HomeMy WebLinkAbout2010_04_27 CC PKTCity Council Packet
April 27, 2010
1
Brookings City Council
Tuesday, April 27, 2010
City Hall Council Chambers
311 Third Avenue
5:00 p.m. – Work Session
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. Storm Water Phase II Regulations.
2. Board of Trustees Nomination to South Dakota Retirement System
3. City Council Member Ex-Officio Reports
4. City Council member introduction of topics for future discussion *
5. Council Invites & Obligations
*Any Council member may request discussion of any issue at a future meeting only. Items can not 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. 44-10, awarding bids on 2010-06STI Chip Seal Project.
D. Action on Resolution No. 45-10, declaring surplus property.
E. Action on Resolution No. 46-10, authorizing the Brookings Summer Arts Festival
Committee to have exclusive use of Pioneer Park.
F. Action on volunteer appointments to various city boards, committees and
commissions.
Motion to approve, request public comment, roll call
* Matters appearing on the Consent Agenda are expected to be non-controversial and will be acted upon by the Council at one time,
without discussion, unless a member of the Council or City Manager requests an opportunity to address any given item. Items removed
from the Consent Agenda will be discussed at the beginning of the formal items. Approval by the Council of the Consent Agenda items
means that the recommendation of the City Manager is approved along with the terms and conditions described in the agenda supporting
documentation.
Presentations, Special Requests/Invites & Reports:
5. Open Forum.
6. SDSU Student Senate Report.
Informational
City Council Packet
April 27, 2010
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Contract Awards/Change Orders:
7. Action to authorize the Mayor to sign an Architectural Contract with Cannon, Moss,
Brygger Architects, for the Brookings City/County Administration Building.
City Manager Introduction, Motion to Approve, Request Public Comment, Roll Call
Ordinance First Readings**:
8. Ordinance No. 17-10: an Ordinance Amending Section 58-165 of the Code of
Ordinances of the City of Brookings, South Dakota and pertaining to Loud and Raucous
Noise in the City of Brookings, South Dakota.
Public Hearing – May 11th
9. Ordinance No. 18-10: an Ordinance pertaining to an Application for a Conditional Use
for a Contractors Shop and Storage Yard in the Business B-3 District, Lot 10, Block 4,
Folsom Addition, also known as 147 3rd Avenue South.
Public Hearing – May 11th
** 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
10. Action to approve Resolution No. 48-10, a Resolution of Intent to Lease Real Property
to Private Person for a farm lease with Joel C. Foster, for a period of Three (3) years
and pertaining to the following described property, for 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, Open & Close Public Hearing, Motion to Approve, Roll Call
11. 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.
City Manager Introduction, Open & Close Public Hearing, Motion to Approve, Roll Call
12. Public hearing and action on Resolution No. 49-10, a Resolution authorizing Vacation of
an alley abutting Lots 3 through 14 of Block 1, Thornbers Addition (7th to 8th Street and
12th to 13th Avenue).
City Manager Introduction, Open & Close Public Hearing, Motion to Approve, Roll Call
13. Public hearing and action on Resolution No. 50-10, Authorizing Meyer‟s Second
Addition Road District, Brookings County, South Dakota
City Manager Introduction, Open & Close Public Hearing, Motion to Approve, Roll Call
Other Business:
14. Action on Resolution No. 51-10, establishing the Fee for the issuance of Full-Service
Restaurant On-Sale Licenses in the City of Brookings.
City Manager Introduction, Motion to Approve, Request Public Comment, Roll Call
15. Action on Resolution No. 52-10, adopting a Master Park Plan.
City Manager Introduction, Motion to Approve, Request Public Comment, Roll Call
City Council Packet
April 27, 2010
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16. Design update on the Railroad Crossing Project at Main Avenue.
City Manager Introduction, Informational
17. Discussion and possible action to purchase Hangar Site A, at the Brookings Municipal
Airport, from J.J. Jones, LLC.
City Manager Introduction, Motion to Approve, Request Public Comment, Roll Call
18. 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.
City Council Packet
April 27, 2010
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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. Storm Water Phase II Regulations.
Jackie Lanning, City Engineer, along with Al Spangler, Natural Resources Project Engineer from
the Surface Water Quality Department of the South Dakota Department of Natural Resources
(SDDENR) in Pierre, will be giving a presentation regarding the Storm Water Phase II
regulations.
What is an MS4?
MS4 stands for Municipal Separate Storm Sewer System. It simply refers to a municipal storm
sewer system that is separate from the sanitary sewer system. A “Small” MS4 is defined as a
separate storm sewer system that is: owned or operated by a federal, state, city, town, county,
association, district, sanitary district, or other public body with jurisdiction over the disposal of
sewage, industrial wastes, or other wastes; and is located in an incorporated place that serves a
population of less than 100,000 or that is located in one or more counties with unincorporated
urbanized populations serving less than 100,000.
What is Storm Water Phase II?
The Storm Water Phase II Regulations relate to storm water quality. Polluted storm water
runoff is often transported and ultimately discharged into local rivers and streams without being
treated. The Federal Clean Water Act, through the development of national storm water
regulations, establishes a Storm Water Management Program for Small MS4 communities. A
Small MS4 (Municipal Separate Storm Sewer System) community is a municipality with its own
storm sewer system and has a population greater than 10,000 and less than 100,000.
Sometimes Small MS4 communities are also called „Phase II Communities‟. This program is
intended to improve surface water quality by reducing the quantity of pollutants that storm
water picks up and carries into storm sewer systems; not only as a result of storm events, but
also snow and ice melting events. Common pollutants include oil and grease from roadways
and parking lots, fertilizers and pesticides, sediment from construction sites, and carelessly
discarded trash. When deposited into nearby waterways through MS4 discharges, these
pollutants can impair the waterways; thereby reducing flow capacity, discouraging recreational
use of the resource, contaminating drinking water supplies, and interfering with habitat for fish,
other aquatic organisms, and wildlife.
As a result of new federal regulations, referred to as the Phase II Storm Water Rule for storm
water discharges from Small MS4 communities, certain municipalities are required to obtain a
storm water permit for their storm water systems.
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April 27, 2010
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Who Must Apply for a Municipal Storm Water Permit?
Small MS4 communities (aka Phase II communities) meeting the following criteria must obtain a
storm water discharge permit for their system:
Small MS4s located in an urbanized area
Small MS4s which serve a population of at least 10,000 people.
Small MS4s designated by the Secretary as needing coverage.
Phase II Storm Water Regulations
Phase II regulations became effective on March 10, 2003 for the affected municipalities, called
Small MS4s. The cities in South Dakota that fall under these regulations are:
Rapid City
North Sioux City
Aberdeen
Watertown
Brookings
Mitchell
Pierre
Yankton
Huron
Vermillion
Spearfish
Sturgis
SDDOT
The South Dakota Department of Natural Resources (SDDENR) was designated by the federal
government as the permitting authority. Therefore, the SDDENR issues the storm water
permits to these cities. As a part of the storm water permit, each municipality must develop
and implement a Storm Water Management Program. The program must address at a
minimum, the following areas:
1. Public education and outreach;
2. Public participation/involvement;
3. Illicit discharge detection and elimination;
4. Construction site storm water runoff control;
5. Post-construction storm water management; and,
6. Pollution prevention/good housekeeping for municipal operations.
The City of Brookings has a Storm Water Management Program and the 2009 summary was
submitted to the City Council along with the committee and departmental annual reports.
Mr. Spangler will update the City Council on the Phase II regulations and the additional
requirements that must be adopted by all Small MS4 communities by July 1, 2010.
City Council Packet
April 27, 2010
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Next Steps:
The Phase II regulations require each MS4 community to adopt ordinances that will regulate
pollutants such as illicit discharge, construction site storm water runoff control and post-
construction storm water management. The City of Brookings has adopted subdivision
regulations along with the Storm Drainage Design and Technical Criteria Manual, which meet
part of the ordinance requirement. However, additional ordinances need to be adopted to
meet SDDENR minimum guidelines. This work session will provide an overview of the
regulations and the program. The following timeline is proposed to adopt the new ordinance:
April 27, 2010: City Council Work Session on Storm Water Phase II Regulations
May 11, 2010: City Council to review draft ordinance for Storm Water Phase II
May 25, 2010: 1st Reading on the Storm Water Phase II Ordinance
June 8, 2010: 2nd Reading on the Storm Water Phase II Ordinance
A press release has been issued for this work session. Since this will affect individual building
projects, Brookings homebuilders and developers were sent a notice of this work session by
first class mail.
Estimate Time: 45 Minutes
City Council Packet
April 27, 2010
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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. Board of Trustees Nomination to the South Dakota Retirement
System.
Effective July, 1, 2010, the South Dakota Retirement System Board will have a trustee
position representing elected municipal officials vacant. If the governing body wishes to
submit a nomination, it must do so by May 24th. Mayor Reed requested this be placed
on the agenda for council discussion.
Estimate Time: 5 Minutes
City Council Packet
April 27, 2010
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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 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
City Council Packet
April 27, 2010
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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. 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.
City Council Packet
April 27, 2010
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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.
5. Council Invites & Obligations.
Date
Day
Event &
Brief Description
Time
Location
Town
Address
Directions
May 11 Tuesday Council Meeting 5:00 p.m. Council Chambers
May 25 Tuesday Council Meeting 5:00 p.m. Council Chambers
June 8 Tuesday Council Meeting 5:00 p.m. Council Chambers
June 22 Tuesday Council Meeting 5:00 p.m. Council Chambers
June 30 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. 4
Monday –
Saturday NLC-Congress of Cities
Denver, CO
City Council Packet
April 27, 2010
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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. 44-10, awarding bids on 2010-06STI Chip Seal Project.
D. Action on Resolution No. 45-10, declaring surplus property.
E. Action on Resolution No. 46-10, authorizing the Brookings Summer Arts Festival Committee
exclusive use of Pioneer Park.
F. Action on volunteer appointments to various city boards, committees and commissions.
Motion to approve, request public comment, roll call
Presentations, Special Requests/Invites & Reports
5. Open Forum.
6. SDSU Student Senate Report.
Contract Awards/Change Orders
7. Action to authorize the Mayor to sign an Architectural Contract with Cannon, Moss, Brygger Architects,
for the Brookings City/County Administration Building. City Manager Introduction, Motion to Approve, Request Public Comment, Roll Call
Ordinance First Readings**
8. Ordinance No. 17-10: an Ordinance Amending Section 58-165 of the Code of Ordinances of the City of
Brookings, South Dakota and pertaining to Loud and Raucous Noise in the City of Brookings, South
Dakota. Public Hearing – May 11th
9. Ordinance No. 18-10: an Ordinance pertaining to an Application for a Conditional Use for a Contractors
Shop and Storage Yard in the Business B-3 District, Lot 10, Block 4, Folsom Addition, also known as 147
3rd Avenue South. Public Hearing – May 11th
Second Readings/Public Hearings
10. Action to approve Resolution No. 48-10, a Resolution of Intent to Lease Real Property to Private Person
for a farm lease with Joel C. Foster, for a period of Three (3) years and pertaining to the following
described property, for 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, Open & Close Public Hearing, Motion to Approve, Roll Call
11. 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.
City Manager Introduction, Open & Close Public Hearing, Motion to Approve, Roll Call
12. Public hearing and action on Resolution No. 49-10, a Resolution authorizing Vacation of an alley abutting
Lots 3 through 14 of Block 1, Thornbers Addition (7th to 8th Street and 12th to 13th Avenue).
City Manager Introduction, Open & Close Public Hearing, Motion to Approve, Roll Call
13. Public hearing and action on Resolution No. 50-10, Authorizing Meyer‟s Second Addition Road District,
Brookings County, South Dakota
City Manager Introduction, Open & Close Public Hearing, Motion to Approve, Roll Call
Other Business
14. Action on Resolution No. 51-10, establishing the Fee for the issuance of Full-Service Restaurant On-Sale
Licenses in the City of Brookings.
City Manager Introduction, Motion to approve, Request Public Comment, Roll Call
15. Action on Resolution No. 52-10, adopting a Master Park Plan.
City Manager Introduction, Motion to approve, Request Public Comment, Roll Call
16. Design update on the Railroad Crossing Project at Main Avenue.
17. Discussion and possible action to purchase Hangar Site A, at the Brookings Municipal Airport, from J.J.
Jones, LLC.City Manager Introduction, Motion to Approve, Request Public Comment, Roll Call
18. Adjourn.
City Council Packet
April 27, 2010
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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. 44-10, awarding bids on 2010-06 STI
Chip Seal Project.
D. Action on Resolution No. 45-10, declaring surplus property.
E. Action on Resolution No. 46-10, authorizing the Brookings
Summer Arts Festival Committee exclusive use of Pioneer
Park.
F. Action on volunteer appointments to various city boards,
committees and commissions.
*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
City Council Packet
April 27, 2010
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CONSENT AGENDA #4
B. Approval of City Council Meeting minutes.
The draft April 6th and April 15th Brookings City Council minutes are enclosed for
Council review and approval.
City Council Packet
April 27, 2010
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Brookings City Council
April 6, 2010
(unapproved)
The Brookings City Council held a meeting on Tuesday, April 6, 2010 at 5:00 p.m., at City Hall
with the following members present: Mayor Tim Reed, Council Members Julie Whaley, John
Kubal, Mike Bartley, Jael Thorpe, and Tom Bezdichek. Council Member Mike McClemans was
absent. City Manager Jeff Weldon, City Attorney Steve Britzman, and Deputy City Clerk Bonnie
Foster were also present.
Joint Session of the City Council and City Commission to interview architect
finalist. The architectural firm of Cannon Moss Brygger & Associates was present for a follow-
up interview. No action was taken.
6:00 P.M. REGULAR MEETING.
Consent Agenda. Resolution No. 38-10 was removed from the consent agenda for separate
action. A motion was made by Bartley, seconded by Kubal, to approve the consent agenda as
follows:
A. Action to approve the agenda as amended.
B. Approval of the March 23rd Council Meeting minutes.
C. MOVED OFF OF CONSENT: Action on Resolution No. 38-10, awarding bids
for 2010-03SSI, Village Square Drainage Improvement Project.
D. Action to Abate the 2010 Drainage Fee in the amount of $962.29 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 in the amount of $188.89 for Parcel No.
40490-00800-001-00, Lot 1, Eighth Railroad Addition for XTRA LLP.
F. Action to Abate the 2010 Drainage Fee in the amount of $1,322.63 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 in the amount of $11,690.63 for Parcel
No. 40597-00300-001-00, Lot 1A, Block 3, Telkamp Industrial Addition, (no
address).
H. Action to Abate the 2010 Drainage Fee in the amount of $740.80 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.
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,
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April 27, 2010
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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
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.
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April 27, 2010
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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.
J. Action on Resolution No. 42-10, a Resolution Amending the Visitor Promotions
Committee of the City of Brookings.
Resolution No. 42-10
A Resolution Amending the Visitor Promotions Committee of the City of Brookings.
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.
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April 27, 2010
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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.
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.
City Council Packet
April 27, 2010
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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.
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.
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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.
On the motion, all present voted yes; motion carried.
Contract Award: Landfill Trench 4E. A motion was made by Whaley, seconded
by Bezdichek, to award the contract for Landfill Trench 4E to the low bid of R.L. Larson
Excavating, Inc. of St. Cloud, MN. No public comment was made. All present voted
yes; motion carried.
Bids were opened on March 30th with the following bids received: R.L. Larson
Excavating, Inc. $1,130,000.00; Loiseau Construction, Inc. $1,152,661.00; Clausen
Construction $1,236,632.61; Rounds Construction, Inc. $1,250,000.00; Lidel
Construction, Inc. $1,254,834.70; RS Halstead Corp. $1,337,875.00; Mathiowetz
Construction $1,339,806.04; Bates Construction Co. $1,345,000.00; Veit & Company,
Inc. $1,541,673.00; Frattalone Companies $1,702,870.00
Resolution No. 38-10. A motion was made by Bezdichek, seconded by Kubal, to award the
bid for 2010-03SSI, Village Square Drainage Improvement Project to the low bid of T&R
Contracting, Inc. Sioux Falls, SD, for the bid of $74,074.65. All present voted yes; motion
carried.
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
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April 27, 2010
21
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.
First Reading – Ordinance No. 16-10. A first reading was held on Ordinance No.
16-10, an Ordinance amending Section 62-34 of the Code of Ordinances of the city of
Brookings, SD and pertaining to the Terms of Office for the Park and Recreation Board
in the City of Brookings, South Dakota. Public Hearing: April 27, 2010.
Ordinance No. 14-10. A public hearing 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. No
public comment was made. A motion was made by Bezdichek, seconded by Kubal, to approve
Ordinance No. 14-10 with the condition it is limited to one horse and restricted to the current
owner of the property, Cliff Kurtz. All present voted yes; motion carried.
Ordinance No. 15-10. A public hearing 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. No public comment was
made. A motion was made by Whaley, seconded by Bezdichek, to approve Ordinance No. 15-
10. All present voted yes; motion carried.
Move Garage. A public hearing was held 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. No public comment was made. A motion was made by Bartley,
seconded by Thorpe, to approve. All present voted yes; motion carried.
On/Off Malt License. A public hearing was held on an On/Off Malt License for Taste of
Europe, Dennis Bielfeldt, owner, 1300 Main Avenue South (Legal: Block 4, Fishback Second
Addition.). No public comment was made. A motion was made by Whaley, seconded by
Bartley, to approve. All present voted yes; motion carried.
Resolution No. 40-10 - Wine Operating Agreement. A motion was made by Barltey,
seconded by Kubal, to approve 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. All present voted yes; motion carried.
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.
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April 27, 2010
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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.
Joint Cooperative Agreement – County/City Administrative Office Building. A
motion was made by Kubal, seconded by Bartley, to approve a Joint Cooperative Agreement
for a County/City Administrative Office Building. No public comment was made. All present
voted yes; motion carried.
JOINT COOPERATIVE AGREEMENT FOR COUNTY/CITY ADMINISTRATIVE
OFFICE BUILDING
Agreement made April 6, 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 the formal approval by the County on April 13, 2010 and the formal
approval by the City on April 6, 2010, the officers of the respective entities are authorized 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.
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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
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
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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
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
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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
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
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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.
Tim Reed, Mayor Dennis Falken, Chair, Brookings County
Board of Commissioners
ATTEST: ATTEST:
_____________________________
Shari Thornes, City Clerk Vicki Buseth, County Finance Officer
Resolution No. 41-10. A motion was made by Bartley, seconded by Whaley, to approve
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. No public
comment was made. All present voted yes; motion carried.
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:
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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.
"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.
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"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.
"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.
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"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.
"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.
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"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
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
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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.
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 issu e
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
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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
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).
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Section 4.2. Form of Bonds; Execution.
(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
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
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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 O R
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
TO SUCH BOOK-ENTRY SYSTEM. IF THE PROVISIONS OF THE LETTER OF
REPRESENTATION SHALL BE IN CONFLICT WITH THE PROVISIONS OF THIS
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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.
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
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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.
(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
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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.
(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,
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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,
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
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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.
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.
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(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 shal l
forthwith cease, determine, and be completely discharged. Whereupon, the Registration Agent
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.
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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 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.
City Council Packet
April 27, 2010
43
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 made by Council Member , seconded by Council Member .
Upon vote being taken the following voted AYE: , and the following voted NAY:
.
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
(SEAL)
********************************************
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.
City Council Packet
April 27, 2010
44
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
*******************************
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
City Council Packet
April 27, 2010
45
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
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.
City Council Packet
April 27, 2010
46
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.
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
City Council Packet
April 27, 2010
47
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 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.
Tobin Morris, Northland Securities, Inc., presented a Debt Issuance Overview for the City of
Brookings.
Real Estate Purchase Agreement. A motion was made by Kubal, seconded by Whaley, to
approve Real Estate and Purchase Agreements for an undivided one-half (1/2) interest in and to
the Northeast One-Fourth (NE ¼), 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. No public comment was made. All present voted yes; motion carried.
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”).
City Council Packet
April 27, 2010
48
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
(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.
City Council Packet
April 27, 2010
49
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 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
City Council Packet
April 27, 2010
50
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
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.
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April 27, 2010
51
(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.
(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
City Council Packet
April 27, 2010
52
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.
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 6th day of April, 2010. ROBERT J. FOSTER TRUST DATED
DECEMBER 21, 1998, SELLER
Robert J. Foster, Trustee
City Council Packet
April 27, 2010
53
Dated this 6th day of April, 2010. CITY OF BROOKINGS, BUYER
(SEAL) By:
ATTEST: Tim Reed, Mayor
________________________________
Shari L. Thornes, City Clerk
**********************
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
City Council Packet
April 27, 2010
54
down payment shall be paid to and held in the Trust Account of Lewayne
M. Erickson P.C. pending the Closing); and
(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 i n
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 agrees to
City Council Packet
April 27, 2010
55
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
does not approve the purchase shall permit the Buyer to terminate this
City Council Packet
April 27, 2010
56
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. 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.
City Council Packet
April 27, 2010
57
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.
Dated this 6th day of April, 2010. GENEVA M. FOSTER TRUST DATED
DECEMBER 21, 1998, SELLER
Robert J. Foster, Trustee
Dated this 6th day of April, 2010. CITY OF BROOKINGS, BUYER
City Council Packet
April 27, 2010
58
(SEAL) By:
ATTEST: Tim Reed, Mayor
________________________________
Shari L. Thornes, City Clerk
Strategic Plan Tier 3 Goals. A motion was made by Whaley, seconded by Thorpe, to
approve the prioritizing of the Strategic Plan Tier 3 Goals and to begin with #1 and #2. The
Goals are: 1) Hospital governance and community health care alignment issues and 2) Re-
packaging/updating of various economic development and related plans, 3) Development plan
for entry corridor improvements on 6th Street, 4) Capitalize on opportunities to purchase land
for economic development, 5) Study feasibility of south Fire Station location to improve
response time, 6) Neighborhood parking issues; action on Ad Hoc Parking Committee Report,
7) Community sustainability issues, and 8) Consideration of PAC II Funding Request. No public
comment was made. All present voted yes; motion carried.
Executive Session. A motion was made by Kubal, seconded by Bartley, to enter into
Executive Session at 7:30 p.m. to consult with legal counsel about proposed or pending
contractual matters with the City Council, City Attorney, City Manager and Deputy City Clerk
present. All present voted yes; motion carried. A motion was made by Kubal, seconded by
Bartley, to exit Executive Session at 8:19 p.m. All present voted yes; motion carried.
Adjourn. A motion was made by Bezdichek, seconded by Thorpe, to adjourn. All present
voted yes; motion carried. Meeting adjourned at 8:20 p.m.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
City Council Packet
April 27, 2010
59
Brookings City Council
April 15, 2010 (unapproved)
The Brookings City Council held a special meeting at 5:00 p.m. on Thursday, April 15, 2010, at
City Hall with the following members present: Council Members Tim Reed, Julie Whaley, Mike
Bartley, Mike McClemans, John Kubal and Tom Bezdichek. City Attorney Steve Britzman and
City Clerk Shari Thornes were also present. Council Member Jael Thorpe was absent.
Mayor Reed called the meeting to order. The City Council conducted the official canvass of
the April 13, 2010 Municipal Election. A motion was made by Kubal, seconded by Whaley, to
approve Resolution No. 43-10, a resolution approving the official canvass of the April 13, 2010
municipal election ballot. All present voted yes; motion carried.
Resolution No. 43-10
Canvassing the April 13, 2010 Municipal Election
Whereas, on the 13th day of April 2010, there was held in the City of Brookings, South Dakota,
an election for the purpose electing three city council members, and
Whereas, the judges and clerks of said election have returned to the City Council of the City of
Brookings the official results for the purpose of the official canvass, and
Whereas, the City Council on April 13, 2010 has canvassed the results for the purpose of
determining the official election outcome, and
Now, Therefore, Be It Resolved by the City Council of the City of Brookings, South Dakota
that the official vote at the City Election held April 13, 2010 was as follows:
City
Council
3 Year (2)
Jael E.
Thorpe
Julie R.
Whaley
Keith
W.
Corbett
Over
Votes
Unde
r
Votes
Total
Ballots
Cast
Rural
Votes
Cast
Total
Votes
Cast
Precinct 1 40 31 50 0 17 69 0 121
Precinct 2 125 81 142 0 44 196 0 348
Precinct 3 96 85 127 0 60 234 98 308
Precinct 4 352 211 332 0 101 530 64 895
Precinct 5 382 249 382 0 129 571 0 1,013
Precinct 6 325 144 347 0 84 450 0 816
TOTAL 1,320 801 1,380 0 435 2,050* 162 3,501
*2,093 indicated on grant total, however, this includes 43 from Aurora.
A motion was made by Kubal, seconded by Whaley, to adjourn. Meeting adjourned at 5:20
p.m.
CITY OF BROOKINGS
ATTEST: Mayor Tim Reed
Shari Thornes, City Clerk
City Council Packet
April 27, 2010
60
CONSENT AGENDA #4
C. Action on Resolution No. 44-10, awarding bids on 2010-06STI
Chip Seal Project.
This project is the annual chip seal project, and the 2010 Project Area is located
between 8th Street South and 20th Street South, and west of Medary Avenue. Most of
the streets within this project area will receive a chip seal application. To perform the
chip seal, the contractor will apply AE-150 oil to the streets and then apply city-
furnished pea rock chips over the oil. The City Street Department sweeps up the
excess chips a few days afterward. This year we are utilizing pea rock for the chip seal
project instead of the quartzite chips that we had used in the past. On the 2009
project, the pea rock was not washed which created a significant amount of dust on the
streets that were treated. However, this year we will utilize washed pea rock which will
reduce the dust for the streets being treated. Using the pea rock is providing the City
with a substantial cost savings to the project. For this project, the contractor will pick
up the pea rock at L.G. Everest, which the City purchases at $4.00/ton. In past years,
the City street department staff drove to Del Rapids to pick up the quartzite chips. The
quartzite chips are approximately $14.28/ton which includes the fuel cost for hauling,
but does not include operator wages or truck maintenance costs.
The plans for this project were mailed to area contractors and 2 builders exchanges.
The bid letting was held on April 20, 2010 and the City received the following bids:
TopKote, Inc., Yankton, SD $192,759.00
The Road Guy Construction Co., Inc., Mission Hill, SD $239,700.00
Jensen Rock & Sand, Inc., Mobridge, SD $258,900.00
The low base bid was approximately 5% lower than the engineer‟s estimate of
$203,100.00. The project also includes chip sealing the east half of the parking lot
located southeast of Medary School, which will be paid for by the Brookings School
District. Recommend awarding the contract to TopKote, Inc. of Yankton, SD for the
low bid of $192,759.00.
City Council Packet
April 27, 2010
61
Resolution No. 44–10
Resolution Awarding Bids on Project 2010-06STI
Chip Seal Project
Whereas, the City of Brookings opened bids for Project 2010-06STI Chip Seal Project on
Tuesday, April 20, 2010 at 1:30 pm at Brookings City Hall; and
Whereas, the City of Brookings has received the following bids for Project
2010-06STI Chip Seal Project:
TopKote, Inc., Yankton, SD $192,759.00
The Road Guy Construction Co., Inc., Mission Hill, SD $239,700.00
Jensen Rock & Sand, Inc., Mobridge, SD $258,900.00
Now Therefore, Be It Resolved that the low bid of $192,759.00 for TopKote, Inc., of Yankton, SD
be accepted.
Passed and approved this 27th day of April, 2010.
CITY OF BROOKINGS
________________________________
Tim Reed, Mayor
ATTEST:
_________________________
Shari Thornes, City Clerk
City Council Packet
April 27, 2010
63
CONSENT AGENDA #4
D. Action on Resolution No. 45-10, declaring surplus property.
Action on Resolution No. 45-10, will declare the following vehicle as surplus property:
2002 Mercury Sable Police Vehicle. This vehicle was used as an undercover vehicle for
the department. This vehicle is no longer being used by the department. Putting this
resolution into effect will allow the city to recover some of its costs for a future city
vehicle purchase.
Resolution No. 45-10
Declaring Surplus Property
Whereas, the City of Brookings is the owner of the following described property formerly used
at the City of Brookings Police Department:
One (1) 2002 Mercury Sable Police Vehicle, VIN 1MEFM50U72G628208
Whereas in the best financial interest, it is the desire of the City of Brookings to sell same as
surplus property;
Whereas, the City Manager hereby authorized to sell said surplus property.
Now, Therefore, Be It Resolved by the governing body of the City of Brookings, South Dakota,
that this property be declared surplus property according to SDCL Chapter 6-13.
Passed and approved this 27th day of April, 2010.
CITY OF BROOKINGS
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
City Council Packet
April 27, 2010
64
CONSENT AGENDA #4
E. Action on Resolution No. 46-10, authorizing the Brookings
Summer Arts Festival Committee to have exclusive use of
Pioneer Park.
Resolution No. 46-10
A Resolution Authorizing the Brookings Summer Festival
Committee to Have Exclusive Use of Pioneer Park
Whereas, the Brookings Summer Arts Festival will be held in Pioneer Park on July 8-13, 2010,
and
Whereas, the Summer Arts Festival Committee has requested the exclusive use and control of
Pioneer Park and its facilities for said festival, plus additional days for preparation and takedown,
and
Whereas, the Summer Arts Festival Committee will provide evidence of liability insurance
coverage including the City of Brookings as named insured, and
Whereas, the Summer Arts Festival Committee has agreed to accept responsibility for the
conduct of the Summer Festival on said premises, now therefore,
Be It Hereby Resolved that the use of Pioneer Park and its facilities as a public park shall
terminate for the period of July 8 through July 13, 2010.
Be It Further Resolved that the City Council does hereby grant the exclusive use of Pioneer
Park and its facilities during the Brookings Summer Arts Festival to the Summer Arts Festival
Committee.
Further, It Is Resolved that the Summer Arts Festival Committee shall be responsible for
maintaining said facilities and cleaning them and returning them to the City of Brookings in good
condition following the festival.
Passed and approved this 27th day of April 2010.
CITY OF BROOKINGS
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
City Council Packet
April 27, 2010
65
CONSENT AGENDA #4
F. Action on Volunteer Appointments to various City Boards,
Committees, and Commissions.
Mayor Reed has submitted the following appointment nominations for City Council
action:
Brookings Regional Airport Board
Number of positions: 1
Position currently held by: Jim Bailey
Term Length: 5 years
Residency Requirement: No
Purpose: The Airport Board is advisory to the city manager and
council on matters concerning the city airport.
Mayor’s Recommendation: Reappoint Jim Bailey
Brookings Committee for People who have Disabilities, Student Position
Number of positions: 1
Position currently held by: Kim Lindell
Term Length: 1 year
Residency Requirement: No
Other Requirements: Student of secondary or post-secondary institution
Purpose: The Committee strives to advocate for the rights of people
who have disabilities in our community. Throughout the
year, specific events are held to bring awareness and
information to our citizens. Technical assistance is provided
to the business community, private individuals, governmental
entities, and nonprofit organizations. This is a service not
provided by any other entity in Brookings. The goals of this
service are to improve the quality of life for people who
have disabilities through enhancing the knowledge base of
entities in the community; and to further serve as a
community-based advocacy group enhancing the ability of
local entities to comply with Federal Civil Rights legislation.
Mayor’s Recommendation: Reappoint Kim Lindell
Human Rights Committee, Student Member
Number of positions: 1
Position currently held by: Ashley Kuecker
Term Length: 1 year
Residency Requirement: No
Other Requirements: Student of secondary or post-secondary institution
Purpose: The Committee has the power to investigate complaints
alleging discrimination. Other programs include studying
City Council Packet
April 27, 2010
66
the existence, character and causes and extent of
discrimination in employment, housing and public
accommodations, property rights, education and public
services; advising and providing a forum for those
subjected to unfair and discriminatory practices in the City
and County; advising City officials concerning matters
issues of discrimination; and conducting educational
programs and disseminate information for further the
committee‟s policy to eliminate discrimination in the city.
Mayor’s Recommendation: Christine Fabian
Park & Recreation Board
Number of positions: 3
Positions currently held by: Ryan Krogman, September Kirby & vacancy
Term Length: 5 years (Changing to 3-year term on 4/27/2010)
Residency Requirement: No
Purpose: The Board provides advice to the Director of Parks,
Recreation and Forestry to assist in fulfilling the
administering of the public park system, recreation
programs and city forestry program. The Board also
advises the City Council and makes recommendations on
matters regarding park capital improvements and planning.
Mayor’s Recommendation: 1. Reappoint Ryan Krogman
2. Reappoint September Kirby
3. New Appointment PENDING
Park & Recreation Board, Student Positions
Number of positions: 2
Positions currently held by: Kaitlin Kwasniewski (high school) & Dave Leiferman
(college)
Term Length: 1 year
Residency Requirement: No
Other Requirements: 1 high school and 1 college student
Purpose: The Board provides advice to the Director of Parks,
Recreation and Forestry to assist in fulfilling the
administering of the public park system, recreation
programs and city forestry program. The Board also
advises the City Council and makes recommendations on
matters regarding park capital improvements and planning.
Mayor’s Recommendation: Jacqueline Zevenbergen (College)
Mayor’s Recommendation: Sam Dunkle (High School)
Utility Board
Number of positions: 1
Positions currently held by: George Prest
City Council Packet
April 27, 2010
67
Term Length: 5 years
Residency Requirement: yes
Purpose: The Utility Board is an administrative body responsible for
the management and control of the electric, water,
wastewater and telephone utilities of the City of
Brookings.
Mayor’s Recommendation: Reappoint George Prest
Visitor Promotions Committee – SDSU Student Positions–One Year Terms
(pursuant to Res. 42-10, approved 4/6/10)
1. PENDING
2. PENDING
3. Erin Kennedy, Student Senate Vice President
Transportation Board – SDSU Student Members (pursuant to Res. 39-10,
approved 4/6/10)
1. PENDING
2. PENDING, Alternate
City Council Packet
April 27, 2010
68
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
City Council Packet
April 27, 2010
69
Contract Awards/Change Orders
7. Action to authorize the Mayor to sign an Architectural Contract
with Cannon, Moss, Brygger Architects, for the Brookings
City/County Administration Building.
Attached is the proposed contract from Cannon, Moss, & Brygger for architectural
services for our project. This is the document the County Commission and City
Council will need to approve in identical form to be effective. The Joint Building
Committee has approved a recommendation of support for this firm and the proposed
contract. The County Commission is scheduled to consider this document at their
meeting on the morning of April 27th. The City Manager will be able to inform the
Council of the outcome of their decision on this issue at the meeting.
This agreement is an industry standard contract used by architects when undertaking a
project with a construction manager-agent service delivery method. Details pertinent
to our project are in a “fill-in-the-blank” format of the document. In this document, of
note is the vertical line in the left-hand margin next to a paragraph indicates the language
in that paragraph is ”tailored” to our project; all other language is generic to this
document. As such, it is most important to concentrate Council review on the
paragraphs that have that vertical line in the left-hand margin. This document has also
been sent to the City Attorney and State‟s Attorney for legal review.
CMBA is proposing to use Civil Design, Inc., a local firm, for the civil engineering work.
Beyond that, the purpose of this memo is to highlight some of the key features and
salient points of this document from City Manager review. As one might expect, it
comes down to the services the City will get and the costs of those services.
The costs for basic services of the architect are 5.9 percent of the construction cost of
the project calculated at a minimum of $8 million. That means the minimum fee will be
$472,000 for basic services depending upon the final budget. This amount is a reduction
from 6.75 percent of construction cost which was in their proposal.
In addition to the basic services, there are additional services we will need that are
beyond this price. In most cases, these services are outside the basic service but some
architects include them in the basic service but at a higher percentage. Either way, the
owners pay for such services. These additional services are: (1) programming for
schematic design; (2) civil engineering work on-site; (3) segregation of bid documents
into four bid packages for fast-track schedule; and (4) computer modeling; for a total of
$75,000.
There will also be reimbursement for expenses such as travel, postage, printing, and
other specialized services as needed with a handling mark-up of ten percent. Again, this
is industry-standard.
City Council Packet
April 27, 2010
70
Finally, there are other items that will need to be budgeted that are outside the scope of
an architectural agreement. They include designing the telecommunication system,
technology networking, audio-visual systems, building security systems, and landscaping
design. The architect will provide conduits and connection boxes as part of the building
design but the “systems” will need to be designed by others. The architect will assist in
identifying, evaluating, and selecting these design consultants or vendors but these
services are additional costs. The City can, however, have Swiftel Communications
assist us with designing the telecommunications and IT networking systems. This has
been confirmed this with BMU. Landscaping design can handled in-house and can get
good pricing on landscape plantings. We expect to use the current consultant/vendor
for the audio-visual needs.
Other items that will have to be budgeted for include demolition and site clearance
contracts (which we already anticipated) but we will have to budget for furnishings,
fixtures, equipment, survey data, builders risk insurance, and moving costs into the new
building.
Staff recommends approval of the architectural contract so we can begin schematic
design immediately.
City Manager Introduction
ACTION: Motion to approve, Request Public Comment, Roll Call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
April 27, 2010
101
Ordinance First Readings**
8. Ordinance No. 17-10: an Ordinance Amending Section 58-165 of
the Code of Ordinances of the City of Brookings, South Dakota
and pertaining to Loud and Raucous Noise in the City of
Brookings, South Dakota.
Public Hearing – May 11th
**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.
Staff received a request from Downtown Brookings, Inc. to amend the current Loud and
Raucous Noise Ordinance. The intent of the ordinance amendments is to create a
consistent process for seeking exceptions to the loud and raucous noise ordinance as
well as creating and enhancing the atmosphere and experience of Downtown Brookings.
There are two parts to the request. The first part pertains to section 58-165 (c)(2)
Yelling, shouting, and prolonged sounds made by people. The current ordinance
requires all loud and raucous noise to cease at 9:00 pm on any day of the week. The
proposed amendment would change the time from 9:00 pm to 10:00 pm. The
ordinance would apply city-wide.
The second part of the amendment pertains to creating an exception to the Loud and
Raucous Noise Ordinance specifically for the Business B-1 Central District and three
adjacent properties. The original request sought to allow activities to be exempt from
the loud and raucous noise ordinance until midnight on Friday and Saturday. Staff
discussed the request and propose a language amendment that mirrors language in 58-
165 (d)(3), with the exception to include private property within the designated
boundary provided a noise ordinance permit has been issued by the City of Brookings.
The accompanying maps provide a visual description of the proposed boundary
exception along with buffer distances in 50 foot increments up to 150 feet from the
boundary. The proposed noise boundary has also been overlaid on the zoning map to
provide a visual aid of the land uses that are potentially impacted.
City Council Packet
April 27, 2010
102
Ordinance No. 17-10
An Ordinance Amending Section 58-165 of the Code of Ordinances of the
City of Brookings, South Dakota and pertaining to Loud and Raucous Noise in the
City of Brookings, South Dakota.
Be it ordained by the Governing Body of the City of Brookings, South Dakota that Chapter 58,
Offenses and Miscellaneous Provisions, of the Code of Ordinances, shall be amended as follows:
Section 1.
Sec. 58-165. Loud and Raucous Noise.
(c) (2) Yelling, shouting, and prolonged sounds by people. Yelling, shouting, whistling or singing,
or any prolonged sounds made by people at any time or place so as to create a loud and
raucous noise between the hours of 9:00 10:00 p.m. and 7:00 a.m. on any day of the week.
(d) Exceptions. The term “loud and raucous noise” does not include noise or sound generated
by the following:
(5) Activities within the Business B-1 Central District and properties described below,
provided such activities have been authorized by the owner of such property or facilities or
its agent and a noise ordinance permit application has been issued by the City of Brookings.
Lots 8-14, Block 5 Original Plat Addition
Block 3, Henry‟s Addition
Lot 101, Block 1, First Addition
Section 2. Any or all ordinances in conflict herewith are hereby repealed.
First Reading: April 27, 2010
Second Reading:
Published:
CITY OF BROOKINGS
_____________________
Tim Reed, Mayor
ATTEST:
________________________
Shari Thornes, City Clerk
4TH ST
5TH ST
7TH ST
5TH AVEMAIN AVE2ND AVE3RD ST
1ST ST S3RD AVE6TH AVE6TH ST / US Hwy 14
FRONT ST
2ND AVE S2ND ST
MAIN AVE S6TH AVE3RD AVEFRONT ST
/
Legend
50 ft
100 ft
150 ft
Noise Boundary
5TH ST
4TH ST
7TH ST
5TH AVEMAIN AVE2ND AVE1ST ST S
3RD ST3RD AVE6TH AVE6TH ST / US Hwy 14
FRONT ST
2ND AVE S2ND ST
MAIN AVE S6TH AVE3RD AVEFRONT ST
B-1
B-2
PDD
I-2
R-2
I-1R-3A
B-2A
B-3
50 ft 100 ft150 ft
150 ft100 ft50 ft
City Council Packet
April 27, 2010
105
Ordinance First Readings**
9. Ordinance No. 18-10: an Ordinance pertaining to an Application
for a Conditional Use for a Contractors Shop and Storage Yard in
the Business B-3 District, Lot 10, Block 4, Folsom Addition, also
known as 147 3rd Avenue South.
Public Hearing – May 11th
**No vote is taken on the first reading of an Ordinance. The title of the
Ordinance is read and the date for the public hearing is announced.
Applicant: Rob Boniface
Proposal: Establish a contractors shop and equipment lot
Background: This block is in the Business B-3 District. Uses consist of a large equipment
rental store and display lot, smaller businesses, a house, and other contractors‟ services.
The block across the street to the west is zoned for high-density residential uses.
The standards for this conditional use are listed below. These standards are the
minimum requirements necessary for this application to be heard. The impact of this use
on neighboring properties should be a major consideration by the Commission.
Sec. 94-266. Contractor Shop and Storage Yard:
Such uses shall screen all outdoor storage from adjacent property. Service vehicles shall be
localized in an area on the lot which will minimize the impact upon adjacent uses. Any
lighting of the storage yard should be done in a way that will not cause a glare onto
residential properties.
Specifics: The proposal involves the construction of a 30‟ x 72‟ compart-mentalized
storage building. The area between the building and the alley would be used for storing
equipment that is used on a daily basis. The lot is quite small so an extensive operation
would not be practical.
Recommendation: The Planning Commission voted 6 yes and 0 no to recommend
approval of the conditional use subject to the condition stated in the ordinance.
City Council Packet
April 27, 2010
106
Ordinance No. 18-10
An ordinance pertaining to an application for a Conditional Use for a Contractors
Shop and Storage Yard in the Business B-3 District.
Be it ordained by the governing body of the City of Brookings, South Dakota that said
Conditional Use shall be approved for a Contractors Shop and Storage Yard on Lot 10, Block 4,
Folsom Addition with the following conditions:
1. The Conditional Use shall only be granted to the applicant
All sections and ordinances in conflict herewith are hereby repealed.
First Reading: April 27, 2010
Second Reading:
Published:
CITY OF BROOKINGS
__________________________
Tim Reed, Mayor
ATTEST:
________________________________
Shari Thornes, City Clerk
City Council Packet
April 27, 2010
107
Planning Commission
Brookings, South Dakota
April 6, 2010
OFFICIAL MINUTES
Chairperson Alan Gregg called the regular meeting of the City Planning Commission to
order on April 6, 2010, at 7:00 PM in the Community Room at City Hall. Members present
were Wayne Avery, Mike Cameron, Donna DeKraai, Greg Fargen, Dave Kurtz, and Gregg. Al
Heuton, Larry Fjeldos, and John Gustafson were absent. Others present were Jim Weiss, Rob
Boniface, Community Development Director Mike Struck, and Planning and Zoning
Administrator Dan Hanson.
Item #4 – Robert C. Boniface has submitted an application for a Conditional Use to establish a
contractors shop and storage yard on Lot 10, Block 4, Folsom Addition
(Cameron/Fargen) Motion to approve the Conditional Use.
(Cameron/Kurtz) Amendment to the motion to add the following condition:
1. The Conditional Use shall only be granted to the applicant.
All present voted aye. AMENDMENT CARRIED.
The motion, as amended, was voted on. All present voted aye. MOTION CARRIED.
SUMMARY OF DISCUSSION
Item #4 – Boniface stated his contracting business involved primarily roofing jobs. He needed
inside storage space for his materials and an outside storage area for trailers.
Kurtz asked if there would be an office. Boniface replied no. Fargen asked if the lot
would be surfaced. Boniface answered that it would be gravel at first with asphalt or concrete
in the future. DeKraai inquired about increased traffic. Boniface felt it would be minimal
because workers would travel to on-site locations. Cameron asked if all storage would be kept
inside. Boniface responded that that was the plan. Hanson noted that outside storage must be
screened according to the zoning ordinance, but equipment used in the daily operation would
not be required to be screened. If storage occurs on the site, a perimeter, privacy type fence
would be required. Boniface indicated he understood the requirement.
City Council Packet
April 27, 2010
112
Second Readings / Public Hearings
10. Action to approve Resolution No. 48-10, a Resolution of Intent to
Lease Real Property to Private Person for a farm lease with Joel
C. Foster, for a period of Three (3) years and pertaining to the
following described property, for 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.
Pursuant to previous council action, the City is in the process of executing the purchase
agreements for 83.5 acres of farmland in the northeast portion of the City adjacent to I-
29 for purposes of a future industrial park. In the meantime, we have interest from the
current renter to continue the right to lease the property as he did from the seller for
agricultural purposes. As such, the City Attorney has prepared the attached lease.
As the City begins to plan for the development of this acreage for a future industrial
park, it is incumbent upon us to realize some income in the form of cash rent during the
short term until infrastructure can be installed for development. The attached lease
provides for a three-year term with rent being $50 per acre for year one beginning with
the current crop year; $70 per acre for year two; and $90 per acre for year three. The
prospective tenant has the right to sub-let portions thereof for agricultural purposes.
Most of the other terms and conditions for the lease of agricultural land are standard.
Following your public hearing on the proposed lease, unless there is information
brought forward during the hearing, staff recommends approval.
City Manager Introduction
ACTION: Open & Close Public Hearing, Motion to Approve, Roll Call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
April 27, 2010
113
Resolution No. 48-10
Resolution of Intent to Lease Real Property to Private Person
Be It Resolved by the governing body of the City of Brookings, South Dakota that the City of
Brookings intends to enter into a Farm Lease with Joel C. Foster, for a period of Three (3)
years and pertaining to the following described property:
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.
The purpose of this Lease is to provide for the farming of the above-described property prior
to its development. The term of the Lease is three years, beginning with the 2010 crop season
through December 31, 2012. The Lease provides for cash rent payable by the Tenant, and sets
forth the respective obligations of the Lessor and Tenant concerning the above-described
property.
Be It Further Noted, that a Public Hearing on this Resolution was held on this 27th day of April,
2010 at 6:00 o'clock P.M. at the City Council Chambers and that all persons were given an
opportunity to be heard on the intent to lease the above-described real property.
Passed and approved this 27th day of April, 2010.
CITY OF BROOKINGS
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
City Council Packet
April 27, 2010
114
Second Readings / Public Hearings
11. 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.
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, committees, and
commissions.
City Manager Introduction
ACTION: Open & Close Public Hearing, Motion to Approve, Roll Call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
April 27, 2010
115
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: April 27, 2010
Published: April 30, 2010
CITY OF BROOKINGS, SD
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
City Council Packet
April 27, 2010
116
Second Readings/Public Hearings
12. Public hearing and action on Resolution No. 49-10, a Resolution
authorizing Vacation of an Alley abutting Lots 3 through 14 of
Block 1, Thornbers Addition (7th to 8th Street and 12th to 13th
Avenue).
Applicants: South Dakota State University, South Dakota State University Foundation,
and State College Development Association
Background: Block 1 of Thornbers Addition has contained a mix of low, medium, and
high-density residential uses. All but one of the properties on the block have been
acquired by South Dakota State University or associated organizations. The buildings,
except for the apartment in the southwest corner, will eventually be razed or removed.
Specifics: The south 100 feet of the alley will remain in order to provide access into a
parking lot that serves the apartment. The north 300 feet will need to be vacated to
allow for the construction of an SDSU commuter parking lot over the rest of the block.
Easements for any existing underground utilities will be discussed at the meeting.
Recommendation: The Planning Commission voted 6 yes and 0 no to recommend
approval of the alley vacation.
City Manager Introduction
ACTION: Open & Close Public Hearing, Motion to Approve, Roll Call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
April 27, 2010
117
Resolution No. 49-10
Alley Vacation
Whereas, a petition to vacate has been filed with the City Clerk of the City of Brookings, and
Whereas, the petition was filed in proper form and signed by one hundred percent (100%) of
the adjacent property owners.
Now, Therefore, Be It Resolved by the City Council of the City of Brookings:
That the portion of the alley abutting lots 3 through 14 of Block 1, Thornbers Addition is
hereby vacated.
Passed and approved this 27th day of April 2010.
CITY OF BROOKINGS
__________________________
Tim Reed, Mayor
ATTEST:
_______________________
Shari Thornes, City Clerk
City Council Packet
April 27, 2010
119
NOTICE OF HEARING
UPON PETITION TO VACATE
NOTICE IS HEREBY GIVEN That South Dakota State University, South Dakota State
University Foundation, and the State College Development Association have submitted a
petition to vacate the alley abutting Lots 3 through 14, Block 1, Thornbers Addition.
NOTICE IS FURTHER GIVEN That said request will be acted on by the City Planning
Commission at 7:00 PM on Tuesday, April 6, 2010, in the Council Chamber in the lower level
of City Hall, Brookings, South Dakota.
Any person interested may appear and be heard in this matter.
Dated this 26th day of March 2010.
____________________________
Dan Hanson
Planning & Zoning Administrator
NOTICE OF HEARING
UPON PETITION TO VACATE
NOTICE IS HEREBY GIVEN That South Dakota State University, South Dakota State
University Foundation, and the State College Development Association have submitted a
petition to vacate the alley abutting Lots 3 through 14, Block 1, Thornbers Addition.
NOTICE IS FURTHER GIVEN That said request will be acted on by the City Council at 6:00
PM on Tuesday, April 27, 2010, in the Council Chamber in the lower level of City Hall,
Brookings, South Dakota.
Any person interested may appear and be heard in this matter.
Dated this 9th day of April 2010.
____________________________
Dan Hanson
Planning & Zoning Administrator
City Council Packet
April 27, 2010
120
Planning Commission
Brookings, South Dakota
April 6, 2010
OFFICIAL MINUTES
Chairperson Alan Gregg called the regular meeting of the City Planning Commission to
order on April 6, 2010, at 7:00 PM in the Community Room at City Hall. Members present
were Wayne Avery, Mike Cameron, Donna DeKraai, Greg Fargen, Dave Kurtz, and Gregg. Al
Heuton, Larry Fjeldos, and John Gustafson were absent. Others present were Jim Weiss, Rob
Boniface, Community Development Director Mike Struck, and Planning and Zoning
Administrator Dan Hanson.
Item #3 – South Dakota State University, South Dakota State University Foundation, and the
State College Development Association have submitted a petition to vacate the alley abutting
Lots 3 through 14, Block 1, Thornbers Addition
(Kurtz/Cameron) Motion to approve the alley vacation. All present voted aye.
MOTION CARRIED.
SUMMARY OF DISCUSSION
Item #3 – Jim Weiss, representing the petitioners, stated that a parking lot was planned to be
constructed over the alley. The electric and telephone lines would be rerouted to the
perimeter of the block, and natural gas pipelines would be terminated at the appropriate places.
Fargen asked if there would be a need for future easements. Hanson replied no, not if all
existing utilities were removed from the alley. Fargen asked for the tentative timetable. Weiss
responded that November was set for the completion date.
City Council Packet
April 27, 2010
121
Second Readings/Public Hearings
13. Public hearing and action on Resolution No. 50-10, Authorizing
Meyer’s Second Addition Road District, Brookings County, South
Dakota
Applicants: Residents within Meyer‟s Second Addition in the Joint Jurisdiction Area
surrounding the City of Brookings
Specifics: Chapter 31-12A of the SDCL enables landowners to create a Road District
for the construction and maintenance of roads within a specified territory. No
governmental entity maintains these rural subdivision roads. A survey, map, and petition
must be filed with the County Commission indicating how the Road District will be
organized pursuant to state law.
Meyer‟s Second Addition is outside the city but under the city‟s subdivision jurisdiction
since it is zoned non-ag. Therefore, the petition for the incorporation into a Road
District must first be submitted for approval to the City Council. The River Ridge Road
District, approved in 2008, was very similar to this request.
City Manager Introduction
ACTION: Open & Close Public Hearing, Motion to Approve, Roll Call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
April 27, 2010
122
Resolution No. 50-10
Resolution Authorizing Meyer‟s Second Addition Road District
Brookings County, South Dakota
Whereas, the City of Brookings has received a petition requesting the organization and
incorporation of the Meyer‟s Second Addition Road District; and
Whereas, said petition indicates the desire of qualified landowners within the proposed
boundaries to create the Meyer‟s Second Addition Road District; and
Now, Therefore, Be It Resolved by the City Council of the City of Brookings that said
request is approved for the Meyer‟s Second Addition Road District.
Passed and approved this 27th day of April, 2010.
CITY OF BROOKINGS
____________________
ATTEST: Tim Reed, Mayor
_____________________
Shari Thornes, City Clerk
City Council Packet
April 27, 2010
125
Other Business
14. Action on Resolution No. 51-10, establishing the fee for the
issuance of full-Service Restaurant On-Sale Licenses in the City of
Brookings.
To: Mayor and Council, Jeff Weldon, City Manager and Shari Thornes, City Clerk
From: Steven J. Britzman, City Attorney
Date: April 21, 2010
Re: Restaurant License On-sale license fee resolution
Discussion. Following a good discussion with Don McCarty and his clients concerning
the full-service restaurant on-sale license issues, and a thorough review of the purchase
documents of the “most recent sale” prior to January 1, 2008, and further, in accordance
with the Circuit Court‟s decision in the Nine, Inc. litigation, Jeff Weldon and I have
determined that the minimum price for a full-service restaurant on-sale license is
$100,000. The following statute provides the required procedure to set the price, and
the issue whether “operating agreement transfers” are treated the same as sales of “on-
sale licenses” has been resolved by the Circuit Court. For purposes of full-service
restaurant on-sale license fees, on-sale licenses and operating agreements are not
distinguishable. Accordingly, the sale to Gus Theodosopoulos was used to determine the
fair market value of a license under SDCL 35-4-117, and having reviewed the transaction
documents, it is my recommendation that the minimum license fee which can be set by
Resolution for full-service restaurant on-sale licenses is $100,000.
35-4-117. Alcohol sales - Price of full-service restaurant on-sale license set at
or above current fair market value.
Any municipality or county adopting the ordinance pursuant to § 35-4-111 shall set the
price of a new full-service restaurant on-sale license, pursuant to § 35-4-116, at or above
the current fair market value. However, such full-service restaurant on-sale license fee
may not be less than the minimum on-sale license fee provided for in subdivision 35-4-
2(4) or (6). For purposes of this section, the term, current fair market value, means
the documented price of the on-sale license most recently sold between
January 1, 2003, and January 1, 2008, through an arm's-length transaction, less
the value of any real or personal property included in the transaction. Each on-sale
license holder as of January 1, 2008, who acquired the on-sale license within the last five
years shall report to the municipality or county the date and price paid for its on-sale
license. If there are no documented sales of on-sale licenses between January 1, 2003,
and January 1, 2008, the municipality or county may request from any on-sale license
holder within the municipality or county, the date and price originally paid for its on-sale
license to determine the current fair market value.
City Manager Introduction
ACTION: Motion to Approve, Request Public Comment, Roll Call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
April 27, 2010
126
Resolution No. 51-10
Resolution Establishing the Fee for the Issuance of Full-Service Restaurant On-Sale
Licenses in the City of Brookings
Be It Resolved by the City Council of the City of Brookings, South Dakota as follows:
Whereas, the State of South Dakota has authorized municipalities to issue full-service
restaurant on-sale licenses pursuant to SDCL §§35-4-110 through 35-4-120, and
Whereas, as required by State law, the license fee charged for a full-service restaurant on-sale
license shall be set at or above the current fair market value for such license, based upon the
documented price of the on-sale license most recently sold between January 1, 2003 and
January 1, 2008, through an arm‟s-length transaction, and
Whereas, the license fee charged for a full-service restaurant on-sale license as provided herein
is based upon the foregoing statute, and it has been determined that the City of Brookings is
required to recognize transfers of its operating agreements during the period between January
1, 2003 and January 1, 2008, and
Whereas, in accordance with SDCL 35-4-117, the City of Brookings has received and has
thoroughly reviewed documentation of the price attributed to the sale and transfer of an
operating agreement to Gus Theodosopoulos, which is the most recent transaction occurring
between January 1, 2003 and January 1, 2008, and
Whereas, the documented price set forth in the Gus Theodosopoulos Purchase Agreement is
determined to be $100,000, which constitutes the fair market value to be util ized as the minimum
price of a full-service restaurant on-sale license in the City of Brookings;
Now, Therefore, Be It Resolved that the fee for the issuance of full-service restaurant on-sale
licenses in the City of Brookings shall be One Hundred Thousand Dollars ($100,000.00).
Passed and approved on the 27th day of April, 2010.
CITY OF BROOKINGS:
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
City Council Packet
April 27, 2010
127
Other Business
15. Action on Resolution No. 52-10, adopting a Master Park Plan.
The City of Brookings parks system consists of parks, open space areas, wetlands, trails
and recreation facilities. The community recognizes the importance of parks and
recreation as a quality of life amenity. The City has not previously completed a Master
Park Plan. Therefore, the need to conduct a current inventory assessment of existing
parks as well as plan for the development of future parks is a priority.
The Master Park Plan is intended to act as a guide to the future and set general
direction for parks and recreation programming and development from 2010 to 2030.
It will provide a consistent and justifiable continuum of ideas, beliefs, and values, which
defines the mission and vision of the City for its parks, recreation, and forestry services.
The Master Park Plan was presented to the Park and Recreation Board on February 1st
and April 5th. A motion was made by September Kirby, seconded by Ann Martin to
approve the Master Park Plan. Al board members present voted yes. Motion carried.
The plan was presented to the Planning Commission on April 6th for discussion.
Action on the Resolution will adopt the Master Park Plan.
(Master Park Plan presentation – 10 minutes)
City Manager Introduction
ACTION: Motion to Approve, Request Public Comment, Roll Call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
April 27, 2010
128
Resolution No. 52-10
Resolution Adopting a Master Park Plan
Whereas, a Master Park Plan addressing both immediate and long range needs is essential for
the development of a comprehensive and effective parks, recreation and forestry system in the
City of Brookings, and
Whereas, staff conducted a detailed inventory that describes the physical features, existing
recreation facilities and the desired actions to be taken to improve and maintain recreation
facilities between 2010 and 2030; and
Whereas, the Master Park Plan will assist staff, Parks and Recreation Board and City Council in
developing a capital improvements plan; and
Whereas, the Master Park Plan is a guide to the future and sets the general direction of parks,
recreation and forestry programming; and
Whereas, the Master Park Plan shall be reviewed and refined on a regular basis to ensure the
plan is consistent with the needs of the community; and
Whereas, the City of Brookings Parks and Recreation Board recommend adoption of the
Master Park Plan as a document to assist in meeting the parks, recreation and forestry needs of
the community.
Now, Therefore, Be It Resolved that the City Council of the City of Brookings adopts the
Master Park Plan.
Passed and approved this 27th day of April 2010.
CITY OF BROOKINGS
___________________________
Tim Reed, Mayor
ATTEST:
________________________
Shari Thornes, City Clerk
City Council Packet
April 27, 2010
219
Other Business
16. Design update on the Railroad Crossing Project at Main Avenue.
The South Dakota Department of Transportation has issued grant funding for the Main
Avenue Rail Crossing project. The project will include installing new railroad safety
crossing gates and the construction work on Main Avenue to for the new layout. The
grant funding comes from the Railroad Crossing Improvement Program (RCIP), which is
a federally funded program and requires a 10% city match. The program‟s purpose is to
provide funding for the implementation of safety improvements where a public roadway
intersects active railroad tracks.
Jackie Lanning, Brookings City Engineer, presented design options to the Brookings City
Council at the May 6, 2009 council meeting. During that meeting, the City Council
discussed two design options:
1) A four-lane street configuration with center median: the median would extend
approximately 60‟ to 75‟ on either side of the rail which would hinder left turns
onto driveways and side streets.
2) A three-lane street configuration (two north-bound lanes and one south-bound
lane) with no center median: the south-bound traffic would utilize one lane of
traffic and the north-bound traffic would be similar to the current situation.
Left-turn turning movements will not be changed.
The City Council chose Option 2 which is the three-lane street configuration. The City
Engineering staff has been developing construction plans for this design option.
However, staff has discovered that certain vehicles are not able to make turning
movements with this design. City Engineer Lanning will be meeting with Susan Tracy,
Rail-Highway Safety Engineer from the South Dakota Department of Transportation to
discuss design options and Ms. Lanning will present an update to the City Council on the
project.
City Manager Introduction
Informational
City Council Packet
April 27, 2010
220
Other Business
17. Discussion and possible action to purchase Hangar Site A, at the
Brookings Municipal Airport, from J.J. Jones, LLC.
TO: Mayor and Council Members
FROM: City Manager Jeff Weldon
RE: Purchase of hangars at the airport
The City has been approached by the owner of one old hangar at the Municipal airport.
Attached are photographs. Like all hangars at the airport, this is privately owned but
subject to a ground lease with the City. The owners also own an underground aviation
fuel tank located in front of the hangar. We rarely have an opportunity to purchase
such a facility and will go a long way toward improving the appearance of the area,
regardless of its exact future use. This hangar is also located in a low spot on the
airport and requires constant work on the pavement. Removing this hangar would
allow us to raise the taxiway and solve our issues with constantly having to repair the
pavement in this area.
The owners are offering to sell us the hangar for the assessed tax valuation amount of
$21,600 contingent upon the seller removing the underground fuel tanks. We do not
have this amount budgeted for this purchase as we could not have anticipated the
availability of them for sale. I recommend we use a portion of the budgeted amount of
$250,000 in the airport budget for initial design and planning of the airport layout plan.
Purchase and removal of such buildings is somewhat related to this budgeted line item
but since it is not specifically provided in the adopted budget, I need specific City
Council authorization.
I request a motion directing me and City Attorney Steve Britzman to develop a
purchase agreement.
City Manager Introduction
Motion to Approve
Request Public Comment, Roll Call
City Council Packet
April 27, 2010
225
18. Adjourn.