HomeMy WebLinkAbout2010_08_10 CC PKTCity Council Packet
August 10, 2010
1
Brookings City Council
Tuesday, August 10, 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. Proposed 2011 Budget and Capital Improvement Plan.
2. City Council Member Ex-Officio Reports.
3. Joint Powers Board City Member Updates.
4. City Council member introduction of topics for future discussion. *
5. Council Invites & Obligations.
*Any Council member may request discussion of any issue at a future meeting only. Items cannot be added for
action at this meeting. A motion and second is required starting the issue, requested outcome, and time. A
majority vote is required.
6:00 P.M. REGULAR MEETING
1. Call to order.
2. Pledge of Allegiance.
3. Record of Council attendance.
4. Action to approve the following Consent Agenda Items *
A. Action to approve the agenda.
B. Action to approve the minutes.
C. Action to approve Resolution No. 74-10, a Resolution Authorizing the Mayor to
Sign a Subgrant Agreement with the South Dakota Department of Environment and
Natural Resources for the Waste Tire Collection and Disposal Event.
D. Action to approve Resolution No. 75-10, a Resolution Authorizing the Mayor to sign
an Agreement between the Department of Transportation and the City of
Brookings, Project Number PP 3313(10), Brookings County, PCN 02HQ Rail
Crossing on Main Avenue, DOT 197481R.
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. Census 2010 Update.
6. Open Forum.
7. SDSU Student Senate Report.
City Council Packet
August 10, 2010
2
First Reading**
8. Ordinance No. 28-10: An ordinance granting a Franchise to Interstate
Telecommunications Cooperative, Inc., to construct, operate, and maintain a Cable
Television System in the City of Brookings, South Dakota, setting forth conditions
accompanying the grant of the Franchise; providing for regulation and use of the system;
and prescribing penalties for the violation of its provisions.
Public Hearing: August 24th
** No vote is taken on the first reading of an Ordinance. The title of the Ordinance is read and the
date for the public hearing is announced.
Second Readings/Public Hearings
9. Public hearing and action on a house moving request from Kevin Grunewaldt to move
an apartment building from 524 3rd Street to the property described as Lots 5, 6, and 7,
Block 7, Folsom Addition, also known as 144 3rd Avenue South.
Open & Close Public Hearing, Motion to Approve, Roll Call
10. Ordinance No. 26-10: Rezoning Lots 2 and 3, Block 2, Folsom Addition from a
Residence R-3A District to an Industrial I-1 District (110 6th Avenue South).
Open & Close Public Hearing, Motion to Approve, Roll Call
11. Ordinance No. 27-10: A Conditional Use to establish an office on the West 100 feet of
the North 150 feet of the South 347.2 feet of Carlisle‟s Addition (321 9th Street).
Open & Close Public Hearing, Motion to Approve, Roll Call
12. Action on Resolution No. 76-10, a Resolution Authorizing the Transfer of Real Property
to Brookings Economic Development Corporation for Economic Development
purposes.
Motion to Approve, Request Public Comment, Roll Call
13. Adjournment.
Brookings City Council
Tim Reed, Mayor
Mike Bartley, Deputy Mayor & Council Member
Council Members Tom Bezdichek, John Kubal, Mike McClemans, Jael Thorpe, Keith Corbett
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
August 10, 2010
3
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. Proposed 2011 Budget and Capital Improvement Plan.
August 3, 2010
TO: Mayor and City Council Members
FROM: City Manager Jeff Weldon
RE: Proposed Budget 2011 presentation
The work session will be devoted to a staff presentation on the proposed
2011 budget for the City of Brookings. During this time, I plan to present
an overview of the entire budget addressing major issues as they relate to
our strategic plan. We will also have a quick review of the various
operating budgets. The Capital Improvement Plan (CIP), which you have
already reviewed once, has been changed slightly as a result of the 2011
operating budgets but chiefly remains unaltered. Department Heads will
also be at the meeting to assist me with answering specific questions about
their respective departmental operations and budgets.
We are tentatively scheduled to have additional public discussions about
the proposed 2011 budgets on August 17 and August 24 but we can re-
assess the need for these meetings at the conclusion of this first review in
accordance with your wishes.
Please remember to bring your budget material with you.
The proposed 2011 City of Brookings Budget and Draft 5-year Capital
Improvement Plan are available on the front page of the City’s website
– www.cityofbrookings.org .
Estimated Time: 60 minutes
City Council Packet
August 10, 2010
4
5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council
on items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
2. City Council Member Ex-Officio Reports.
Pursuant to council direction, “City Council Member Ex-Officio Reports”
will be a standing agenda item at all Council Work Sessions. The Council
Members that serve as Ex-Officio members on the Brookings Health
System Board and Utility Board will provide verbal reports regarding recent
meetings they have attended.
Utility Board: Council Members Bezdichek and Corbett
Health Systems Board: Council Members Kubal and McClemans
City Council Packet
August 10, 2010
5
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. Joint Powers Board City Member Updates.
Pursuant to council direction, “Joint Powers Board City Member Updates”
will be a standing agenda item at all Council Work Sessions. The Council
Members serving on the Joint Powers Board will provide verbal updates
regarding recent meetings they have attended.
Council Members Kubal and Bartley
City Council Packet
August 10, 2010
6
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
August 10, 2010
7
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
August 10 Tuesday Senior Companions
Recognition Brunch 10:00 a.m. Our Savior‟s Lutheran
Church (SF, SD)
August 10 Tuesday Council Meeting 5:00 p.m. Council Chambers
August 12 Thursday BEDC Retreat 9 a.m. –
5:30 p.m. Dykehouse Center
August 17 Tuesday Special Council Meeting 5:00 pm Council Chambers
August 18 Wednesday SDML Public Works SDML Building, Fort Pierre
August 24 Tuesday Council Meeting 5:00 p.m. Council Chambers
September 14 Tuesday Council Meeting 5:00 p.m. Council Chambers
September 16 Thursday Special Council Meeting 1:00-5:00 p.m. Council Chambers
September 23 Thursday Joint Council/Hospital Board
Meeting 5:00-7:00 p.m. Hospital Board Room
Sept. 23-25 Thursday –
Saturday
NLC 18th Annual Leadership
Summit “Leading the Charge
in Local Government”
Philadelphia, Pennsylvania
September 28 Tuesday Council Meeting 5:00 p.m. Council Chambers
October 12 Tuesday Council Meeting 5:00 p.m. Council Chambers
October 26 Tuesday Council Meeting 5:00 p.m. Council Chambers
November 9 Tuesday Council Meeting 5:00 p.m. Council Chambers
November 23 Tuesday Council Meeting 5:00 p.m. Council Chambers
Nov. 29 –
Dec. 4
Monday –
Saturday NLC-Congress of Cities
Denver, CO
December 14 Tuesday Council Meeting 5:00 p.m. Council Chambers
December 28 Tuesday Council Meeting 5:00 p.m. Council Chambers
City Council Packet
August 10, 2010
8
6:00 P.M. REGULAR MEETING
1. Call to order.
2. Pledge of Allegiance.
3. Record of Council attendance.
4. Action to approve the following Consent Agenda Items
A. Action to approve the agenda.
B. Action to approve the minutes.
C. Action to approve Resolution No. 74-10, a Resolution Authorizing the Mayor to
Sign a Subgrant Agreement with the South Dakota Department of Environment and
Natural Resources for the Waste Tire Collection and Disposal Event.
D. Action to approve Resolution No. 75-10, a Resolution Authorizing the Mayor to sign
an Agreement between the Department of Transportation and the City of
Brookings, Project Number PP 3313(10), Brookings County, PCN 02HQ Rail
Crossing on Main Avenue, DOT 197481R.
Motion to approve, request public comment, roll call
Presentations, Special Requests/Invites & Reports
5. Census 2010 Update.
6. Open Forum.
7. SDSU Student Senate Report.
First Reading
8. Ordinance No. 28-10: An ordinance granting a Franchise to Interstate
Telecommunications Cooperative, Inc., to construct, operate, and maintain a Cable
Television System in the City of Brookings, South Dakota, setting forth conditions
accompanying the grant of the Franchise; providing for regulation and use of the system;
and prescribing penalties for the violation of its provisions.
Public Hearing: August 24th
Second Readings/Public Hearings
9. Public hearing and action on a house moving request from Kevin Grunewaldt to move
an apartment building from 524 3rd Street to the property described as Lots 5, 6, and 7,
Block 7, Folsom Addition, also known as 144 3rd Avenue South.
Open & Close Public Hearing, Motion to Approve, Roll Call
10. Ordinance No. 26-10: Rezoning Lots 2 and 3, Block 2, Folsom Addition from a
Residence R-3A District to an Industrial I-1 District (110 6th Avenue South).
Open & Close Public Hearing, Motion to Approve, Roll Call
11. Ordinance No. 27-10: A Conditional Use to establish an office on the West 100 feet of
the North 150 feet of the South 347.2 feet of Carlisle‟s Addition (321 9th Street).
Open & Close Public Hearing, Motion to Approve, Roll Call
12. Action on Resolution No. 76-10, a Resolution Authorizing the Transfer of Real Property
to Brookings Economic Development Corporation for Economic Development
purposes.
Motion to Approve, Request Public Comment, Roll Call
13. Adjournment.
City Council Packet
August 10, 2010
9
CONSENT AGENDA #4
4. Action to approve the following Consent Agenda Items *
A. Action to approve the agenda.
B. Action to approve the minutes.
C. Action to approve Resolution No. 74-10, a Resolution
Authorizing the Mayor to Sign a Subgrant Agreement with the
South Dakota Department of Environment and Natural
Resources for the Waste Tire Collection and Disposal Event.
D. Action to approve Resolution No. 75-10, a Resolution
Authorizing the Mayor to sign an Agreement between the
Department of Transportation and the City of Brookings,
Project Number PP 3313(10), Brookings County, PCN 02HQ
Rail Crossing on Main Avenue, DOT 197481R.
*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
August 10, 2010
10
CONSENT AGENDA #4
B. Action to approve City Council Minutes.
The draft July 13th and July 27th Brookings City Council minutes are
enclosed for Council review and approval.
City Council Packet
August 10, 2010
11
Brookings City Council
July 13, 2010
(unapproved)
The Brookings City Council held a meeting on Tuesday, July 13, 2010 at 5:00 p.m., at City Hall
with the following members present: Mayor Tim Reed, Council Members Keith Corbett, John
Kubal, Mike McClemans, Mike Bartley, Tom Bezdichek, and Jael Thorpe. City Manager Jeff
Weldon, City Attorney Steve Britzman and City Clerk Shari Thornes were also present.
Bond Counsel Presentation: Government Center Financing. Toby Morris, Northland
Securities, discussed financing options for the City‟s portion of the Brookings City/County
Administration Building. He recommended the City refinance existing debt, as new money
would be tax-exempt as part of the financing, and not to do the Build America Bond / Recovery
Zone at this time. The council would need to pass an authorizing Resolution at their next
meeting, with the Bonds sold in August, and closing held in September of this year.
ACTION: A motion was made by Bartley, seconded by Kubal, to direct the financial advisor
and bond counsel to prepare the necessary resolutions on this issue. All present voted yes;
motion carried.
Hospital Governance. The City Council discussed the following City Attorney memo on the
Brookings Health Systems Board authority:
“This memo will address the following issue you raised in your email on March 17th. In addition, I
am providing a book with some historical documents and memos concerning the Brookings Hospital
which you can retain for reference.
What is the extent of the authority of the Hospital Board beyond their basic operational
management of the facility? What are the parameters, either in state statute or our code,
relative to items including but not limited to issuing debt, capital purchase limits, selling assets,
purchasing property, etc?
Authority under State law. Two State statutes provide the specific powers authorizing a city to establish
and maintain a hospital: 34-9-1. City hospitals - City power to establish and maintain hospital - Leases
- Agreements with county. Every city may: (1) Establish, construct, purchase, and maintain hospitals and
medical clinics and regulate the same; (2) Lease any hospital and medical facilities to persons and
private or public corporations, limited liability companies, associations, or other organizations for the
purpose of operation for a period, not to exceed ninety-nine years, provided that in the opinion of the
governing body the needs of the municipality can best be served thereby; (3) Receive and accept
financial aid from counties for the erection and construction of public hospitals upon such conditions as
may be agreed upon and to irrevocably obligate itself to repay such county for such aid out of common
revenue in the event the operation and maintenance of the hospital is discontinued or abandoned for
any cause by the city.
34-9-2. City hospitals - Types of institutions covered. In § 34-9-1, the term "hospital" may be construed
to include a nursing home or a home for the aged.
City Council Packet
August 10, 2010
12
The chapter of State law which contains the foregoing State statutes contains no provision or guideline
pertaining to the creation of a Hospital Board. However, the chapter of State law entitled “County
Hospitals” contains a statute that I would guess was used to create our board of trustees. It provides:
34-8-7. County hospital - Board of trustees for management of hospital - Terms of office of trustees -
Removal of trustee. To manage or assist them in the management of a county hospital, the board of
county commissioners may appoint a board of trustees consisting of five competent and responsible
freeholders of the county, one of whom shall be a legally qualified physician or nurse, in which case one
member of said board shall be appointed for a term of one year, one for a term of two years, one for a
term of three years, one for a term of four years, and one for a term of five years.
Their terms of office shall expire on the first Monday of July of the year of expiration.
Thereafter it shall be the duty of such board of county commissioners annually at their regular
meeting in July to appoint for a term of five years a successor to the trustee whose term of
office shall expire during that year.
Any member of such board of trustees may be removed at any time by the board of county
commissioners.
Our City ordinance-- Article III of Chapter 42 provides the operational authority, but as you know, does
not contain any guidelines limiting decision making by the hospital board. However, the City Charter at
Section 6.01 is very significant and provides:
Section 6.01: b. Management and Control of Brookings Municipal Hospital. The management and
control of the Brookings Municipal Hospital is vested in a Hospital Board as established by Chapter 18
of the Code of Ordinances of the City of Brookings. The Hospital Board may take any and all action it
deems advisable in the furtherance of the hospital or its related facilities under its control including the
borrowing of money, issuance of bonds and other forms of indebtedness.
As you can see, the Charter phrase “…any and all action it deems advisable in the furtherance of the
hospital or its related facilities under its control including the borrowing of money, issuance of bonds and
other forms of indebtedness” must logically have some constraints, but such constraints do not exist in
our City ordinances or the City Charter. The constraints or parameters of authority with respect to the
items you mention: “debt, capital purchases, sale of assets, purchases of property” and perhaps a few
more—construction of additional facilities which are related to health care in varying degrees, but are
not a “municipal hospital” or “nursing home”, certainly exist somewhere in State law. The constraints
are not in the Chapter of law entitled Municipal Hospitals. The constraints, in my opinion, are general
municipal constraints, with perhaps one or two exceptions.
Debt or the borrowing by the Hospital Board would be limited by the municipal debt limits, but City
ordinance and the City Charter do not establish limits on borrowing by the Hospital Board. However,
State law contemplates that the governing body—the City Council--must approve municipal debt. Even
though the City Charter states the Hospital Board has the authority to borrow money and issue bonds, I
don’t believe the State law permits the City Council to delegate the authority to approve municipal debt.
For example, since the City would be the borrower concerning Municipal Utilities debt, the City Council
approves the debt of the utilities board under the same theory.
City Council Packet
August 10, 2010
13
Capital purchases (excluding land) by the Hospital Board are authorized under 6.01 (b) of the City
Charter, but the Hospital Board would be required to comply with all municipal budgeting and bid laws ,
surplus property laws, and conflict of interest laws. There does not appear to be any specific guidance in
State law concerning what items can be purchased. The City Charter authorizes the Board to make
those decisions and I believe the Hospital Board can independently approve those purchases provided
the Hospital Board complies with the general municipal procedural statutes.
The next item you mention is “sale of assets”. The Hospital Board would be required to comply with the
surplus property laws with respect to sale of personal property. Personal property could be conveyed
without City Council approval. The sale of real property by a municipality would require approval of the
City Council because the deed of conveyance must be signed by the Mayor, who could not sign without
authorization of the governing body.
Concerning purchasing real property or constructing facilities, we know the Hospital Board has
independently decided to build on its “campus” assisted living/congregate housing without ap proval of
the City Council. Such a decision was likely based upon the above-mentioned City Charter provision and
the general authority inferred from City ordinance Section 42-72, which provides:
The purpose of the Brookings Hospital and Brookview Manor is:
(1) To provide health care services to inpatients and outpatients in need of hospital based services.
(2) To maintain a long-term nursing care facility which will provide necessary services for the elderly,
chronically ill or disabled persons for which it is equipped.
(3) To provide quality health care and supportive services to all persons within the capabilities of the
facility, without regard to sex, race, creed, religious preference, ethnic background, age or economic
status.
If debt were required for such a project, I believe the governing body would need to approve the debt.
Similarly, I believe the City Council must approve the acquisition of real property, but all we have for
statutory guidance is the following:
9-12-1. General corporate powers. Every municipality shall have power: (2) To acquire by lease,
purchase, gift, condemnation, or other lawful means and hold in its corporate name or use and control
as provided by law both real and personal property and easements and rights of way within or without
the corporate limits for all purposes authorized by law or necessary to the exercise of any power
granted;
Summary: As is evident, there is a lack of a City ordinance which establishes parameters and no
specific guidance from State law. The most recent example where the authority was questioned
concerned the issue whether congregate housing could be constructed by the Brookings Hospital under
State law authority—in short—whether there was a sufficient health care purpose for the construction
of congregate housing. That issue was not raised by the Council as a whole but by a Council member.
That issue did not result in a testing of the authority of each body, but it could have if the majorities of
each body disagreed as to whether congregate housing was authorized as a health care facility within
the power of a municipality to provide.
City Council Packet
August 10, 2010
14
Moreover, the City ordinances certainly do not outline any limitations of authority and the City Charter
at Section 6.01 (b) clearly declares the broad authorization delegated to the Hospital Board. State law
does not provide any guidance as to which body, the Hospital Board or City Council, is authorized to
make these decisions, except in the general areas I have mentioned above. Certainly we are free to
determine these matters, provided the City Charter is amended to address any changes to the broad
powers contained in the Charter.”
There was Council consensus that further clarification was needed on bonding authority of the
Health Systems Board and if the Council desired changes regarding the Board‟s authority on
acquiring real property. The Council requested discussion of these issues in greater detail at
another meeting. No date specified.
6:00 P.M. REGULAR MEETING.
Consent Agenda. A motion was made by Thorpe, seconded by Corbett, to approve the
consent agenda as follows:
A. Action to approve the agenda.
B. Approval of the June 22nd and June 28th Council Meeting minutes.
C. Action to appoint City Council Members Tom Bezdichek and Keith Corbett as
Ex-Officio members to the Brookings Municipal Utility Board and City Council
Members Mike McClemans and John Kubal as Ex-Officio members to the
Brookings Health System Board of Trustees.
D. Action on Termination of a Driveway Maintenance Agreement for Lot 3, Block
3, First Addition, Brookings, SD (518 3rd Street).
TERMINATION OF DRIVEWAY MAINTENANCE AGREEMENT
This Termination of Driveway Maintenance Agreement ("Termination") is made effective
the 13th day of July, 2010, by and between the City of Brookings, South Dakota, a Municipal
Corporation, with an address of P.O. Box 270, Brookings, South Dakota 57006, and
Brookings County, South Dakota, with an address of 314 – 6th Avenue, Suite 2, Brookings,
South Dakota 57006, (collectively "the Owners" and “the parties”).
RECITALS:
A. The Owners are the owners of the following described real property in Brookings
County, South Dakota:
Lot Three (3) in Block Three (3) of First Addition to the City of Brookings, County of
Brookings, State of South Dakota.
B. The above-described property is subject to a Driveway Maintenance Agreement dated
the 12th day of April, 2002.
C. The Owners have determined that the Driveway Maintenance Agreement is
unnecessary and it is in their mutual best interests to terminate the Driveway Maintenance
Agreement;
NOW, THEREFORE, the parties agree as follows:
1. Incorporation of Recitals. The above recitals are substantive and are
incorporated in this Termination as if fully set forth in this paragraph.
City Council Packet
August 10, 2010
15
2. Termination. The Driveway Maintenance Agreement dated April 12, 2002, filed April 15,
2002, and recorded at 2:10 o‟clock p.m. in Book 162 of Misc., at pages 642-645 thereof, in
the office of the Brookings County Register of Deeds, is hereby terminated.
3. Binding Effect. This Termination shall inure to the benefit of and shall be
binding upon the parties and their respective successors and assigns.
E. Action on Resolution No. 67-10, a Resolution Authorizing the City Manager to
sign a Grant Agreement for Regional Landfill Assistance Grant 2001G-RLA-202.
Resolution No. 67-10
A Resolution Authorizing the City Manager to Sign a Grant Agreement for
Regional Landfill Assistance Grant 2011G-RLA-202
Whereas, the Brookings City Council desires funding for Landfill Trench 4 East at the
Brookings Regional Landfill from the Regional Landfill Assistance Grant (2011G-RLA-202);
and
Now, Therefore, Be It Resolved, that the City Manager is hereby authorized to sign the
funding agreement and all other documents, including payment requests, related to a Grant
Agreement from the Regional Landfill Assistance Grant (2011G-RLA-202).
On the motion, all present voted yes; motion carried.
Resolution No. 68-10. A motion was made by Corbett, seconded by McClemans, to
approve Resolution No. 68-10, a Resolution Awarding Bids for 2010-04SSI Southland Lane
Landscaping Project. All present voted yes; motion carried.
Resolution No. 68-10
Resolution Awarding Bids for 2010-04SSI Southland Lane Landscaping Project
Whereas, the City of Brookings opened bids for 2010-04SSI Southland Lane Landscaping
Project on Tuesday, July 6, 2010 at 1:30 pm at Brookings City Hall; and
Whereas, the City of Brookings has received the following bids for 2010-04SSI Southland Lane
Landscaping Project: Groundwater, Inc., Sioux Falls, SD, $28,769.50; Austreim Landscaping,
Brookings, SD, $34,097.50; Splitrock Landscaping & Nursery, Brandon, SD, $46,165.00; Area
Inc., Lake Norden, SD, $66,590.78
Now Therefore, Be It Resolved that the low bid of Groundwater, Inc., Sioux Falls, SD, for the
bid of $28,769.50 be accepted.
Resolution No. 69-10. A motion was made by Kubal, seconded by Bartley, to approve
Resolution No. 69-10, a Resolution Awarding Bids for 2010-05SSI Southland Lane Detention
Pond Project. All present voted yes; motion carried.
Resolution No. 69-10
Resolution Awarding Bids for 2010-05SSI Southland Lane Detention Pond Project
Whereas, the City of Brookings opened bids for 2010-05SSI Southland Lane Detention Pond
Project on Tuesday, July 6, 2010 at 1:30 pm at Brookings City Hall; and
City Council Packet
August 10, 2010
16
Whereas, the City of Brookings has received the following bids for 2010-05SSI Southland Lane
Detention Pond Project: Rounds Construction Company, Inc., Brookings, SD, $328,481.85;
Bowes Construction, Inc., Brookings, SD, $356,688.16.
Now Therefore, Be It Resolved that the low bid of Rounds Construction Company, Inc, of
Brookings, SD for the bid of $328,481.85 be accepted.
Ordinance No. 25-10. A public hearing was held on Ordinance No. 25-10, an Ordinance
Amending Article V of Chapter 82 of the Code of Ordinances of the City of Brookings and
Pertaining to Prohibited Backing by Semi Trucks with Trailers. Public Hearing: Terry Knutson
expressed concern about the proposed ordinance and how it would impact existing noncompliant
businesses. A motion was made by McClemans, seconded by Bezdichek, to approve Ordinance
No. 25-10. Council discussion: Overall, staff and council were concerned how this ordinance would
impact existing businesses and felt additional research was needed. All present voted no; MOTION
FAILED.
Resolution No. 70-10. A motion was made by Kubal, seconded by McClemans, to approve
Resolution No. 70-10, concurring in the Placement of a Stop Sign on Moriarty Drive at its
intersection of 15th Street South. No public comment was made. All present voted yes;
motion carried.
Resolution No. 70-10
Concurring in the Placement of a Stop Sign on Moriarty Drive at its intersection of 15th St. So.
Whereas, Section 82-373 of the Revised Ordinance of the City of Brookings, provides for
approval by the City Council for placement of stop signs in locations other than along through
streets.
Now, Therefore, Be It Resolved that the City Council concurs in the recommendation of the
Traffic Safety Committee and the City Manager and approves the placement of a stop sign on
Moriarty Drive at its intersection with 15th Street South.
Main Avenue Rail Project Options. Carey Bretsch, Shannon Schultz, and Jason Petersen,
Civil Design, Inc., presented options on Main Avenue Railroad Crossing Safety Improvements
and Reconstruction of Front Street project. 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 construction work on Main Avenue for a new
crossing gate layout. The grant funding is being provided by 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. This Railroad Safety
Project was previously approved by the Council. The need is to relocate Front Street, with less
than one block of reconstruction, to accommodate truck traffic. There are five main project
considerations: 1) accommodate trucks to go to 3rd Avenue or the Grain Elevator, 2)
accommodate pedestrian safety, 3) accommodate vehicular safety and enhance traffic flows on
Main Avenue, 4) continue to serve commercial properties on Main Avenue located adjacent to
proposed rail safety crossing area, and 5) maintain parking availability.
City Council Packet
August 10, 2010
17
The design criteria CDI followed were: two 12 foot lanes in each direction, a 70 foot long
raised (non-mountable) median (some flexibility on length) with a 10 foot wide median
preferred but can be as narrow as two feet, a gate post located four foot three inches behind
curb, a nine foot boulevard to sidewalk, and concrete panelized crossing extended to the
outside of sidewalk. Front Street provides several challenges: no left turn from Front Street
onto northbound Main Avenue, no left turn from Main Avenue onto westbound Front Street,
inadequate vehicle stacking queue lengths on Main Avenue, and inadequate space for truck
turning movements.
Overall, modifications to Front Street must be done in conjunction with the Railroad Crossing
Safety Project. There are two main options: 1) Front Street Option 1 includes a 90 degree
intersection moved 115 feet north, a 41 foot wide street (back of curb width), SB through on
Main Avenue protected, and all truck turns work for Front Street, 2) Front Street Option 2
includes a 15 degree skew moved 115 feet north, 41 foot wide street (back of curb width),
south-bound through on Main Avenue protected, and all truck turns work for Front Street.
Relocation of utilities and other issues would be addressed during the Design Phase. The 3-lane
option does not accommodate truck turning movements and reduces traffic capacity. Traffic
signals are not recommended as they would be too close to signals at 3rd Street, and adds an
additional expense. It is preferred to have four lanes south of Front Street. To improve safety,
DOT prefers non-traversable medians. Front Street needs to be relocated to accommodate
stacking and truck turning movements. The proposed design will enhance safety for through
traffic and turning trucks at the intersection of Front Street and Main Avenue, it will improve
and protect traffic movements for long-term growth south of the railroad tracks, with a
diminished amount of lost parking (from 52 spaces to approximately 42 spaces).
ACTION: A motion was made by Reed, seconded by Corbett, to move forward with the four
lane option and moving Front Street. All present voted yes; motion carried.
Review of Joint Powers Board Report. The Council reviewed preliminary costs estimates
related to the project and the following staff memo: “There have been no changes in
recommendations regarding the construction delivery method. While the architect is working on
schematic design under a contract approved by the City and County that prescribes a construction
manager-agent delivery system, such a delivery system has yet to be determined. We will soon be
getting to a point in the design process where the architect will need to know if there is to be a change
or not. This is imperative relative to the stage of cost estimating. The proposed construction manager
contract with the Bossardt Corporation is again attached for reference.
The Joint Powers Board has scheduled an open house on July 28 at 7:00 at the County Commission
Chambers in the 1921 Building to unveil the proposed site plan for the new building to the public. The
site plan will only address the “footprint” of the building on the parcel, parking, ingress/egress, and
possible landscaping features. It will also suggest the floor location for various city and county
departments. While interior office design has been initiated, this design cannot yet be determined until
the site plan is finalized. As a result, interior office layouts will not be part of this open house
presentation.
City Council Packet
August 10, 2010
18
We have completed a preliminary space needs analysis which puts the building at 55,979 square feet.
This breaks down as follows: City space, 14,120 square feet; County space,18,570 square feet; Shared
space, 23,289 square feet for TOTAL of 55,979 square feet (one-half basement).
This building configuration provides for one-half excavated, unfinished basement. The JPB directed the
architect to consider an option that provided for full excavation of the basement. This option adds
14,895 square feet of basement space. Alt. add 14,896 square feet (full basement), ALT. TOTAL
70,875 square feet.
This number will easily change with each step of fine-tuning both the construction budget space
allocation. For rough estimating of construction costs, the architect is suggesting $165 per square foot
for finished office space (floors 1-3) and $75 per square foot for unfinished, basement space. The
following calculation assumes the full basement alternate discussed above. Floors 1-3 - 51,915 s.f. X
$165/s.f.= $8,565,975; Unfinished basement18,960 s.f. X $75/s.f.=$1,422,000; SUB-TOTAL 70,875
s.f.=$9,987,975; 7% contingency=$699,158; TOTAL CONSTRUCTION COST= $10,687,133.
Beyond construction costs, we will have the following “SOFT” costs to be split on a formula between the
City and County: Architect, 5.9% of construction cost plus $75,000 special services - $705,540;
Construction Manager, 2.5% (if selected)- $267,178; Construction Manager reimbursables for 12 mo.
(if selected)$ 252,000*; Property acquisition- $1,949,032; Advertising/publishing/printing of documents
(est.)$25,000; Site survey (est.)$7,500; Soils testing (est.)$45,000; Demolition/asbestos removal;
financing costs (city only); Furniture/Fixtures/Equipment/Technology/AV; Legal fees; Moving expenses;
Miscellaneous. *If CM is not selected and design-bid-build is selected, these costs would be added into
the general contractor’s bid and included in the total construction cost for a corresponding increase in
the TOTAL CONSTRUCTION COST. NOTE: One way to bring this cost estimate down is to reject the
full basement option even though this is the least expensive space to build.
ACTION: A motion was made by Reed, seconded by Thorpe, that the City‟s starting budget
would be $5.5 million. All present voted yes; motion carried.
ACTION: A motion was made by Bartley, seconded by Kubal, that the Joint Cooperative
Agreement provides, in part, that the Building Advisory Committee shall have general authority
concerning the planning, design and construction of the Joint City/County Administrative
Building. The City Council recognizes that the intent of this provision includes the authority to
select the construction delivery method, including the use of a construction manager-agency
delivery method. The City Council intends by this Motion to recognize and reaffirm the
authority of the Building Advisory Committee to select the delivery method and the
professional service firm to provide the professional services pursuant to the delivery method
the Building Advisory Committee selected and hereby authorizes the Mayor to sign the
Professional Services Agreement for said services. All present voted yes; except McClemans
and Thorpe voted no; motion carried.
Executive Session. A motion was made by Corbett, seconded by Kubal, to enter into
Executive Session at 7:53 p.m. with City Manager, City Clerk, Community Development
Director, City Attorney and BEDC Director present for purposes of consulting with legal
City Council Packet
August 10, 2010
19
counsel about proposed or pending contractual matters pursuant to SDCL 1-25-2(3). A
motion was made by Kubal, seconded by Thorpe, to exit Executive Session at 8:25 p.m.
Adjourn. A motion was made by Kubal, seconded by Corbett, to adjourn. All present voted
yes; motion carried. Meeting adjourned at 8:25 p.m.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
City Council Packet
August 10, 2010
20
Brookings City Council
July 27, 2010
(unapproved)
The Brookings City Council held a meeting on Tuesday, July 27, 2010, at 5:00 p.m., in City Hall
with the following present: Mayor Tim Reed, Council Members Keith Corbett, Mike McClemans,
Mike Bartley (arrived 5:38 pm), Tom Bezdichek and Jael Thorpe. Council Member John Kubal
was absent. City Manager Jeff Weldon, City Attorney Steve Britzman and City Clerk Shari
Thornes were also present.
SDSU Innovation Campus Update. Teresa McKnight, CEO/Executive Director, provided
an update on the SDSU Innovation Campus. No action was taken.
Repackaging / Updating Economic Development Plan. During the goal setting retreat,
the City Council identified this issue as a topic for further discussion. The genesis of this issue
was the desire to have a discussion to consider how well, or to what extent, the City‟s
comprehensive economic development efforts are coordinated across various organizations and
constituencies. Some agencies and their respective programs are comprehensive in nature
while others are more narrowly focused on specific economic sectors. To varying degrees,
each entity has their own respective work plan, consultant‟s study, or program to accomplish
their mission or its various parts.
Al Heuton, BEDC Executive Director, reviewed the BEDC‟s current economic development
plan. Bartley arrived at 5:38 p.m.
Issues mentioned by council members included a desire to have an overall economic
development master plan the City Council could use when evaluating proposed second penny
funds, identification of any gaps between the BEDC‟s plan and city goals, and the possible
creation of focus groups based on the BEDC‟s visioning charrette.
There was council consensus for the City Manager and Al Heuton, BEDC Director, to conduct
a high level review of both plans to identify overlap and gaps.
Ex-Officio Reports. Bezdichek reported Brookings Municipal Utilities is working with SDN
Communications on the video project and a pricing package is expected by fall. McClemans
reported attending his first Health Systems Board as an ex-officio.
Joint Powers Board Update. Bartley attended the property auction at 5:00 p.m. earlier that
day and reported one garage sold for $700 and no houses sold. The Joint Powers Board will
hold an open house at 7:00 p.m. on July 28th to receive public comment on the preliminary site
plan. Topics on the Board‟s next meeting on August 4th will include the demolition contract,
asbestos abatement, construction schedule, office layout and design development.
City Council Member Introduction of Topics for Future Discussion. Thorpe
requested an update on the restaurant liquor license issue including a discussion of ways to
City Council Packet
August 10, 2010
21
move forward. There was consensus to bring this forward within two months. Britzman said
he could provide an update in open session if the plaintiff‟s brief had been filed.
6:00 P.M. REGULAR MEETING.
Consent Agenda. The National Guard presentation was moved on the agenda. A motion
was made by Corbett, seconded by McClemans, to approve the consent agenda as amended:
A. Action to approve the agenda as amended.
B. Action to appoint Council Member Thorpe as a voting member on the E911
Board, replacing McClemans.
C. Action to schedule a special Joint City Council / Brookings Health System
Board of Trustees meeting for September 23rd.
D. Action to amend the Temporary Alcohol License for Downtown Brookings,
Inc., July 31st Taste of Brookings event, to include a rain location of 221 Main
Avenue.
On the motion, all present voted yes; motion carried.
ABLE Awards. The 2010 ABLE (Ability, Belief, Leadership and Equality to Achieve Access for
All) Awards for Accessibility were presented to the Hampton Inn & Suites and Brookings
Chiropractic Center.
Presentation by South Dakota Employer Support of the Guard and Reserve
(ESGR). Paul Phalen, ESGR Program Support Manager, and Don Kelpin, SD Committee Chair,
briefed the Council on the role of employer support of the Guard and Reserve and the mission
of the Guard and Reserve as it relates specifically to Brookings. ACTION: A motion was made
by Reed, seconded by Corbett, to authorize the City Manager to sign a statement of employer
support for the Guard and Reserve program. All present voted yes; motion carried.
First Reading – Ordinance No. 26-10. First reading was held on Ordinance No. 26-10,
rezoning Lots 2 and 3, Block 2, Folsom Addition from a Residence R-3A District to an Industrial
I-1 District (110 6th Avenue South.) Public Hearing: August 10, 2010
First Reading – Ordinance No. 27-10. First reading was held on Ordinance No. 27-10, a
Conditional Use to establish an office on the West 100 feet of the North 150 feet of the South
347.2 feet of Carlisle‟s Addition (321 9th Street). Public Hearing: August 10, 2010.
Resolution No. 71-10. A public hearing was held on Resolution No. 71-10, a Resolution of
intent to lease real property. No public comments were made. A motion was made by
Bartley, seconded by Thorpe, to approve Resolution No. 71-10. All present voted yes; motion
carried.
Resolution No. 71-10
Resolution of Intent to Lease Real Property
Be it Resolved the governing body of the City of Brookings, South Dakota, that the City of
Brookings intends to enter into a Lease with Dan Luze for a period of three (3) years,
commencing on January 1, 2011 and ending December 31, 2013 with a two year option to
renew pertaining to the following described property:
City Council Packet
August 10, 2010
22
The designated farmland at the Brookings Landfill, one hundred six (106) acres more or less of
crop land in the NE ¼, Section 8, T110N, R49W, and eighteen (18) designated hay/pasture land
acres more or less in NE ¼, Section 8, T110N, R49W in Brookings County, South Dakota.
The Lease will be an amount of One Hundred One Dollars and Ten Cents ($101.10) per acre,
for one hundred six (106) acres of crop land annually, and Thirty Five Dollars ($35.00) per acre,
for eighteen (18) acres of pasture/hay land, payable in full on April 1. If a portion of the leased
land is used for Solid Waste activities, the number of acres to be paid for will be adjusted at the
unit price per acre.
Be It Further Noted, that a Public Hearing on this Resolution was held on July 27, 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 real property.
Resolution No. 72-10. A public hearing was held on Resolution No. 72-10, a Resolution
authorizing the execution, terms, issuance, sale and payment of Sales Tax Revenue and
Refunding Bonds, Series 2010A in the aggregate principal amount of not to exceed Twenty-One
Million and 00/100 ($21,000,000) of the City of Brookings of Brookings County, South Dakota.
No public comments were made. A motion was made by Bezdichek, seconded by McClemans,
to approve Resolution No. 72-10.
Resolution No. 72-10
Resolution authorizing the execution, terms, issuance, sale and payment of Sales Tax Revenue
and Refunding Bonds, Series 2010A in the aggregate principal amount of not to exceed Twenty
One Million and 00/100 ($21,000,000) of the City of Brookings of Brookings County, South
Dakota.
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 78 of the Ordinances of Brookings, South Dakota; and
WHEREAS, the City of Brookings is authorized by the provisions of SDCL §§ 6-8B-30 though 6-
8B-52 to issue sales tax bonds to refund and refinance validly issued outstanding sales tax bonds
of the City; and
WHEREAS, the City Council has determined that refunding certain Sales Tax Bonds of the
City will reduce the interest expense to the City; and
WHEREAS, the City Council has determined that is necessary and in the best interest of the
City to issue Sales Tax Revenue and Refunding Bonds, Series 2010A of the City for the purpose
of providing funds to: (i) full net advance refund the 2010 through 2021 maturities of the City‟s
Sales Tax Revenue Bonds, Series 2001 dated March 1, 2001, the 2010 through 2013 maturities
of Sales Tax Revenue Refunding Bonds, Series 2003 dated September 1, 2003, the 2010
through 2015 maturities of the Sales Tax Revenue Bonds Series 2005 dated December 20,
2005, (ii) pay costs of the acquisition of land and construction of new city/county offices, (iii)
fund a debt service reserve account for the Bonds and (iv) to pay the costs of issuance of the
Bonds.
City Council Packet
August 10, 2010
23
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
BROOKINGS OF BROOKINGS COUNTY, AS FOLLOWS:
ARTICLE I
DEFINITIONS
Section 1.1. Definition of Terms.
In addition to the words and terms elsewhere defined in this Bond Resolution, the following
words and terms as used herein, whether or not the words have initial capitals, shall have the
following meanings, unless the context or use indicates another or different meaning or intent,
and such definitions shall be equally applicable to both the singular and plural forms of any of
the words and terms herein defined:
"Act" means collectively SDCL Chapter 6-8B and Title 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.
"Bonds" means not to exceed $21,000,000 in aggregate principal amount of Sales Tax Revenue
and Refunding Bonds, Series 2010A, dated in 2010, 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.
"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 Bond Bonds in fully registered form are issued to a Depository or to its nominee as
Registered Owner, with the certificated Bonds 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 date on which interest, or both principal and interest, shall
be payable on the Bonds so long as any of the Bonds shall be outstanding.
"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.
City Council Packet
August 10, 2010
24
"Bonds" mean not to exceed 21,000,000 of Sales Tax Revenue and Refunding 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.
"City Council” means the Common Council elected pursuant to the provisions of SDCL Title 9.
"City of Brookings ” means the City of Brookings, Brookings County, South Dakota.
"Closing Date" means the date of delivery and payment of the Bonds.
"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.
"Escrow Agent" means First Bank & Trust, Brookings, South Dakota, as Escrow Agent under
the Escrow Agreement, or its successor or successors under the terms of the Escrow
Agreement or such other entity as designated in the Bond Purchase Agreement.
"Escrow Agreement" means the Refunding Escrow Agreement.
"Finance Officer" means the 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
City Council Packet
August 10, 2010
25
person so appointed is unable or incapable of acting in such capacity, the person appointed by
the Mayor and approved by the City Council to perform the duties otherwise performed by
the Finance Officer, or his/her designee.
"Interest Payment Date" means June 1 and December 1 of each year commencing June 1, 2011.
"Letter of Representation" means the Issuer Letter of Representations or Blanket Issuer Letter
of Representations to DTC of the City.
"Mayor" means the Mayor elected pursuant to the provisions of SDCL § 9-8-1 or his or her
designee acting on his or her behalf pursuant to the Charter.
“Minimum Reserve” means the lesser of (i) 10% of the original principal amount, (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 Net Revenues. City may apply for a Surety Bond
from an insurance company rather than funding the full Reserve Fund amount.
"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 Bond 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 purchaser, 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.
City Council Packet
August 10, 2010
26
"Paying Agent" means First Bank & Trust, Brookings, South Dakota or his or her successor or
successors hereafter appointed in the manner provided in Article VI hereof.
"Person" means an individual, partnership, corporation, trust, or unincorporated organization,
or a governmental entity or agency or political subdivision thereof.
“President” means the President of the City Council who may act for the Mayor in the absence
of the Mayor.
“Project” means the acquisition of land and construction of new city/county offices, (iii) fund a
debt service reserve account for the Bonds and (iv) to pay the costs of issuance of the Bonds
"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 the close of business on the fifteenth day (whether or not a business day)
of the calendar month next preceding such interest payment date.
"Refunded Bonds" means the Sales Tax Revenue Bonds, Series 2001 dated March 1, 2001, Sales
Tax Revenue Refunding Bonds, Series 2003 dated September 1, 2003 and Sales Tax Revenue
Bonds, Series 2005 dated December 20, 2005.
"Registration Agent" means First Bank & Trust, Brookings, South Dakota or his or her
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 1% in excess of 1% non ad valorem tax imposed by SDCL §10-52.2 and
Chapter 78 Article II of the City of Brookings Code.
"Schedule" means the schedule which indicates the principal and interest payments on the
Bonds.
"Series 2001 Bonds" means the City‟s outstanding Sales Tax Revenue Bonds, Series 2001, dated
March 1, 2001, as follows:
Year
Maturing
Principal
Outstanding
Interest Rate CUSIP
City Council Packet
August 10, 2010
27
2010 300,000 4.400% 113660 AZ7
2011 310,000 4.500% 113660 BA1
2012 325,000 4.600% 113660 BB9
2013 340,000 4.700% 113660 BC7
2014 585,000 4.800% 113660 BD5
2015 755,000 4.850% 113660 BE3
2016 790,000 4.950% 113660 BF0
2021 4,615,000 5.125% 113660 BG8
"Series 2003 Bonds" means the City‟s outstanding Sales Tax Revenue Refunding Bonds, Series
2003, dated September 1, 2003, as follows:
Year
Maturing
Principal
Outstanding
Interest Rate CUSIP
2010 810,000 3.30% 113660 BP8
2011 840,000 3.45% 113660 BQ6
2012 870,000 3.50% 113660 BR4
2013 900,000 3.60% 113660 BS2
"Series 2005 Bonds" means the City‟s outstanding Sales Tax Revenue Bonds, Series 2005, dated
December 20, 2005, as follows:
Year
Maturing
Principal
Outstanding
Interest Rate CUSIP
2010 305,000 3.55% 113660 CC6
2011 315,000 3.60% 113660 CE2
2012 325,000 3.65% 113660 CG7
2013 340,000 3.70% 113660 CH5
2014 355,000 3.80% 113660 CJ1
2015 365,000 3.90% 113660 CK8
"Underwriter" means Northland Securities, Inc., acting for and on behalf of themselves and such
securities dealers as they may designate.
“Verification Agent” means Grant Thorton, LLP, Minneapolis, Minnesota or any other firm that
the Authorized Officers of the City appoint.
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.
City Council Packet
August 10, 2010
28
Section 1.4. Headings.
The headings of this Bond Resolution are for convenience only and shall not define or limit the
provisions hereof.
ARTICLE II
FINDINGS
Section 2.1.
It is hereby found and determined by the City Council as follows:
(a) The refunding of the Refunded Bonds as set forth herein through the issuance of the Bonds
will result in the reduction in debt service payable by the City over the term of the Refunded
Bonds thereby effecting a cost savings to the public;
(b) It is advantageous to the City to deposit a portion of the proceeds from the sale of the
Bonds and other funds of the City, if any, with the paying agent of the Refunded Bonds, will be
sufficient to pay principal of, premium, if any, and interest on the Refunded Bonds.
(c) The City hereby determines 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 §§ 6-
8B-30 to 6-8B-52, inclusive.
(d) 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.
(e) It is hereby declared and found necessary to issue the Bonds in accordance and compliance
with SDCL Chapter 10-52 and 6-8B.
ARTICLE III
AUTHORITY, PLEDGE, AND COLLECTION OF TAXES
Section 3.1. Authority.
In order to (i) refund the Refunded Bonds and (ii) pay costs incident to the sale and issuance of
the Bonds, 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 and Refunding
Bonds, Series 2010A of the City in the aggregate principal amount of not to exceed
$21,000,000.
Section 3.2. Pledge.
The City does hereby pledge so much of the collections of the Sales Tax as may be necessary to
pay the principal, premium and interest on the outstanding Bonds and to maintain any debt
service reserve established herein, if any. The Sales Tax is irrevocably pledged to the prompt and
full payment of the principal of and interest on each and all of said Bonds as such principal and
interest respectively become due.
Section 3.3. Collection of Taxes.
The City agrees and covenants to impose and collect the Sales Tax as long as the Bonds are
outstanding in accordance with SDCL 10-52.
City Council Packet
August 10, 2010
29
Section 3.4. Accounts.
(a) Special Revenue Fund. The Finance Officer has established and will maintain the Special
Revenue Fund as a separate and special account in the financial records of the City until all
Bonds issued and made payable therefrom, and interest due thereon, have been duly paid or
discharged. All collections of the Sales Tax shall be credited, as received, to the Special Revenue
Fund. Within the Special Revenue Fund are various separate accounts to be maintained by the
City.
(b) Construction Account. There is hereby created and established as an account of the Special
Revenue Fund, a “Construction Account” There shall be credited to the Construction Account
the proceeds from the sale of the Bonds remaining after (a) the deposit to the Reserve Account
required by Section 3.05, and (b) payment of the (i) underwriter‟s discount, (ii) original issue
discount and (iii) any other expenses of issuing the Bonds. All moneys credited to the
Construction Account shall be applied solely to the payment of the costs of the Improvements.
For the purposes of this Resolution, “costs of the Improvements” shall include costs of
acquiring, constructing, and installing the Improvements including costs of labor, services,
materials and supplies, financial, architectural, engineering, legal, accounting and other
professional expenses relating to the Improvements, the costs of acquisition or properties,
rights, easements, or other interest in properties, insurance premiums, and the costs of
publishing, posting or mailing notices in connection with the Improvements. All sums derived
from the investment of moneys in the Construction Account shall remain in and become part
of such fund. Upon completion of the Improvements and when all costs of the Improvements
have been paid, any balance remaining in the Construction Account shall be credited to the
Principal and Interest Account hereinafter established.
(c) Principal and Interest Account. There is hereby created and established as an account of the
Special Revenue Fund, a “Principal and Interest Account.” Immediately upon delivery of the
Bonds, there shall be credited to the Principal and Interest Account the amount of accrued
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
City Council Packet
August 10, 2010
30
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) Escrow Account. There is hereby established an Escrow Account under SDCL 6-8B-46,
into which bond proceeds and any other moneys available for such purpose shall be used to
pay, together with interest earnings, principal, interest and premiums, if any, on the Refunded
Bonds when due.
(f) 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.
(g) 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 Twenty One Million and 00/100 Dollars ($21,000,000).
Section 4.2. Form of Bonds; Execution.
(a) The Bonds are issuable only as fully registered Bonds, without coupons, in the denomination
of Five Thousand Dollars ($5,000) or any integral multiple thereof. 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 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 Bond shall
cease to be such officer before the delivery of such Bond, 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 Bond may bear the facsimile signature of, or may be manually
signed by, such individuals who, at the actual time of the execution of such Bond, were the
City Council Packet
August 10, 2010
31
proper officers of the City to sign such Bond, although on the date of the adoption by the City
of this Resolution, such individuals may not have been such officers.
Section 4.3. Maturities, Interest Rates, and Certain Other Provisions of Bonds.
(a) The Bonds shall become due and payable semi-annually of each of the years (subject to
Optional Redemption of certain official Bonds as hereinafter provided) in the amount and
bearing interest per annum as negotiated with the Underwriter.
(b) The Bonds shall be designated "Sales Tax Revenue and Refunding 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 Bond is paid, such interest (computed upon the basis of a 360-day year of twelve 30-day
months) being payable on Interest Payment Date, commencing on June 1, 2011 and
semiannually thereafter. 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.
(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 of and premium, if any,
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 Regular or Special Record Date and ending on the
City Council Packet
August 10, 2010
32
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 Bond, 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, the Bonds shall be registered in the
name of Cede & Co., as nominee of DTC, which will act as securities depository for the
Bonds. 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 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
City Council Packet
August 10, 2010
33
payments thereafter shall be paid by DTC Participants to the Beneficial Owners.
Neither the City nor the Registration Agent shall be responsible or liable for payment
by DTC or DTC Participants, for sending transaction statements or for maintaining,
supervising or reviewing records maintained by DTC or DTC Participants.
In the event that (1) DTC determines not to continue to act as securities depository for
the Bonds or (2) the City determines that the continuation of the Book-Entry System of
evidence and transfer of ownership of the Bonds would adversely affect their interests
or the interests of the Beneficial Owners of the Bonds, the City may discontinue the
Book-Entry System with DTC. If the City fails to identify another qualified securities
depository to replace DTC, the City shall cause the Registration Agent to authenticate
and deliver replacement Bonds in the form of fully registered Bonds to each Beneficial
Owner.
NEITHER THE CITY NOR THE REGISTRATION AGENT SHALL HAVE ANY
RESPONSIBILITY OR OBLIGATIONS TO ANY DTC PARTICIPANT OR ANY
BENEFICIAL OWNER WITH RESPECT TO (i) THE BONDS; (ii) THE ACCURACY OF
ANY RECORDS MAINTAINED BY DTC OR ANY DTC PARTICIPANT; (iii) THE
PAYMENT BY DTC OR ANY DTC PARTICIPANT OF ANY AMOUNT DUE TO ANY
BENEFICIAL OWNER IN RESPECT OF THE PRINCIPAL OF AND INTEREST ON
THE BONDS; (iv) THE DELIVERY OR TIMELINESS OF DELIVERY BY DTC OR ANY
DTC PARTICIPANT OF ANY NOTICE DUE TO ANY BENEFICIAL OWNER THAT IS
REQUIRED OR PERMITTED UNDER THE TERMS OF THIS BOND RESOLUTION TO
BE GIVEN TO BENEFICIAL OWNERS, (v) THE SELECTION OF BENEFICIAL
OWNERS TO RECEIVE PAYMENTS IN THE EVENT OF ANY PARTIAL
REDEMPTION OF THE BONDS; OR (vi) ANY CONSENT GIVEN OR OTHER
ACTION TAKEN BY DTC, OR ITS NOMINEE, CEDE & CO., AS OWNER.
SO LONG AS A BOOK-ENTRY SYSTEM OF EVIDENCE OF TRANSFER OF
OWNERSHIP OF ALL THE BONDS IS MAINTAINED IN ACCORDANCE HEREWITH,
THE PROVISIONS OF THIS RESOLUTION RELATING TO THE DELIVERY OF
PHYSICAL BOND CERTIFICATES 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 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,
City Council Packet
August 10, 2010
34
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
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
City Council Packet
August 10, 2010
35
Agent shall not be liable with respect to any such arrangements it may make pursuant to this
section.
Section 4.9. Additional Bonds.
The City may issue additional bonds (the “Parity Bonds”) payable from the Pledged Revenues
and having a lien upon such revenues on 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 any Parity Bonds.
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 Bond 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. Surety Bond.
The Mayor and Finance Officer are authorized to purchase a surety bond upon such terms and
conditions as they deem appropriate if necessary.
Section 4.11 Bond Insurer.
The Mayor and Finance Officer are authorized to enter into an agreement with a Bond Insurer
as may be required under the Purchase Agreement. Any terms or conditions of the Bond
Insurer shall be attached to this resolution and incorporated herein as if stated in full.
4.12. Bond Counsel. The Mayor and Finance Officer are authorized to retain Bond Counsel
upon such terms as they approve.
ARTICLE V
REDEMPTION OF BONDS PRIOR TO MATURITY
Section 5.1. Optional Redemption
The Bonds shall be subject to optional redemption as set forth in the Bond Purchase
Agreement.
Section 5.2. Notice of Redemption.
(a) Notice of call for redemption, whether optional or mandatory, shall be given by the
Registration Agent on behalf of the City not less than thirty (30) nor more than sixty (60) days
prior to the date fixed for redemption by sending an appropriate notice to the registered
owners of the Bonds to be redeemed by first-class mail, postage prepaid, at the addresses
shown on the Bond registration records of the Registration Agent as of the date of the notice;
but neither failure to mail such notice nor any defect in any such notice so mailed shall affect
City Council Packet
August 10, 2010
36
the sufficiency of the proceedings for redemption of any of the Bonds for which proper notice
was given. The Registration Agent shall mail said notices, in the case of mandatory redemption
of term Bonds, as and when provided herein and in the Bonds, and, in the case of optional
redemption, as and when directed by the City pursuant to written instructions from an
Authorized Representative of the City given at least thirty (30) days prior to the redemption
date (unless a shorter notice period shall be satisfactory to the Registration Agent).
(b) Each notice required by this Section shall state: (1) the Bonds to be redeemed identified by
CUSIP number and called amounts of each bond (for partial calls), date of issue, interest rate,
and maturity date; (2) the date fixed for redemption; (3) that such Bonds will be redeemed at
the principal corporate trust office of the Registration Agent; (4) the redemption price to be
paid; and, (5) that from and after the redemption date interest thereon shall cease to accrue. If
at the time of notice of optional redemption, the City shall not have deposited with the
Registration Agent monies sufficient to redeem all the Bonds called for optional redemption,
such notice may state that it is conditional, that is, subject to the deposit of the redemption
monies with the Registration Agent not later than the opening of business on the redemption
date, and such notice shall be of no effect unless monies are so deposited.
Section 5.3. Payment of Redeemed Bonds.
(a) If notice of redemption shall have been given in the manner and under the conditions
provided in Section 5.2 hereof and if on the date so designated for redemption the Registration
Agent shall hold sufficient monies to pay the redemption price of, and interest to the
redemption date on, the Bonds to be redeemed as provided in this Bond Resolution, then: (1)
the Bonds so called for redemption shall become and be due and payable at the redemption
price provided for redemption of such Bonds on such date; (2) interest on the Bonds so called
for redemption shall cease to accrue; and, (3) such Bonds shall no longer be Outstanding or
secured by, or be entitled to, the benefits of the Resolution, except to receive payment of the
redemption price thereof and interest thereon from monies then held by the Registration
Agent.
(b) If on the redemption date, monies for the redemption of all Bonds or portions thereof to
be redeemed, together with interest thereon to the redemption date, shall not be held by the
Registration Agent so as to be available therefor on such date, the Bonds or portions thereof
so called for redemption shall continue to bear interest until paid at the same rate as they
would have borne had they not been called for redemption and shall continue to be secured by
and be entitled to the benefits of the Resolution.
ARTICLE VI
REGISTRATION AGENT, ESCROW AGENT, VERIFICATION AGENT
Section 6.1. Appointment and Acceptance of Duties.
(a) The City hereby authorizes the Finance Officer to appoint the Registration and Paying Agent
with respect to the Bonds and authorizes and directs the Registration Agent to maintain Bond
registration records with respect to the Bonds, to authenticate and deliver the Bonds as
provided herein, either at original issuance, upon transfer, or as otherwise directed by the City,
to effect transfers of the Bonds, to give all notices of redemption as required herein, to make all
payments of principal and interest with respect to the Bonds as provided herein, to cancel and
City Council Packet
August 10, 2010
37
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 Finance Officer, or either of them is hereby authorized to
execute and the 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 Mayor. The Registration Agent may be removed at any time by the 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 Mayor and shall be a trust
company or a bank having the powers of a trust company, 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 Finance Officer until such
successor be appointed.
Section 6.4. Merger or Consolidation of Registration Agent.
Any corporation or association into which the Registration Agent may be converted or merged,
or with which it may be consolidated, or to which it may sell or transfer its trust business and
assets as a whole, or substantially as a whole, or any corporation or association resulting from
any such conversion, sale, merger, consolidation, or transfer to which it is a party shall be and
become successor Registration Agent hereunder and shall be vested with all the trusts, powers,
discretion, immunities, privileges, and other matters as was its predecessor, without the
execution or filing of any instrument or any further act, deed, or conveyance on the part of any
of the parties hereto, anything herein contained to the contrary notwithstanding. Upon any such
conversion, merger, consolidation, sale or transfer, the Finance Officer r shall have the right and
option, upon notice to such converted, merged, consolidated or acquiring entity, to remove such
City Council Packet
August 10, 2010
38
entity and appoint a successor thereto pursuant to the procedures and requirements set forth
in Section 6.3 hereof.
Section 6.5. Escrow Agent.
The City Council hereby authorizes the Mayor and Finance Officer to appoint the Escrow
Agent.
Section 6.6. Escrow Refunding Agreement.
The Mayor and Finance Officer are authorized to enter into a Refunding Escrow Agreement.
The final form of the Refunding Escrow Agreement shall be filed with the Finance Officer and
open to public inspection.
Section 6.7. Verification Agent.
The City Council hereby authorizes the Mayor and Finance Officer to appoint the Verification
Agent.
Section 7.1. Call and Redemption of Refunded Bonds
The Refunded Bonds shall be called on the dates set forth in the attached Exhibits B, C and D.
The Bonds shall cease to accrue interest after the call dates.
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 to be set forth in the Bond Purchase
Agreement. The Mayor and the Finance Officer, or either of them, in consultation with the
Underwriter, are authorized to make such changes in the structuring of the terms and sale of
the Bonds as they shall deem necessary to maximize the savings from the refunding of the
Refunded Bonds. 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, cause fewer than all the Refunded Bonds to be refunded, 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 President, or either
of them, are hereby authorized to execute and the Finance Officer is authorized to attest the
Purchase Agreement with the Underwriter providing for the purchase and sale of the Bonds.
The Purchase Agreement shall be in form and content acceptable to the Mayor and Finance
Officer, the execution thereof by either of them to constitute conclusive evidence thereof, and
approved as to form and legality by the City Attorney; provided the Purchase Agreement
effects the sale of the Bonds in accordance with the provisions of this Resolution, and is not
inconsistent with the terms hereof. The Mayor and the Finance Officer, or either of them, 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 certificates and documents, including
the Official Statement, and closing certificates and documents, as they shall deem necessary in
connection with the sale and delivery of the Bonds.
City Council Packet
August 10, 2010
39
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 (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.
To comply with paragraph (b) (3) of Rule 15c2-12 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934 (the "Rule") and with Rule G-32 and all other
applicable rules of the Municipal Securities Rulemaking Board, the City agrees to deliver to the
Underwriter, the Official Statement (which shall be a final official statement, as such term is
defined in the Rule, as of its date) in an electronic format as prescribed by the MSRB.
Section 8.3. Disposition of Bond Proceeds.
The proceeds of the sale of the Bonds shall be disbursed as follows:
(a) An amount representing accrued interest on the Bonds from the dated date to the closing
date shall be deposited in their respective portion to the escrow and to the Principal and
Interest Account to be used to fund the escrow and to pay interest of the Bonds on the first
interest payment date following delivery of the Bonds, as the case may be;
(b) An amount, together with other legally available funds of the City, if any, and investment
earnings thereon, which shall be sufficient to purchase government securities for the escrow;
which shall be sufficient to pay principal of and interest on the Refunded Bonds to and including
December 1, 2012, shall be transferred to the Escrow Agent and applied as provided in the
Escrow Agreement;
(b) The remaining proceeds of the sale of the Bonds shall be used to pay costs of the
acquisition of land and construction of new city/county offices, (iii) fund a debt service reserve
account for the Bonds and (iv) to pay the costs of issuance of the Bonds including necessary
legal, accounting and fiscal expenses, printing, engraving, advertising and similar expenses,
administrative and clerical costs, rating agency fees, Registration Agent fees, and other
necessary miscellaneous expenses incurred in connection with the issuance and sale of the
Bonds. Any funds remaining after payment of said expenses shall be used to pay interest on the
Bonds on the first interest payment date following delivery of the Bonds.
Section 8.4. Tax Matters.
(a) 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.
City Council Packet
August 10, 2010
40
(b) The Mayor and the 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.
(c) 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.
(d) Pursuant to Section 265(b)(3)(B)(ii) of the Code, the City hereby designates the Bonds as
"qualified tax-exempt obligations" for purposes of Section 265(b)(3) of the Code. The City
hereby represents that it does not anticipate that obligations bearing interest not includable in
gross income for purposes of federal income taxation under Section 103 of the Code (including
refunding obligations as provided in Section 265 (b) (3) of the Code and including "qualified 501
(c)(3) Bonds" but excluding other "private activity bonds," as defined in Sections 141(a) and
145(a) of the Code) will be issued by or on behalf of the City and all "subordinate entities" of
the City in 2010 in an amount greater than $30,000,000.
ARTICLE IX
NOTICE OF REFUNDING
Section 9.1 Notice of Refunding.
After the issuance of the Bonds, notice of the City‟s intention to refund the Refunded Bonds
shall be given, at the direction of the Finance Officer, by the respective paying agents for the
Refunded Bonds, via first-class mail to the respective Registered Owners of the Refunded
Bonds. Such notice shall be in substantially the form as provided in Exhibit B, C and D attached
hereto and by this reference made a part hereof.
ARTICLE X
MISCELLANEOUS
Section 10.1. Failure to Present Bonds.
(a) Subject to the provisions of Section 4.7 hereof, in the event any Bond shall not be presented
for payment when the principal or redemption price hereof becomes due, either at maturity or
at the date fixed for prior redemption thereof or otherwise, and in the event monies sufficient
to pay such Bond shall be held by the Registration Agent for the benefit of the Owner thereof,
all liability of the City to such Owner for the payment of such Bond shall forthwith cease,
determine, and be completely discharged. Whereupon, the Registration Agent 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 Bond.
(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
City Council Packet
August 10, 2010
41
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 10.2. Payments Due on Saturdays, Sundays, and Holidays.
In any case where the date of maturity or interest on or principal of any Bond, or the date fixed
for redemption of any Bond, 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 10.3. Miscellaneous Acts.
The appropriate officers of the City are hereby authorized, empowered, and directed to do any
and all such acts and things, and to execute, acknowledge, deliver, and, if applicable file or
record, or cause to be filed or recorded, in any appropriate public offices, all such documents,
instruments, and certifications, in addition to those acts, things, documents, instruments, and
certifications hereinbefore authorized and approved, as may, in their discretion, be necessary or
desirable to implement or comply with the intent of the Bond Resolution, or any of the
documents herein authorized and approved, or for the authorization, issuance, and delivery by
the City of the Bonds.
Section 10.4. 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 10.5. No Recourse Under Bond Resolution or on Bonds.
All stipulations, promises, agreements, and obligations of the City contained in the Initial
Resolutions or the Resolution 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 Initial Resolution or the
Resolution against any officer, director, or employee of the City or against any official or
individual executing the Bonds.
Section 10.6. 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.
City Council Packet
August 10, 2010
42
Section 10.7. 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 10.8. Post Issuance Compliance.
The City does hereby adopt the Meierhenry Sargent LLP Post Issuance Compliance Procedure
Manual as the City‟s written post issuance compliance procedures with regard to the Bonds.
The City appoints the finance officer as the officer in charge of the post issuance compliance
procedures.
Section 10.9. Conflicting Resolutions Repealed.
All resolutions or parts thereof in conflict herewith are, to the extent of such conflict, hereby
repealed.
EXHIBIT A-(SUBSTANTIAL FORM OF BOND-SUBJECT TO CHANGE), UNITED STATES OF
AMERICA, STATE OF SOUTH DAKOTA, BROOKINGS COUNTY, CITY OF BROOKINGS,
SALES TAX REVENUE AND REFUNDING BONDS SERIES 2010A
EXHIBIT B - NOTICE OF REDEMPTION, SALES TAX REVENUE BONDS, SERIES 2001, OF
THE CITY OF BROOKINGS, BROOKINGS COUNTY, STATE OF SOUTH DAKOTA
EXHIBIT C, NOTICE OF REDEMPTION, SALES TAX REVENUE REFUNDING BONDS,
SERIES 2003, OF THE CITY OF BROOKINGS, BROOKINGS COUNTY, STATE OF SOUTH
DAKOTA
EXHIBIT D, NOTICE OF REDEMPTION, SALES TAX REVENUE BONDS, SERIES 2005, OF
THE CITY OF BROOKINGS, BROOKINGS COUNTY, STATE OF SOUTH DAKOTA
Resolution No. 73-10. A public hearing was held on Resolution No. 73-10, a Resolution to
Annex the NE ¼ of Section 19-T110N-R49W excluding Lots H-4, H-5, and the platted areas
thereof (north of the Ice Arena). No public comment was made. A motion was made by
Thorpe, seconded by Bartley, to approve Resolution No. 73-10. All present voted yes.
Resolution No. 73-10
A Resolution to Annex the NE ¼ of Section 19-T110N-R49W excluding Lots H-4, H-5, and the
platted areas thereof (north of the Ice Arena).
City Council Packet
August 10, 2010
43
Whereas, the City of Brookings is authorized pursuant to South Dakota Codified Law 9-4-1 to
annex contiguous territory upon receipt of a written petition, describing said territory sought to
be annexed, signed by not less than three-fourths (3/4) of the legal voters and by the owner or
owners of not less than three-fourths (3/4) of the value of said territory, and
Whereas, the City of Brookings desires to annex the following described property, to wit:
the NE ¼ of Section 19-T110N-R49W excluding Lots H-4, H-5, and the platted areas thereof, and
Whereas, the aforesaid land is contiguous to the present boundaries of the City of Brookings, and
Whereas, the City of Brookings has received a Petition for Annexation of Territory signed by the
owners of greater than three-fourths (3/4) of the value of the aforesaid property and by not less
than three-fourths (3/4) of the legal voters residing in said territory, now therefore
Be It Resolved by the City of Brookings, South Dakota that the property described above is
hereby annexed to the City of Brookings.
Other Items. McClemans questioned the City Attorney regarding the powers and authorities
of the Joint Powers Board and possible conflicts with the city governing body.
Adjourn. A motion was made by Bartley, seconded by Corbett, to adjourn. All present voted
yes; motion carried. Meeting adjourned at 7:09 p.m.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
City Council Packet
August 10, 2010
44
CONSENT AGENDA #4
C. Action to approve Resolution No. 74-10, a Resolution Authorizing
the Mayor to Sign a Subgrant Agreement with the South Dakota
Department of Environment and Natural Resources for the
Waste Tire Collection and Disposal Event.
Resolution No. 74-10 authorizes the Mayor to sign a Subgrant Agreement
with the South Dakota Department of Environment and Natural Resources
(SDDENR) to host a Waste Tire Collection and Disposal event.
The Grant will cover up to $100,000 of the cost of collecting and disposing
of the waste tires, as well as advertising for the project. The city is
responsible for the advertising and developing the specifications and bidding
for a contractor to provide the trucking and disposal of the tires.
Advertising is estimated not to exceed $3,000.
Following is the Work Plan which has been approved by SDDENR.
City of Brookings’ Waste Tire Collection and Disposal Work Plan
Background:
The South Dakota Department of Environment and Natural Resources is providing
Waste Tire Grants to South Dakota Regional Landfills at their discretion in order to
provide a state-wide tire clean up similar to the Spruce Up South Dakota Project held a
number of years ago. Grant funding is administered by the SDDENR and the collection
and management of tires will be handled locally by the regional landfills. The contact
persons for the Brookings Landfill are Robert B. McGrath, Director of Solid Waste and
Todd Langland, Solid Waste Coordinator (605) 693-3667.
Work Plan:
1. Timeline: Initial Collection Event:
A. August - September 2010: bid waste tire removal services
B. September 2010: start advertisement campaign
C. October 2010: initial waste tire collection event
Depending on participation rate, available funding levels, and success of the
project, additional collection events may be held in 2011. It is anticipated each
event will be two to four weeks in length.
2. Public education/advertisement:
City Council Packet
August 10, 2010
45
Advertising for this event will be performed to increase participation rates. The
city would like to pursue grant funding reimbursement for these costs. It is
anticipated that advertising costs will not exceed $3,000.
3. Collections site:
The Brookings Regional Sanitary Landfill will be the collection site for this event.
4. Final reuse/recycling/disposal options (in order of preference)
A. Hauled offsite for grinding and reuse as construction aggregate,
rubberized asphalt, etc.
B. Hauled offsite for energy recovery if possible.
C. Hauled offsite and ground for disposal at the Brown County Landfill.
5. Estimated costs:
A. Option A: $120 to $175 per ton.
B. Option B: $120 to $225 per ton.
C. Option C: $175 to $200 per ton.
6. Restrictions:
No tires from retailers, businesses, or non-residents of our service area will be
accepted as part of this plan.
Resolution No. 74-10
A Resolution Authorizing the Mayor to Sign a Subgrant Agreement with
South Dakota Department of Environment and Natural Resources for
Waste Tire Collection and Disposal Event
Whereas, there is a need to collect and dispose of waste tires; and
Whereas, the South Dakota Department of Environment and Natural Resources is providing
waste tire grants to regional landfills in order to provide a state wide tire clean up; and
Now, Therefore, Be It Resolved, that the Mayor is hereby authorized to sign the funding
agreement and all other documents, related to the Subgrant Agreement from the South Dakota
Department of Environment and Natural Resources.
Passed and approved this 10th day of August, 2010.
CITY OF BROOKINGS
_________________________
ATTEST: Tim Reed, Mayor
____________________________
Shari Thornes, City Clerk
City Council Packet
August 10, 2010
46
CONSENT AGENDA #4
D. Action to approve Resolution No. 75-10, a Resolution Authorizing
the Mayor to sign an Agreement between the Department of
Transportation and the City of Brookings, Project Number PP
3313(10), Brookings County, PCN 02HQ Rail Crossing on Main
Avenue, DOT 197481R.
The City of Brookings has applied for state funding for railroad safety
crossing improvements at the Main Avenue rail crossing; the project is
currently under design. The South Dakota Department of Transportation
(SDDOT) will be issuing an Agreement between the SDDOT and the City
of Brookings for the Highway-Rail Grade Crossing Project. The estimated
project cost is approximately $500,000. The City of Brookings is obligated
to reimburse the State for 10% of the total project costs, which will
provide the City‟s match. The costs to realign Front Street will be 100%
City cost. The agreement will obligate the City of Brookings to provide
proper maintenance for the project after construction is complete in
accordance with State and Federal requirements, which will include
maintaining the approaches and pavement markings at the highway-rail
grade crossing.
The City has not received the Agreement as of this memo; however,
approval of this Resolution will authorize the Mayor to sign the Agreement
upon receipt to expedite the project.
City Council Packet
August 10, 2010
47
Resolution No. 75-10
Resolution Authorizing the Mayor to sign an Agreement between the DOT
and COB, Project Number PP 3313(10), Brookings County, PCN 02HQ Rail
Crossing on Main Avenue, DOT 197481R.
Whereas, the Brookings City Council has identified the need for rail crossing
improvements for Project Number PP 3313(10), Brookings County, PCN 02HQ, Rail Crossing
on Main Avenue, DOT 197481R;
Whereas, the estimated project cost of the highway-rail grade crossing project is
approximately $500,000;
Whereas, The City of Brookings is obligated and hereby agrees to reimburse the State
for the 10% of the total project costs for the highway-rail grade crossing project;
Whereas, The City of Brookings is obligated and hereby agrees to provide proper
maintenance as required for the project after construction is completed in accordance with
State and Federal requirements.
Now, Therefore, Be It Resolved that the Mayor of Brookings is authorized to sign the
agreement between the Department of Transportation and the City of Brookings, Project
Number PP 3313(10), Brookings County, PCN 02HQ, Rail Crossing on Main Avenue, DOT
197481R.
Passed and approved this 10th day of August 2010.
CITY OF BROOKINGS
____________________________
Tim Reed, Mayor
ATTEST:
________________________
Shari Thornes, City Clerk
City Council Packet
August 10, 2010
48
Presentations/Reports/Special Requests
5. Census 2010 Update.
Todd Wiltgen, 2010 Census Partnership Specialist, will provide a brief
update on the 2010 Census to include items such as: what to expect,
release dates of the data, and annual population estimates.
City Council Packet
August 10, 2010
49
Presentations/Reports/Special Requests
6. Invitation for a Citizen to schedule time on the Council Agenda
for an issue not listed.
At this time, any member of the public may request time on the agenda for
an item not listed. Items are typically scheduled for the end of the meeting;
however, very brief announcements or invitations will be allowed at this
time.
7. SDSU Student Senate Report.
President – 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
August 10, 2010
50
First Reading**
8. Ordinance No. 28-10: An ordinance granting a Franchise to
Interstate Telecommunications Cooperative, Inc., to construct,
operate, and maintain a Cable Television System in the City of
Brookings, South Dakota, setting forth conditions accompanying
the grant of the Franchise; providing for regulation and use of the
system; and prescribing penalties for the violation of its
provisions.
Public Hearing: August 24, 2010
** No vote is taken on the first reading of an Ordinance. The title of the
Ordinance is read and the date for the public hearing is announced.
To: Mayor Tim Reed, Council Members, Jeff Weldon, City Manager, and
Shari Thornes, City Clerk
From: Steven J. Britzman, City Attorney
Date: August 6, 2010
Re: Proposed Cable Television Franchise Ordinance for Interstate
Telecommunications Cooperative, Inc. (ITC)
As a result of a request from ITC this spring, we have developed a proposed Cable
Franchise Ordinance which if approved would authorize ITC to provide video
programming (“cable tv”) services to its customers within its service area in the City of
Brookings. The accompanying Ordinance is very similar to existing Franchise Ordinances
held by Mediacom and Brookings Utilities.
Key provisions contained in this Ordinance include a ten (10) year term, a franchise fee
of 5% (which is the same as Mediacom is now collecting and paying) and a franchise area
defined as the “telecommunications territory as currently on file with the South Dakota
Public Utilities Commission, and as such territory is modified subsequent to the
adoption of this Franchise Agreement.”
This proposed Ordinance has been reviewed and approved by ITC Attorney Todd Boyd.
The service area contained in this franchise ordinance is probably most notable, since it
is not intended to be an “overbuild” of areas currently served (though there may be
some exceptions to this), but the ordinance is necessary for ITC to use the City‟s right
of way to provide video/cable television services to their customers who reside in the
City of Brookings.
City Council Packet
August 10, 2010
51
ORDINANCE NO. 28-10
AN ORDINANCE GRANTING A FRANCHISE TO INTERSTATE
TELECOMMUNICATIONS COOPERATIVE, INC., TO CONSTRUCT, OPERATE,
AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE CITY OF
BROOKINGS, SOUTH DAKOTA, SETTING FORTH CONDITIONS
ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR
REGULATION AND USE OF THE SYSTEM; AND PRESCRIBING PENALTIES
FOR THE VIOLATION OF ITS PROVISIONS.
The City Council of the City of Brookings ordains:
STATEMENT OF INTENT AND PURPOSE
The City intends, by the adoption of this Franchise, to bring about the development of a
Cable Television System, and the continued operation of it. Such a development shall
contribute significantly to the communication needs and desires of many.
FINDINGS
In the review of the application of Interstate Telecommunications Cooperative, Inc.
("Grantee"), and as a result of a public hearing, the City Council makes the following findings:
1. The Grantee's technical ability, financial condition, legal obligations, and character were
considered and approved in a full public proceeding after due notice and a reasonable
opportunity to be heard;
2. Grantee's plans for constructing, upgrading, and operating the System were considered
and found acceptable in a full public proceeding after due notice and a reasonable opportunity
to be heard;
3. The Franchise granted to Grantee by the City complies with the existing applicable state
and federal laws and regulations.
SECTION 1.
SHORT TITLE AND DEFINITIONS
Short Title. This Franchise Ordinance shall be known and cited as the Interstate
Telecommunications Cooperative, Inc. Cable Television Franchise Ordinance or as the
Franchise Agreement.
Definitions. For the purposes of this Franchise, the following terms, phrases, words, and their
derivations shall have the meaning given herein. When not inconsistent with the context, words
in the singular number include the plural number. The word "shall" is always mandatory and not
merely directory. The word "may" is directory and discretionary and not mandatory.
City Council Packet
August 10, 2010
52
"Basic Cable Service" means any Cable Service tier that includes the lawful retransmission of
local television broadcast signals and any Public, Educational, and Governmental Access
programming required by this Ordinance or a Franchise Agreement to be carried on the basic
tier. Basic Cable Service as defined herein shall be consistent with 47 U.S.C. § 543(b)(7) (1997),
as may from time to time be amended.
"Cable Act" means the Cable Communications Policy Act of 1984, Pub. L. No. 98-549, (codified
at 47 U.S.C. §§ 521-611 (1982 & Supp. V. 1987) as amended by the Cable Television Consumer
Protection and Competition Act of 1992, Pub. L. No. 102-385, and the Telecommunications
Act of 1996, Pub. L. No. 104-104 (1996) as may, from time to time, be amended.
"Cable Internet Service" unless determined otherwise under applicable law, means an
Information Service offered by a Grantee whereby Persons receive access to the Internet or
high-speed information services through the Cable System.
"Cable Service" or "Service" means:
A. The one-way transmission to Subscribers of video programming or Other Programming
Service; and
B. Subscriber interaction, if any, that is required for the selection or use of such video
programming or Other Programming Service;
"Cable Television System" or "Cable System" means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception, and control equipment that is
designed to provide Cable Service to multiple Subscribers within the Franchise Area, but such
term does not include:
A. A facility that serves only to retransmit via broadcast the television signals of one or
more television broadcast stations;
B. A facility that serves Subscribers without using any public Right-of-Way;
C. A facility of a common carrier which is subject, in whole or in part, to the provisions of
Title II of the Communications Act of 1934, as it may be amended, except that such
facility shall be considered a Cable System to the extent such facility, whether on a
common carrier basis or otherwise, is used in the transmission of video programming
directly to Subscribers unless the extent of such use is solely to provide interactive on-
demand services;
D. An Open Video System that complies with § 653 of the Telecommunications Act; and
E. Any facilities of any electric utility used solely for operating its electric utility System.
"Capital Costs" means costs associated with assets, including but not limited to equipment and
facilities, that will provide Service for more than one year, whether incurred during initial
construction or throughout the life of a System.
"Channel" means a portion of the frequency spectrum that is used in a Cable System and which
is capable of delivering a television Channel as defined by the Federal Communications
Commission.
City Council Packet
August 10, 2010
53
"City" means the City of Brookings, South Dakota. The City is sometimes also referred to as
“Grantor” in this Franchise Ordinance.
"Community Access Corporation" or "CAC" means a non-profit Access Corporation serving
the City, its assignees or delegees, whose duties shall include the management, and
programming of the PEG Access Channels.
"Complaint" means any written, faxed or electronic inquiry, allegation, or assertion made by a
Person regarding Service. While “Complaint” does not include oral complaints, Grantee shall
use reasonable efforts to log oral complaints it receives and shall not be obligated to provide
verbatim reports or transcripts of oral complaints provided the nature of the complaint is
adequately provided to the City if requested by City.
"Converter" means an electronic device that converts signals to a frequency not susceptible to
interference within the television receiver of a Subscriber and, through the use of an
appropriate Channel selector, permits a Subscriber to view all authorized Subscriber signals
delivered at designated converter dial locations.
"Council" means the City Council of Brookings, South Dakota.
"Drop" means the cable or cables that connect the users of the System to the distribution
System.
"Educational Access Facilities" means:
A. Channel capacity designated for non-commercial educational access programming use;
and
B. Facilities and equipment for the use of such capacity.
"Effective Date" means the date a Franchise becomes effective in accordance with the Franchise
and the rules and procedures of the City.
"FCC" means the Federal Communications Commission and any legally appointed, designated
or elected agent or successor.
"Franchise" means the rights and obligations extended by the City to a Person to own, lease,
construct, maintain, or operate a Cable System in the Right-of-Way within the Franchise Area
for the purpose of providing Cable Services. Any such authorization, in whatever form granted,
shall not mean or include: (i) any other permit or authorization required for the privilege of
transacting and carrying on a business within the City required by the ordinances and laws of
the City; (ii) any permit, agreement, or authorization required in connection with operations in
the Right-of-Way including, without limitation, permits and agreements for placing devices on
or in poles, conduits, or other structures, whether owned by the City or a private entity, or for
excavating or performing other work in or along the Right-of-Way.
"Franchise Agreement" means a Franchise granted pursuant to this Ordinance.
City Council Packet
August 10, 2010
54
"Franchise Area" means the telecommunications territory as currently on file with the South
Dakota Public Utilities Commission, and as such territory is modified subsequent to the
adoption of this Franchise Agreement.
"Franchise Fee" means any tax, fee, or assessment of any kind imposed by the City or other
governmental entity on a Grantee or Cable Subscriber, or both, solely because of its status as
such. The term "Franchise Fee" does not include: (i) any tax, fee, or assessment of general
applicability (including any such tax, fee, or assessment imposed on both utilities and cable
operators or their services but not including a tax, fee, or assessment that is unduly
discriminatory against cable operators or cable Subscribers); (ii) Capital Costs that are
required by a Franchise Agreement to be incurred by a Grantee for PEG Access Facilities; (iii)
requirements or charges incidental to the awarding or enforcing of a Franchise, including
payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or
liquidated damages; or (iv) any fee imposed under Title 17 of the United States Code.
"Government Access Facilities" means:
A. Channel capacity designated for non-commercial governmental access programming
use; and
B. Facilities and equipment for the use of such channel capacity.
"Grantee" means Interstate Telecommunications Cooperative, Inc., its agents and employees,
lawful successors, transferees or assignees.
"Grantor" means the City and its successors or delegates.
"Gross Revenues" means any revenue derived directly or indirectly by a Grantee from the
operation of its Cable System to provide Cable Service, within the Franchise Area, other than
telecommunications services as defined under federal law, or other services for which the
Grantee is subject to a separate franchise ordinance. Gross Revenues shall include “pay” cable
service fees charged to customers within the Franchise area.
The term “Gross Revenues” does not include taxes on Services furnished by Grantee and
imposed by any municipality, state, or other governmental unit and collected by Grantee for such
governmental unit. (e.g. tax on the Franchise Fee) In addition, the FCC User Fee is not included
in Gross Revenue. Fees for Cable Internet Service shall not be included in Gross Revenues
unless in accordance with applicable law such service may be subject to local franchise fees.
It is understood and agreed that the Grantee operates other telecommunications services
within the City of Brookings. Gross revenues, as defined in this paragraph, pertain to only
revenue derived by the Grantee from the operation of its cable system and not from any other
telecommunications Grantee offers in the City of Brookings. Specifically, Gross Revenues include
all recurring video revenues including revenue from packaged video offerings both residential
and commercial, the video portion of bundled services that include other telecommunication
services, premium video services, music packages, specialized equipment used in multiple
City Council Packet
August 10, 2010
55
dwelling units, and fees charged to video customers who do not have additional
telecommunications services with ITC.
"Lockout Device" means a mechanical or electrical accessory to a Subscriber's terminal that
inhibits the video or audio portions of a certain program or certain Channel(s) provided by way
of a Cable System.
"Normal Business Hours" means, unless otherwise defined in a Franchise Agreement, those hours
during which the Grantee‟s business is open in Brookings to serve its telecommunications
customers.
"Normal Operating Conditions" means any and all service and operational situations or
conditions that are ordinarily within the control of a Grantee, including but not limited to, special
promotions; pay-per-view events; rate increases; regular peak or seasonal demand periods; and
maintenance, repair or upgrade of the Cable System, and any associated computer or software
systems. Those conditions that are not within the control of a Grantee including but not limited
to, natural disasters; civil disturbances; power outages; telephone network outages; and severe or
unusual weather conditions.
"Other Programming Service" means information that a Grantee makes available to all
Subscribers generally.
"Person" means any corporation, partnership, proprietorship, individual, organization,
governmental entity or any natural person.
"Public Access Facilities" means:
A. Channel capacity designated for non-commercial public access programming use; and
B. Facilities and equipment necessary for the use of such channel capacity.
"Resident" means any Person residing in the City.
"Service Interruption " means the loss of picture, sound, or data on one or more cable
Channels on the System, or the degradation of the picture and/or sound quality on such
Channels to the extent that the subscriber is unable to use the signals.
"Standard Installation" means any Service installation that can be completed using a Drop of
one hundred twenty-five (125) feet or less, unless otherwise agreed to in the Franchise
Agreement.
"Street" means the surface of, and the space above and below, any public street, road or
highway, sidewalk, easement or right-of-way now or hereafter held by City.
"Subscriber" means any Person that lawfully elects to subscribe to Cable Service provided by
a Grantee by means of, or in connection with, the Cable System.
City Council Packet
August 10, 2010
56
"System" means a Grantee's Cable System operated pursuant to a Franchise Agreement
within the Franchise Area.
SECTION 2.
GRANT OF AUTHORITY AND GENERAL PROVISIONS
1. Grant. A Cable Television Franchise is hereby granted to Interstate Telecommunications
Cooperative, Inc., subject to the terms and conditions of this Franchise Agreement (hereinafter
also referred to as the "Agreement"). The Agreement provides Grantee with the authority,
right and privilege, to construct, reconstruct, operate and maintain a Cable Television System
and to provide cable service and any other cable services permitted by this Franchise or
applicable law within the Streets in the City as it is now or may in the future be constituted.
This Franchise does not prohibit or grant any franchise rights concerning the provision of
“telecommunications services” which is defined as:
“the offering of telecommunications” for a fee directly to the public, or to such classes
of users as to be effectively available directly to the public, regardless of the facilities
used.”
2. Effective Date of This Franchise. This Franchise shall be effective on the date that both
parties have executed this Franchise Agreement, provided that said date is no later than sixty
(60) days after the date that the City Council, by resolution, approves this Franchise Agreement.
The Franchise is further contingent upon the filing by Grantee with the City Clerk, of the
executed Franchise Agreement and the required insurance certificates, except that if the filing of
any such insurance certificate does not occur within sixty (60) days after the effective date of
the resolution approving this Franchise Agreement and any extension of time hereunder, the
Grantor may declare this Franchise Agreement null and void.
3. Franchise Required. It shall be unlawful for any Person to construct, operate or maintain
a Cable Television System in City unless such Person or the Person for whom such action is
being taken shall have first obtained and shall currently hold a valid Franchise Agreement. It
shall also be unlawful for any Person to provide Cable Service in City unless such Person shall
have first obtained and shall currently hold a valid Franchise Agreement.
4. Governing Requirements. Grantee shall comply, with all lawful requirements of this
Franchise Agreement and applicable State and Federal law.
5. Grant of Nonexclusive Franchise.
(a) The Grantee shall have the right and privilege to construct, erect, operate, and
maintain, in, upon, along, across, above, over and under any public street, road
or highway, sidewalk, easement or right-of-way now laid out or dedicated and all
extensions thereof, and additions thereto in City, poles, wires, cables,
underground conduits, manholes, and other television conductors and fixtures
City Council Packet
August 10, 2010
57
necessary for the maintenance and operation in City of a Cable Television
System as herein defined.
(b) This Franchise shall not be construed as any limitation upon the right of Grantor,
through its proper offices, and in accordance with applicable law, to grant to
other qualified Persons or corporations rights, privileges or authority similar to
the rights, privileges and authority herein set forth, in the same or other Streets
the Grantee is entitled to occupy by this Franchise Agreement, permit or
otherwise; provided, however, that such additional grants shall not operate to
materially modify, revoke or terminate any rights granted to Grantee herein.
6. Franchise Term. This Franchise shall be in effect for a period of ten (10) years from the
effective date, unless renewed, revoked, terminated, shortened or extended as herein provided.
7. Previous Franchises. Intentionally deleted.
8. Rules of Grantee. Grantee shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business as shall be reasonably
necessary to enable said Grantee to exercise its rights and perform its obligations under this
Franchise.
9. Franchise Area. This Franchise is granted for the area defined in Grantee‟s Geographical
Coverage area (defined in Franchise Area and in Section 10. below), as it exists from time to
time.
10. Geographical Coverage.
(a) Grantee shall design, construct and maintain the Cable Television System to have
the capability to pass every dwelling unit within the Grantee‟s
telecommunications territory as currently on file with the South Dakota Public
Utilities Commission, and as modified subsequent to the adoption of this
Franchise Agreement.
(b) After service has been established by activating trunk and/or distribution cables
for any part of the City, Grantee shall provide Cable Service to any requesting
Subscriber provided the Service Installation can be completed using a Drop of
One Hundred Twenty-five Feet (125') or less and provided the requesting
Subscriber resides within the City, within thirty (30) days from the date of
request, provided that the Grantee is able to secure all rights-of-way necessary
to extend service to such Subscriber within such thirty (30) day period on
reasonable terms and conditions.
11. Written Notice. All notices, reports, or demands required to be given in writing under
this Franchise shall be deemed to be given when delivered personally to any officer of Grantee
or to the City Manager of the City of Brookings, or forty-eight (48) hours after it is deposited
City Council Packet
August 10, 2010
58
in the United States mail in a sealed envelope, with registered or certified mail postage prepaid
thereon, addressed to the party to whom notice is being given, as follows:
If to City: City of Brookings
Attn: City Manager
City Hall
P.O. Box 270
Brookings, South Dakota 57006
If to Grantee: Interstate Telecommunications Cooperative, Inc.
Attn: Alan Severson
312 – 4th St. W.
Clear Lake, South Dakota 57226
Such addresses may be changed by either party upon notice to the other party given as
provided in this Section.
12. Public, Educational or Government Access Facilities.
(a) Grantee shall make available to each of its subscribers who receive some or all
of the services offered on the System, reception of at least two (2) access
channels, which shall be used for noncommercial purposes as follows:
(1) Educational access;
(2) Government access;
The channels designated for access shall be provided by Grantee as a part of the basic
cable service. The access channels shall be made available by Grantee for use by the City and its
citizens in accordance with the rules and procedures established by the City or any lawfully
designated person, group, organization or agency authorized by the City for that purpose.
(b) In addition, Grantee shall dedicate a third additional channel for public,
educational or governmental access upon the City‟s request if any access channel is in
continuous use from 8:00 a.m. to 11:00 p.m. for three (3) consecutive months provided,
however:
(1) The use of repeat programming in excess of ten percent of the amount of
original programming on that channel, as well as text or character-generated
programming shall not be considered a continuous use.
(2) The access channels shall be considered separately. Continuous use of one
channel to capacity as defined in this section is sufficient to initiate a request for an
additional channel.
(3) In no event shall Grantee be required to provide in excess of four (4) access
City Council Packet
August 10, 2010
59
channels total.
(4) To the extent that any access channel is not being used for the provision of non-
commercial, public, educational or governmental access purposes, Grantee shall be
permitted to use such channel(s) for the provision of other services.
Grantee's permitted use of any access channel made pursuant to this section shall cease
within ninety (90) days of Grantee's receipt of notice from City that such channel will
again be used for public, educational or governmental access.
(c) Notwithstanding the above, Grantee may accommodate a request from the City
for additional access capacity made pursuant to this Section by combining more than one access
use on a channel provided that:
(1) It is technically and economically feasible for Grantee to do so;
(2) The scheduling needs of all users of the channel can be reasonably
accommodated; and
(3) The access entity, which requires use of the alternate channel, must be able to
access the alternate channel from the site where it normally originates playback of its
programs and may not be required to transport tapes to a remote site for playback.
(d) Origination Points
Grantee shall provide free cable transmission facilities at City Hall only in the event City
Hall is within the Franchise area of the Grantee, provided the cost of providing such cable
transmission facilities does not exceed the sum of Ten Thousand Dollars ($10,000.00), and any
costs of providing such cable transmission facilities is divided between the City and any Cable
Television Franchise holders based on their respective number of subscribers. Grantee shall
also contribute to the cost of modulation equipment to introduce programming onto
transmission facilities with other Franchise holders based on Grantees share of the respective
subscriber numbers of all Franchise holders. Grantee shall be permitted to pass this cost to
Subscribers to the extent permitted by Federal and State law.
However, costs of providing said facilities shall not be a credit against payment of the Franchise
fee imposed under this Franchise Agreement.
(e) Equipment and Facilities for Public, Educational or Government Access Facilities
Grantee's Responsibility for Equipment. Grantee is responsible for all headend equipment,
including repair and maintenance, essential to playback of programming of signals generated by
City or its Access producing designees.
City‟s Responsibility for Access. The City shall be responsible for the operation of Government
Access Facilities and equipment. In this regard City may delegate from time to time its
City Council Packet
August 10, 2010
60
responsibilities to others who then shall assume the responsibility of City in accordance with
the City‟s delegation.
The City will develop reasonable rules regarding use of Access Facilities and equipment and
determine the needs of the City for public, educational and governmental access services. In
this regard, the City shall regularly coordinate with Grantee for the purpose of developing and
maintaining reasonable Access Facilities.
The City, or persons to whom it delegates responsibility for access, shall have the responsibility
to provide funding for operating expenses associated with public, educational and governmental
access.
13. Drops to Public Buildings. Grantee shall provide Standard Installation of one (1) cable
Drop, one (1) cable outlet, and monthly Basic Cable Service without charge to the public
buildings, including City, County and Public School buildings which are located within Grantee‟s
Franchise area.
Drops and/or outlets in any locations within Grantee‟s franchise area will be provided by
Grantee at the cost of Grantee's time and material. Alternatively, at the institution's request,
said institution may add outlets at its own expense, as long as such installation meets Grantee's
standards and provided that any fees for Cable Services are paid. Nothing herein shall be
construed as requiring Grantee to extend the System to serve additional institutions as may be
designated by City.
14. Annual Report. Grantee shall submit annually, within ninety (90) days after its year end,
a written end-of-the-year report to Grantor containing the following information:
(1) A brief summary of the previous year‟s (or in the case of the initial
reporting year, the initial year‟s) installation of service lines of the Cable
System, including but not limited to, service lines begun or discontinued
during the reporting year.
(2) The number of Subscribers served under this Franchise Agreement.
(a) The City, including its agents and representatives, shall have the authority, during
Normal Business Hours, to arrange for and conduct an inspection of Annual
Reports required pursuant to this Franchise Agreement. The City shall give the
Grantee at least twenty-four (24) hours written notice of the inspection request.
If the requested information is proprietary in nature or must be kept confidential
by State, Federal or local law, upon proper request by Grantee, such information
obtained during such an inspection shall be treated as confidential, making it
available only to those Persons who must have access to perform their duties on
behalf of the City, including but not limited to the City Manager and City Clerk,
the City Attorney, Finance Department and Council Members. To the extent
any Federal requirement for privacy applies to the information to be submitted,
said law shall control.
City Council Packet
August 10, 2010
61
(b) All reports and records required under this Ordinance shall be furnished at the
sole expense of Grantee, except as otherwise provided in this Franchise
Agreement.
15. Periodic Evaluation and Review. Grantor and Grantee acknowledge and agree that the
field of cable television is a rapidly changing one that may see many regulatory, technical,
financial, marketing and legal changes during the term of this Franchise Agreement. Therefore,
to provide for the maximum degree of flexibility in this Franchise Agreement, and to help
achieve a continued advanced and modern Cable System, the following evaluation and review
provisions will apply:
(a) The City may request evaluation and review sessions at any time during the term
of this Agreement and Grantee shall cooperate in such review and evaluation;
provided, however, that there shall not be more than one (1) evaluation and
review session every three years.
(b) Topics that may be discussed at any evaluation and review session include, but
are not limited to, rates, channel capacity, the System performance,
programming, PEG access, municipal uses of cable, Subscriber complaints, judicial
rulings, FCC rulings and any other topics that the City or Grantee may deem
relevant.
(c) During an evaluation and review session Grantee shall fully cooperate with the
City and shall provide without cost such reasonable information and documents
as the City may request to perform the evaluation and review.
(d) If at any time during the evaluation and review, the City reasonably believes that
there is evidence of inadequate technical performance of the Cable System, the
City may require Grantee, at Grantee's expense, to perform appropriate tests
and analyses directed toward such suspected technical inadequacies. In making
such requests, the City shall describe and identify in writing as specifically as
possible the nature of the problem, the reason the City has requested special
testing and the type of test that the City believes to be appropriate. Grantee
shall cooperate fully with the City in performing such tests and shall report to
the City the results of the tests, which shall include at least:
(1) The System component tested;
(2) the equipment used and procedures employed in testing;
(3) the results of the test(s) and, if necessary, the method by which the
System performance problem was resolved; and
(4) any other information pertinent to said tests and analyses;
City Council Packet
August 10, 2010
62
(e) As a result of an evaluation and review session, the City or Grantee may
determine that a change in the System or in the terms of the Franchise
Agreement may be appropriate. In that event, either the City or the Grantee
may propose modifications to the System or the Franchise. Grantee and the City
shall review the terms of the proposed change and any proposed amendment to
this Franchise Agreement and seek to reach agreement on such change or
amendment provided the change or amendment is not inconsistent with
applicable law or regulations and the change or amendment technically feasible,
economically reasonable and will not result in a material alteration of the rights
and duties of the parties under the Franchise Agreement.
SECTION 3.
CONSTRUCTION STANDARDS
1. Construction Codes and Permits.
(a) Grantee shall obtain all necessary permits from City before commencing any
construction upgrade or extension of the System, including the opening or
disturbance of any Street, or private or public property within City.
(b) The City shall have the right to inspect all construction or installation work
performed pursuant to the provisions of the Franchise and to make such tests at
its own expense as it shall find necessary to ensure compliance with the terms of
the Franchise and applicable provisions of local, state and federal law and to
protect the public health, safety and welfare of Grantor‟s citizens. Grantee shall
have the right to be present at such inspections.
2. Repair of Streets and Property. Any and all Streets or public property or private
property, which are disturbed or damaged during the construction, repair, replacement,
relocation, operation, maintenance or reconstruction of the System shall be promptly and fully
restored by Grantee, at its expense, to a condition as good as that prevailing prior to Grantee's
work.
3. Building Movers. The Grantee shall, on request of any Person holding a moving permit
issued by City, temporarily move its wires or fixtures to permit the moving of buildings with
the expense of such temporary removal to be paid by the Person requesting the same, and the
Grantee shall be given not less than five (5) business days advance notice to arrange for such
temporary changes. The Grantee shall have the right to require advance payment for the costs
of moving its facilities.
4. Tree Trimming. The Grantee shall consult with the City Forester for approval to trim
any trees upon and overhanging the Streets, alleys, sidewalks, or public easements of City so as
to prevent the branches of such trees from coming in contact with the wires and cables of the
Grantee.
City Council Packet
August 10, 2010
63
5. No Waiver. Nothing contained in this Franchise shall relieve any Person, as defined in
this Agreement, from liability arising out of the failure to exercise reasonable care to avoid
injuring Grantee's facilities.
6. Undergrounding of Cable.
(a) In all areas of City where all other utility lines are placed underground, Grantee
shall construct and install its cables, wires and other facilities underground.
(b) In any area of City where one or more public utilities are aerial, Grantee may
construct and install its cables, wires and other facilities from the same pole with
the consent of the owner of the pole.
7. Safety Requirements. The Grantee shall at all times employ ordinary and reasonable
care and shall install and maintain in use nothing less than commonly accepted methods and
devices for preventing failures and accidents which are likely to cause damage, injuries, or
nuisances to the public.
8. Drop Burial. Temporary drops will be buried within sixty (60) days of installation. Such
sixty (60) day period shall not apply if the installation is made during the winter months, which
shall be defined as November 15 to April 1. The installation period shall be extended
throughout the winter months until weather conditions permit the Grantee to complete such
drop buries. In the event the Grantee fails to bury said drops within sixty (60) days if outside
the winter months or if the installation is made during the winter months, within sixty days
after the winter months, the City shall notify the Grantee of violation of this section in
accordance with the enforcement provisions in this Franchise Agreement and the Grantee shall
provide basic and expanded basic cable service without charge to the affected cable subscriber
from the last date that the drop was to have been buried to the actual date of burial. All
subscriber drops that are located underground shall comply with National Electrical Code
(NEC) standards and shall be buried to minimum depth of six (6) inches.
SECTION 4.
OPERATIONS PROVISIONS
1. System Design and Channel Capacity.
(a) Grantee shall develop, construct and operate a System capable of providing a
minimum of 60 channels of video programming during the term of this Franchise
Agreement.
(b) All final programming decisions remain the discretion of Grantee; provided that
Grantee notifies City and Subscribers in writing thirty (30) days prior to any
channel additions, deletions, or realignments, and further subject to Grantee's
signal carriage obligations hereunder and pursuant to 47 U.S.C. § 531-536, and
further subject to City's rights pursuant to 47 U.S.C. § 545.
City Council Packet
August 10, 2010
64
2. Special Testing.
(a) City may require special testing of a location or locations within the System if
there is a particular matter of controversy or unresolved complaints pertaining
to such locations(s). Demand for such special tests may be made on the basis of
complaints received or other evidence indicating an unresolved controversy or
noncompliance. Such tests shall be limited to the particular matter in
controversy or unresolved complaints. The City shall endeavor to so arrange its
request for such special testing so as to minimize hardship or inconvenience to
Grantee or to the Subscribers caused by such testing.
(b) Before ordering such tests, Grantee shall be afforded thirty (30) days to correct
problems or complaints upon which tests were ordered. The City shall meet
with Grantee prior to requiring special tests to discuss the need for such and, if
possible, visually inspect those locations which are the focus of concern. If, after
such meetings and inspections, City wishes to commence special tests and the
thirty (30) days have elapsed without correction of the matter in controversy or
unresolved complaints, the tests shall be conducted by a qualified engineer
selected by City and Grantee. In the event that special testing is required by City
to determine the source of technical difficulties, the cost of said testing shall be
borne equally by the Grantee and the City.
3. Parental Control Lock. Grantee shall provide, for sale or lease, to Subscribers, upon
request, a parental control locking device or digital code that permits inhibiting the video and
audio portions of any channels offered by Grantee.
4. Emergency Alert Capability. Within thirty-six (36) months of the effective date of this
Agreement, Grantee shall provide an Emergency Alert System (EAS) in accordance with FCC
Rules and Regulations and applicable law.
SECTION 5.
SERVICES AND PROGRAMMING PROVISIONS.
1. Programming.
(a) Broad programming categories. Grantee shall provide or enable the provision of
at least the following initial broad categories of programming:
(1) Educational programming;
(2) News & information;
(3) Sports;
(4) General entertainment (including movies);
City Council Packet
August 10, 2010
65
(5) Children/family-oriented;
(6) Arts; culture and performing arts;
(7) Science/documentary;
(8) Weather information;
(9) Public affairs;
(b) Deletion or reduction of programming categories.
(1) Grantee shall not delete or so limit as to effectively delete any broad
category of Programming identified in this Section and within its control
without the consent of the City or as otherwise authorized by law.
(2) In the event of a modification proceeding under Federal law, the mix and quality
of services provided by the Grantee on the effective date of this Franchise shall be
deemed the mix and quality of services required under this Franchise throughout its
term.
2. Leased Commercial Access. If Grantee offers leased commercial access, it shall do so in
accordance with applicable Federal law.
3. Periodic Subscriber Survey.
(a) Upon request by the City, but not more frequently than once every three years,
the Grantee shall conduct a Subscriber survey. The City and Grantee shall
discuss and agree to a reasonable sample size. The cost of the survey shall be
borne equally by the City and Grantee. Grantee shall provide Grantee the
results of Subscriber surveys, to the extent it determines the results do not
contain confidential information. Each questionnaire shall be prepared with input
from the City and conducted as to present reasonably reliable measures of
Subscriber satisfaction with:
(1) signal quality;
(2) response to Subscriber complaints;
(3) billing practices;
(4) program services; and
(5) installation practices.
(b) Grantee shall provide the City with a summary of the results of any survey to
City Council Packet
August 10, 2010
66
the extent that the results are not confidential. Grantee shall report in writing
what steps Grantee is taking to implement the findings of the survey, such as
correcting problems and expanding services.
4. Subscriber Inquiries. Grantee shall have a publicly listed toll-free telephone number and
be operated so as to receive Subscriber complaints and requests on a twenty-four (24)
hour-a-day, seven (7) days-a-week basis.
5. Refund Policy. In the event a Subscriber established or terminates service and receives
less than a full month's service, Grantee shall prorate the monthly rate on the basis of the
number of days in the period for which service was rendered to the number of days in the
billing period.
6. General Technical Standards and Customer Service Practices.
A. This Ordinance incorporates technical standards and establishes customer
Service practices that a Grantee must satisfy.
B. In accordance with applicable law, Grantee shall maintain such equipment and
keep such records as are reasonably required to enable the City to determine whether
the Grantee is in compliance with all standards required by these regulations and other
applicable laws.
Technical Standards. The technical standards used in the operation of a System shall comply, at
minimum, with the technical standards promulgated by the FCC relating to Cable Systems
pursuant to the FCC's rules and regulations and found in Title 47, Sections 76.601 to 76.617, as
may be amended or modified from time to time, which regulations are expressly incorporated
herein by reference.
Test and Compliance Procedure. Tests for a System shall be performed in accordance with the
FCC's rules and regulations. Representatives of the City may witness the tests and written test
reports shall be made available to the City upon reasonable prior written request. If more than
ten percent (10%) of Grantee's locations in the City tested fail to meet the performance
standards, Grantee shall be required to indicate what corrective measures have been taken and
the entire test shall be repeated if requested by the City.
Emergency Requirements. Grantee must provide emergency alert override capabilities in a
manner consistent with the FCC's Emergency Alert System ("EAS") rules and consistent with
any State and/or regional Emergency Alert System plans adopted in response to the FCC's EAS
rules that are applicable to the Franchise Area.
Programming Decisions. In accordance with applicable law, Grantee shall provide programming
from each of the broad programming categories listed in accordance with the Franchise
Agreement. All programming decisions remain within the sole discretion of each Grantee
provided that Grantee complies with federal law regarding notice to Grantor and Subscribers
prior to any Channel additions, deletions, or realignments, and further subject to the Grantee's
City Council Packet
August 10, 2010
67
signal carriage obligations pursuant to 47 U.S.C. §§ 531-536, as may be amended and subject to
the City's rights pursuant to 47 U.S.C. § 545, as may be amended.
Cable System Office Hours and Telephone Availability.
A. Grantee shall maintain a customer Service office within the Franchise Area for a
minimum of five years from the effective date of this Franchise, which shall include a place
where Subscribers may pay their bills, pick-up and return converter boxes and comparable
items and receive information on the Grantee and its Services. Such Service office shall be open
during Normal Business Hours. Grantee also shall maintain a publicly listed toll-free or collect
call telephone access line that is available to Subscribers twenty-four (24) hours a day, seven (7)
days a week. The local or toll-free numbers shall be listed, with appropriate explanations, in all
widely utilized local phone directories. If Grantee discontinues use of a customer service office,
it shall provide a local agent to accept payment of bills and shall provide a convenient alternative
procedure for services formerly provided through its local customer Service office.
B. Grantee shall have trained representatives available to respond to Subscriber
telephone inquiries during Normal Business Hours. The term "trained representatives" shall
mean employees of the Grantee who have the authority and capability while speaking with a
Subscriber to, among other things, answer billing questions, and schedule Service and
installation calls.
C. All employees of the Grantee shall identify themselves when answering an
incoming call or inquiry, or while working in the field. Supervisory personnel must use
reasonable efforts to respond to Subscriber requests to speak with a "manager or supervisor"
within one business day of the request under Normal Operating Conditions, during Normal
Business Hours and supervisory personnel will respond no later than the next business day.
D. After Normal Business Hours, the telephone access line may be answered by a
Service or an automated response System, including an answering machine. Inquiries received
after Normal Business Hours must be responded to by a trained representative on the next
business day.
E. Upon reasonable prior written request, Grantee shall provide a calendar of
holidays and business days during which the Grantee will be closed. Grantee shall also use
reasonable efforts to provide prior notice to Subscribers through answering Service/machine,
voice mail messages, bill messages, or through a Channel provided by Grantee regarding hours
or dates when its offices will not be open. In addition, during such "closed" periods, the
Grantee shall use reasonable efforts to provide voice messages and notice on its premises of
the after hours contact numbers.
F. Under Normal Operating Conditions, telephone answer time by a customer
Service representative or automated response unit, including wait time, should not exceed
thirty (30) seconds. If a call must be transferred, transfer time should not exceed thirty (30)
seconds.
City Council Packet
August 10, 2010
68
G. Under Normal Operating Conditions, Subscribers should not receive a busy
signal more than three percent (3%) of the time. Standards provided in the immediately
preceding Section F. and this Section are intended to be reasonable, and while not mandatory,
represent reasonable service quality standards.
H. The period of three (3) hours following major outages (more than 25% of the
Grantee‟s Subscribers) or periods of natural disasters are not included in the response
requirements above, provided that Grantee has used reasonable best efforts to provide voice-
mail information about the outage on phone answering equipment and the System bulletin
board (assuming outage is not City-wide) and the Grantee provides documentation to City as
soon as reasonably possible following the outage, including beginning and ending times, area of
outage, location and cause of problem.
I. Grantee shall respond to all Subscriber or user inquiries or complaints within ten
(10) days of the inquiry or complaint, unless the resolution of the Subscriber or user inquiries
or complaints is not reasonably available within that time frame, in which case Grantee shall
respond as soon as reasonably possible. The requirement that Grantee respond to all
Subscriber or user inquiries or complaints within ten (10) days of the inquiry or complaint as
provided above shall apply except to the extent a more stringent standard is set forth for
specific types of activities, inquiries or complaints in this Franchise Ordinance/Agreement.
J. On a semi-annual basis, the Grantee, upon request, and upon six months notice,
will provide the City with reports for hold time, busy signals, and abandonment rate, and if
requested by the City, the Grantee will meet with the City to review such reports. The
Grantor may allow periods of excused non-compliance if the Grantee can provide reasonable
documentation that these periods of non-compliance were not within Normal Operating
Conditions.
(1) The Grantee will be deemed in compliance if:
(a) During any such semi-annual period each criterion has been met or
exceeded; or
(b) If each criterion has been met or exceeded during four (4) months within
any such semi-annual period.
(2) Should the Grantee be found to be in non-compliance, the City shall notify the
Grantee in writing and specify the basis for the finding. Upon notification, the
Grantee shall have thirty (30) days to cure such non-compliance.
(3) If the Grantee, based upon the available monthly data, fails to cure the non-
compliance within the thirty (30) day period, the Grantor may commence
enforcement procedures.
Installations, Outages, and Service Calls. Under Normal Operating Conditions, each of the
following standards must be met no less than ninety-five percent (95%) of the time as measured
on a quarterly basis:
City Council Packet
August 10, 2010
69
A. Maintenance Service capability enabling the prompt location and correction of
substantial System malfunctions or outages shall be available twenty-four (24) hours a day,
seven (7) days a week.
B. To the extent practical, at the time an appointment is scheduled, the Grantee
shall inform the Subscriber of Service procedures, required payments, possible delays, and
phone or field verification procedures which are related to the appointment and/or possible
rescheduling/cancellation.
C. The appointment window alternatives for Standard Installations and Service calls
will be within a maximum four (4) hour time block during Normal Business Hours. Grantees
may schedule Service calls and other installation activities outside of Normal Business Hours for
the express convenience of a Subscriber, if so requested.
D. No Grantee may cancel an appointment with a Subscriber after the close of
business on the business day prior to the scheduled appointment.
E. If a Grantee's representative is running late for an appointment with a Subscriber
and will not be able to keep the appointment as scheduled, all reasonable efforts will be made
to contact the Subscriber. The appointment must be rescheduled, as necessary, at a time that is
convenient for the Subscriber.
F. The Grantee may phone the Subscriber within the appointment window to verify
that the appointment is still needed. If the subscriber telephone is answered by a machine or
Service, the Grantee may leave a message which includes a number the Subscriber may use to
call back to confirm or reschedule the appointment.
G. Appointments may not be canceled or rescheduled until field personnel of the
Grantee make reasonable efforts to verify that the Subscriber or other authorized adult is not
at the address for the appointment.
H. Upon arrival at the Subscriber's address, if the Grantee verifies that a Subscriber
is not at the address during the scheduled appointment window, the Grantee shall leave a door
tag or similar notice with the name of the person leaving the notice, the time the person
determined that the Subscriber was not at home; and a telephone number the Subscriber may
call back to confirm or reschedule an appointment.
I. Any vehicle used for the installation, construction, maintenance, or repair of a
Cable System shall bear the identification of the Grantee in a conspicuous place and manner.
J. Reconnections due to erroneous disconnection based on billing or technical
errors must be completed at no charge within twenty-four (24) hours of notification by the
affected Subscriber.
City Council Packet
August 10, 2010
70
K. Reconnections after a disconnection attributed to non-payment of bills must be
completed within seven (7) business days of Grantee‟s receipt of back payment.
L. The Subscriber may be billed for installations or reconnections as soon as each
such service is installed.
M. Runs in building interiors shall be as unobtrusive as reasonably possible and
outlets shall be located for the convenience of the Subscriber. The Grantee shall use due care
in the process of installation and shall repair any damage to the Subscriber's property caused by
installation work. Such restoration shall be undertaken as soon as possible after the damage is
incurred, shall be subject to reasonable Subscriber approval of the corrective action, and
Grantee shall use its best efforts to complete the corrective action within no more than thirty
(30) days after the damage is incurred. Should such restoration not be corrected within thirty
(30) days, the Grantee shall notify the Subscriber as to the cause for the delay and the date
when such action shall be completed.
N. Failure of the Grantee to maintain adequate budget, sufficient staff or properly
trained staff shall not constitute justification for failure to comply with these provisions.
Repairs and Interruptions.
A. Every Grantee will begin working on Service Interruptions and outages within a
reasonable timeframe but in no event later than twenty-four (24) hours after the Service
Interruption becomes known.
(1) Any reports of "no picture/no sound" must be responded to within sixteen (16)
business hours of such report, unless reported during a weekend or holiday,
which shall require a response during the next regular business day.
(2) Work not requiring the Operator to enter Subscriber premises (or property)
shall not require the Subscriber to be available for an appointment and shall not
be delayed on account of the Grantee's inability to arrange an appointment with
the Subscriber.
B. Work on all other requests for Service must begin by the next business day after
notification of the problem.
C. The Subscriber does not need to be home for outside plant and line repairs.
D. A Grantee may interrupt Service only for good cause and for the shortest time
possible, including interruption for System upgrade, maintenance and repair. Grantee shall use
reasonable efforts to perform maintenance at times that affect the fewest number of
Subscribers. The Grantee shall post override notices on the System to advise Subscribers in
advance of planned Service interruptions. For a planned Service interruption that is likely to last
four (4) hours or more, Grantee shall broadcast information concerning the planned Service
interruption on a Channel of Grantee used for such notices and shall notify the local
newspaper.
City Council Packet
August 10, 2010
71
E. A Grantee shall provide a pro rata credit for Service for each Service
Interruption exceeding four (4) hours in any twenty-four (24) hour period, unless it is
demonstrated that the Subscriber caused the outage, or the outage was planned as part of an
upgrade or other work of which the City and the Subscriber received appropriate prior general
notification or the Service Interruption was determined to be beyond the control of Grantee. A
Subscriber is entitled to a full refund for any Cable System or equipment impairment to pay-
per-view event. These credits and refunds shall be made available upon request by Subscriber.
F. Service Call Charges. Unless otherwise agreed to, no charge shall be made to a
Subscriber for any Service call relating to Grantee owned and Grantee maintained equipment
after the initial installation of Cable Service unless the problem giving rise to the Service request
can be demonstrated by Grantee to have been:
(1) Caused by the negligence or malicious destruction of cable equipment by the
subscriber; or
(2) A problem established as having been non-cable in origin.
(3) A customer education problem requiring unnecessary visits by Grantee.
G. An "Identified Outage" is construed as reports of no picture/no sound from
three (3) or more Subscribers in close geographic proximity or along the same trunk or feeder
line within twenty (20) minutes of each other.
H. Within one (1) hour of an Identified Outage during Normal Business Hours,
Service technicians will respond and use all available reasonable means to correct the outage in
the shortest possible amount of time. The Grantee shall maintain and forward to the City, upon
request, reports on the cause, area, duration and repair of the outage.
I. Cable drop lines, cable trunk lines, or any other type of outside wiring that
comprise part of the Grantee's Cable System that are located underground, shall be placed in
such locations pursuant to City Code, and the surrounding ground shall be restored to a
condition which is reasonably comparable to the condition immediately prior to such
construction, within seventy-two (72) hours after connection to the Cable System, or such
time as agreed to by the property owner. Additional time may be allowed for the completion of
such restoration if individual circumstances warrant. The requirements of this subsection shall
apply to all installation, reinstallation, Service or repair commenced by the Grantee within the
City during Normal Operating Conditions.
Communications Between Grantees and Subscribers.
A. Notifications to Subscribers:
(1) In accordance with applicable law, Grantee shall provide written information to
Subscribers on each of the following topics at the time of installation, at least annually to all
City Council Packet
August 10, 2010
72
Subscribers, at any time upon request, and at least thirty (30) days prior to making significant
changes in such information:
(a) Product and Services offered;
(b) Prices and options for programming services and conditions of
subscription to programming and other services and facilities;
(c) Installation and maintenance policies including, when applicable,
information regarding the Subscriber's home wiring rights and
information describing ownership of internal wiring during the period
Service is provided;
(d) Instructions on how to use Services;
(e) Channel positions of programming offered on a System;
(f) Billing and Complaint procedures, including the name, address and
telephone number of the City;
(g) The availability of Converters, Lockout Devises or other signal control
devices;
(h) The Grantee's practices and procedures for protecting against invasions
of privacy; and
(i) The address and telephone number of the Grantee's office to
which Complaints may be reported.
(2) Grantee promotional materials, announcements and advertising of Service to
Subscribers, including pay-per-view or event programming, shall clearly and
accurately disclose price terms. In the case of telephone orders, the Grantee
shall take appropriate steps to reasonably explain the price terms to potential
customers before the order is accepted.
(3) Subscribers will be given thirty (30) days advance notice of any changes in rates,
programming Services, or Channel positions through any written means that is
reasonably likely to bring such information to the attention of Subscribers.
B. Billing:
(1) Bills must be clear, concise, and understandable. Bills must be itemized, with
itemizations including, but not limited to, Basic and premium Service charges and
equipment charges.
(2) Bills must clearly show a specific payment due date.
City Council Packet
August 10, 2010
73
(3) If Grantee chooses to itemize, as a separate line item on bills, Franchise Fees or
other government imposed fees attributable to the total bill, such fees must be
shown in accordance with any applicable law concerning the Grantee's ability to
itemize such fees.
(4) Bills must also clearly delineate all activity during the billing period, including
optional charges, rebates, and credits. Nothing in this section prohibits or
restricts a Grantee from offering packages of programming to Subscribers and to
identify such packages on the Subscriber bill.
(5) The billing statement must clearly and conspicuously indicate the past due date,
and if applicable the date certain that a Subscriber's Service will be eligible for
disconnection.
(6) Negative option billing is prohibited unless applicable federal law specifically
requires that the Grantee be permitted to engage in such practice.
(7) In case of a billing dispute, a Grantee must respond to a written Complaint from
a Subscriber within thirty (30) days. Credits for Service shall be issued no later
than the Subscriber's next billing cycle after determination that the credit is
warranted.
Complaint Log. Subject to the privacy provisions of 47 U.S.C. § 521 et seq., Grantor and every
Grantee shall prepare and maintain written records of all Complaints made to them and the
resolution of such Complaints, including the date of such resolution. Such written records shall
be on file at the office of Grantee. Grantee shall make available to Grantor a written summary
of such Complaints and their resolution upon request.
Lockout Device.
A. Grantee shall provide to any Subscriber upon request for sale or lease a Lockout Device
for blocking both video and audio portions of any channel(s) of programming entering the
Subscriber's premises.
B. Scrambling/Blocking. Grantee shall at all times scramble both the audio and video
portions of all channels with predominately adult oriented programming.
Periodic Subscriber Surveys.
A. Grantee may select any reasonable method to conduct periodic Subscriber surveys. The
Grantor shall be responsible for any costs incurred by a Grantee that are related to the
conduct of such surveys.
City Council Packet
August 10, 2010
74
B. In addition to Periodic Telephone Surveys, the Grantor may periodically elect to
supplement periodic telephone surveys with a statistically valid telephone survey, of the
subject matter identified in Section 5-3 of this Franchise.
Line Extension Policy. No resident shall be refused Service arbitrarily. Unless otherwise set
forth in the Franchise Agreement, whenever Grantee receives a request for Cable Service in an
unserved portion of the Franchise area where there are at least 25 dwelling units (which shall
be interpreted to include businesses that have contractually agreed to subscribe to Cable
Service) within one linear cable mile of the Grantee's nearest trunk or distribution cable from
which it is technically feasible to extend Service, or the dwelling unit is within 125 feet of
Grantee's distribution cable, it shall extend its Cable System to such Subscriber at no cost,
other than the published standard installation fee charged to all Subscribers.
Mobility Limited Subscribers. Unless otherwise agreed in this Franchise Ordinance/Agreement,
upon the request of mobility-limited Subscribers, Grantee shall arrange for delivery, pickup or
exchange or replacement of converters or other equipment at the Subscriber's address.
Customer Service Reporting Requirements. Based on a substantial number and a documented
pattern of verbal or written Complaints received by Grantor, and upon six (6) months notice
to Grantee, Grantor may require Grantee to begin collecting data of such Complaints,
including, at minimum, the following:
A. A telephone report containing the following information relevant to the question of
whether the Grantee's telephone answering System complies with the standards of this
Ordinance:
(1) Total number of calls received by the Call System handling the Franchise Area;
(2) Total number of calls abandoned by the Call System handling the Franchise Area;
(3) Total percentage of calls abandoned;
(4) Percentage of calls answered within thirty (30) seconds; and
(5) A description of significant events impacting telephone response
times.
B. The number of free Standard Installations that were issued for failure to arrive
for Standard Installations.
C. A significant Service Interruptions report that tracks information on a monthly
basis to include:
(1) Total number of Service Interruptions;
(2) Time of all Service Interruptions;
City Council Packet
August 10, 2010
75
(3) Total hours that the System was out-of-service as related to planned
maintenance or Channel line-up changes performed by a Grantee; and
(4) Estimated number of Subscribers affected by each incident.
In addition to the above, the City may request that Grantee begin Service Interruption
reports contain graph(s) that depict Grantee's performance with respect to the items above
for the first three (3) year period of this Franchise and thereafter up to a three (3) year
period prior to the date the report was requested.
D. Results of any technical testing on the System.
Dispute Resolution.
A. Grantee shall establish procedures for receiving, acting upon, and resolving
customer complaints, and crediting customer accounts, without intervention by the Grantor.
Such procedures shall prescribe the manner in which any Subscriber may submit a complaint by
telephone, fax, e-mail or in writing to the Grantee that it has violated any provision of these
Customer Service Standards, any terms or conditions of the Customer's contract with the
Grantee, or reasonable business practices. Grantee shall use reasonable efforts to log oral
complaints it receives and shall not be obligated to provide verbatim reports or transcripts of
oral complaints provided the nature of the complaint is adequately provided to the Grantor if
requested by Grantor.
B. The Grantee's complaint procedure shall be filed with the Grantor prior to June
1, 2011.
C. The Grantee's investigation of a Subscriber complaint shall be concluded in no
more than fifteen (15) business days after receiving the complaint, at which time the Grantee
shall notify the Subscriber of the results of its investigation and its proposed action.
D. The Grantor may also notify the Subscriber of his/her rights to file a complaint
with the Grantor in the event the Subscriber is dissatisfied with the Grantee's decision, and
shall thoroughly explain the necessary procedures for filing such complaints with the Grantor.
E. The Grantor will review and notify Grantee of all complaints it receives against
Grantee regarding quality of service, equipment malfunctions, billing disputes, and property
damage. In conducting its review, the Grantor may request additional information from the
Grantee and/or Subscriber.
SECTION 6.
FRANCHISE FEE, INSURANCE PROVISIONS
1. Franchise Fee.
City Council Packet
August 10, 2010
76
(a) Grantee shall pay to City an Annual Franchise Fee in the amount of five percent
(5%) of its annual Gross Revenues as defined in Section 1. of this Agreement.
(b) Any payments due under this provision shall be payable within 30 days of the end
of the Grantee's fiscal quarter and shall include a report showing the basis for
the computation.
(c) The City shall have the right, at any time during the term of this Franchise, to increase
the Annual Franchise Fee to the maximum percentage permitted by law, however the City
shall provide Grantee at least sixty (60) days notice prior to the effective date of any
increase or decrease of the Annual Franchise Fee.
2. Access to Records. The City shall have the right to inspect, upon reasonable notice and
during normal business hours, or require Grantee to provide within a reasonable time, copies
of any records maintained by Grantee which relate to System operations including specifically
Grantee's accounting and financial records.
3. Indemnification.
(a) Except as otherwise provided herein, Grantee shall indemnify, hold harmless,
release and defend City, its officers, agents and employees from and against any
and all lawsuits, claims, actions, demands, damages, disability, losses, expenses
including attorney's fees and other defense costs or liabilities of any nature that
may be asserted by any Person or entity arising out of the activities of Grantee,
its subcontractors, employees and agents hereunder. Grantee shall be solely
responsible and save City harmless from all matters relative to payment of
Grantee's employees, including compliance with Social Security, withholding and
other payroll requirements.
(b) This indemnification obligation is not limited in any way by a limitation of the
amount or type of damages or compensation payable by or for Grantee under
workers' compensation, disability or other employee benefit acts, acceptance of
insurance certificates required under this Agreement, or the terms, applicability
or limitations of any insurance held by Grantee.
(c) Grantor does not, and shall not, waive any rights against Grantee which it may
have by reason of this indemnification, because of the acceptance by Grantor, or
the deposit with Grantor by Grantee of any of the insurance policies described
in this Franchise Agreement.
(d) This indemnification by Grantee shall apply to all damages and claims for damages
of any kind suffered by reason of any of the aforesaid operations referred to in
this Section, regardless of whether or not such insurance policies shall have been
determined to be applicable to any such damages or claims for damages.
City Council Packet
August 10, 2010
77
(e) Grantee shall not be required to indemnify Grantor for negligence or
misconduct on the part of Grantor or its officials, boards, commissions, agents, or
employees (hereinafter negligence or misconduct may be referred to as "such
acts"). Grantor shall hold Grantee harmless for any damage resulting from any
such acts of the Grantor or its officials, boards, commissions, agents, or
employees in utilizing any PEG access channels, equipment, or facilities and for
any such acts committed by Grantor in connection with work performed by
Grantor and permitted by this Agreement, on or adjacent to the Cable System.
4. Grantee‟s Insurance. Grantee shall not commence any Cable System construction work
or permit any subcontractor to commence work until both shall have obtained or caused to be
obtained all insurance required under this Section. Said insurance shall be maintained in full
force and effect until the completion of construction.
5. Workers‟ Compensation Insurance. Grantee shall obtain and maintain workers'
compensation insurance for all of Grantee's employees, and in case any work is sublet, Grantee
shall require any subcontractor similarly to provide workers' compensation insurance for all
subcontractor's employees, all in compliance with State laws, and to fully protect the Grantor
from any and all claims arising out of occurrences resulting from Cable System construction
work. Grantee hereby indemnifies Grantor for any damage resulting to it from failure of either
Grantee or any subcontractor to take out and maintain such insurance. Grantee shall provide
the Grantor with a certificate of insurance indicating workers' compensation coverage with its
acceptance of this Franchise Agreement.
6. Insurance.
(a) Grantee shall file, with its acceptance of this Franchise Agreement, and at all
times thereafter maintain in full force and effect during the entire term of this
Franchise at its sole expense, comprehensive general liability insurance that shall
protect the Grantee, the Grantor, and the Grantor‟s officials, officers, employees
and agents from claims which may arise from operations under this Franchise,
whether such operations are by the Grantee, its officials, officers, directors,
employees and agents, or any subcontractor of Grantee. This liability insurance
shall include but shall not be limited to protection against claims arising from
bodily and personal injury and damage to property, resulting from Grantee's
automobiles, products and completed operations. The amount of insurance for
single limit coverage applying to bodily and personal injury and property damage
shall not be less than one million dollars ($1,000,000) per occurrence and two
million dollars ($2,000,000) in aggregate. The following endorsements shall
attach to the liability policy:
(1) The policy shall cover personal injury as well as bodily injury.
(2) The policy shall cover blanket contractual liability subject to the standard
universal exclusions of contractual liability included in the carrier's standard
City Council Packet
August 10, 2010
78
endorsement as to bodily injuries, personal injuries and property damage.
(3) Broad form property damage liability shall be afforded.
(4) The Grantor shall be named as an additional insured on the policy.
(5) An endorsement shall be provided which states that the coverage is primary
insurance and that no other insurance carried by the Grantor will be called upon
to contribute to a loss under this coverage.
(6) Standard form of cross-liability shall be afforded.
(7) Each policy of insurance shall contain a statement on its face that the insurer will
not cancel the policy or fail to renew the policy, whether for nonpayment of
premium, or otherwise, and whether at the request of Grantee or for other
reasons, except after thirty (30) days' advance written notice has been provided
to Grantor.
(b) Grantor reserves the right to adjust the coverage limit requirements no more
than every five (5) years. Any such adjustment by the Grantor will be no greater
than the increase in the State of South Dakota Consumer Price Index (all
consumers) for such five (5) year period.
(c) Grantee shall submit to Grantor documentation of the required insurance
including a certificate of insurance signed by the insurance agent and companies
named, as well as all properly executed endorsements.
(d) Any deductible or self-insured retention must be declared to Grantor.
SECTION 7.
FRANCHISE VIOLATION/REVOCATION OF FRANCHISE
1. Franchise Violations. Grantor, by action of the City Manager, shall first notify Grantee
of a violation in writing by personal delivery or registered or certified mail, and demand
correction within a reasonable time, which shall not be less than ten (10) days in the case of the
failure of the Grantee to pay any sum or other amount due the Grantor under this Agreement,
and thirty (30) days in all other cases. If Grantee fails to correct the violation within the time
prescribed, or if Grantee fails to commence corrective action within the time prescribed and
diligently remedy such violation thereafter, the Grantee shall then be given a written notice of
not less than thirty (30) days of a public hearing to be held before the City Council. Said notice
shall specify the violation(s) alleged to have occurred.
(a) At the public hearing, the City Council shall hear and consider all relevant
evidence, and thereafter render findings, its decision, and the penalty or penalties
for the violation.
City Council Packet
August 10, 2010
79
(b) In the event the City Council finds that Grantee has corrected the violation, or
has diligently commenced correction of such violation after notice thereof from
Grantor and is diligently proceeding to fully remedy such violation, or that no
material violation has occurred, the proceedings shall terminate and no penalty
or other sanction shall be imposed. In determining whether a violation is
material, Grantor shall take into consideration the reliability of the evidence of
the violation, the nature of the violation and the damage, if any, caused to the
Grantor thereby, whether the violation was chronic, and any justifying or
mitigating circumstances and such other matters as the Grantor may deem
appropriate.
(c) Grantor may impose any penalty or sanction authorized by Federal or State law
for a violation of this Franchise, however imposition of any such penalty shall not
constitute a waiver of any right of the Grantor to pursue any other remedy
permitted by law.
2. Revocation of Franchise.
(a) Grantor‟s Right to Revoke.
(1) In addition to all other rights which Grantor has pursuant to law or equity, Grantor
reserves the right to revoke, terminate or cancel this Franchise, and all rights and privileges
pertaining thereto, if after the hearing required by Section 7.1 herein, it is determined that:
(i) Grantee has violated any material provision of this Franchise; or
(ii) Grantee has attempted to evade any material provision of the Franchise;
or
(iii) Grantee has practiced fraud or deceit upon Grantor or Subscriber.
(b) Procedures for Revocation.
(1) Grantor shall provide Grantee with written notice of a cause for revocation and the
intent to revoke this Franchise and shall allow Grantee thirty (30) days subsequent to
receipt of the notice in which to correct the violation or to provide adequate assurance of
performance in compliance with the Franchise.
(2) Grantee shall be provided the right to a public hearing affording due process before the
City Council prior to revocation, which public hearing shall follow the thirty (30) day notice
provided in Section (b.1.) immediately above. At the public hearing, Grantee shall be
provided a fair opportunity for full participation, including the right to be represented by
legal counsel, to introduce relevant evidence, to require the production of evidence, to
compel the relevant testimony of the officials, agents, employees or consultants of the
Grantor, to compel the testimony of other persons as permitted by law, and to question
witnesses. A complete verbatim record and transcript shall be made of such hearing, the
City Council Packet
August 10, 2010
80
cost of such transcript to be paid by Grantee. The Grantor shall provide Grantee with
written notice of its decision together with written findings of fact supplementing said
decision.
(3) After the public hearing and upon written determination by Grantor to revoke
the Franchise, Grantee may appeal said decision to an appropriate State or Federal court or
agency within sixty (60) days of said decision. Unless otherwise provided by Federal or
State law, the decision of the Grantor to revoke the Franchise shall be subject to review de
novo.
(4) During the appeal period, the Franchise shall remain in full force and effect unless
the term of the Franchise Agreement expires during the appeal period.
(5) The Grantor may, at its sole discretion, take any lawful action which it deems
appropriate to enforce the Grantor's rights under the Franchise in lieu of, or in addition to,
appeal or public hearing upon revocation of this Franchise.
SECTION 8.
PROTECTION OF INDIVIDUAL RIGHTS
1. Subscriber Privacy. Grantee shall comply with the terms of 47 U.S.C. § 551 relating to
the protection of Subscriber privacy.
SECTION 9.
UNAUTHORIZED CONNECTIONS AND MODIFICATIONS
1. Unauthorized Connections or Modifications Prohibited. It shall be unlawful for any firm,
Person, group, company, corporation, or governmental body or agency, without the express
consent of the Grantee, to make or possess, or assist anybody in making or possessing, any
connection, extension, or division, whether physically, acoustically, inductively, electronically or
otherwise, with or to any segment of the System.
2. Removal or Destruction Prohibited. It shall be unlawful for any firm, Person, group,
company, corporation, or governmental body or agency to willfully interfere, tamper, remove,
obstruct, or damage, or assist thereof, any part or segment of the System for any purpose
whatsoever.
3. Penalty. Any firm, Person, group, company, corporation or government body or agency
found guilty of violating this section may be fined not more than Two Hundred Dollars
($200.00) for each and every offense. Each continuing day of the violation shall be considered a
separate occurrence and offense.
SECTION 10.
MISCELLANEOUS PROVISIONS
City Council Packet
August 10, 2010
81
1. Franchise Renewal. Any renewal of this Franchise shall be done in accordance with
applicable Federal, State and local laws and regulations.
2. Amendment of Franchise Ordinance. Grantee and Grantor may agree, from time to
time, to amend this Franchise. Such written amendments may be made at any time if Grantor
and Grantee agree that such an amendment will be in the public interest or if such an
amendment is required due to changes in Federal, State or local laws. Grantor shall act
pursuant to local law pertaining to the ordinance amendment process.
3. Mediation. To aid in the analysis and resolution of any future disputed matters relative to
this Franchise Agreement, the Grantor and Grantee may, by mutual agreement (both as to
whether to hire and whom to hire), employ the services of technical, financial or legal
consultants, as mediators. All reasonable fees of the consultants incurred by the Grantor and the
Grantee in this regard shall be borne equally.
4. Force Majeure. Neither Grantor nor Grantee shall be liable for damages or subject to
penalty due to delay or failure to perform any duty imposed by this Franchise Agreement if
such delay or failure results directly or indirectly from circumstances beyond the control of
such party. Within thirty (30) days of Grantee's discovery of the event causing such delay or
failure, Grantee shall provide Grantor written notice describing the cause of the delay or failure
and estimating the period of time in which such delay or nonperformance will be cured.
5. Rate Regulation/Internet as a cable service. If Grantor is permitted under Federal and/or
State law to regulate the rates charged by Grantee, and if Grantor elects to regulate, Grantor
shall establish reasonable procedures consistent with due process and applicable law and follow
those procedures before so regulating. In addition, if the term “cable service” is modified by
Federal law or by the FCC, such services as are included within the term “cable service” shall
be subject to the Franchise Fee, again, to the extent permitted by Federal and State law.
6. Legal Fees. Grantee shall promptly reimburse Grantor for all legal costs associated with
preparing this Ordinance and for any subsequent amendment prepared at the request of
Grantee.
SECTION 11.
CONFLICT WITH OTHER ORDINANCES
In the event of any conflict or ambiguity between the terms and conditions of this
Franchise Ordinance and any other Ordinance, this Ordinance shall control, except as may be
specifically otherwise provided in this Ordinance. The Grantor reserves all rights that it may
possess under law to adopt any ordinance regulating the use of the Grantor‟s streets and rights
of ways.
SECTION 12.
PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
City Council Packet
August 10, 2010
82
1. Publication; Effective Date. This Franchise shall be published in accordance with
applicable South Dakota law. The Effective Date of this Franchise shall be the date Grantee has
accepted this Franchise. Grantee shall promptly reimburse Grantor the publication costs
associated with this Ordinance.
2. Acceptance.
(a) Grantee shall accept this Franchise Agreement within sixty (60) days of the
adoption of the Franchise Ordinance by the City Council, unless the time for
acceptance is extended by Grantor. Such acceptance by the Grantee shall be
deemed the grant of this Franchise for all purposes. Upon acceptance of this
Franchise, Grantee shall be bound by all the terms and conditions contained
herein.
(b) Grantee shall accept this Franchise in the following manner:
(1) This Franchise shall be properly executed by Grantee and delivered to
Grantor.
(2) With its acceptance, Grantee shall also deliver any Insurance certificate
required herein that have not previously been delivered to Grantor.
Passed and adopted this _____ day of _______________, 2010.
ATTEST: CITY OF BROOKINGS, GRANTOR
By: By:
City Clerk
Its: Mayor
ACCEPTED: This Franchise Agreement is accepted and Grantee agrees to be bound by its
terms and conditions.
INTERSTATE TELECOMMUNICATIONS
COOPERATIVE, INC., GRANTEE
Dated: By:
Its: President
City Council Packet
August 10, 2010
83
Second Readings / Public Hearings
9. Public hearing and action on a house moving request from Kevin
Grunewaldt to move an apartment building from 524 3rd Street to
the property described as Lots 5, 6, and 7, Block 7, Folsom
Addition, also known as 144 3rd Avenue South.
Applicant: Kevin Grunewaldt
Proposal: Relocate an older apartment building to a high-density residential
district.
Background (old site):
Structure: The building was constructed in 1905 and had additions added over
the years to give it an unusual shape. The building had 14 dwelling units with
about half of them being one-bedroom studio apartments. The building was vinyl
sided several years ago.
Lot: The apartment originally occupied a lot with 10,700 square feet of area.
The lot was expanded to 16,500 square feet after a small abutting parcel was
purchased by a previous owner.
Specifics (new site):
Structure: The building would be modified to contain 12 dwelling units. Changes
to the front and rear entrances have been proposed by the applicant. The height
of the building will be around 40 feet.
Lot: The „lot‟ contains 21,000 square feet of area. It is in a high-density
residential district that permits up to 24 units per acre. The district allows single-
family and two-family dwellings, mobile homes, apartment buildings, mobile home
parks, and other various residential uses and institutional uses.
The lot is adjacent to single-family homes to the north and west on the same
block. Homes are generally one and two-story in design. The block to the south
has a large 2 ½ story house on the corner and a mobile home part to the west.
The block to the east is in the Business B-3 District. This district can support a
wide variety of retail services with outdoor displays.
City Manager Introduction
ACTION: Open & Close Public Hearing, Motion to Approve, Roll Call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
August 10, 2010
95
Second Readings / Public Hearings
10. Ordinance No. 26-10: Rezoning Lots 2 and 3, Block 2, Folsom
Addition from a Residence R-3A District to an Industrial I-1
District (110 6th Avenue South).
Applicant: Mark and Elizabeth Whaley
Proposal: Rezone a parcel from high-density residential to light industrial
Background: Single-family residential uses occupied most of the lots in this
block in the early 1900‟s. In 1947, the lot in the northeast corner of the
block was used for the storing of buses. The 1966 Comprehensive Plan
designated the entire block for high-density residential uses. In 1978, an
apartment building was constructed in the middle of the block on the east
side.
The lot with the bus garage was converted into a Contractors Shop and
Storage Yard at some point. In 1984, the owner petitioned and was
approved to change the zoning on Lot 1 to an Industrial I-1 District. Over
the years, additional buildings were constructed on the lot.
Specifics: The rezoning proposal would expand the I-1 District 100 feet to
the south. If rezoned, the south 50 feet would be required to remain as a
landscape area (buffer). No encroachment pertaining to an industrial use
would be permitted without a variance in the buffer area.
Recommendation: The Planning Commission voted 8 yes and 0 no to
recommend the rezoning.
City Manager Introduction
ACTION: Open & Close Public Hearing, Motion to Approve, Roll Call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
August 10, 2010
96
Ordinance No. 26-10
An Ordinance to Change the Zoning Within the City of Brookings
Be it ordained by the governing body of the City of Brookings, South Dakota,
Section 1. That the real estate situated in the City of Brookings, County of Brookings, State of
South Dakota, described as follows:
Lots 2 and 3 of Block 2, Folsom Addition
be and the same is hereby rezoned and reclassified from a Residence R-3A District to an
Industrial I-1 District.
In accordance with Section 94.7 of Article I of Ordinance 25-02 of the Code of Ordinances of
Brookings, South Dakota, as said districts are more fully set forth and described in Articles III
and IV of Ordinance No. 25-02 of the City of Brookings, South Dakota.
Section 2. The permitted use of the property heretofore described be and the same is hereby
altered and changed in accordance herewith pursuant to said Ordinance No. 25-02 of the City
of Brookings, South Dakota.
Section 3. All sections and ordinances in conflict herewith are hereby repealed.
First Reading: July 27, 2010
Second Reading: August 10, 2010
Published: August 13, 2010
CITY OF BROOKINGS
______________________________
ATTEST: Tim Reed, Mayor
_________________________
Shari Thornes, City Clerk
City Council Packet
August 10, 2010
99
Planning Commission
Brookings, South Dakota
July 6, 2010
OFFICIAL MINUTES (excerpt)
Chairperson Alan Gregg called the regular meeting of the City Planning Commission to
order on July 6, 2010, at 7:00 PM in the Council Chamber at City Hall. Members present were
Wayne Avery, Mike Cameron, Donna DeKraai, Greg Fargen, Al Heuton, Dave Kurtz, John
Sydow, and Gregg. John Gustafson was absent. Others present were Mark Whaley, Connie
Swain, City Engineer Jackie Lanning, City Manager Jeff Weldon, Community Development
Director Mike Struck, Planning and Zoning Administrator Dan Hanson and others.
Item #4 - Mark and Elizabeth Whaley have submitted a petition to rezone Lots 2 and 3, Block
2, Folsom Addition, also known as 110 6th Avenue South from a Residence R-3A District to an
Industrial I-1 District.
(Cameron/Kurtz) Motion to approve the rezoning. All present voted aye. MOTION
CARRIED.
SUMMARY OF DISCUSSION
Item #4 – Mark Whaley stated that he currently rented the land on the corner where he
conducted his business. His business was expanding, and he purchased the property south of
the lot he was renting. His plan was to use the north 40 feet for his business and continue to
rent the south portion for residential purposes.
Fargen asked about access to the lot. Whaley replied that he would use the alley. Fargen
asked about the garage on the lot. Whaley responded that it would be used by the tenant.
Fargen inquired about outdoor storage. Whaley answered that some outdoor storage would be
located on the south lot. Kurtz asked about the future of the house. Whaley had no other plans
now other than to rent it for residential uses.
City Council Packet
August 10, 2010
102
Sec. 94-136 INDUSTRIAL I-1 LIGHT DISTRICT
(a) Intent. This district is intended to provide for a number of light manufacturing, light
processing, warehousing and service uses. This district includes the supportive commercial uses
for the industrial businesses.
(b) Scope of Regulations. The regulations set forth in this section or set forth elsewhere in
this title, when referred to in this section, are the district regulations of the Industrial I-1 Light
District.
(c) Permitted Uses.
1. Assembling and packaging
2. Freight handling
3. Manufacturing, light
4. Storage and warehousing
5. Processing, light
6. Parking facility or lot
7. Office
8. Truck stop
9. Automobile service station
10. Public utility facility
11. Reverse vending machine
12. Contractors shop and storage yard
13. Motor vehicle repair shop
14. Semi-trailer storage
15. Farm Implement Sales
16. Telecommunications Tower
(d) Permitted Special Uses. A building or premises may be used for the following purposes in
conformance with conditions prescribed herein:
1. Day care facility
a. A four-foot (4') high transparent fence shall be constructed between the play area and
the street.
b. An off-street pick-up and drop-off area shall be provided.
2. Light processing facility for recyclables
a. All storage and processing areas shall have perimeter fencing on all sides.
3. Buy back center for recyclables
a. A list of the types of recyclable material to be collected shall be approved prior to the
issuance of any permit
4. Citizens drop-off facility for recyclables
a. Containers or bins shall be provided for all waste material.
b. No container shall be located within 100 feet of a residential district.
5. Household hazardous waste site
a. Such uses shall be within a completely enclosed building.
b. The applicant shall comply with the provisions of all applicable laws and ordinances.
6. Transfer site for recyclables
City Council Packet
August 10, 2010
103
a. All storage areas shall have perimeter fencing on all sides.
b. A list of the types of recyclable material to be collected shall be approved prior to the
issuance of any permit.
7. Automobile storage yard
a. Impound area shall be surfaced with gravel, asphalt or concrete.
(e) Conditional Uses.
Kennel
1. Broadcast Tower
2. Outdoor Sales
3. Concrete Plant
(f) Density, Area, Yard and Height Regulations.
The I-1 district regulations shall be as follows:
Min. Min. Min. Min. Min. Max.
Lot Lot Front Side Rear Height
Density Area Width Yard Yard Yard
Sq.Ft. Sq.Ft.
All Uses 20' 20'* 20'* 50'
*A fifty foot (50') landscaped area shall be required between an abutting residential district boundary line and any
structure, access drive, parking lot or other accessory use.
(g) Accessory Uses. Accessory uses and building permitted in the I-1 District are buildings and
uses customarily incidental to any of the permitted uses in the district.
(h) Parking Regulations. Parking, loading and stacking within the I-1 District shall be in
conformance with the regulations set forth in division 4 of article VI of this chapter
(i) Sign Regulations. Signs within the I-1 District shall be in conformance with the regulations
set forth in division 5 of article VI of this chapter
(g) Other Regulations. Development within the I-1 District shall be in conformance with the
regulations set forth in article II of this chapter
City Council Packet
August 10, 2010
104
Second Readings / Public Hearings
11. Ordinance No. 27-10: A Conditional Use to establish an office on
the West 100 feet of the North 150 feet of the South 347.2 feet of
Carlisle’s Addition (321 9th Street).
Applicant: Brookings Area Habitat for Humanity
Proposal: Establish an office in an existing residential structure
Background: This house was moved onto the “lot” in 1953. It has been
occupied by a variety of uses in the past including a parsonage, boardinghouse,
group home, and domestic abuse shelter. The lot has a long driveway along
the west side that leads to a detached garage. First Lutheran Church property
surrounds the lot on all sides except to the west. This side abuts the rear
yards of single-family dwellings that front on 3rd Avenue.
Specifics: The building is in a unique location since no right-of-way is nearby.
The church property (upon which it sits) has four (4) access points onto three
(3) different streets, and it is my understanding the applicant and the church
have a cross easement agreement for access. I also believe the house will be
eventually moved to a more permanent location in the near future.
The standards for an office use in the Residence R-2 District are as follows:
Sec. 94-290. Office:
Such uses shall be located on a collector or arterial street. Special attention
shall be given to the architectural compatibility with surrounding residential
properties. Consideration shall be given to the traffic generated by such use, the
type of sign, the hours of operation and the character of the use. Parking shall
be screened from any adjacent residential area.
Recommendation: The Planning Commission voted 8 yes and 0 no to approve
the Conditional Use subject to the condition listed in the ordinance.
City Manager Introduction
ACTION: Open & Close Public Hearing, Motion to Approve, Roll Call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
August 10, 2010
105
Ordinance No. 27-10
An ordinance pertaining to an application for a Conditional Use for an Office in the
Residence R-2 District.
Be it ordained by the governing body of the City of Brookings, South Dakota that said
Conditional Use shall be approved for an Office on the west 100 feet of the north 150 feet of
the south 347.2 feet of Carlisle‟s Addition with the following conditions:
The Conditional Use Permit shall be granted only to Brookings Area Habitat for
Humanity.
All sections and ordinances in conflict herewith are hereby repealed.
First Reading: July 27, 2010
Second Reading: August 10, 2010
Published: August 13, 2010
CITY OF BROOKINGS
__________________________
ATTEST: Tim Reed, Mayor
_______________________
Shari Thornes, City Clerk
City Council Packet
August 10, 2010
109
Planning Commission
Brookings, South Dakota
July 6, 2010
OFFICIAL MINUTES (excerpt)
Chairperson Alan Gregg called the regular meeting of the City Planning Commission to
order on July 6, 2010, at 7:00 PM in the Council Chamber at City Hall. Members present were
Wayne Avery, Mike Cameron, Donna DeKraai, Greg Fargen, Al Heuton, Dave Kurtz, John
Sydow, and Gregg. John Gustafson was absent. Others present were Mark Whaley, Connie
Swain, City Engineer Jackie Lanning, City Manager Jeff Weldon, Community Development
Director Mike Struck, Planning and Zoning Administrator Dan Hanson and others.
Item #5- Brookings Area Habitat for Humanity has submitted an application for a Conditional
Use on the west 100 feet of the north 150 feet of the south 347.2 feet of Carlisle‟s Addition,
also known as 321 9th Street. The request is to establish an office in a Residence R-2 District.
(Kurtz/Heuton) Motion to approve the Conditional Use.
(Kurtz/Cameron) Amendment to the motion to add the following condition:
The Conditional Use Permit shall be granted only to Brookings Area Habitat
for Humanity.
All present voted aye. AMENDMENT CARRIED.
The motion, as amended, was voted on. All present voted aye. MOTION CARRIED.
SUMMARY OF DISCUSSION
Item #5 – Connie Swain, Executive Director of Brookings Area Habitat for Humanity
(BAHFH), stated the building would be used for an office for four (4) full-time employees.
Students would also work two to four hours a week as volunteers. The office would operate
from 8:00 AM to 5:00 PM on Monday through Friday. There would be one evening board
meeting each month on Thursday nights.
The garage and lot would not be used for any equipment storage, and customers would
occasionally visit to fill out application forms. BAHFH and First Lutheran Church had a lease
and a mutual agreement to allow ingress and egress across the church‟s property.
DeKraai inquired if the proposed use would generate more traffic than the previous use.
Swain did not believe it would. Kurtz asked about the lease. Swain responded that if the lease is
terminated, the house must be moved or demolished. Heuton asked if 8th Street was a collector
street. Hanson replied yes. Cameron asked if BAHFH employees would park in the driveway.
Swain answered that they would use the church‟s parking lot.
City Council Packet
August 10, 2010
110
12. Action on Resolution No. 76-10, a Resolution Authorizing the
Transfer of Real Property to Brookings Economic Development
Corporation for Economic Development purposes.
Brookings Economic Development Corporation (BEDC) requested and
negotiated with the City of Brookings to convey to BEDC under the
following terms .337 acres of land described as S35' of S500' of E419.25' of
NE1/4 Sec. 30-110-49 OLS Brookings City (35‟ X 419.25‟) located in
Telkamp Industrial Park:
BEDC will purchase the property from the City of Brookings for
$3,000.
BEDC will convey the property to Mike Dorn for $3,000.
The land request will essentially place a parcel too narrow to accommodate
development on the tax roles by transferring it to an adjacent private party.
The parcel will also increase the size of an adjacent parcel owned by Mike
Dorn which eventually will be used, or sold, for industrial development
purposes.
Economic Impact:
The primary benefit to Brookings is the placement of a small parcel on the
tax roles and the creation of a larger parcel of industrially zoned land.
City Manager Introduction
ACTION: Motion to approve, request public comment, roll call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
August 10, 2010
111
Resolution No. 76-10
Resolution Authorizing the Transfer of Real Property to Brookings Economic
Development Corporation for Economic Development Purposes
Be It Resolved by the City Council of the City of Brookings, South Dakota as follows:
Whereas, the Brookings Economic Development Corporation, Inc. desires to purchase the
following described property:
The South Thirty-five Feet (S 35') of the South Five Hundred Feet (S 500') of the
East Four Hundred Nineteen and Twenty-five Tenths Feet (E 419.25') of the
Northeast Quarter (NE¼) of Section Thirty (30), Township One Hundred Ten
(110) North, Range Forty-nine (49) West of the 5th P.M., County of Brookings,
State of South Dakota, and
Whereas, for the express purpose of furthering economic growth and development of the City
of Brookings, South Dakota, the Brookings Economic Development Corporation, Inc. agrees to
sell, convey or otherwise transfer said property to Michael M. Dorn and Susan J. Dorn who
own adjoining property, with this transaction increasing the likelihood of mutually beneficial
economic use of the above-described property since it will be added to adjoining property,
thereby increasing the potential economic development of the real property which is the
subject of this Resolution; and
Whereas, it is in the best interests of the City of Brookings that the City provide its economic
development assistance in this matter to aid and assist with the completion of the aforesaid
transaction which will further economic development in the City of Brookings; and
Whereas, the City is authorized to enter into this transaction as an economic development
activity under the laws of the State of South Dakota;
Now Therefore, It Is Hereby Resolved by the City Council of the City of Brookings, South
Dakota, as follows:
A. That the City convey title to the above-described property to the Brookings Economic
Development Corporation, Inc. for the purposes of furthering economic growth and
development of the City of Brookings, South Dakota; and
B. That the Mayor, City Clerk and City Manager are authorized to execute the required
documents in accordance with this Resolution.
Passed and approved on the 10th day of August, 2010.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
City Council Packet
August 10, 2010
112
13. Adjourn.