby adopt Meierhenry Sargent LLP Post Issuance Compliance Manual
procedures with regard to the Bonds. The City directs the Finance Officer and City Clerk to
formalize the written procedures.
Section 9.9. Conflicting Resolutions Repealed.
All resolutions or parts thereof in conflict herewith are, to the extent of such conflict, hereby
repealed.
Said motion was seconded by Member _______________ and upon vote being taken the
following voted AYE:
and the following voted NAY:
MAYOR
ATTEST:
City Clerk
(SEAL)
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EXHIBIT A-(FORM OF BOND)
UNITED STATES OF AMERICA
STATE OF SOUTH DAKOTA
CITY OF BROOKINGS
BROOKINGS COUNTY, SOUTH DAKOTA
SALES TAX REVENUE BONDS SERIES 2010A
REGISTERED
REGISTERED
No. «No» $«AMOUNT» .00
Interest Rate Maturity Date Bond Date CUSIP No.
«INTEREST_RATE»
%
«maturity» «cusip»
Registered Owner: Cede & Co.
55 Water Street, 1st Floor
New York, New York 10041
Tax ID #13-2555119
Principal Amount: «Dollarlong» AND NO\100 DOLLARS
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF
THE CERTIFICATE SET FORTH ON THE FOLLOWING PAGES, WHICH
FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME
EFFECT AS IF SET FORTH AT THIS PLACE.
It is hereby certified and recited that all conditions, acts and things required by law
to exist or to be done precedent to and in the issuance of this Bond did exist, have happened,
been done and performed in regular and due form and time as required by law.
(BOND INSURANCE LANGUAGE INSERTED HERE)
This Bond shall not be valid or become obligatory for any purpose or be entitled to
any benefit or security under the Resolution until it shall have been authenticated by the
execution by the Registrar of the certificate of authentication endorsed hereon.
IN WITNESS WHEREOF, the City has caused this Bond to be signed by the manual or
facsimile signature of its Mayor of the City and to be countersigned by the manual or facsimile
signature of its City Finance Officer all as of the Bond Date specified above.
ATTEST:
City Finance Officer
COUNTERSIGNED:
Resident Attorney
City of Brookings, South Dakota
By:
Mayor
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CERTIFICATE OF AUTHENTICATION
This bond is a bond of the series designated therein and has been issued under the
provisions of the within-mentioned Resolution and the date of its authentication is
__________, 2010.
Wells Fargo Bank, NA
Minneapolis, Minnesota
Bond Registrar and Paying Agent
By: _________________________________
Authorized Officer
KNOW ALL MEN BY THESE PRESENTS: That the City of Brookings, South Dakota
(the "City"), in Brookings County, South Dakota, hereby acknowledges itself to owe and for
value received promises to pay, to the Registered Owner mentioned above in lawful money of
the United States of America, together with interest thereon from the Bond Date mentioned
above at the Interest Rate mentioned above. The interest hereon is payable June 1, 2011 and
semiannually thereafter on June 1 and December 1 in each year to maturity or earlier
redemption by wire transfer, check or draft mailed to the Registered Owner at its address as it
appears on the Bond registration books of the City maintained by Wells Fargo Bank, NA,
Minneapolis, Minnesota, as Bond registrar and paying agent (the "Registrar"), on the close of
business on May 15 and November 15 immediately preceding the interest payment date (the
“Record Date”). The principal hereof due at maturity or upon redemption prior to maturity is
payable at the office of Registrar upon presentation and surrender of this Bond at maturity or
upon earlier redemption. The principal of, premium (if any) and interest on this Bond is payable
in any coin or currency of the United States of America which, at the time of payment, is legal
tender for the payment of public and private debts.
This Bond is one of an authorized issue of Bonds limited in aggregate principal amount
to a maximum of $7,000,000 (the "Bonds") all of like date and tenor except as to maturity,
interest rates and privileges of redemption, the proceeds of this issue (Series 2010A) will be
used for the purpose of the acquisition of real property and construction of new city/county
offices., pursuant to a resolution duly and regularly adopted by the City (the “Bond
Resolution”), and are subject to all the provisions and limitations of the Resolution and
Chapters 10-52 and 6-8B, South Dakota Codified Laws, as amended. The City has pledged and
agreed to collect, so long as the Bonds are outstanding, non-ad valorem tax (the “Sales Tax”)
in an amount sufficient to pay principal, premium and interest when due on the Bonds.
[Redemption Provisions]
This Bond is transferable by the registered holder hereof in person or by his attorney
duly authorized in writing at the office of the Bond Registrar in Minneapolis, Minnesota, but
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only in the manner, subject to the limitations and upon payment of the charges provided in the
Bond Resolution, and upon surrender and cancellation of this Bond. Upon such transfer a new
Bond or Bonds of authorized denomination of the same maturity and for the same aggregate
principal amount will be issued to the transferee in exchange therefore.
The City and the Bond Registrar may deem and treat the registered holder hereof as
the absolute owner hereof and neither the City nor the Bond Registrar shall be affected by any
notice to the contrary.
BOND OPINION
$7,000,000
City of Brookings
Brookings County, South Dakota
Sales Tax Revenue Bonds Series 2010A
Ladies and Gentlemen:
We have acted as bond counsel in connection with the issuance by the City of Brookings (the
"Issuer") of $7,000,000 Sales Tax Revenue Bonds Series 2010A, dated _________ ____, 2010,
(the "Bonds"). We have examined such certified proceedings and other papers as we deem
necessary to render this opinion.
We have not been engaged or undertaken to review the accuracy, completeness or sufficiency
of the Official Statement or other offering material relating to the Bonds and we express no
opinion relating thereto.
As to questions of fact material to our opinion, we have relied upon the certified proceedings
and other certifications of public officials furnished to us, without undertaking to verify such
facts by independent investigation.
Based upon the foregoing, we are of the opinion that, under existing law:
1. The Issuer is duly created and validly existing as a body corporate and politic and
public instrumentality of the State of South Dakota with the corporate power to adopt and
perform the Resolution and issue the Bonds.
2. Resolution _________ has been duly adopted by the Issuer on ____________
___, 2010 and constitutes a valid and binding obligation of the Issuer enforceable upon the
Issuer.
3. The Resolution pledges the City’s non-ad valorem tax (the “Sales Tax) in an amount
sufficient to pay principal, premium and interest when due on the Bonds.
4. The Bonds have been duly authorized, executed and delivered by the Issuer and are
valid and binding special obligations of the Issuer, payable solely from City’s Sales Tax.
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5. The interest on the Bonds is excluded from gross income for federal income tax
purposes and is not an item of tax preference for purposes of the federal alternative minimum
tax imposed on individuals and corporations. The opinions set forth in the preceding sentence
are subject to the condition that the Issuer comply with all requirements of the Internal
Revenue Code of 1986 as amended, that must be satisfied subsequent to the issuance of the
Bonds in order that interest thereon be, or continue to be, excluded from gross income for
federal income tax purposes. The Issuer has covenanted to comply with each such
requirement. Failure to comply with certain of such requirements may cause the inclusion of
interest on the Bonds in gross income for federal income tax purposes to be retroactive to the
date of issuance of the Bonds. We express no opinion regarding other federal tax
consequences arising with respect to the Bonds.
6. The Bonds are exempt from all taxation as property by the State of South Dakota, its
subdivisions and municipalities and bear interest not includible in the gross income of the
recipient for purposes of computing any tax imposed by the provisions of South Dakota law.
We express no further opinions regarding other South Dakota tax consequences arising with
regard to the Bonds.
It is to be understood that the rights of the holders of the Bonds and the enforceability thereof
may be subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally
applicable and that their enforcement may be subject to the exercise of judicial discretion in
accordance with general principles of equity and subject to regulatory requirements under the
laws of the United States and of the State of South Dakota.
Meierhenry Sargent LLP
AS PROVIDED IN THE RESOLUTION REFERRED TO HEREIN, UNTIL THE
TERMINATION OF THE SYSTEM OF BOOK-ENTRY-ONLY TRANSFERS
THROUGH DEPOSITORY TRUST COMPANY, NEW YORK, NEW YORK
(TOGETHER WITH ANY SUCCESSOR SECURITIES DEPOSITORY
APPOINTED PURSUANT TO THE RESOLUTION, "DTC"), AND
NOTWITHSTANDING ANY OTHER PROVISIONS OF THE RESOLUTION TO
THE CONTRARY, A PORTION OF THE PRINCIPAL AMOUNT OF THIS
CERTIFICATE MAY BE PAID OR REDEEMED WITHOUT SURRENDER HEREOF
TO THE REGISTRAR. DTC OR A NOMINEE, TRANSFEREE OR ASSIGNEE OF
DTC OF THIS CERTIFICATE MAY NOT RELY UPON THE PRINCIPAL
AMOUNT INDICATED HEREON AS THE PRINCIPAL AMOUNT HEREOF
OUTSTANDING AND UNPAID. THE PRINCIPAL AMOUNT HEREOF
OUTSTANDING AND UNPAID SHALL FOR ALL PURPOSES BE THE AMOUNT
DETERMINED IN THE MANNER PROVIDED IN THE RESOLUTION.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED OFFICER
OF DTC (A) TO THE REGISTRAR FOR REGISTRATION OF TRANSFER OR
EXCHANGE OR (B) TO THE REGISTRAR FOR PAYMENT OF PRINCIPAL, AND
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ANY CERTIFICATE ISSUED IN REPLACEMENT HEREOF OR SUBSTITUTION
HEREFOR IS REGISTERED IN THE NAME OF DTC AND ANY PAYMENT IS
MADE TO DTC OR ITS NOMINEE, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL BECAUSE ONLY THE REGISTERED OWNER HEREOF, DTC OR
ITS NOMINEE, HAS AN INTEREST HEREIN.
(Form of Assignment)
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
the within Certificate and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Certificate on the books kept for registration thereof, with full
power of substitution in the premises.
Dated:
NOTICE: The signature to this Assignment
must correspond with the name as it appears
upon the face of the within Certificate in every
particular, without alteration or enlargement or
any change whatever.
107
1Debt Issuance OverviewPresented by:Tobin J. MorrisNorthland Securities, Inc.Public Education Finance215 W. Sioux Ave. Pierre, SD(605) 224-5557
2•Stimulus Funds•Current Market Conditions•Ratings•Investment of Bond ProceedsDebt Issuance Overview
3Obama Plan•Stimulus Funding Options–Build America Bonds•Recovery Zone Bonds
4BUILD AMERICA BONDS–Would use Sales Tax as the repayment–The interest is taxable versus tax-exempt –Federal Government reimburses the issuer 35% of the interest expense–Davis – Bacon Law does not apply–What is the effective yield?
5TAX EXEMPT Vs. TAXABLE
6
7Build America Bond –Recovery ZoneSame as BAB except:–45% interest reimbursement instead of 35%–Requires allocation from County or State of SD•Update on allocation–Need to designate area as Recovery Zone•Recovery Zone Study–Bacon – Davis Rules Apply
8TAX EXEMPT - BAB - RZ
9CITY BOND RATING–Current Ratings•In 2006 the rating was A3 from Moody’s Investor Service•In 2008 major changes happened in the rating industry–2009 S&P Modified Their Approach–2010 Moody’s Modified Their Approach
10Rating Overview•Current changes in the rating industry•Moody’s vs. S&PBond RatingMoodys (1,2,3)S&P (+,-)GradeRiskAaaAAAInvestmentLowest AaAAInvestmentLowAAInvestmentLowBaaBBBInvestmentMediumBaBBJunkHighCaa/Ca/CCCC/CC/CJunkHighestCDJunkIn Default
11Importance of a Rating
12
13Historic Interest Rates – 10 years
14Investment Rates–10 Year Treasury Rates–Matching construction schedule to investments
15US Treasury Rate – 1 year
City Council Packet
April 6, 2010
Other Business
16. Action on Real Estate and Purchase Agreements for an undivided
one-half (1/2) interest in and to the Northeast One-fourth (NE¼),
except Lots One (1) and Two (2) and except Lots H-4, H-5 and
the platted lots thereof, of Section Nineteen (19), Township One
Hundred Ten (110) North, Range Forty-nine (49) West of the 5th
P.M., County of Brookings, State of South Dakota.
Attached are two nearly-identical purchase agreements for the purchase of cropland
owned by Mr. Robert Foster. This is an 85-acre parcel adjacent to I-29 south of the
Highway 14 by-pass. This parcel has long been identified by the City as a potential
location for our next industrial park. The owner approached me about selling his
property to the City. The purchase agreements provide for a lease-back to the seller or
seller’s representative. As part of our long-term economic development strategy, land-
banking for purposes of future industrial development for new employers or expanding
employers is crucial to economic growth. Such property would be sold or otherwise
used as incentives for economic development. The City may or may not install
infrastructure.
The site already has major trunk water and sewer installed along an alignment
contemplating the extension of 32nd Avenue through the site. No other infrastructure
currently services the site. The only remaining City-owned property available for
industrial development is two relatively small parcels in the Telkamp Industrial Park and
approximately 44 acres in the Svennes Industrial Park. The City also has significant land
for commercially-zoned, but not industrial, development in the Wiese Business Park.
The reason for the two purchase agreements is because the property is held one-half
undivided interest in two trust accounts on behalf of the seller. The total purchase
price of the property is $1,544,750. The funding would come from the General Fund
reserve currently earmarked for the DOT land purchase. By previous council action,
you approved using some of this set-aside to pay for infrastructure in the Innovation
Campus with the balance remaining sufficient to pay your contemplated price for the
DOT land. With the purchase of the Foster land from this set-aside, there are not
sufficient funds remaining to also purchase the DOT land. Any consideration of
purchasing the DOT property would have to be from some other financing means. As
you know, the DOT property is currently not for sale but the State of South Dakota
could change that position at any time.
City Manager Introduction
ACTION: Motion to Approve, Request Public Comment, Roll Call
CITY MANAGER RECOMMENDATION: Approve
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REAL ESTATE SALE AND PURCHASE AGREEMENT
THIS REAL ESTATE SALE AND PURCHASE AGREEMENT is made and executed by
and between the City of Brookings, South Dakota, (hereinafter referred to as “Buyer”), and
Robert J. Foster, as Trustee of the Robert J. Foster Trust dated December 21, 1998,
(hereinafter referred to as “Seller”).
WITNESSETH:
WHEREAS, the Buyer desires to acquire the real property described below for future
land use purposes, and Seller agrees to convey to the Buyer pursuant to the terms and
conditions of this Real Estate Purchase Agreement for this purpose, the real estate described
below.
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
AGREEMENTS CONTAINED HEREIN, THE PARTIES HERETO MUTUALLY AGREE TO THE
FOREGOING AND AS FOLLOWS:
1. Purchase of Real Property. The Seller hereby agrees to sell to Buyer and
Buyer hereby agrees to purchase from Seller the following described real property:
An undivided one-half (1/2) interest in and to the Northeast One-fourth
(NE¼), except Lots One (1) and Two (2) and except Lots H-4, H-5 and
the platted lots thereof, of Section Nineteen (19), Township One
Hundred Ten (110) North, Range Forty-nine (49) West of the 5th P.M.,
County of Brookings, State of South Dakota.
2. Effective Date. This Real Estate Purchase Agreement shall be effective upon the
signing of this Real Estate Purchase Agreement.
3. Purchase Price. The Buyer shall pay to Seller’s designated Qualified
Intermediary, First Bank & Trust, the sum of Seven Hundred Seventy- Two Thousand Three
Hundred Seventy-Five and no/100 ($772,375.00) Dollars for purchase of the above-described
property, payable as follows:
(a) An initial earnest money down payment in the sum of Five Thousand and
no/100 ($5,000.00) Dollars at the time of execution of this Agreement
following approval by the Brookings City Council; and
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(b) The balance of Seven Hundred Sixty-Seven Thousand Three Hundred
Seventy-Five and no/100 ($767,375.00) Dollars at the time of Closing.
4. Merchantable Title/Real Estate Closing Documents and Miscellaneous.
Seller shall convey said property free of liens and mortgages, but said property may be subject
to easements, rights of way and restrictions of record. Seller shall provide clear and marketable
title to the Buyer concerning the above described real property, by Trustee Deed, which
contains only easements, rights of way and reservations of record.
If there are any title restrictions, defects or burdens to which Buyer objects, other
than easements, rights of way and restrictions of record, such objection shall be stated in
writing to Seller, and Seller shall be allowed a reasonable time of not less than sixty (60) days in
which to correct the same, and the Closing date shall be delayed for not less than sixty (60)
days to provide Seller with time to correct said defect.
In addition, the Buyer and Seller, as the case may be, shall also perform the following:
A. Title Insurance Policy. Seller shall provide a Title Insurance
Commitment, the amount of which shall be based on the purchase price, which
shows Seller has marketable and merchantable title to the real property which is
the subject of this Agreement. At the time of Closing, the Buyer and Seller shall
each pay one-half (½) of the cost of the Title Insurance Policy.
B. Deed Preparation/Closing Service Fees. The Seller will prepare and
deliver a Trustee Deed, a Certificate of Real Estate Value and a Certificate of
Trust at the time of Closing. Buyer will pay all other closing service fees.
C. Transfer Fee/Recording Fee/Real Estate Taxes.
1. This transaction is exempt from transfer fees.
2. The Buyer shall pay the recording fee for the Trustee Deed and the
Certificate of Trust.
3. The 2010 Real Estate Taxes and assessments, if any, shall be the
responsibility of the City of Brookings, a political subdivision, which
has the capability of declaring the real property exempt from real
property taxes from and after the date of Closing and for the reason
that the City of Brookings, as Buyer, will be entitled to all of the 2010
rents, issues and profits.
D. Closing/Possession/Insurance. The Closing date will be scheduled at
the convenience of the parties at such time as all contingencies have been
satisfied or waived, with possession to be given to Buyer at time of Closing.
Buyer estimates that the Closing date shall be on or about April 20, 2010. Seller
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agrees to maintain all existing insurance coverage on the property until the time
of Closing. It is understood and agreed that Buyer shall not be permitted to take
possession of the property until title has transferred.
Closing shall be scheduled at a location mutually convenient for Seller and
Buyer after the opportunity to refer or challenge the transaction ends without
such actions occurring or any referendum election and/or legal challenge, or
both, affirms the purchase of the property by Buyer. Possession of the above-
described property shall be conveyed to Buyer at the time of Closing.
E. No Personal Property Included in this Agreement. No personal
property is included in the sale of the above-described real estate.
F. Current Use of Premises/Prorations at Closing. Both parties
understand and agree that the property is currently used for agricultural
production. Seller shall not enter into any new leases or extend any lease
following the execution of this Agreement. Seller represents to Buyer that any
existing farm leases will be transferred and assigned unto Buyer at the Closing.
G. Surveys and Tests. The Buyer, their employees, agents and contractors
shall have the right to enter upon the above-described real property to perform
soil tests and surveys upon execution of this Agreement which Buyer deems
necessary, provided they do not interfere with Seller’s use of the property.
5. Contingencies. The obligation of the Buyer to purchase the above-described
property pursuant to this Agreement is contingent upon the following contingencies:
Buyer’s Contingencies. The parties acknowledge the following contingencies
are condition precedents to the performance of this Agreement by the Buyer. Briefly stated,
the contingencies concern: (a) the Resolution of the City, discussed at greater length below;
and (b) that no actions or suits have been commenced or threatened against the Buyer
pertaining to the performance of this Agreement. Buyer’s contingencies are more fully
discussed below.
(a) Referendum/Election. The Buyer’s obligation to purchase the property
described herein shall be terminated if the City Council’s decision to
purchase the above-described property is successfully referred by the
voters. Referred means the voters of the City, at an election, vote to
nullify the decision of the City to purchase or pay for the property
described herein. In the event of a successful referral, this Agreement
shall be null and void, and the Buyer’s earnest money down payment shall
be promptly returned to Buyer. This contingency will be waived at the
later of the expiration date of any referendum period if there is no
referendum, or the date following the election canvassing if there is a
referendum election, and the purchase is approved at a referendum
election. However, a referendum decision by voters of the City which
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does not approve the purchase shall permit the Buyer to terminate this
Agreement and Seller shall promptly return the earnest money down
payment to Buyer.
(b) Pending or Threatened Litigation. Through the date of Closing, there are
no actions, suits or proceedings pending or threatened against the City at
law or in equity or before any governmental authority which might
adversely affect the ability of the City to perform its obligations under
this Purchase Agreement. In the event of pending or threatened litigation,
this Agreement, at the option of Buyer, may be declared null and void,
and if so, the Seller shall promptly return the earnest money down
payment to Buyer.
6. Good Faith/Mutual Cooperation.
(a) Buyer will in good faith seek to satisfy all contingencies to this Real Estate
Purchase Agreement and will act in a timely manner to permit its Closing
as early as possible.
(b) By Seller. At any time and from time to time before and after the
Closing, Seller shall, at the request of Buyer, and without further
consideration, promptly execute, acknowledge and deliver such further
instruments and take such further action as Buyer may reasonably
request in order to consummate and confirm the transaction
contemplated by this Agreement and to accomplish the purposes of this
Agreement; however, no such instruments or actions shall impose upon
Seller any burden or obligation which is in excess of any burden or
obligation specifically imposed upon Seller pursuant to the terms of this
Agreement.
(c) By Buyer. At any time and from time to time before and after the
Closing, Buyer shall, at the request of Seller, and without further
consideration, promptly execute, acknowledge and deliver such further
instruments and take such further action as Seller may reasonably request
in order to consummate and confirm the transaction contemplated by
this Agreement and to accomplish the purposes of this Agreement;
however, no such instruments or actions shall impose upon Buyer any
burden or obligation which is in excess of any burden or obligation
specifically imposed upon Buyer pursuant to the terms of this Agreement.
7. Review by Counsel. Buyer and Seller acknowledge that they each have had an
opportunity to review this Agreement with legal counsel, and the parties agree that the rule of
construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement.
8. Seller’s Like Kind Exchange.
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(a) Intent to Exchange. It is the intent of the Seller (Exchanger) to utilize this
transaction as part of a tax deferred exchange as provided in Internal Revenue
Code Section 1031, as amended and the Treasury regulations promulgated
thereunder.
(b) Exchange Cooperation Clause. Buyer hereby acknowledges it is the intent of
the Seller to effect an IRC Section 1031 tax deferred exchange which will not
delay the closing or cause additional expense to the Buyer. The Seller’s rights
under this Agreement may be assigned to First Bank & Trust, a Qualified
Intermediary, for the purpose of completing such an exchange. Buyer agrees to
cooperate with the Seller and First Bank & Trust in a manner necessary to
complete the exchange.
9. Option to Lease. In further consideration of the mutual covenants and
agreements contained herein, Buyer hereby grants to Seller an option to lease the real property
as described above, for a period of Three (3) crop years, from and after the date of Closing.
The Seller shall notify the Buyer in writing of the exercise of this option to lease. Seller shall
thereupon enter into a lease agreement in writing on the general terms set forth in Exhibit A.
As with other leases with the City of Brookings, the proposed lease shall be subject to approval
of the City of Brookings, following public notice and hearing. This “option to lease” shall
terminate upon the execution by Seller and the City of Brookings of a lease with respect to the
above-described premises for a period of Three (3) years. This Option to Lease may not be
assigned by the Seller except to an immediate family member of Robert Foster or entity owned
by an immediate family member of Robert Foster.
Because the City of Brookings may receive an offer to purchase some or all of the real
property during the lease term, or may make infrastructure and/or utility improvements, any
Lease of the above-described property will contain the following provisions to address the
possible sale or construction of improvements during the lease term:
If the Lessor should sell or otherwise transfer title to the above-
described property or any portion thereof, this Lease shall terminate as
to the portion sold, and Lessor and Tenant shall negotiate any crop input
cost adjustments and crop damage or loss due to the sale of any portion
of the leased premises prior to harvest. However, in any event, Lessor
shall not be required to reimburse Tenant for more than the amount of
the Annual Cash Rent.
If the Lessor should construct a road, utility or other
improvement upon the above-described property or any portion thereof,
this Lease shall terminate as to such portion, and Lessor and Tenant shall
negotiate any crop input cost adjustments and crop damage or loss due
to the construction upon any portion of the leased premises prior to
harvest. However, in any event, Lessor shall not be required to
reimburse Tenant for more than the amount of the Annual Cash Rent.
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10. Applicable Law. The laws of South Dakota govern this transaction.
11. Entire Agreement. This written Agreement constitutes the complete
Agreement between the parties and supersedes any prior oral or written Agreement between
the parties regarding the subject matter of this Agreement. There are no verbal agreements
that change this
Agreement and no waiver of its terms will be effective unless such are made and executed in
writing and duly acknowledged as received by the parties.
12. Binding Effect. This Agreement binds the parties hereto and their heirs,
successors and assigns, if any.
Dated this ____ day of April, 2010. ROBERT J. FOSTER TRUST DATED
DECEMBER 21, 1998, SELLER
Robert J. Foster, Trustee
Dated this ____ day of April, 2010. CITY OF BROOKINGS, BUYER
(SEAL) By:
ATTEST: Tim Reed, Mayor
________________________________
Shari L. Thornes, City Clerk
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REAL ESTATE SALE AND PURCHASE AGREEMENT
THIS REAL ESTATE SALE AND PURCHASE AGREEMENT is made and executed by
and between the City of Brookings, South Dakota, (hereinafter referred to as “Buyer”), and
Robert J. Foster, as Trustee of the Geneva M. Foster Trust dated December 21, 1998,
(hereinafter referred to as “Seller”).
WITNESSETH:
WHEREAS, the Buyer desires to acquire the real property described below for future
land use purposes, and Seller agrees to convey to the Buyer pursuant to the terms and
conditions of this Real Estate Purchase Agreement for this purpose, the real estate described
below.
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
AGREEMENTS CONTAINED HEREIN, THE PARTIES HERETO MUTUALLY AGREE TO THE
FOREGOING AND AS FOLLOWS:
1. Purchase of Real Property. The Seller hereby agrees to sell to Buyer and
Buyer hereby agrees to purchase from Seller the following described real property:
An undivided one-half (1/2) interest in and to the Northeast One-fourth
(NE¼), except Lots One (1) and Two (2) and except Lots H-4, H-5 and
the platted lots thereof, of Section Nineteen (19), Township One
Hundred Ten (110) North, Range Forty-nine (49) West of the 5th P.M.,
County of Brookings, State of South Dakota.
2. Effective Date. This Real Estate Purchase Agreement shall be effective upon the
signing of this Real Estate Purchase Agreement.
3. Purchase Price. The Buyer shall pay to Seller the sum of Seven Hundred
Seventy- Two Thousand Three Hundred Seventy-Five and no/100 ($772,375.00) Dollars for
purchase of the above-described property, payable as follows:
(a) An initial earnest money down payment in the sum of Five Thousand and
no/100 ($5,000.00) Dollars at the time of execution of this Agreement
following approval by the Brookings City Council (which earnest money
down payment shall be paid to and held in the Trust Account of Lewayne
M. Erickson P.C. pending the Closing); and
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(b) The balance of Seven Hundred Sixty-Seven Thousand Three Hundred
Seventy-Five and no/100 ($767,375.00) Dollars at the time of Closing.
4. Merchantable Title/Real Estate Closing Documents and Miscellaneous.
Seller shall convey said property free of liens and mortgages, but said property may be subject
to easements, rights of way and restrictions of record. Seller shall provide clear and marketable
title to the Buyer concerning the above described real property, by Trustee Deed, which
contains only easements, rights of way and reservations of record.
If there are any title restrictions, defects or burdens to which Buyer objects, other
than easements, rights of way and restrictions of record, such objection shall be stated in
writing to Seller, and Seller shall be allowed a reasonable time of not less than sixty (60) days in
which to correct the same, and the Closing date shall be delayed for not less than sixty (60)
days to provide Seller with time to correct said defect.
In addition, the Buyer and Seller, as the case may be, shall also perform the following:
A. Title Insurance Policy. Seller shall provide a Title Insurance
Commitment, the amount of which shall be based on the purchase price, which
shows Seller has marketable and merchantable title to the real property which is
the subject of this Agreement. At the time of Closing, the Buyer and Seller shall
each pay one-half (½) of the cost of the Title Insurance Policy.
B. Deed Preparation/Closing Service Fees. The Seller will prepare and
deliver a Trustee Deed, a Certificate of Real Estate Value and a Certificate of
Trust at the time of Closing. Buyer will pay all other closing service fees.
C. Transfer Fee/Recording Fee/Real Estate Taxes.
1. This transaction is exempt from transfer fees.
2. The Buyer shall pay the recording fee for the Trustee Deed and the
Certificate of Trust.
3. The 2010 Real Estate Taxes and assessments, if any, shall be the
responsibility of the City of Brookings, a political subdivision, which
has the capability of declaring the real property exempt from real
property taxes from and after the date of Closing and for the reason
that the City of Brookings, as Buyer, will be entitled to all of the 2010
rents, issues and profits.
D. Closing/Possession/Insurance. The Closing date will be scheduled at
the convenience of the parties at such time as all contingencies have been
satisfied or waived, with possession to be given to Buyer at time of Closing.
Buyer estimates that the Closing date shall be on or about April 20, 2010. Seller
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agrees to maintain all existing insurance coverage on the property until the time
of Closing. It is understood and agreed that Buyer shall not be permitted to take
possession of the property until title has transferred.
Closing shall be scheduled at a location mutually convenient for Seller and
Buyer after the opportunity to refer or challenge the transaction ends without
such actions occurring or any referendum election and/or legal challenge, or
both, affirms the purchase of the property by Buyer. Possession of the above-
described property shall be conveyed to Buyer at the time of Closing.
E. No Personal Property Included in this Agreement. No personal
property is included in the sale of the above-described real estate.
F. Current Use of Premises/Prorations at Closing. Both parties
understand and agree that the property is currently used for agricultural
production. Seller shall not enter into any new leases or extend any lease
following the execution of this Agreement. Seller represents to Buyer that any
existing farm leases will be transferred and assigned unto Buyer at the Closing.
G. Surveys and Tests. The Buyer, their employees, agents and contractors
shall have the right to enter upon the above-described real property to perform
soil tests and surveys upon execution of this Agreement which Buyer deems
necessary, provided they do not interfere with Seller’s use of the property.
5. Contingencies. The obligation of the Buyer to purchase the above-described
property pursuant to this Agreement is contingent upon the following contingencies:
Buyer’s Contingencies. The parties acknowledge the following contingencies
are condition precedents to the performance of this Agreement by the Buyer. Briefly stated,
the contingencies concern: (a) the Resolution of the City, discussed at greater length below;
and (b) that no actions or suits have been commenced or threatened against the Buyer
pertaining to the performance of this Agreement. Buyer’s contingencies are more fully
discussed below.
(a) Referendum/Election. The Buyer’s obligation to purchase the property
described herein shall be terminated if the City Council’s decision to
purchase the above-described property is successfully referred by the
voters. Referred means the voters of the City, at an election, vote to
nullify the decision of the City to purchase or pay for the property
described herein. In the event of a successful referral, this Agreement
shall be null and void, and the Buyer’s earnest money down payment shall
be promptly returned to Buyer. This contingency will be waived at the
later of the expiration date of any referendum period if there is no
referendum, or the date following the election canvassing if there is a
referendum election, and the purchase is approved at a referendum
election. However, a referendum decision by voters of the City which
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does not approve the purchase shall permit the Buyer to terminate this
Agreement and Seller shall promptly return the earnest money down
payment to Buyer.
(b) Pending or Threatened Litigation. Through the date of Closing, there are
no actions, suits or proceedings pending or threatened against the City at
law or in equity or before any governmental authority which might
adversely affect the ability of the City to perform its obligations under
this Purchase Agreement. In the event of pending or threatened litigation,
this Agreement, at the option of Buyer, may be declared null and void,
and if so, the Seller shall promptly return the earnest money down
payment to Buyer.
6. Good Faith/Mutual Cooperation.
(a) Buyer will in good faith seek to satisfy all contingencies to this Real Estate
Purchase Agreement and will act in a timely manner to permit its Closing
as early as possible.
(b) By Seller. At any time and from time to time before and after the
Closing, Seller shall, at the request of Buyer, and without further
consideration, promptly execute, acknowledge and deliver such further
instruments and take such further action as Buyer may reasonably
request in order to consummate and confirm the transaction
contemplated by this Agreement and to accomplish the purposes of this
Agreement; however, no such instruments or actions shall impose upon
Seller any burden or obligation which is in excess of any burden or
obligation specifically imposed upon Seller pursuant to the terms of this
Agreement.
(c) By Buyer. At any time and from time to time before and after the
Closing, Buyer shall, at the request of Seller, and without further
consideration, promptly execute, acknowledge and deliver such further
instruments and take such further action as Seller may reasonably request
in order to consummate and confirm the transaction contemplated by
this Agreement and to accomplish the purposes of this Agreement;
however, no such instruments or actions shall impose upon Buyer any
burden or obligation which is in excess of any burden or obligation
specifically imposed upon Buyer pursuant to the terms of this Agreement.
7. Review by Counsel. Buyer and Seller acknowledge that they each have had an
opportunity to review this Agreement with legal counsel, and the parties agree that the rule of
construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement.
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8. Option to Lease. In further consideration of the mutual covenants and
agreements contained herein, Buyer hereby grants to Seller an option to lease the real property
as described above, for a period of Three (3) crop years, from and after the date of Closing.
The Seller shall notify the Buyer in writing of the exercise of this option to lease. Seller shall
thereupon enter into a lease agreement in writing on the general terms set forth in Exhibit A.
As with other leases with the City of Brookings, the proposed lease shall be subject to approval
of the City of Brookings, following public notice and hearing. This “option to lease” shall
terminate upon the execution by Seller and the City of Brookings of a lease with respect to the
above-described premises for a period of Three (3) years. This Option to Lease may not be
assigned by the Seller except to an immediate family member of Robert Foster or entity owned
by an immediate family member of Robert Foster.
Because the City of Brookings may receive an offer to purchase some or all of the real
property during the lease term, or may make infrastructure and/or utility improvements, any
lease of the above-described property will contain the following provisions to address the
possible sale or construction of improvements during the lease term:
If the Lessor should sell or otherwise transfer title to the above-
described property or any portion thereof, this Lease shall terminate as
to the portion sold, and Lessor and Tenant shall negotiate any crop input
cost adjustments and crop damage or loss due to the sale of any portion
of the leased premises prior to harvest. However, in any event, Lessor
shall not be required to reimburse Tenant for more than the amount of
the Annual Cash Rent.
If the Lessor should construct a road, utility or other
improvement upon the above-described property or any portion thereof,
this Lease shall terminate as to such portion, and Lessor and Tenant shall
negotiate any crop input cost adjustments and crop damage or loss due
to the construction upon any portion of the leased premises prior to
harvest. However, in any event, Lessor shall not be required to
reimburse Tenant for more than the amount of the Annual Cash Rent.
9. Applicable Law. The laws of South Dakota govern this transaction.
10. Entire Agreement. This written Agreement constitutes the complete
Agreement between the parties and supersedes any prior oral or written Agreement between
the parties regarding the subject matter of this Agreement. There are no verbal agreements
that change this
Agreement and no waiver of its terms will be effective unless such are made and executed in
writing and duly acknowledged as received by the parties.
11. Binding Effect. This Agreement binds the parties hereto and their heirs,
successors and assigns, if any.
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Dated this ____ day of April, 2010. GENEVA M. FOSTER TRUST DATED
DECEMBER 21, 1998, SELLER
Robert J. Foster, Trustee
Dated this ____ day of April, 2010. CITY OF BROOKINGS, BUYER
(SEAL) By:
ATTEST: Tim Reed, Mayor
________________________________
Shari L. Thornes, City Clerk
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Other Business:
17. Action to prioritize Strategic Plan Tier 3 Goals.
Pursuant to direction from the last meeting regarding discussion of the Strategic Plan,
council members provided individualized prioritized rankings of the eight Tier 3 items
from that document. Following their prioritization, a preference for more in-depth
discussion of the respective items in accordance with their prioritized ranking was
expressed.
Below is the aggregate prioritization from the council. Staff suggests Council entertain a
framework for discussion of said items.
RANK TIER THREE POLICY DEVELOPMENT PROJECTS TOTAL AVERAGE
1 Hospital governance and community health care alignment
issues 12 1.6
2 Re-packaging/updating of various economic development
and related plans 27 4.4
3 Development plan for entry corridor improvements on 6th
Street 29 4.2
4 Capitalize on opportunities to purchase land for economic
development 31 4.6
5 Study feasibility of south fire station location to improve
response time 34 4.4
6 Neighborhood parking issues; action on ad hoc parking
committee report 35 4.4
7 Community sustainability issues 35 5.0
8 Consideration of PAC II funding request 49 7.4
City Manager Introduction
ACTION: Motion to Approve, Request Public Comment, Roll Call
CITY MANAGER RECOMMENDATION: Approve
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Other Business
18. Executive Session for purpose of consulting with legal counsel
about proposed or pending contractual matters.
SDCL 1-25-2. Executive or closed meetings.
Executive or closed meetings may be held for the sole purpose of:
1. Discussing the qualifications, competence, performance, character or fitness
of any public officer or employee or prospective public officer or employee.
The term “employee” does not include any independent contractors;
2. Discussing the expulsion, suspension, discipline, assignment of or the
educational program of a student;
3. Consulting with legal counsel or reviewing communications from legal
counsel about proposed or pending litigation or contractual matters;
4. Discussing marketing or pricing strategies by a board or commission of a
business owned by the state or any of its political subdivisions, where public
discussions would be harmful to the competitive position of the business.
However, any official action concerning such matters shall be made at an open official
meeting. An executive or closed meeting shall be held only upon a majority vote of the
members of such body present and voting, and discussion during the closed meeting is
restricted to the purpose specified in the closure motion. Nothing in 1-25-1 or this
section may be construed to prevent an executive or closed meeting if the federal or
state Constitution or the federal or state statutes require or permit it. A violation of
this section is a Class 2 misdemeanor.
Action: Motion to enter executive session – voice vote
Motion to leave executive session – voice vote
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139
19. Adjourn.