HomeMy WebLinkAbout2010_08_24 CC PKTCity Council Packet
August 24, 2010
1
Brookings City Council
Tuesday, August 24, 2010
City Hall Council Chambers
311 Third Avenue
NOTE TIME
5:30 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.
5:30 P.M. WORK SESSION
Work sessions are open to the public. During the work session the city staff would brief the council on items for that
particular meeting, introduce future topics, and provide a time for Council members to introduce topics.
1. Proposed 2011 City Budget.
2. City Council Member Ex-Officio Reports.
3. Joint Powers Board Members‟ Report.
4. City Council member introduction of topics for future discussion. *
5. Council Invites & Obligations.
*Any Council member may request discussion of any issue at a future meeting only. Items cannot be added for
action at this meeting. A motion and second is required 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 on a request to abate real estate taxes for a portion of 2009 in the amount
of $175.15 for property located at Block 8 of Hyland Addition.
D. Action on Resolution No. 77-10 declaring items surplus for the annual surplus
auction.
E. Action to schedule a special City Council meeting for September 16, 2010.
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. Promotion Ceremony for Brookings Volunteer Firefighters.
6. Community Common Read Announcement.
7. Open Forum.
8. SDSU Student Senate Report.
City Council Packet
August 24, 2010
2
Contract Awards/Change Orders:
9. Action to award for demolition work for the City/County Administration Building site.
Motion to Approve, Request Public Comment, Roll Call
Second Readings/Public Hearings
10. 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.
Open & Close Public Hearing, Motion to Approve, Roll Call
11. Public hearing and action on an off-sale malt license for El Tapitio, at 1717 6th Street,
Brookings, SD.
Open & Close Public Hearing, Motion to Approve, Roll Call
12. Public hearing and action on a house moving request from Buell Maberry to move a
two-story building from 222 5th Avenue to the property described as Lot 22, College
Addition, also known as 1608 7th Street.
Open & Close Public Hearing, Motion to Approve, Roll Call
Other Business:
13. Action to approve the City of Brookings Five Year Capital Improvement Plan.
Motion to Approve, Request Public Comment, Roll Call
14. Discussion and possible reconsideration on a request from South Dakota State
University for a Center Median on 13th Avenue between 7th and 8th Streets.
Motion to Approve, Request Public Comment, Roll Call
15. Presentation of and possible action on the Nature Park Master Plan.
Motion to Approve, Request Public Comment, Roll Call
16. Discussion and possible action on a Council recommendation on the Moriarty Request
for a Conditional Use request for a sand, gravel, or quarry operation on a portion of the
SW¼ of Section 1-T109N-R50W.
Motion to Approve, Request Public Comment, Roll Call
17. Adjournment.
City Council Packet
August 24, 2010
3
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 24, 2010
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5:30 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council
on items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
1. Proposed 2011 Budget.
On August 10th, city staff presented the proposed City 2011 Budget
including an overview addressing major issues relating to the City‟s strategic
plan. Another budget meeting was held on August 17th to respond to
Council questions. Pursuant to state law, official first reading of the
proposed budget will be held on September 14th and a public hearing and
final Council action will be held on September 28th.
At this time, staff will address any remaining Council questions before
scheduling the Budget for action.
NOTE: Council members are reminded to bring their budget materials to the
meeting.
The proposed 2011 City of Brookings Budget is available on the front page
of the City‟s website – www.cityofbrookings.org
Estimated Time: 20 minutes
City Council Packet
August 24, 2010
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5:30 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council
on items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
2. City Council Member Ex-Officio Reports.
Pursuant to council direction, “City Council Member Ex-Officio Reports”
will be a standing agenda item at all Council Work Sessions. The Council
Members that serve as Ex-Officio members on the Brookings Health
System Board and Utility Board will provide verbal reports regarding recent
meetings they have attended.
Brookings Municipal Utility Board:
1. Council Member Bezdichek
2. Council Member Corbett
Brookings Health Systems Board:
1. Council Member Kubal
2. Council Member McClemans
City Council Packet
August 24, 2010
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5:30 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council
on items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
3. Joint Powers Board Council Member’s Report.
Pursuant to council direction, “Joint Powers Board City Member Updates”
will be a standing agenda item at all Council Work Sessions. The Council
Members serving on the Joint Powers Board will provide verbal updates
regarding recent meetings they have attended.
Council Members Kubal and Bartley
City Council Packet
August 24, 2010
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5:30 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council
on items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
4. City Council member introduction of topics for future
discussion.
Any Council member may request discussion of any issue at a future
meeting only. Items cannot be added for action at this meeting. A motion
and second is required starting the issue, requested outcome, and time. A
majority vote is required.
City Council Packet
August 24, 2010
8
5:30 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council
on items for that particular meeting, introduce future topics, and provide a time for Council members to
introduce topics.
5. Council Invites & Obligations.
Date
Day
Event &
Brief Description
Time
Location
Town
Address
Directions
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 24, 2010
9
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 on a request to abate real estate taxes for a portion of 2009 in the amount of
$175.15 for property located at Block 8 of Hyland Addition.
D. Action on Resolution No. 77-10 declaring items surplus for the annual surplus auction.
E. Action to schedule a special City Council meeting for September 16, 2010.
Motion to approve, request public comment, roll call
Presentations, Special Requests/Invites & Reports
5. Promotion Ceremony for Brookings Volunteer Firefighters.
6. Community Common Read Announcement.
7. Open Forum.
8. SDSU Student Senate Report.
Contract Awards/Change Orders:
9. Action to award for demolition work for the City/County Administration Building site.
Motion to Approve, Request Public Comment, Roll Call
Second Readings/Public Hearings
10. 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.
Open & Close Public Hearing, Motion to Approve, Roll Call
11. Public hearing and action on an off-sale malt license for El Tapitio, at 1717 6th Street, Brookings,
SD.
Open & Close Public Hearing, Motion to Approve, Roll Call
12. Public hearing and action on a house moving request from Buell Maberry to move a two-story
building from 222 5th Avenue to the property described as Lot 22, College Addition, also known
as 1608 7th Street.
Open & Close Public Hearing, Motion to Approve, Roll Call
Other Business:
13. Action to approve the City of Brookings Five Year Capital Improvement Plan.
Motion to Approve, Request Public Comment, Roll Call
14. Discussion and possible reconsideration on request from South Dakota State University for a
Center Median on 13th Avenue between 7th and 8th Streets.
Motion to Approve, Request Public Comment, Roll Call
15. Presentation of and possible action on the Nature Park Master Plan.
Motion to Approve, Request Public Comment, Roll Call
16. Discussion and possible action on a Council recommendation on the Moriarty Request for a
Conditional Use request for a sand, gravel, or quarry operation on a portion of the SW¼ of
Section 1-T109N-R50W.
Motion to Approve, Request Public Comment, Roll Call
17. Adjournment.
City Council Packet
August 24, 2010
10
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 on a request to abate real estate taxes for a portion of
2009 in the amount of $175.15 for property located at Block 8
of Hyland Addition.
D. Action on Resolution No. 77-10 declaring items surplus for the
annual surplus auction.
E. Action to schedule a special City Council meeting for
September 16, 2010.
*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 24, 2010
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CONSENT AGENDA #4
B. Action to approve City Council Minutes.
The draft August 10th and August 17th Brookings City Council minutes are
enclosed for Council review and approval.
City Council Packet
August 24, 2010
12
Brookings City Council
August 10, 2010
(unapproved)
The Brookings City Council held a meeting on Tuesday, August 10, 2010 at 5:00 p.m., at City Hall
with the following members present: Mayor Tim Reed, Council Members John Kubal, Keith
Corbett, Mike McClemans, Mike Bartley, and Jael Thorpe. Council Member Tom Bezdichek was
absent. City Manager Jeff Weldon, City Attorney Steve Britzman and City Clerk Shari Thornes
were also present.
Proposed 2011 Budget and Capital Improvement Plan. Jeff Weldon, City Manager,
presented the proposed 2011 budget for the City of Brookings. The City Council will hold
additional budget meetings on Tuesday, August 17th, at 5:00 p.m. and Tuesday, August 24th, at
5:00 p.m.
Ex-Officio Reports. Corbett reported that BMU‟s agenda included a review of electro-
magnetic impact of power lines in Brookings‟ neighborhoods, financial statements, the proposed
2011 CIP, and recent flooding. McClemans reported the Health Systems Board recently held
an executive session.
Joint Powers Board Update. The Board is touring City Hall facilities in Sioux City and
Vermillion on August 11th and has invited the County Commission and City Council to attend.
6:00 P.M. REGULAR MEETING.
Consent Agenda. A motion was made by Bartley, seconded by Kubal, to approve the
consent agenda as follows:
A. Action to approve the agenda.
B. Action to approve the July 13th and July 27th City Council Meeting 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.
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.
City Council Packet
August 24, 2010
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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.
Resolution No. 75-10
Resolution Authorizing the Mayor to Sign an Agreement between the Dept. of
Transportation and the City of Brookings, 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 $522,000;
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.
On the motion, all present voted yes; motion carried.
2010 Census Update. Todd Wiltgen, 2010 Census Partnership Specialist, provided a brief
update on the 2010 Census.
First Reading – Ordinance No. 28-10. A first reading was held on 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
House Moving – Grunewaldt. A public hearing was held on a house moving request
from Kevin Grunewaldt to move an apartment building from 523 3rd Street to the
property described as Lots 5, 6, and 7, Block 7, Folsom Addition, also known as 144 3rd
Avenue South. No public comment was made. A motion was made by Thorpe,
seconded by Corbett, to approve. All present voted yes; motion carried.
City Council Packet
August 24, 2010
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Ordinance No. 26-10 – Rezoning. A public hearing was held on Ordinance No. 26-
10, a 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). No public comment was made. A
motion was made by Kubal, seconded by Bartley, to approve Ordinance No. 26-10. All
present voted yes; motion carried.
Ordinance No. 27-10 – Conditional Use. A public hearing 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). No public
comment was made. A motion was made by Thorpe, seconded by McClemans, to
approve Ordinance No. 27-10. All present voted yes; motion carried.
Resolution No. 76-10. A motion was made by Corbett, seconded by Bartley, to
approve Resolution No. 76-10, a Resolution Authorizing the Transfer of Real Property
to the Brookings Economic Development Corporation for Economic Development
purposes. No public comment was made. All present voted yes; motion carried.
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:
City Council Packet
August 24, 2010
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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.
Adjourn. A motion was made by Kubal, seconded by Corbett, to adjourn. All present voted
yes; motion carried. Meeting adjourned at 6:33 p.m.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
City Council Packet
August 24, 2010
16
Brookings City Council
August 17, 2010
(unapproved)
The Brookings City Council held a special meeting on Tuesday, August 17, 2010 at 5:00 p.m., at
City Hall with the following members present: Mayor Tim Reed, Council Members Tom
Bezdichek, John Kubal, Keith Corbett, Mike McClemans and Mike Bartley. Council Member Jael
Thorpe was absent. City Manager Jeff Weldon and Deputy City Clerk Bonnie Foster were also
present.
Proposed 2011 Budget and Capital Improvement Plan. The City Council continued its
review of the proposed 2011 budget for the City of Brookings. The remaining budget schedule
is as follows: Budget Work Session Review-August 24th at 5:30 p.m.; Adoption of CIP-August
24th at 6:00 p.m.; Budget 1st Reading-September 14th at 6:00 p.m., and Budget Public Hearing and
Adoption on September 28th at 6:00 p.m.
Adjourn. A motion was made by McClemans, seconded by Bartley, to adjourn. All present
voted yes; motion carried. Meeting adjourned at 6:07 p.m.
CITY OF BROOKINGS
ATTEST: Tim Reed, Mayor
Shari Thornes, City Clerk
City Council Packet
August 24, 2010
17
CONSENT AGENDA #4
C. Action on a request to abate real estate taxes for a portion of
2009 in the amount of $175.15 for property located at Block 8 of
Hyland Addition.
TO: Jeff Weldon, City Manager, Shari Thornes, City Clerk,
Rita Thompson, Finance Manager
FROM: Steven J. Britzman, City Attorney
DATE: August 5, 2010
RE: Application for Abatement of Property Taxes for Block 8 of
Hyland Addition
Accompanying this memo is the County Application Form for abatement of
the 2009 Real Estate Taxes for the period between the date we acquired
the property – November 18, 2009 and December 31, 2009. These taxes
were levied because real estate closings occurring late in the year do not
yet processed by the Director of Equalization before the early January tax
levy. This property certainly is exempt for the year 2010 and subsequently
as long as we own it (so no action is required as to 2010), but this
Application is necessary to alleviate a portion of the taxes which were
levied and which pertain to the last 43 days of 2009, when the City was the
owner and therefore the property was, in fact, tax exempt. A simple
motion on the Consent Agenda is what we have typically done for a tax
abatement we calculated to be $175.15, representing 43 days of real estate
taxes at approximately $4.07 per day.
City Council Packet
August 24, 2010
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CONSENT AGENDA #4
D. Action on Resolution No. 77-10 declaring items surplus for the
annual surplus auction.
The combined City (General, Enterprise Funds, Utilities, and Hospital), County, School
District, and East Central Multi-District Surplus Sale is scheduled for Saturday,
September 18, 2010. Council action is required to declare items surplus for the sale.
The following is a list of items from the City General & Enterprise Fund Departments.
Resolution No. 77-10
Appraising and Authorizing Sale of Surplus Property
Whereas, the City of Brookings has surplus items as listed in a Notice of Sale that are
no longer necessary or useful for City purposes, and it is the desire of the City to
dispose of same as surplus property;
Now, Therefore, Be It Resolved, that all the attached listed property declared surplus by
the City Council.
Further Be It Resolved by the City Council that the property be offered for sale at
public auction on September 18, 2010.
Passed and approved this 24th day of August, 2010.
CITY OF BROOKINGS
Tim Reed, Mayor
ATTEST:
Shari Thornes, City Clerk
City Council Packet
August 24, 2010
20
FINANCE DEPT./CITY IT DEPT.: HP Laserjet 4V (works), HP Scanjet ADF (unknown if
works), Microtek MRS 1200X6P (works), 17” LCD No Base (doesn‟t work), 15” LCD (doesn‟t
work), Compaq EVO D5D, 1.7ghz 128MB, Compaq EVO D51C, 2Ghz 256MB, Compaq EVO
D310M, P2ghz 512MB, Gateway GP7-450 (no hard drive), Whitebox PC (no hard drive),
Nortek Whitebox (no hard drive), Compaq Deskpro EN (no hard drive), Compaq Deskpro EN
(no hard drive), Dell Dimension XPS R450 (no hard drive), Compaq Deskpro EN (no hard
drive), Compaq Armada 1750, Compaq Armada E500, Desk Keyboard Tray, Box of Trays/ CD
Drive, Box of Mice Keyboards, 10M 12Port 3Com LinkBuilder FMSII, 48Port rack of
DECrepeater 90T-16 plus one DECbrouter 90T1, LC 12” (doesn‟t work), CRT 15” (works),
CRT 15” (works)
FIRE DEPT.: Sharp AR-405 Copier (Serial Number 96507120)
LIBRARY: Letter folder, Tall wooden counter , Video boxes, Magazine boxes, 2 foot rests,
plastic sign holders, light fixture, record bin, clocks ,video tape cleaner, copier, typewriter
(Alpha 2015), wooden step stool, shelf end display, magnifying lamp, magnifier, skateboard,
wooden coat hangers, calculator, rack, floor mats, 14 computers, 3 laptops, HP 4500 printer,
HP 4501 printer, , HP 1200 printer, Cannon printer, HP 2100 printer, miscellaneous computer
parts, Pairgain DSL modem, Synoptics Lattishub 2803
PARKS, RECREATION & FORESTRY: Large parts washer, 2 Stihl weedeaters (missing parts),
Peerless 976 engine analyzer, Pallet jack, 1992 1665 HL Toro pull-type turf sweeper w/ 18 H.P.
Briggs & Stratton (fixed asset # 101-0494)
POLICE DEPT.: Treadmill / “SUPER TUFF” Diamond Series, 5 metal and fiberglass chairs/
stacking, 3 metal file cabinets (2 w/ doors, 1 w/ “fold down” doors), IBM “Wheelwriter 1000”
typewriter, 6‟ wood step ladder, 4 office style side chairs, upholstered chair, 2 upholstered desk
chairs / on wheels, extension ladder
SOLID WASTE / LANDFILL: Tractor tire with rim 18.4 – 38, Tractor tire with no rim 18.4 - 38
SWIFTEL CENTER: computer desk, misc. garden hoses, 2 50amp disconnects, misc.
cable/wiring, 400 amp disconnect, 100 amp disconnect, computer monitors, keyboard,
harddrive, 2 Hoover vacuum cleaners (parts only), Makita 18v cordless skill saw, Firestorm 12v
cordless drill, Makita 18v cordless drill, landscape fabric, light covers, electric four wheel cart,
20” walk-behind scrubber, candle holders, assorted kitchen utensils, 4 plastic food pans,
aluminum disposable steam table pans, 24 beer mugs, 2 GE electric burners, assorted serving
trays, 22 oz. Pepsi cups, styrofoam soup cups, dehumidifier (parts only), brown garbage can,
Coke crate, red rug, liquid soap dispenser, misc. auto scrubber pads, plastic shower curtain, 2
mop buckets, 2 metal folding chairs, wheelbarrow, misc. blue drape (8‟x 4‟), 4 2-gallon coffee
servers, custodial cart, plastic orange snow fence
City Council Packet
August 24, 2010
23
CONSENT AGENDA #4
E. Action to schedule a special City Council meeting for
September 16, 2010.
Action is required to schedule a special City Council meeting for
September 16, 2010, from 1:00 p.m. to 5:00 p.m. for policy discussion.
City Council Packet
August 24, 2010
24
Presentations/Reports/Special Requests
5. Promotion Ceremony for Brookings Volunteer Firefighters.
The Battalion Chief positions are two new positions created to provide
future training opportunities for the possibility of advancement within the
Brookings Volunteer Fire Dept. The Battalion Chief position will fill the
future role of Assistant Fire Chiefs.
Jim Kriese will be promoted to the position of Battalion Chief 1.
Monte Gummer will be promoted to the position of Battalion Chief 2.
City Council Packet
August 24, 2010
25
Presentations/Reports/Special Requests
6. Community Common Read Announcement.
Mayor Reed and members of the CCR Committee will make the
announcement.
City Council Packet
August 24, 2010
26
Presentations/Reports/Special Requests
7. 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.
8. 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 24, 2010
27
Contract Awards / Change Orders
9. Action to award for demolition work for the City/County
Administration Building site.
The Joint Powers Board authorized the advertising of plans and
specifications for contracting services of the demolition and site clearance
of the block that will host the new City-County Government Center site.
The bid opening is scheduled for Monday, Augu st 23rd at 1:30 p.m. As such,
the bid opening results will not be known until that time. At the Council
meeting, staff will bring the results of the bid opening and recommend
awarding the contract to the lowest responsible bidder pursuant to state
law. The County Board of Commissioners is scheduled to take the same
action at their regular meeting that morning. The joint powers agreement
specifies that each respective board must approve any bid contracts.
City Manager Introduction
ACTION: Motion to Approve, Request Public Comment, Roll Call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
August 24, 2010
28
Second Readings / Public Hearings
10. 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.
To: Mayor Tim Reed, Council Members, Jeff Weldon, City Manager, and
Shari Thornes, City Clerk
From: Steven J. Britzman, City Attorney
Date: August 19, 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 Manager Introduction
ACTION: Open & Close Public Hearing, Motion to Approve, Roll Call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
August 24, 2010
29
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.
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August 24, 2010
30
"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.
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August 24, 2010
31
"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.
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August 24, 2010
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"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 e ntity 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 PE G 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 impose d 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 fr om 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 Reven ues 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 residentia l
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 24, 2010
33
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.
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August 24, 2010
34
"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
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August 24, 2010
35
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
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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
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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
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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.
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(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;
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(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 Gra ntee'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.
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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.
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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);
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(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
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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
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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.
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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:
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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.
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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 la st
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.
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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
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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.
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(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.
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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;
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(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.
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(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.
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(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
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56
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.
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(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
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58
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
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59
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
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60
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 24, 2010
62
Second Readings / Public Hearings
11. Public hearing and action on an off-sale malt license for El Tapitio,
at 1717 6th Street, Brookings, SD.
The City of Brookings has received an application for an Off Sale Malt Beverage License
for El Tapitio, 1717 6th Street, from Wade Price, Alicia Price and Juan Carlos Vegas,
owners. Legal description: Village Square Mall #1, Suite „F‟. All the required documents
have been submitted for this application. A public hearing and action by the local
governing body is required to approve a Malt Beverage License. This license would be
effective immediately until June 30, 2011 and then subject to an annual renewal. If
approved, the application would be forwarded to the State Department of Revenue for
final action and issuance of the license.
Further Information: SDCL 35-2-1.2 provides all applications for retail licenses …shall
be submitted to the governing board of the municipality within which the applicant
intends to operate…The governing board: “shall have discretion to approve or
disapprove the application depending on whether it deems the applicant a suitable
person to hold such license and whether it considers the proposed location suitable.”
SDCL 35-2-6.2 provides the “character” requirements for alcoholic beverage licensees:
“Any license under this title…must be a person of good moral character, never
convicted of a felony, and, if a corporation, the managing officers thereof must have like
qualifications.”
Procedure for issuance of licenses: Procedurally, SDCL 35-2-3 provides that “no license
for the on or off-sale at retail of alcoholic beverages…shall be granted to an applicant
for any such license, except after public hearing, upon notice.” SDCL 35-2-5 provides
the procedure for the time and place of hearing and for publication of notice. If an
application for a license is refused, “no further application may be received from a
person until after the expiration of one year from the date of a refused application.”
City Ordinances:
Listed below is Chapter 5, Article 2, Section 5-20 of the City Code of Ordinances
pertaining to Application Review Procedure.
The City Council shall review all applications submitted to the City for available On-Sale
Alcoholic Beverage Agreements and for On-Sale Malt Beverage and Wine Licenses in
accordance with SDCL 35-2 and in accordance with the following factors:
(a) Type of business which applicant proposes to operate: On-Sale Alcoholic
Beverage Operating Agreements and On-Sale Malt Beverage and Wine Licenses
may not be issued to convenience grocery stores, gas stations, or other stores
where groceries or gasoline are sold unless it can be established that minors do
not regularly frequent the establishment.
(b) The manner in which the business is operated: On-Sale Alcoholic Beverage
Operating Agreements and On-Sale Malt Beverage and Wine Licenses may not
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August 24, 2010
63
be issued to establishments which are operated in a manner which results in
minors regularly frequenting the establishment.
(c) The extent to which minors are employed in such a place of business: On-Sale
Alcoholic Beverage Operating Agreements and On-Sale Malt Beverage and Wine
Licenses may not be issued to convenience grocery stores, gas stations, or other
stores where groceries or gasoline are sold and which regularly employ minors.
(d) The adequacy of the police facilities to properly police the proposed location:
The City Council shall inquire of the Police Chief whether the Police
Department can adequately police the proposed location.
(e) Other factors: The hours that business is conducted shall be considered by the
City Council in its review of applications for on-sale alcoholic beverage operating
agreements and on-sale malt beverage and wine licenses
Summary: SDCL and case law support the premise that the decision to issue an
alcoholic beverage license is discretionary. The City can assess the character of the
applicant and whether the location is suitable. A person convicted of a felony is
prohibited from applying for a license; therefore, a convicted felon would fail the
character test. In determining suitable location, the Council may involve the
determination of whether the location is suitable consistent with the procedure
developed through South Dakota Case Law. This includes the manner in which the
business is operated; the extent to which minors frequent or are employed in such
place of business; the adequacy of the police facilities to properly police the proposed
location, and other factors associated with the sale of alcoholic beverages.
City Manager Introduction
ACTION: Open & Close Public Hearing, Motion to Approve, Roll Call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
August 24, 2010
64
Second Readings / Public Hearings
12. Public hearing and action on a house moving request from Buell
Maberry to move a two-story building from 222 5th Avenue to the
property described as Lot 22, College Addition, also known as
1608 7th Street.
Applicant: Mayberry Construction
Proposal: Move a commercial building to a residential lot and convert it
into a single-family home.
Background: Maberry Construction built the Donut Barn that was in the
southwest corner of 3rd Street and 5th Avenue in 1979. The second floor
was used „temporarily‟ as an apartment. The building was later converted
to a western apparel store, and then in 2004, it was remodeled into an
office.
Specifics: The destination lot for this building is north of McDonalds at the
corner of 7th Street and Faculty Drive. The lot is currently occupied by a 1
½ story house that has been vacant for many years. There is less than
8,000 square feet of area on the lot. Therefore, only a single-family
dwelling would be allowed.
The neighborhood was developed in the late 1950s and early 1960s. There
is a mix of single-family, two-family, and apartments in this area. The lot to
the south is owned by a commercial business.
City Manager Introduction
ACTION: Open & Close Public Hearing, Motion to Approve, Roll Call
City Council Packet
August 24, 2010
73
Other Business
13. Action to approve the City of Brookings Five Year Capital
Improvement Plan.
Discussion and final action is scheduled on the 2011 proposed Capital
Improvement Program (CIP) representing proposed capital investment for
fiscal years 2011 through 2015. The CIP is a five year financing plan for
constructing major public assets based on City-adopted master plans, goals,
and policies. The purpose of a CIP is to financially plan new capital assets to
meet the needs of a growing community, and preserve or enhance existing
capital assets to provide efficient city services. A capital project is defined as
an activity that creates, improves, replaces or repairs a fixed asset and
results in a permanent addition to the City„s fixed asset inventory. Fixed
assets include land, site improvements, parks, buildings, sidewalks, streets,
bike paths, storm drainage projects, or similar infrastructure; and major
equipment and/or hardware purchases.
The annual preparation of the CIP document is a four step process that
involves planning, identifying, funding and scheduling. Planning for
projects included in the CIP begins with long-term planning processes such
as development of master plans and City Council goals. The CIP process is
used by the City to systematically plan and finance capital projects while
ensuring cost-effective conformance with the City Council goals.
Because of the high ticket price of capital items by definition, it is helpful to
schedule their purchase in a long term plan to help manage cash flow. For
this reason we use multi-year programming. As capital projects are
identified, consideration needs to be given to various capital funding
strategies. This will include available funding, grant or donation
opportunities, and the need for external financing. Availability of funding
may cause a project to be expedited or delayed. Scheduling is the final
step in CIP project development where the actual placement of a project is
placed within the five-year time horizon. Projects in Year one of the CIP
become the basis for the corresponding capital budget. The remaining four
years of the CIP are a planning strategy and are generally more susceptible
to changes in timing, scope, and funding, than projects scheduled in the first
year of the CIP. As the timing of a project approaches, the cost estimates
improves.
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August 24, 2010
74
The five-year CIP is updated annually. The Finance Manager reviews the
preliminary CIP and any changes with the departments. The CIP is
presented to the City Council. First year projects are incorporated into the
proposed overall budget.
The CIP document is organized into Categories and Projects.
There are three different Categories in the CIP:
Community Facilities Group represents facilities operated by the City
of Brookings that provide educational, cultural, and recreational
opportunities for the citizens of Brookings. The infrastructure categories
encompassed in this group covers the park system and its facilities, trail
system, Library, Senior Center, Golf Course, Swiftel Center, Senior Center,
Ice Arena, Hillcrest Pool, and the Research & Technology Center.
Municipal Facilities Group represents facilities, equipment, and systems
owned and operated by the City of Brookings that are necessary to
support the operations of the City. The categories encompassed in this
group cover airport facilities, fire stations and equipment, municipal law
enforcement center facility, Intergovernmental center facility, forestry, park,
street, and solid waste maintenance facilities, animal control facility,
recreation center facility, forestry facility, liquor store, landfill complex and
storm water management infrastructure.
Transportation Group represents infrastructure and services that
support the transportation needs of the City. The category is streets which
encompasses classifications from sidewalks to arterial streets to railroad
crossings to traffic signals, and designated bike routes/lanes.
All proposed expenditures are cross-referenced so they can be examined
by year, department, category, and fund. Most equipment expenditures are
designed to replace or upgrade existing equipment in accordance with our
amortization and depreciation policy. The CIP also identifies debt service
amounts as a means of financing equipment in addition to cash.
This year„s Capital Improvement Plan appears substantially different from
past years. We have incorporated photographs of capital equipment being
replaced, capital improvement projects, assessments of their condition, and
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August 24, 2010
75
gauged their useful life by using the adopted Capital Asset Policy as a
guideline. We believe this will improve the effectiveness and the decision-
making of the capital improvement planning process.
Note: Due to its size, the CIP document is not included in the agenda
packet, but can be found online at www.cityofbrookings.org or is available for
inspection at the City Clerk‟s office, City Hall.
City Manager Introduction
ACTION: Motion to Approve, Request Public Comment, Roll Call
CITY MANAGER RECOMMENDATION: Approve
City Council Packet
August 24, 2010
76
OTHER BUSINESS
14. Discussion and possible reconsideration on request from South
Dakota State University for a Center Median on 13th Avenue
between 7th and 8th Streets.
Mayor Reed requested City Council review and possible action on this
issue pursuant to discussions with University representatives who have
expressed the importance of the project.
Additional Background from Staff: In addition to the information provided in the
response letter, staff has investigated the issue of snow removal and fire truck access.
The proposed median is fourteen feet wide from face to face to curb, which is the same
width as the newly constructed 4th Street between 5th and 6th Avenue (south side of the
Children’s Museum). This provided a good opportunity to situate the City’s snow and
fire equipment within the street and to witness how they would function on a fourteen
foot wide street.
For snow removal, the attached picture demonstrates how the grader would fit within the
proposed street width. The motor grader does fit between the face of curbs, however it
would need to drive slowly and carefully through the street portion with the island so as
not to damage the curb or equipment. It is important to note that snow would be cast
onto the outside boulevards and most likely that over the course of the winter that the
fourteen foot lane widths would be narrowed due to the snow buildup along the curbs.
For fire truck access, the attached picture shows the ladder truck parked near the 4th
Street curb and gutter. This truck has outrigger bars that are used to stabilize and anchor
the truck so the ladder can be used without tipping the truck. The truck is ten feet wide
and the outrigger bars protrude out five feet from both sides of the truck, resulting in
twenty feet of room used in the street. The ladder truck is normally parked in the center
of a street so the outrigger bars can be anchored and the angle of the ladder misses the
trees. If the median were constructed, the ladder truck would not be able to be used
especially during certain times of the year when the boulevard would be soft, full of
snow, or too wet for the outrigger bars to be placed upon the boulevard. It is uncertain if
the ladder angle could avoid trees as well. In addition, the ladder truck cannot be used in
the alley due to the lack of room. It is most likely that different firefighting equipment
would be used if the fire occurred in the homes near the proposed section of 13th Avenue
with the median due to the above issues with the ladder truck.
City Manager Introduction
ACTION: Motion to Approve, Request Public Comment, Roll Call
City Council Packet
August 24, 2010
82
Other Business
15. Presentation of and possible action on the Nature Park Master
Plan.
Landscape Architect John Royster and Rick Salonen, Banner Associates
Engineer, will present the Nature Park Master Plan to the City Council and
answer questions and participate in discussion regarding the Master Plan.
The Master Plan is the culmination of two years of study involving a
Citizens Ad Hoc Committee of 30 people, Park and Recreation Board, city
staff, and several community meetings where public input and dialogue was
encouraged and received. Big Muddy Workshop, a Landscape Architectural
firm from Omaha, Nebraska, with extensive experience in Park and
Recreation Master Planning, was hired by the city in early spring 2010.
They teamed up with Banner Associates of Brookings for engineering
aspects of the study, and during the past four months have met with the Ad
Hoc Committee, Park and Recreation Board and various stakeholder
groups interested in the recreational activities which a Nature Park can
provide. The Nature Park Master Plan being presented to the City Council
includes an exciting variety of outdoor activities that will be unique to this
park and the Brookings Community.
Attached for your review prior to the City Council meeting is a copy of the
Master Plan drawing, the written program which guided the planning
process, and a project estimated cost summary.
City Manager Introduction
ACTION: Motion to Approve, Request Public Comment, Roll Call
CITY MANAGER RECOMMENDATION: Approve
1 | Page
Brookings Nature Park – Vision Statement & Program
August 16, 2010
Vision Statement
Brookings Nature Park is a special place that is set apart from the City and its other fine parks.
Brooking Nature Park is a place where nature prevails and all humans are guests. As good
guests, humans should tread lightly on the land, undertaking only activities that have a minimal
impact on the park’s land, waters and wildlife, and that allow others to experience a sense of
solitude and the uniqueness of this special place.
Natural Resources
The park is a mosaic of open spaces, ponds and windbreak tree plantings. The land should be
managed to maintain, and in some instance enhance this diversity.
Habitat Diversity – The site’s vegetation should be actively managed to maintain its current
diversity of open meadow, open water and woodland-like shelterbelts. Natural tree growth of
cottonwoods and willow should be managed to maintain open grassland areas. Control of
introduced species such as Eastern redcedar, European buckthorn and Tatarian honeysuckle
should occur periodically to keep these species in check.
Develop a species management plan for the park, to control invasive species
Remove cottonwoods and willows from select grassland areas of the site
Restored Native Prairie – Non-native grasslands should be converted to native prairie species. To
decrease long-term maintenance costs and increase the landscape’s sustainability, the non-native
grasses on the former landfill should be converted to native prairie species. Due to the shallow
depths of soil on top of the landfill’s clay cap, it may be more appropriate to plant mid-grass
species like sideoats and blue gramma instead of the tall-grass species originally found on-site.
Restore native grasses on former landfill to create increased biologic diversity
Restore other grassland areas of site to native grasses
Stormwater Management – All storm water created on site should be managed on site. Best
Management Practices (BMPs) should be implemented to cleanse any runoff that reaches the
ponds prior to it entering the ponds. Eroded and eroding shoreline areas on the ponds should be
re-graded to create a stable shoreline and vegetated bank above normal water level.
Minimize paved areas on site through good road and parking lot design
Provide bioswales and rain gardens to receive and cleanse runoff from pavement
2 | Page
Educational and Recreational Uses
Allowed uses at Brookings Nature Park should be tied to the unique natural resources that exist
in the park. Motorized vehicles should be restricted to the three parking areas located on the
periphery of the park. Movement within the park will be restricted to muscle-powered activities
– walking, running and riding bicycles, while accommodating any motorized mobility aids
required by some visitors. Canoeing, kayaking and float tubes, all muscle-powered activities,
will be allowed on the park’s ponds. Dogs will be allowed in the park according to the rules that
apply to all city parks.
Fishing
Fishing will occur in all of the park’s ponds. The City will engage South Dakota Game, Fish and
Parks to manage the fishery primarily as a “put-and-take” urban fishery. Visitors fishing at the
Nature Park are required to follow all SDGF&P regulations. The east-most pond will be
managed as a seasonal trout pond with periodic stocking. The other ponds will be managed as a
warm-water fishery that includes pan fish and predator species.
Catch-and-release fishing will be encouraged for both the seasonal trout and warm-water fishery.
If appropriate, mandatory catch and release requirements could be placed on predator species in
the warm water fishery in the future. The City will periodically review the need for any site
specific fishing rules or regulations in consultation with SDG&FP.
Fishing will be open to people of all ages. Youth fishing will be emphasized through events
sponsored by the City and other partners.
An accessible fishing pier will be provided in each type of fishery (cold and warm water) and
accessible fishing points located at intervals along shoreline, to improve access for all anglers.
Fish habitat improvements will be implemented under the guidance of SDGF&P fishery staff
members. These improvements will involve improved fishing access and underwater fish
structure improvements. Community groups, such as the Boy Scouts, may be enlisted to assist
the City on implementing some of these improvements.
Encourage catch and release to provide high-quality angling for all visitors
Allow fishing by people of all ages; emphasize youth fishing in city recreation programs
Provide accessible fishing locations on piers and along shoreline
Implement in-pond habitat improvements to benefit fishery
Watercraft - kayaks, canoes, row boats and float tubes
Use of kayaks, canoes and row boats will be permitted on the park’s ponds. Use of float tubes for
fishing will be allowed. Watercraft propulsion will be muscle-powered. Gas or electric motors
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will not be allowed. Use of sailboats or sailboards will not be allowed due to the relatively small
size of the ponds.
Accessible launch points should be provided in the east pond and middle pond.
Muscle-powered water craft are allowed and encouraged on the park’s ponds.
Provide one accessible launch area in the east pond and middle pond.
Walking and Bike Trails
Non-motorized uses will occur on a system of trails that provide access throughout the site. A
hierarchy of trail types will be developed on-site, matched to their intended use and the types of
landscape through which they pass. The park’s trails will connect the Brookings Bike Trail
which runs along the northern edge of the nature park.
Main Trail – A main trail will pass through the park, generally following the existing
road. It will connect at each end to the Brookings Bike Trail. This trail will be the same
width as the Brookings Bike Trail which is 8’-0”.
Side Trails – On two of the ponds a loop trail will encircle each pond, providing a
pleasant route to walk and easy access to the shoreline for fishing. Other side trails will
extend through the wetlands area on the western edge of site and extend up to the
overlook located on the former landfill hill. Side trails will be 5’-0” wide.
Exploration Trails – Other trails will be developed on-site which provide access to
various locales in the park. These trails will extend out from the paved side trails and
allow visitors to explore the site more. These trails may vary from wood chip-surfaced
trails to mowed trails in grass areas. The tread width on these natural surfaced trails will
be 24 inches.
Create an integrated system of accessible trails that allow all visitors to experience all
areas of the park
Provide a secondary system of non-paved trails that supplement the primary trail system
Winter Sports
Snow will not be removed from the park’s trails during the winter, to allow them to be used for
cross-country skiing and snowshoeing. An area on one of the ponds would be cleared to allow
ice skating and broom hockey.
Utilize the park’s trail system in the winter for skiing and snowshoeing
Provide ice skating area on one of the ponds
Utilize the nature center building as a warming hut, after it is constructed
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Mountain Bike Skills Area & Trail
A mountain bike skills area and trail will be developed on the periphery of the park. This area
will allow local mountain bikers to develop a skills training area where bikers can learn and
practice skills, as well as a closed loop riding trail. The riding trail will allow bikers to use skills
gained from use of the skills area. The skills area will be developed on flat ground on the
southwest corner of the softball complex. The riding trail will be located on a portion of the
former landfill and will also run through portion of the adjoining shelterbelt. The trail will be
used exclusively for mountain biking and is separated from other trails to minimize safety
concerns for other park visitors. The trail should be designed and constructed to fully conform to
the International Mountain Bike Association sustainable trail design standards.
Provide a site for a skills training area where kids and adults can learn and master skills
Provide a site for a closed-loop mountain bike trail
Work with local enthusiasts to form a private club to maintain the mountain bike facilities
Work with local club to sponsor an IMBA Trail Care Crew workshop in Brookings to
teach club members how to build and maintain sustainable trails
Nature Center Building and Outdoor Education
Use of Brookings Nature Park for environmental education, nature study and nature play will be
encouraged. School and youth groups will be allowed to use the site for educational activities.
A nature center building will be built in the park if an appropriate partner(s) can be found to
assist in constructing and managing the center. The center will include two 900 square foot
classrooms, restrooms, storage and a lobby with some interpretive exhibits and displays. The
center will provide indoor space for school groups coming to the nature park on field trips. The
center will have an outdoor terrace that can serve as instructional space or host other outdoor
activities. The center will be sited so it is close to the park’s ponds, woodlands and prairies.
The building could also serve multiple other uses including providing a warming house for
winter activities in the park, serving as a meeting place for community groups and serving as a
support building for a summer day camp in the park operated by the City or a non-profit partner.
Identify local partners (school district, conservation groups, non-profit organizations)
who might be interested in pursuing development of a nature center
Explore possibilities on how best to form a partnership and pursue center development
Dog Training Area
The Brookings Nature Park has been used by individuals for dog field training and retrieval
practice. Having a place to pursue these uses within the Brookings park system is desirable, yet
the core area of the Nature Park is not the best long-term location for this use. The City proposes
to work with local dog training advocates to develop a new area for field training and retrieval
practice. The new area will include access to water, as well as upland areas.
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A dog park for exercise and interaction with other dogs will be located in another city park.
City to work with dog training advocates to develop a dog retrieval training area
City to site a dog park at another location
Program Elements
The various site improvements and facilities that will be developed within the Nature Park are
detailed in the following text, by geographic area within the park.
Wayfinding & Park Entry Points
Wayfinding Directional Signage – A set of two directional road signs will alert visitors traveling
on 22rd Avenue that they are approaching the park and help to identify its new entry point. A
similar set of signs will be erected on 32nd Street to identify that entry to the park.
Park Entry Points – Three entry points are proposed along 22nd Avenue and 32nd Street. The
existing entry point from 22nd Avenue will serve as the east entry to the Nature Park. Two new
entries will be developed along 32nd Street. One will be near the site’s center point and the other
will be near the site’s southwest corner. At each entry point, a new 24 foot wide roadway will
extend into the site, terminating at a parking lot. Culverts will be required at each location to
convey flow in the road ditch. A stop sign is needed at each location to control traffic exiting the
park.
Park Identification Signs – A sign will identify the site as the Brookings Nature Park at each
vehicle entry. The double-sided signs will be placed perpendicular to the street near each entry,
outside of the safety “sight triangle”. A double-sided sign will be placed near the intersection of
22nd Avenue and 32nd Street. This sign will be placed at a 45 degree angle (northwest to
southeast) to the intersection, outside of the safety “sight triangle”. A fourth sign, which will also
be double-sided, will be placed at the western terminus of the nature park’s main trail, to
welcome visitors arriving on the Brookings Bike Trail.
East Pond Area
East Parking Area – The road leading west from 22nd Avenue will terminate in a 25 car parking
lot, which will include two designated accessible parking stalls. The parking area will be
designed so an additional 20 parking stalls can added if needed in the future. Sidewalks will be
included in the original construction, so the accessible parking stalls can be increased from two
to four simply by adding signs and symbols of accessibility on these stalls. The lot will have a
flow-through traffic pattern. The lot design will utilize a low-density concept to incorporate
greenspace within the parking lot footprint. The design will include landscape areas that can
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serve as stormwater management BMPs to cleanse and infiltrate runoff. Passengers in vehicles
driving through the lot will be provided with a sweeping view of the east pond so they can see
activity going on in the area. A five-foot-wide paved walk will extend from the parking lot to the
East Pond Loop Trail.
Welcome Station & Orientation Map – A welcome station containing a park map, park rules and
regulations, and other information will be provided near the parking lot. The station will be
located along the walk connecting to the East Pond Loop Trail.
East Pond Loop Trail – A five-foot wide paved trail will extend around the East Pond’s
perimeter to provide access for anglers. Walking this loop, which includes a portion of the main
trail, will provide visitors with a 0.6 mile long stroll.
Interpretive Exhibit – Cold & Warm-Water Fisheries – A wayside interpretive exhibit will be
located along the trail to explain the difference between warm and cold water fisheries, and the
seasonal trout fishery at the nature park.
Trail Benches – Six-foot long benches will be placed along the trail about every 750 feet to
provide a place for visitors to rest and enjoy the scenery. A three-by-three foot paved pad will be
placed at one end of the bench to provide a space for a person using a wheelchair to sit.
East Pond Picnic Shelter – An open-air shelter will be placed to provide a view of the East Pond
and serve families and small groups wishing to picnic or get out of the weather. The shelter will
accommodate four eight-foot long tables. The shelter will have a paved floor and be connected to
the loop trail by a five-foot wide paved walk.
Pre-cast Concrete Vault Toilets – Two accessible vault toilets will be located near the parking
area to provide basic sanitary services. The toilets will be located along a paved trail with truck
access for servicing.
Tree & Brush Removal along East Pond Perimeter – Some trees and areas of brush will be
removed along the pond’s perimeter to improve fishing access and provide space for casting.
These areas will not be extensive, but are important in providing proper access.
East Pond Shoreline Improvements – Portions of the shoreline are steep, making it difficult to
gain access to the water. Specifically, the north and east shoreline in the pond’s north bay need to
have brush and trees removed, and be regraded to lower the slope and allow establishment of
grass to prevent erosion.
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Accessible Fishing Pier – A floating accessible fishing pier will be located along the eastern edge
of the East Pond. This location will allow anglers to access the pond’s deeper water. The travel
distance from the parking lot to the pier will be approximately 500 feet.
Fishing Access Points – At several locations along the East Pond’s shoreline, a fishing access
point will extend into the pond. These points will consist of fill materials armored with rock rip-
rap to prevent erosion and allow for steep side slopes down to and below the water surface. A
paved walk will extend from the loop trail to the ends of the fishing access points. The walk
surface will be set to be about one foot above normal spring high water.
Main Trail
Main Trail – The main trail will be an eight-foot wide paved trail that begins on the northeast
corner of the site where the Brookings Bike Trail crosses 22nd Avenue. The trail will extend
south along the west side of 22nd Avenue, crossing the two entry drives to the South Brook
Softball Complex. The trail will continue south to the existing park road. It will then follow the
existing park road until it rejoins the Brookings Bike Trail near the northwest pond. Visitors
diverting off the Brookings Bike Trail will enjoy a 1.20 mile loop through the nature park.
Visitors completing an entire loop that includes the Main Trail and a segment of the Brookings
Bike Trail will enjoy a 1.6 mile long ride or stroll.
Welcome Station & Orientation Map – A welcome station containing a park map, park rules and
regulations, and other information will be provided near each end of the main trail where it
intersects with the Brookings Bike Trail.
Historic County Bridge – The existing historic county bridge crossing the channel between the
middle and south ponds will remain in place as part of the Main Trail. Existing railings will be
supplemented to provide more pedestrian-appropriate railings. Boulders rip-rap will be placed
around the embankment at each end to protect the embankment from erosion.
Trail Benches – Six-foot long benches will be placed along the trail about every 750 feet to
provide a place for visitors to rest and enjoy the scenery. A three-by-three foot paved pad will be
placed at one end of the bench to provide a space for a person using a wheelchair to sit.
Prairie Shade Structures – To provide shaded seating areas in an unobtrusive manner along the
trails at key locations, it is proposed to create three open-air shelters with native grasses and
wildflowers planted on their roofs. Locations selected for these structures will provide sweeping
views of the park. These structures will use specially-designed lightweight soils with water
retaining gel compounds to minimize weight and provide proper growth of the grasses. The
concept behind these shelters ties directly to the prairie grass sod covered shacks called
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“Soddies” and dugout cabins used by many Euro-American settlers. Each structure would
contain two six-foot benches placed at a right angle to each other. Three of these structures are
proposed along the park’s trails, one on the isthmus between the east and south ponds, one along
the west side of the middle pond, and one along the south side of the Brookings Bike Trail north
of the north pond.
Nature Park Overlook
Overlook Trail – A 5-foot wide paved trail will extend east from the main trail and wind its way
to the top of the hill created by the former landfill. The grades on the trail will vary from 2% to
4% to provide a leisurely ascent up to the overlook pavilion.
Cloud Pavilion – An open-air pavilion will be located on the summit of the south hill created by
the former landfill. The pavilion will contain two benches so visitors can enjoy the views, and
two interpretive exhibits to inform visitors about the park’s history and its restored prairie.
North Lookout Point – A 5-foot wide paved trail will extend northwest of the pavilion to a
lookout point that provides a view to the north. This location provides views of the softball
complex to the northeast and the soccer complex to the northwest.
Prairie Trail – A 5-foot wide paved trail will extend east from the pavilion and wind its way
through the restored prairie. This level trail provides visitors with views of the south and east
ponds.
Trail Benches – Six-foot long benches will be placed along the trail about every 750 feet to
provide a place for visitors to rest and enjoy the scenery. A three-by-three foot paved pad will be
placed at one end of the bench to provide a space for a person using a wheelchair to sit.
Interpretive Exhibits – History of the Nature Park land, Native Prairie, Clouds & Sky – Three
interpretive exhibits will occur on the top of the former landfill hill. Two will be located in the
pavilion. The other will be located at the north lookout point. One pavilion exhibit will explain
the natural and cultural history of the land comprising the nature park, extending from the most
recent glacial period to operation of the landfill and creation of the nature park. The second
pavilion exhibit will explain pre-settlement era tallgrass prairie and restoration of native prairie
on the former landfill. The third exhibit will encourage visitors to look up at the sky after
enjoying the view. This panel will explain clouds, weather and be whimsical in message and
artwork.
Natural-Surface Trail – Two segments of natural-surface trail will extend north and east of the
overlook area to allow visitors to further explore the restored prairie. The corridor for this trail
will be mowed periodically.
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South Parking Area
South Parking Area – The road leading north from 32nd Street will terminate in a 25 car parking
lot, which will include two designated accessible parking stalls. Sidewalks will be included in the
original construction, so the accessible parking stalls can be increased from two to four simply
by adding signs and symbols of accessibility on these stalls. The lot will be designed with a flow-
through traffic pattern. The lot design will utilize a low-density concept to incorporate
greenspace within the parking lot footprint. The design will include landscape areas that can
serve as stormwater management BMPs to cleanse and infiltrate runoff. Passengers in vehicles
driving through the lot will be provided with a sweeping view of the middle pond so they can see
activity going on in the area. A five-foot wide paved walk will extend north from the parking lot
to the Main Trail.
Welcome Station & Orientation Map – A welcome station containing a park map, park rules and
regulations and other information will be provided near the parking lot. The station will be
located along the walk connecting to the Main Trail.
Pre-cast Concrete Vault Toilets – Two accessible vault toilets will be located near the parking
area to provide basic sanitary services. The toilets will be located along a paved trail with truck
access for servicing.
Middle Pond Area
Middle Pond Parking Area – The road leading north from 32nd Street will terminate in a 28 car
parking lot, which will include two designated accessible parking stalls. The parking area will be
designed so an additional 20 parking stalls can added if needed in the future. Sidewalks will be
included in the original construction, so the accessible parking stalls can be increased from two
to four simply by adding signs and symbols of accessibility on these stalls. The lot will be
designed with a flow-through traffic pattern. The lot design will utilize a low-density concept to
incorporate greenspace within the parking lot footprint. The design will include landscape areas
that can serve as stormwater management BMPs to cleanse and infiltrate runoff. Passengers in
vehicles driving through the lot will be provided with a sweeping view of the middle pond so
they can see activity going on in the area. A five-foot wide paved walk will extend from the
parking lot to the Middle Pond Loop Trail.
Welcome Station & Orientation Map – A welcome station containing a park map, park rules and
regulations and other information will be provided near the parking lot. The station will be
located along the walk connecting to the Middle Pond Loop Trail.
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Portable Toilet Enclosure – Two accessible, portable toilets will be located in a screen enclosure
to provide basic sanitary services. The enclosure will be located along a paved trail with truck
access for servicing.
Middle Pond Loop Trail – A five-foot wide paved trail will extend around the east pond’s
perimeter to provide access for anglers. Walking this loop, which includes a portion of the main
trail, will provide visitors with a 0.6 mile long stroll.
Interpretive Exhibit – Pond Ecology – A wayside interpretive exhibit will be located along the
trail that explains the ecology of ponds, including the animals that live there and what roles that
they play. This exhibit would be designed and written with children as its primary audience.
Trail Benches – Six-foot long benches will be placed along the trail about every 750 feet to
provide a place for visitors to rest and enjoy the scenery. A three-by-three foot paved pad will be
placed at one end of the bench to provide a space for a person using a wheelchair to sit.
Trail Bridge – A six-foot wide weathering steel bridge will allow the Middle Pond Loop Trail to
cross the narrow channel separating the Middle Pond from the North Pond. This bridge will have
a wooden deck and be 75 feet long.
Accessible Fishing Pier – A floating accessible fishing pier will be located along the western
edge of the Middle Pond. This location will allow anglers to access the pond’s deeper water. The
travel distance from the parking lot to the pier will be approximately 425 feet.
Nature Center
Nature Center – A 3,500 square foot nature center building will be constructed northeast of the
south parking area to allow use of the nature park as an outdoor classroom. The building will
include two classrooms, restrooms, a lobby with interpretive exhibits and displays. The center
will be constructed using green technology and sustainable design. Use of natural daylight,
geothermal heating and cooling, rainwater harvesting for landscape watering and other
sustainable technologies that can serve as demonstrations for local homeowners will be
incorporated into the building design.
Nature Center Terrace – On the north side of the nature center there will be a 1,300 square foot
terrace for outdoor activities. Part of the terrace will be shaded by an overhead trellis.
Native Landscaping and Native Grass Lawn – Landscaping surrounding the nature center will
highlight the use of native plants to create butterfly and insect gardens, provide small animal
habitat, and showcase the natural beauty of native plants. Lawn areas surrounding the nature
center will use native grasses to demonstrate more sustainable options to traditional turfgrass.
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Interpretive Exhibit - Native Plant Landscaping – A wayside interpretive exhibit will be located
by the Nature Center’s entry plaza gardens and explain the benefits of using native plants in
home landscapes.
Animal Exhibits – South of the nature center there will be several large open pens to allow
seasonal exhibits of small fowl or other native small animals. The idea is to provide families with
small children the opportunity to view these animals up close and to create repeat visitation. Park
visitors will not be allowed to come into contact with the animals.
Bench – A six-foot long bench will be placed on the entry plaza with a view to the adjacent
butterfly gardens.
The Wildland
Wildland Trail Loop – A five-foot wide paved trail with sections of boardwalk will extend
through the wetland area on the park’s west boundary. This trail will allow visitors to experience
the wonder of wetlands by passing between two large marshes. At several locations along the
boardwalk, its width will expand and benches will be provided for persons wishing to sit and
enjoy the setting. Walking this loop will provide visitors with a 0.3 mile long stroll.
Interpretive Exhibit – Wonder of Wetlands – A wayside interpretive exhibit will be located on
the boardwalk that explains the ecology and benefits of wetlands.
Natural-Surface Trail – A segment of natural-surface trail will extend west of the Wildland Trail
Loop to allow visitors to further explore the area. The corridor for this trail will be cleared of any
brush and mowed periodically.
South Brookings Fire Station & Training Site
Fire Training Site - Screen Plantings – A linear screen planting consisting of two rows of
deciduous trees and three rows of large shrubs will be planted along the north and west edges of
the area used for training purposes by the Brookings Fire Department.
Fire Station Plantings – Landscape plantings will be installed along 32nd Street to improve the
appearance of the fire station and help it blend better with the nature park.
Fire Station & Training Site Security Fence – To prevent park visitors from straying into the fire
department facilities, a six-foot high, black plastic chain link fence will be extended around the
site. Two gates will provide access to the enclosed area, with one 12-foot wide gate being west
of the fire station and one 24-foot wide gate being located east of the fire station.
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Multi-use Area – Northwest Corner of Nature Park
Lease or Acquire 40 Acre Property – The City will work with the current private landowner to
either lease or acquire the 40-acre parcel on the northwest corner of the Nature Park. This parcel
includes the area currently leased by the City, known as “Joe Huffman Park”. The Brookings
Bike Trail loops through that portion of the property. The remainder of the parcel will be used
for multiple recreational uses.
Outdoor Learning Center
Screen Plantings – As part of the development process for the privately-funded Outdoor
Learning Center, appropriate landscape screen plantings should be provided on all sides of the
building by the organization developing that facility. A combination of deciduous and coniferous
trees and shrubs should be planted around the building to buffer it visually from the Nature Park.
Prepared by: Big Muddy Workshop, Inc. Landscape Architects – Omaha
The costs listed in the summary below for each project component include construction costs plus
a 20% contingency, 2% excise tax, 1.5% construction bond fee and design fees in Year 2010 Dollars.
Off-Site Wayfinding Signage $5,544
East Pond Area $504,284
Main Trail $458,738
Nature Park Overlook $217,543
South Parking Lot $113,326
South Pond $44,629
Middle Pond Area $1,565,026
Site Improvements $589,040
Nature Center $975,987
The Wildland $153,118
North Pond $26,778
South Prairie Restoration $66,528
Fire Training Site/South Fire Station Screen Plantings $53,430
Total Project Cost $3,241,378
Use: $3,300,000
Project Cost without Nature Center Building $2,231,673
Use: $2,300,000
Brookings Outdoor Learning Center Screen Plantings - By BOLC Organization $32,432
Filename: BNP Master Plan-Cost Opinion 08_16_10.xls
Opinion of Probable Construction Costs
Brookings Nature Park Master Plan
Brookings, South Dakota
Design Firm: Big Muddy Workshop, Inc.
August 10,2010
Project Number: #0589
City Council Packet
August 24, 2010
97
Other Business
16. Discussion and possible action on a Council recommendation on
the Moriarty Request for a Conditional Use request for a sand,
gravel, or quarry operation on a portion of the SW¼ of Section 1 -
T109N-R50W.
TO: Brookings City Council
FROM: CDD and Engineering Staff
DATE: August 17, 2010
RE: Conditional Use request for a sand, gravel, or quarry operation on a portion
of the SW¼ of Section 1-T109N-R50W
The Brookings County Planning and Zoning Commission received a conditional use application
for a gravel operation on the property described as N1/2SW1/4, SW1/4SW1/4 Exc. OL”A” of
Section 1, T109N, R50W (Medary Township). The described property is located in an
Agricultural District within the Joint Jurisdiction Area and administered by the Brookings
County Zoning Ordinance.
The City of Brookings owns a substantial amount of land abutting the proposed gravel
excavation operation. This land is currently used for recreation, conservation, and community
park development. The Proposed Site Map provides an overview of the area and the City of
Brookings land impacted by the project.
The Brookings County Planning and Zoning Commission held a public hearing on the
conditional use application on August 3, 2010. The Brookings County Planning and Zoning
Commission tabled the application.
The proposed establishment of a gravel operation has raised the following concerns:
Access – Access to this site by hauling trucks could result in excessive wear on Medary
Avenue South since the street is a rural section road with a gravel base. The road is also
in an area often inundated with surface water. Heavy truck hauling would also likely
destabilize the base of this road. Accessing 32nd Street South with trucks could be a safety
issue since this road has a posted speed limit of 55 mph.
Storm Water – The applicant’s parcel is located in the southern end of a very large
drainage basin for the City of Brookings with approximately 1500 acres draining through
or near this parcel. In the 1990’s, the City began purchasing land along the Medary
Avenue South corridor in an effort to protect existing wetlands and drainage ways. At
that time, the City attempted to purchase this parcel, but was not successful. Currently,
water flows through this parcel in a sheet-flow pattern and tends to pool in the southern
City Council Packet
August 24, 2010
98
40 acres of this property before passing under Medary Avenue and 32nd Street South on
its way to the Big Sioux River. A drainage plan will be required, showing how the
drainage will be routed on the mining site and how the operator proposes to maintain the
hydrological inflow and outflow characteristics. The appropriate storm water discharge
permits shall be obtained from the DENR and the runoff from the mining operation must
meet the EPA Clean Water specifications.
Wetlands – Downstream wetlands are an important part of the local ecosystem because
they remove pollutants from surface runoff, recharge the aquifer, and provide natural
flood control downstream. Construction of a mining operation has the potential to
destroy existing wetlands on the site. The National Wetlands Inventory (NWI) indicates
wetlands covering most of the property. While the NWI is not an official delineation of
wetlands, it will be imperative that the owner obtain a wetlands delineation report from a
qualified consulting firm and the delineation report must be submitted to the Corps of
Engineers for final determination. All disturbed wetlands shall be mitigated in
accordance with the appropriate specifications. The owner shall obtain the services of a
qualified wetlands consultant to develop a wetland mitigation plan. The locations of the
new wetlands shall be submitted to the County and City of Brookings for approval. The
owner shall also be responsible for maintaining the health and viability of any newly
created wetlands as a part of the mitigation plan.
Scope – The petitioner owns approximately 117 acres of land in this quarter section.
Specific areas within this acreage would impact adjoining properties to a much greater
degree than others. No detailed or scaled site plan indicating setback distances for
excavation limits, stockpile areas, internal circulation routes, and all other surface
operations has been presented.
Extraction Method – The method or methods by which the gravel is excavated have not
been proposed.
Operation Phasing – The petitioner has not stated when the project will start, where it will
start, how it will progress and when and where it will end.
Permit Duration – Any special exception authorizing this use should be subject to a
specific time frame. Such a use should expire after a specified number of years. The
permit would include all completion dates for major phases of the operation including
removal of overburden, excavation of gravel, removal of all waste material, and complete
reclamation of the area that matches an approved restoration plan. No timetable has been
offered by the applicant.
Off-season Equipment Storage - There should be no storage of tools or equipment on the
site during winter months when no excavation is occurring.
Stockpile Materials – The separation, stockpiling and reestablishment of all like
overburden on the site should be detailed. No information on this has been presented.
City Council Packet
August 24, 2010
99
Reclamation – A detailed reclamation plan that would include finished grade elevations
for all areas disturbed by the gravel operation and a schedule for the application of seed
and the type of cover material has not been provided.
This entire area is part of an Ag-Conservation District that was adopted as part of the
Future Land Use Plan in the Vision 2020 Comprehensive Plan (attached). It is adjacent to
open land that has been retained by the City in its natural state or will be converted to
park land. The Master Park Plan identifies this area as a future greenway which provides
an important natural drainage function. This use has the potential of adversely impacting
all the land owned by the City.
Therefore, staff recommends the City of Brookings oppose the conditional use
application for the following reasons:
1. No detailed ingress and egress routes have been presented
2. No scoping document has been developed or detailed site plan produced
3. No extraction method has been identified
4. No specific operation phasing schedule has been submitted
5. No reclamation plan has been developed
City Manager Introduction
ACTION: Motion to Approve, Request Public Comment, Roll Call
CITY MANAGER RECOMMENDATION: Concur with staff recommendation and deny
the request.
City Council Packet
August 24, 2010
102
17. Adjourn.