HomeMy WebLinkAbout2008_04_15 CC PKTApril 15, 2008 City Council Packet
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Brookings City Council
Tuesday, April 15, 2008
City Hall Council Chambers
311 Third Avenue
4:45 p.m. ~~ Canvass Election Ballot
5:00 p.m. ~~ Work Session
6:00 p.m. ~~ Council 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.
4:45 P.M. Official Canvass of April 8, 2008 municipal election ballots
5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council on items for that
particular meeting, introduce future topics, and provide a time for Council members to introduce topics.
1. Introduction of Thad Drietz, Assistant City Engineer.
2. Update on the bike trail/path project.
3. Presentation by Mike D. Bailey, the Shamrock, regarding his liquor operating agreement
application.
4. Review draft ordinance for new restaurant liquor licenses.
5. Discussion regarding process for unrestricted liquor license after restaurant licenses are
issued.
6. Review draft City Council goals.
7. 6:00 p.m. Meeting Review.
8. City Clerk Reports:
A. Upcoming Council Meetings
B. Council Invites & Obligations
9. City Council member introduction of topics for future discussion*.
*Any Council member may request discussion of any issue at a future meeting only. Items can not be added for action at this meeting. A
motion and second is required starting the issue, requested outcome, and time. A majority vote is required.
6:00 P.M. REGULAR MEETING
1. Call to order.
2. Pledge of Allegiance.
3. City Clerk records council attendance.
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4. Action to approve the following Consent Agenda Items *
A. Agenda.
B. Minutes.
C. Action on Resolution No. 31-08, a resolution designating Pioneer Park for
Summer Arts Festival.
D. Action on Resolution No. 32-08, a resolution approving the official canvass of
the April 8, 2008 municipal election ballot.
E. Action on the appointment of Nancy Hartenhoff-Crooks to the Transportation
Board (Brookings Committee for People who have Disabilities Representative).
F. Action on an appointment of Jessie Kuechenmeister to the Brookings
Committee for People who have Disabilities.
G. Action on Resolution No. 33-08, a resolution authorizing the city manager to
enter into a Fixed Base Operator’s Agreement with Pheasant’s Fury Aviation,
LLC.
H. Action on a request from Michael and Susan Dorn to abate a portion of the
2008 Drainage Fee for the N 465’ of the S 500’ of the E 419.25 of the NE ¼ of
Section 30-110-49.
I. Action on a request from Michael and Susan Dorn to abate a portion of the
2008 Drainage Fee for Lot 5, Vandervliet Addition, known as 2209 32nd Street
South.
J. Action on Resolution No. 36-08, awarding bids for 2008-02STA 15th Street
South, Camelot Drive, & Christine Avenue Street Assessment Project.
K. Action on a revised Preliminary Plat of a portion of Block 8, 10, and 11, Moriarty
4th Addition.
L. Action on Preliminary Plat for Sieler Addition in the NW ¼ of the SE ¼ of
Section 35-110-50 (formerly Hunter’s Ridge).
Action: 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/Reports/Special Requests:
5. Mayoral Proclamations:
o April 13-19 - Public Safety Telecommunicator’s Week (Joint City/County Proclamation)
o May 14th - Brookings Activity Center Day
6. Open Forum.
7. SDSU Report.
Ordinances – 1st Readings **
8. Ordinance No. 15-08: Action on an application for a conditional use to establish a
drive-in food service on Lots 12 – 14, Block 6, Original Plat Addition (425/427 Main
Avenue). Public Hearing: April 29, 2008 (note: A super majority vote of 5/2 will be required on this item to pass)
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9. Ordinance No. 16-08: Action on an application for an amendment to a conditional use
to establish four (4) additional dwelling units in an apartment on a portion of Lot 18, and
Lot 19, except the W85 feet of Lot 19, College Addition (649 Faculty Drive).
Public Hearing: April 29, 2008
10. Ordinance No. 17-08: Action on amendments to the sign ordinance pertaining to
electronic message signs.
Public Hearing: April 29, 2008
** No vote is taken on the first reading of ordinances. The title of the ordinance is read and the date for the public hearing is announced.
Ordinances – 2nd Readings / Public Hearings:
11. Ordinance No. 12-08 - An Ordinance Revising the Composition, Appointment and
Criteria for Appointment of Members of the Brookings Health System Board of
Trustees.
Action: Motion to approve, Request Public Comment, Roll Call
12. Ordinance No. 13-08 – An Ordinance Amending Article II of Chapter 22 of the Code
of Ordinances of the City of Brookings and Pertaining to the Adoption of the 2006
International Building Code and the 2006 International Residential Code with Certain
Amendments Thereto.
Action: Motion to approve, Request Public Comment, Roll Call
13. Ordinance No. 14-08 – An Ordinance Amending the Joint Jurisdiction Area Zoning
Ordinance pertaining to a private stable as a special exception in the Residence R-1A
District.
Action: Open & Close Public Hearing, Motion to approve, Roll Call
14. Public Hearing and Action on Resolution No. 35-08, Levying Assessment for 2007-
01SWR, Sidewalk Assessment Project.
Action: Open & Close Public Hearing, Motion to approve, Roll Call
Other Business.
15. Action on Resolution No. 29-08, a resolution authorizing the city manager to enter into
a liquor operating agreement with BraVo’s on a temporary basis until the new
restaurant licenses are issued.
Action: Motion to approve, Request Public Comment, Roll Call
16. Public hearing and action on Res. 28-08, a resolution of intent to lease real property to a
private person and authorizing the Mayor to sign an agreement with the South Dakota
Kart Club, Inc.
Action: Open & Close Public Hearing, Motion to approve, Roll Call
17. Action on Resolution No. 30-08, a resolution awarding bids for the Downtown
Streetscape project.
Action: Motion to approve, Request Public Comment, Roll Call
18. Adjourn.
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Brookings City Council
Scott Munsterman, Mayor
Tim Reed, Deputy Mayor
Mike Bartley, Council Member
Tom Bezdichek, Council Member
Ryan Brunner, Council Member
Ginger Thomson, Council Member
Julie Whaley, Council Member
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
The complete City Council agenda packet is available on the city website: www.cityofbrookings.org
If you require assistance, alternative formats, and/or accessible locations consistent with the Americans with Disabilities Act, please
contact Shari Thornes, City ADA Coordinator, at 692-6281 at least 3 working days prior to the meeting.
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4:45 P.M. CANVASS OF APRIL 8, 2008 MUNICIPAL ELECTION
The City Council will canvass the April 8, 2008 election results at 4:45 p.m. prior to the
meeting. Shari Thornes, City Clerk, will assist the Council in opening the sealed official
pollbooks and comparing their results with the election machine reports, precinct recap
reports, registration lists and the final resolution. Each Council Member must examine each
precinct prior to signing the Official Canvass Sheet.
Please find the following enclosures:
1. Resolution No. 32-08, Canvassing the April 8th Election.
¾ Compare the “Total Ballots Cast” number with Machine Reports, RECAP Sheet, and
pollbook. This number reflects the actual number of ballots/people in each
precinct.
¾ NOTE: The “Total Votes Cast” number reflects the actual number of VOTES cast
in each race. This number is different than the “Ballots Cast” number due to “over”
and “under” voted ballots.
2. Official Election Tabulating Machine Reports:
¾ Each precinct has a summary report that includes under votes, over votes, total
votes cast and total ballots cast
3. Official Election “RECAP” sheet for each precinct.
¾ Instructions for Precincts 1, 2, 5 & 6: Compare Recap Sheet Line 12, with the
Machine Reports, Resolution and last line of pollbook for each precinct.
EXAMPLE: Compare the following for Precinct 1:
1. RECAP Sheet Line 12: 85
2. Tabulating Machine Report, Total Number Voting: 85
3. Resolution No. 32-08, Total Ballots Cast: 85
4. Precinct #1 Pollbook – last page, which should be: 85
¾ Instructions for Precincts 3 & 4: These precincts also included voters from
rural Brookings County Townships and three townships in Moody County for the
school race. You will need to compare Recap Sheet Line 12, with the Machine
Reports, Resolution, the last line of pollbook, and the registration books from
Brookings Townships and Moody County.
EXAMPLE: Compare the following for Precinct 3:
1. RECAP Sheet Line 12: 249
2. Tabulating Machine Report, Total Number Voting: 249
3. Precinct #3 Pollbook – last page, which should be: 249
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4. Resolution No. 32-08, Total Ballots Cast: 249 **
(added total votes, unders and overs) 249 **
5. Registration Book Rural Voters – Brookings Townships: 39
6. Registration Book Rural Voters – Moody County Townships: 5
**In order to balance, you must add the number that voted in the city race
and add the rural voters of Brookings Township & Moody County Township
for the total.
EXAMPLE: Compare the following for Precinct 4:
1. RECAP Sheet Line 12: 595
2. Tabulating Machine Report, Total Number Voting: 595
3. Precinct #4 Pollbook – last page, which should be: 595
4. Resolution No. 32-08, Total Ballots Cast: 595
(added total votes, unders and overs)
5. Registration Book Rural Voters – Brookings Townships: 27 **
**In order to balance, you must add the number that voted in the city race
and add the rural voters of Brookings Township for the total.
Precinct 3 Precinct 4
3 year Race for 2
Total Ballots Cast 249 595
# of Rural Ballots -44 -27
Under Votes - 6 -17
Over Votes - 0 -6
City only Ballots 199 545 **
** The voting tabulation machine indicates that 547 city ballots were cast. A review of the poll books, recap
sheet, registration book and actual ballots. The registration book indicated that 27 rural voters cast ballots;
however, a review of the actual ballots found only 25 rural. Therefore, we have concluded that that two (2) rural
voters were given city/school ballots instead of “school” only ballots. It is our belief this error occurred in the
absentee/early voting at city hall and not at the election day polling site.
City only Ballots Cast 249 595
# of seats open x 2 x 2
# of all votes (including under and over votes) 498 1190
Less Under and over votes - 81 - 192
Less rural votes - 88 - 54
Total Votes Cast 329 944
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Please be advised of the following:
The pollbooks will be provided that night and opened in your presence, with the exception
of Precincts 3 and 4 which had to be opened to compare rural voters with the registration
books.
All Recap Sheets and Voting Tally Sheets matched exactly.
Action on the official resolution will occur during the Council meeting.
All Recap Sheet numbers match the machine reports and pollbooks.
The total number voted for all precincts was 2280 which includes 48 from Aurora for the
school race. The resolution and canvass totals are for the city race only for a total of
2232.
Official Duties of the Official Board of Canvassers for Local Jurisdiction
((5:02:17:12.)
The duties of the official board of canvassers for a local jurisdiction are as follows:
1) Open the returns from each precinct which are found in each poll book;
2) Satisfy itself that the returns are genuine and not forged;
3) Tabulate the returns from the precincts and declare the result; and
4) Make an abstract of the results of the votes cast for each of the candidates
and each of the issues (compare abstract form totals with the tabulation
sheets totals and pollbook). The abstract must be signed and certified by
the canvassers under the seal of the business manager or city clerk of the
local jurisdiction.
Source: 16 SDR 203, effective May 28, 1990.
General Authority: SDCL 12-1-9.
Law Implemented: SDCL 9-13-24, 13-7-18.
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RESOLUTION No. 32-08
Canvassing the April 8, 2008 Municipal Election
WHEREAS, on the 8th day of April 2008, there was held in the City of Brookings, South Dakota,
an election for the purpose electing three city council members, and
WHEREAS, the judges and clerks of said election have returned to the City Council of the
City of Brookings the official results for the purpose of the official canvass, and
WHEREAS, the City Council on April 8, 2008 has canvassed the results for the purpose of
determining the official election outcome, and
NOW, THEREFORE, BE IT HEREBY RESOLVED By the City Council of the City of Brookings, South
Dakota that the official vote at the City Election held April 8, 2008 was as follows:
City Council
1 Year (1)
Ryan
Brunner
Larry
Mix
Joyce
Hodges
Over
Votes
Under
Votes
Total
Ballots
Cast
Rural Ballots Cast Total Votes
Cast
Precinct 1
44 23 17 0 1 85 84
Precinct 2 131 42 64 0 8 245 237
Precinct 3 82 66 51 0 6 249 44 199
Precinct 4 271 137 139 6 17 595 27 545
Precinct 5 286 116 193 5 22 622 595
Precinct 6 204 109 96 3 24 436 409
TOTAL 1018 493 560 14 78 2232* 71 2069
City Council
3 Year (2)
Ginger
Thomson
Mike
Bartley
Mike
McClemans
Over
Votes
Under
Votes
Total
Ballots
Cast
Rural
Ballots
Cast
Total
Votes
Cast
Precinct 1
40 43 51 0 36 85 134
Precinct 2 131 145 124 0 90 245 400
Precinct 3 108 104 117 0 81 249 88 329
Precinct 4 304 308 336 0 192 595 54 944
Precinct 5 315 352 370 0 207 622 1037
Precinct 6 220 252 249 2 149 436 721
TOTAL 1118 1204 1247 2 755 2232* 142 3565
*2280 indicated on grand total, however, this includes 48 from Aurora.
Dated at Brookings, South Dakota, this 15th day of April 2008.
CITY OF BROOKINGS
___________________________
Scott D. Munsterman, Mayor
ATTEST:
_____________________
Shari Thornes, City Clerk
April 15, 2008 City Council Packet
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5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council on items
for that particular meeting, introduce future topics, and provide a time for Council members to introduce topics.
1. Introduction of Thad Drietz, Assistant City Engineer.
Jackie Lanning, City Engineer, will introduce Thad Drietz to the City Council. Thad
Drietz started work on March 17, 2008, as Assistant City Engineer. Thad grew up in
Minnesota and is a graduate of South Dakota State University with a Civil Engineering
degree. Thad was previously employed with J.C. Ramsdell Enviro Services in Flandreau,
where he worked for the past 11 years. Thad is also a registered Professional Engineer,
and brings to the City experience with project management, surveying, design and
supervision. We are happy to have Thad join our engineering team.
Estimated Time (2 minutes)
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5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council on items
for that particular meeting, introduce future topics, and provide a time for Council members to introduce topics.
2. Update on the bike trail/path project.
City Engineer Jackie Lanning and Park, Rec, & Forestry Director Allyn Frerichs have
been working with Banners Associates on the Bike Trail project for 2008. This project
received a Transportation Enhancement Grant for $499,000 and High Priority Project
Funds in the amount of $100,000. The City’s match for this project is approximately
$141,000, which has been budgeted for 2008.
Banner Associates has completed the scoping work for the project, which identified the
preferred route and phasing for the project. A map of the route is included. Lanning
and Frerichs will present an update to the City Council on this project.
Estimated Time (5 minutes)
PREFERRED ROUTE
PHASE II
PHASE I
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5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council on items
for that particular meeting, introduce future topics, and provide a time for Council members to introduce topics.
3. Presentation by Mike D. Bailey, the Shamrock, regarding
his liquor operating agreement application.
The City Council discussed the issuance of the remaining liquor operating agreement at
their March 25th meeting. Proposals were presented at that time by representatives of
BraVo’s, the Shamrock, Gonz Productions, Inc., and Star Hospitality.
Mr. Bailey, representing the Shamrock, made a brief presentation to the Council;
however, it was suggested that the Shamrock could be designated as a Convention
Facility and be eligible for temporary liquor licenses. With that as a possible solution
until the new restaurant licenses are issued, Mr. Bailey concluded his presentation.
However, after that meeting it was determined by the State Department of Revenue
that his business would not qualify as a convention facility and would not be eligible for
the temporary liquor licenses.
Mr. Bailey has requested another opportunity to present his request for the liquor
operating agreement and will be present at this meeting.
There has been another development on this issue. Steve Britzman, Brookings City
Attorney, has researched state statutes and has consulted with state officials about a
provision in the law that would allow for the City to lease a private facility and thereby
permitting the Shamrock to be designated as a convention hall. Mr. Britzman will
provide additional information during this discussion.
Estimated Time (15 minutes)
April 15, 2008 City Council Packet
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Memorandum
To: Mayor and Council Members, Jeff Weldon, City Manager and Shari Thornes, City Clerk
From: Steven J. Britzman, City Attorney
Date: April 10, 2008
Re: Shamrock Temporary on-sale license for use at a convention hall
As you know, the designation of the Shamrock as a convention facility was more difficult than
expected, however we have determined the further procedure necessary to accomplish the
original goal. I had a conference with Paul Kinsman, the S.D. Secretary of Revenue, and he
agreed that the City could execute a lease with the Shamrock, to satisfy the State law
requirement that the facility be a public convention hall. A very basic lease agreement will be
prepared which will be of short-term duration and effective only during times when the
temporary convention license is issued. The Shamrock will be required to provide acceptable
insurance coverage and will of course be required to satisfy the requirements for issuance of a
temporary license. The Lease will designate the Shamrock as a public convention hall of the
city and will terminate when Restaurant licenses can be issued. Finally, the lease is the
appropriate document to satisfy the legal definition of a “public” convention hall which we found
the law contemplated.
Again, the Department of Revenue advised they agree with the foregoing procedure.
April 15, 2008 City Council Packet
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RESOLUTION NO.____-08
RESOLUTION DESIGNATING BAILEY’S SHAMROCK, LLC AS A CONVENTION CENTER
PURSUANT TO ORDINANCE SECTION 6-43(f) AND FOR THE PURPOSE OF THE
ISSUANCE OF TEMPORARY ON-SALE ALCOHOLIC BEVERAGE LICENSES DURING A
LIMITED PERIOD.
BE IT RESOLVED by the City Council of the City of Brookings, South Dakota as follows:
WHEREAS, Bailey’s Shamrock, LLC operates the “Shamrock” located at 12th Street and 22nd
Avenue South, in Brookings, South Dakota, and desires to apply for temporary on-sale alcoholic
beverage licenses in the City, and
WHEREAS, to be eligible for a temporary on-sale license, an applicant must hold the event in a
convention hall and therefore designation as a convention hall is necessary for Bailey’s
Shamrock, LLC, and
WHEREAS, since Bailey’s Shamrock, LLC is a privately owned facility, during such times as a
temporary on-sale alcoholic beverage license is issued to Bailey’s Shamrock, LLC, the parties
agree that a Lease with the City will be required to establish Bailey’s Shamrock, LLC as a
convention center of the City of Brookings, and
WHEREAS, the City has determined it is authorized to execute a lease to establish the Shamrock
as a convention center in accordance with the terms and conditions set forth herein, and
WHEREAS, the designation of Bailey’s Shamrock, LLC as a convention center under Ordinance
Section 6-43 in the City of Brookings should only continue until the City of Brookings is able to
issue Full-Service Restaurant Licenses under the 2008 Full-Service Restaurant On-Sale
legislation (2008 legislation),
NOW THEREFORE, IT IS HEREBY RESOLVED by the City Council of the City of Brookings,
South Dakota, as follows:
A. That the City hereby designates Bailey’s Shamrock, LLC as a convention center in
the City of Brookings until the City of Brookings is able to issue Full-Service
Restaurant Licenses under the 2008 Full-Service Restaurant On-Sale legislation
(2008 legislation), and
B. That the City Manager and Clerk are authorized to execute the required Lease and
any other documents in accordance with this Resolution.
Passed and approved on the ____ day of April, 2008.
Attest: Scott D. Munsterman, Mayor
Shari Thornes, City Clerk
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5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council on items
for that particular meeting, introduce future topics, and provide a time for Council members to introduce topics.
4. Review draft ordinance for new restaurant liquor licenses.
The City Attorney has drafted the following for Council review regarding the
establishment of Restaurant Liquor Licenses. The new state law is also enclosed.
DRAFT
ORDINANCE NO. ________
AN ORDINANCE ESTABLISHING PROCEDURE FOR THE ISSUANCE AND
REGULATION OF ON-SALE LICENSES FOR FULL-SERVICE RESTAURANTS IN THE CITY
OF BROOKINGS, SOUTH DAKOTA.
BE IT ORDAINED AND ENACTED BY THE COUNCIL OF THE CITY OF
BROOKINGS, STATE OF SOUTH DAKOTA, AS FOLLOWS:
I.
Sec. 6-50. Full-Service On-Sale Restaurant Licenses.
a. Definitions of Terms:
Terms used in this ordinance mean:
(1) “Bar,” any permanently installed counter within the restaurant area from which
alcoholic beverages are regularly served to customers by a person who is
tending bar or drawing or mixing alcoholic beverages;
(2) “Full-service restaurant,” any restaurant at which a waiter or waitress delivers
food and drink offered from a printed food menu to patrons at tables, booths, or
the bar. Any restaurant that only serves fry orders or food such as sandwiches,
hamburgers, or salads is not a full-service restaurant;
(3) “Restaurant,” any area in a building maintained, advertised, and held out to the
public as a place where individually priced meals are prepared and served
primarily for consumption in such area and where not more than forty percent
of the gross revenue of the restaurant is derived from the sale of alcohol or
alcoholic beverages. The restaurant shall have a dining room or rooms, a kitchen,
and the number and kinds of employees necessary for the preparing, cooking,
and serving of meals.
b. License Application Requirements:
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Documentation: An applicant for a full-service restaurant on-sale license shall
provide sufficient documentation to the municipality with an application form
provided by the municipality to prove that the primary source of revenue from
the operation of the restaurant will be derived from the sale of prepared food
and nonalcoholic beverages and not from the sale of alcoholic beverages. The
supporting documentation concerning the primary source of revenue submitted
pursuant to this section is confidential.
c. Advertising Restriction:
A restaurant that has a full-service restaurant on-sale license may only be
advertised or held out to the public as primarily a food eating establishment.
d. Annual Reports:
The full-service restaurant on-sale licensee shall submit an annual report
and supporting documentation to the city on forms provided by the city of the
annual sales of the full-service restaurant, which includes an oath verifying the
validity of the information provided in the report. The report and the supporting
documentation submitted pursuant to this section are confidential. The report
shall contain the annual gross sales of the licensee for the following two
categories:
(i) Food and nonalcoholic beverage sales; and
(ii) Alcoholic beverages sales.
e. License Renewals:
When renewing a full-service restaurant on-sale license, the city shall condition
the license renewal upon receiving documentation that not more than forty
percent of gross sales from the preceding twelve months operation of the full-
service restaurant is derived from the sale of alcohol or alcoholic beverages.
f. Only Retail, On-Sale Service Permitted:
A full-service restaurant on-sale licensee may only serve alcoholic beverages for
on-premise consumption in the bar and dining room area of the restaurant.
g. Smoking Prohibited:
No licensee that has a full-service restaurant on-sale license may allow smoking
on the licensed premises.
h. Full-Service Restaurant License Fees:
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(1) As required by State law, the license fee charged for full-service on-sale
restaurant licenses shall be a minimum of one dollar for each person residing
within the city as measured by the last preceding decennial federal census.
(2) The license fee shall be initially established by Resolution within ninety (90) days
of the initial adoption of this ordinance. Subsequent changes in the license fee
shall not be made for a period of ten (10) years from the effective date of
adoption of this ordinance unless a population growth is reported by the Federal
decennial census requires an increase in the fee.
i. Establishment of Price of New Full-Service Restaurant On-Sale License:
(1) In accordance with State law, the price of a new full-service restaurant license
shall be established by Resolution of the City at or above the current fair market
value of the license.
(2) The minimum price for a new full-service restaurant on-sale license shall not be
less than one dollar for each person residing within the City of Brookings as
measured by the last preceding decennial federal census.
j. Registry of Full-Service Restaurant On-sale Licensees:
The city shall maintain a registry of each full-service on-sale restaurant license
that is being offered for sale and the city shall furnish a copy of the registry to
anyone who requests a new-full service restaurant on-sale license. The existing
full-service restaurant on-sale licensee is responsible for registering with the city
that the full-service restaurant on-sale license is for sale.
k. Issuance of new Full-Service Restaurant Licenses restricted:
The city may only issue a new license pursuant to this ordinance if no on-sale
license is on the registry or a person desiring to purchase an on-sale license
listed on the registry provides documentation showing that the person is unable
to purchase the on-sale license at the price established in section i of this
ordinance and on terms satisfactory to both the potential buyer and seller. The
price of any on-sale license registered as “for sale” with the city shall be sold at
the current fair market price set by the city pursuant to a Resolution adopted in
accordance with section i of this ordinance.
II.
Any or all ordinances in conflict herewith are hereby repealed.
April 15, 2008 City Council Packet
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FIRST READING:
SECOND READING:
PUBLISHED:
CITY OF BROOKINGS, SOUTH DAKOTA
Mayor
ATTEST:
City Clerk
April 15, 2008 City Council Packet
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AN ACT
ENTITLED, An Act to allow municipalities and counties to issue additional on-sale
alcoholic beverage licenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That chapter 35-4 be amended by adding thereto a NEW SECTION to read as
follows:
Notwithstanding the provisions of § 35-4-11 or 35-4-11.1 or the on-sale license fees
established pursuant to subdivisions 35-4-2(4) and (6), the governing board of any incorporated
municipality or the board of county commissioners of any county may, by ordinance, issue
additional on-sale licenses for full-service restaurants if the municipality or county charges at
least the minimum fee required by section 7 of this Act.
Section 2. Terms used in this Act mean:
(1) "Bar," any permanently installed counter within the restaurant area from which
alcoholic beverages are regularly served to customers by a person who is tending bar or drawing
or mixing alcoholic beverages;
(2) "Full-service restaurant," any restaurant at which a waiter or waitress delivers food
and drink offered from a printed food menu to patrons at tables, booths, or the bar. Any
restaurant that only serves fry orders or food and victuals such as sandwiches, hamburgers, or
salads is not a full-service restaurant;
(3) "Restaurant," any area in a building maintained, advertised, and held out to the
public as a place where individually priced meals are prepared and served primarily for
consumption in such area and where not more than forty percent of the gross revenue of the
restaurant is derived from the sale of alcohol or alcoholic beverages. The restaurant shall have a
dining room or rooms, a kitchen, and the number and kinds of employees necessary for the
preparing, cooking, and serving of meals.
Section 3. An applicant for a full-service restaurant on-sale license shall provide sufficient
documentation to the municipality to prove that the primary source of revenue from the operation
of the restaurant will be derived from the sale of prepared food and nonalcoholic beverages and
not from the sale of alcoholic beverages. The supporting documentation concerning the primary
source of revenue submitted pursuant to this section is confidential.
Section 4. When the municipality is renewing a full-service restaurant on-sale license, the
municipality shall condition the license renewal upon receiving documentation that not more
than forty percent of gross sales from the preceding twelve months operation of the full-service
restaurant is derived from the sale of alcohol or alcoholic beverages. The full-service restaurant
on-sale licensee shall submit an annual report to the municipality on the sales for the full-service
restaurant that includes an oath verifying the validity of the information provided in the report.
The report and the supporting documentation submitted pursuant to this section are confidential.
April 15, 2008 City Council Packet
34
The report shall contain the annual gross sales of the licensee for the following two categories:
(1) Food and nonalcoholic beverage sales; and
(2) Alcoholic beverage sales.
Section 5. A full-service restaurant on-sale licensee may only serve alcoholic beverages for
on-premise consumption in the bar and dining room area of the restaurant.
Section 6. A restaurant that has a full-service restaurant on-sale license may only be
advertised or held out to the public as primarily a food eating establishment. No licensee that has
a full-service restaurant on-sale license may allow smoking on the licensed premises.
Section 7. That chapter 35-4 be amended by adding thereto a NEW SECTION to read as
follows:
Any municipality or county adopting the ordinance pursuant to section 1 of this Act may issue
additional on-sale licenses to full-service restaurants. Any municipality adopting such ordinance
shall charge at least one dollar for each person residing within the municipality as measured by
the last preceding decennial federal census. Any county adopting such ordinance shall charge at
least one dollar for each person residing within the county but outside the boundary of any
municipality as measured by the last preceding decennial federal census.
Each municipality or county shall set the on-sale license fee within ninety days of adopting
the ordinance pursuant to section 1 of this Act or within thirty days after the resolution of any
appeal pursuant to section 3 of this Act. After the fee for an on-sale license issued pursuant to
this Act has been determined, no municipality or county may change the fee for a period of ten
years unless a growth in population reported by the federal decennial census requires an increase
in the fee.
Section 8. That chapter 35-4 be amended by adding thereto a NEW SECTION to read as
follows:
Each licensee who owns an on-sale license issued pursuant to subdivision 35-4-2(4) or (6) as
of January 1, 2008, and who purchased the license or had the license transferred to such licensee
at any time between January 1, 2003, and January 1, 2008, shall report the amount originally
paid for the on-sale license to the municipality or county that issued the license. The declared
purchase price shall be made under oath and shall include the documents establishing the amount
paid for the on- sale license to the municipality or county that issued the license. If the
transaction for the purchase of the on-sale license included real or personal property, the full
market value of the real or personal property on the date of the original sale shall be deducted
from the total transaction price to determine the amount paid by the licensee for the on-sale
license. The burden of establishing the amount paid for the license shall be on the licensee. Any
licensee contesting the fair market value of the real and personal property may appeal the
valuation to circuit court.
April 15, 2008 City Council Packet
35
Section 9. Any municipality or county adopting the ordinance pursuant to section 1 of this
Act shall set the price of a new full-service restaurant on-sale license, pursuant to section 7 of
this Act, at or above the current fair market value. However, such full-service restaurant on-sale
license fee may not be less than the minimum on-sale license fee established pursuant to
subdivision 35-4-2(4) or (6). For purposes of this section, the term, current fair market value,
means the documented price of the on-sale license most recently sold between January 1, 2003,
and January 1, 2008, through an arm's-length transaction, less the value of any real or personal
property included in the transaction. Each on-sale license holder as of January 1, 2008, who
acquired the on-sale license within the last five years shall report to the municipality or county
the date and price paid for its on-sale license.
Section 10. Each municipality or county adopting an ordinance pursuant to section 1 of this
Act shall maintain a registry of each on-sale license that is being offered for sale at the price
established in section 9 of this Act and furnish a copy of the registry to anyone who requests a
new full-service restaurant on-sale license. The municipality or county may only issue a new
license pursuant to this Act if no on-sale license is on the registry or a person desiring to
purchase an on-sale license listed on the registry provides documentation showing that the
person is unable to purchase the on-sale license at the price established in section 9 of this Act
and on terms satisfactory to both the potential buyer and seller. The price of any on-sale license
registered as, for sale, with the municipality or county shall be sold at the current fair market
price set by the municipality or county pursuant to section 9 of this Act. Nothing in this Act
precludes the sale of an on-sale license by a licensee not listed on the registry.
Section 11. The existing on-sale license holder is responsible for registering with the
municipality or county that the on-sale license is for sale pursuant to section 10 of this Act.
An Act to allow municipalities and counties to issue additional on-sale alcoholic beverage
licenses.
=========================
I certify that the attached Act
originated in the
SENATE as Bill No. 126
____________________________
Secretary of the Senate
=========================
____________________________
President of the Senate
Attest:
____________________________
Secretary of the Senate
=========================
Received at this Executive Office this _____ day of
_____________ ,
20____ at ____________ M.
By _________________________
for the Governor
=========================
The attached Act is hereby approved this ________
April 15, 2008 City Council Packet
36
____________________________
Speaker of the House
Attest:
____________________________
Chief Clerk
Senate Bill No. 126
File No. ____
Chapter No. ______
day of ______________ , A.D., 20___
____________________________
Governor
=========================
STATE OF SOUTH DAKOTA,
ss.
Office of the Secretary of State
Filed ____________ , 20___
at _________ o'clock __ M.
____________________________
Secretary of State
By _________________________
Asst. Secretary of State
April 15, 2008 City Council Packet
37
5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council on items
for that particular meeting, introduce future topics, and provide a time for Council members to introduce topics.
5. Discussion regarding process for unrestricted liquor
license after restaurant licenses are issued.
The following action was taken at the March 25, 2008 related to this topic with the
direction this item be placed on the April 15th work session”
“Liquor License Process. Reed said the City Council has had one liquor operating
agreement on the shelf until a decision was made, which was done tonight. However,
he was concerned what happens with that license after July 1st. Does it go back on the
shelf? He’d like the Council to come back and discuss that process as to what happens
to that license. ACTION: A motion was made by Reed, seconded by Whaley, to
place discussion on the April 15, 2008 work session regarding the process for the
unrestricted liquor license after the restaurant licenses are issued. Munsterman asked if
the ordinance would take a month. Britzman said he could have a draft for the April 15th
meeting. Bartley said his full intention is that we’ll issue that license once it comes back. He
thinks we should and if Shenanigan’s is the proper vehicle then we should address that, but still
need a discussion to assess if we need to advertise again or not. All present voted yes;
motion carried.”
Estimated Time (10 minutes)
April 15, 2008 City Council Packet
38
5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council on items
for that particular meeting, introduce future topics, and provide a time for Council members to introduce topics.
6. Review draft City Council goals.
The Brookings City Council and City Manager participated in a facilitated strategic goal
setting session at the Swiftel Center on March 26, 2008.
The following is a draft of the City’s Capital Project Prioritization and Goals for 2008
developed as a result of that session. The Capital Project Prioritization is listed in
order of priority accompanied with a policy statement. The City Manager will further
expand on each Capital issue and project by identifying action steps, timeline, schedules,
project cost and means of financing, responsible party, performance measures and
outcomes for each capital project and/or issue. Each of the goals listed in the
document relates to Quality of Life, Economic Development, Partnerships, Fiscal Responsibility
and Governance.
Formal council review and adoption of the goals is scheduled for April 29th.
Estimated Time (5 minutes)
April 15, 2008 City Council Packet
39
Capital Project Prioritization for 2008
Issue/Project
1. Airport dual-track analysis
Policy Statement
Complete the FAA mandated dual track analysis to resolve the airport runway matter
by year-end to decide 1) re-align the main runway at the current site; or 2) relocate
the airport to a proposed site southeast of Brookings.
Issue/Project
2. Railroad crossing safety improvements
Policy Statement
Improve the safety of all in-city railroad crossings with city streets through short-term
strategies that install quad-gates and other appurtenances at crossings; medium-term
strategies that accomplish grade separation at intersections where possible; and long-
term strategies that accomplish a railroad by-pass around Brookings.
Issue/Project
3. Innovation Campus infrastructure
Policy Statement
Install the necessary infrastructure to complete the Innovation Campus with the
exception of the street surface to the exterior street loop; the street surface to be
completed later.
Issue/Project
4. 34th Avenue/20th Street overpass transportation project
Policy Statement
Complete the engineering feasibility study, and begin planning for the construction of an
upgrade to 34th Avenue, construction of 20th Street extension, and an I-29 overpass for
20th Street.
Issue/Project
5. South trunk utility extension
Policy Statement
Work with developers and BMU to provide the installation and financing of major trend
water and sewer extensions south of 20th and 32nd Streets to facilitate additional
development in accordance with the comprehensive plan.
Issue/Project
6. Storm water drainage
Policy Statement
Complete the storm water management master plan, and identify and prioritize specific
storm water management construction projects. Begin construction of said projects.
April 15, 2008 City Council Packet
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Issue/Project
7. Space needs analysis
Policy Statement
Address the projected space and building facility shortage identified in the completed
space needs study. This is to be accomplished by examining 1) expanding current
facilities, 2) replacing current facilities, or 3) combining a new facility with Brookings
County.
Issue/Project
8. Swiftel Center expansion
Policy Statement
Continue to analyze the potential/feasibility of expanding the Swiftel Center for
convention, storage, and office needs as well as the possibility of partnering with a
private developer for an attached hotel.
Goal #1 Quality of Life
Strategy A (Transportation)
Improve public transportation services. Use the Transportation Committee report to
develop initiatives to improve/expand public transit services.
Strategy B (Bicycle-pedestrian friendly)
Make the community more bicycle and pedestrian friendly. Develop plans to promote,
encourage and develop bicycle lanes or certain streets and continue the development of
comprehensive bicycle-pedestrian pathway system that connects neighborhoods,
schools, parks, SDSU and other civic and cultural amenities.
Strategy C (Park system planning and development)
Develop a park system master plan which will guide the long-range development of the
park system. The plan should be consistent with the City’s overall comprehensive plan.
The plan should address means to increase play at Edgebrook Golf Course. Identify
physical improvements to all city parks and trail systems, evaluate property holdings and
suggest location for future parkland.
Strategy D (Nature Park)
Complete an adoptive reuse plan to convert the old landfill into a Nature Park Preserve
Area.
Strategy E (Community wellness)
Develop a community wellness initiative which forges partnerships into a community
grass-roots coalition designed to promote health and wellness.
Strategy F (Education and literacy)
Develop a community based partnership with Brookings Public Schools and SDSU that
emphases education and literacy, promotes access to technology, and uses the
April 15, 2008 City Council Packet
41
resources of the local libraries as centers for lifelong learning. Facilitate redesign of
educational systems to survive and thrive in a new economy.
Strategy G (Housing opportunities)
Implement the recommendations of the housing study to develop more diverse housing
options to meet the needs of current and future residents. Examine and address issues
of neighborhood density and character.
Strategy H (Wi-Fi hotspots)
Work with BMU to identify locations and install routers that can provide wireless
internet service.
Goal #2 Economic Development
Strategy A (Marketing)
The Visitor Promotions Committee should complete development of a comprehensive
community marketing plan designed to promote Brookings as 1) an attraction location
for special events, and 2) an attractive location for new business development and
expansion as well as its quality of residential life.
Strategy B (Workforce development)
BEDC should spearhead a comprehensive workforce development project to advertise,
recruit and develop a qualified and diverse workforce to fill needed employment ranks.
Work with SDSU for specified workforce program of college graduates.
Strategy C (Retail development)
BEDC and the City should partner on specific initiatives designed to attract and retain
retail businesses.
Strategy D (Purchase property for future development)
Seek means to purchase or otherwise acquire property that can be land banked for
future resale to encourage commercial and industrial development and investment.
Strategy E (Road system into developing areas)
The City should continue efforts to strategically identify and construct future street
systems to help develop industrial parks or other commercial corridors.
Strategy F (Main Avenue Improvement Project)
Construct the Main Avenue Improvement Project that includes street, utility, sidewalk
and streetscape amenities.
Strategy G (State property acquisition)
Exercise option to acquire state DOT parcel as a means of land banking for future
retail/commercial development (Specific strategy to Strategy D).
Strategy H (Rail Authority membership)
April 15, 2008 City Council Packet
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Obtain membership on the Brookings Rail Authority to use as a means of improving rail
service and safety.
Strategy I (Transportation funding legislative changes)
Lobby for legislative changes that provide local central funding mechanisms to meet local
transportation challenges.
Goal #3 Partnerships
Strategy A (I-29 business clusters)
Promote the development of industry clusters along I-29 among communities on or
near the interstate. Develop specific strategies for regional economic development.
Strategy B (SDSU)
Continue to work with SDSU on mutually beneficial projects. Provide input on campus
master plan as requested. Develop compensation enhancement program for college
professors.
Strategy C (Intergovernmental relations)
Maintain ongoing intergovernmental relationships and develop partnerships with state
and federal legislations, SDSU officials, school board, county board and township board
officials.
Goal #4 Fiscal Responsibility
Strategy A (Reserve)
Continue the practice of officially dedicating undesignated reserves for specific projects.
Strategy B (Debt levels)
Strategically schedule issuances of debt so their placement accomplishes the highest
level of prudent capital investment while maintaining the highest level of financial
stability.
Goal #5 Governance
Strategy A (Budget development)
Implement initiatives designed to solicit and secure public input on budgetary issues and
spending priorities.
Strategy B (Public education, openness in government)
Implement initiatives to inform and educate the public about the workings of their city
government through various mediums such as website, cable TV, surveys and
newsletters. Continue to explore and develop live web streaming of council meetings.
Strategy C (Council training and development)
Provide training opportunities such as the National League of Cities Conferences, South
Dakota Municipal League and others that invest in elected officials’ education and
training.
April 15, 2008 City Council Packet
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5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council on items
for that particular meeting, introduce future topics, and provide a time for Council members to introduce topics.
7. 6:00 p.m. Meeting Review.
6:00 P.M. REGULAR MEETING
1. Call to order.
2. Pledge of Allegiance.
3. City Clerk records council attendance.
4. Action to approve the following Consent Agenda Items *
A. Agenda.
B. Minutes.
C. Action on Resolution No. 31-08, a resolution designating Pioneer Park for Summer Arts Festival.
D. Action on Resolution No. 32-08, a resolution approving the official canvass of the April 8, 2008 municipal election ballot.
E. Action on the appointment of Nancy Hartenhoff-Crooks to the Transportation Board (Brookings Committee for People who
have Disabilities Representative).
F. Action on an appointment of Jessie Kuechenmeister to the Brookings Committee for People who have Disabilities.
G. Action on Resolution No. 33-08, a resolution authorizing the city manager to enter into a Fixed Base Operator’s Agreement with
Pheasant’s Fury Aviation, LLC.
H. Action on a request from Michael and Susan Dorn to abate a portion of the 2008 Drainage Fee for the N 465’ of the S 500’ of
the E 419.25 of the NE ¼ of Section 30-110-49.
I. Action on a request from Michael and Susan Dorn to abate a portion of the 2008 Drainage Fee for Lot 5, Vandervliet Addition,
known as 2209 32nd Street South.
J. Action on Resolution No. 36-08, awarding bids for 2008-02STA 15th Street South, Camelot Drive, & Christine Avenue Street
Assessment Project.
K. Action on a revised Preliminary Plat of a portion of Block 8, 10, and 11, Moriarty 4th Addition.
L. Action on Preliminary Plat for Sieler Addition in the NW ¼ of the SE ¼ of Section 35-110-50 (formerly Hunter’s Ridge).
Action: 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/Reports/Special Requests:
5. Mayoral Proclamations:
o April 13-19 - Public Safety Telecommunicator’s Week (Joint City/County Proclamation)
o May 14th - Brookings Activity Center Day
6. Open Forum.
7. SDSU Report.
Ordinances – 1st Readings **
8. Ordinance No. 15-08: Action on an application for a conditional use to establish a drive-in food service on Lots 12 – 14, Block 6, Original
Plat Addition (425/427 Main Avenue).
Public Hearing: April 29, 2008 (note: A super majority vote of 5/2 will be required on this item to pass)
9. Ordinance No. 16-08: Action on an application for an amendment to a conditional use to establish four (4) additional dwelling units in an
apartment on a portion of Lot 18, and Lot 19, except the W85 feet of Lot 19, College Addition (649 Faculty Drive).
Public Hearing: April 29, 2008
10. Ordinance No. 17-08: Action on amendments to the sign ordinance pertaining to electronic message signs.
Public Hearing: April 29, 2008
Ordinances – 2nd Readings / Public Hearings:
11. Ordinance No. 12-08 - An Ordinance Revising The Composition, Appointment And Criteria For Appointment Of Members Of The
Brookings Health System Board Of Trustees.
Action: Motion to approve, Request Public Comment, Roll Call
12. Ordinance No. 13-08 – An Ordinance Amending Article II of Chapter 22 of the Code of Ordinances of the City of Brookings and Pertaining
to the Adoption of the 2006 International Building Code and the 2006 International Residential Code with Certain Amendments Thereto.
Action: Motion to approve, Request Public Comment, Roll Call
13. Ordinance No. 14-08 – An Ordinance Amending the Joint Jurisdiction Area Zoning Ordinance pertaining to a private stable as a special
exception in the Residence R-1A District.
Action: Open & Close Public Hearing, Motion to approve, Roll Call
14. Public Hearing and Action on Resolution No. 35-08, Levying Assessment for 2007-01SWR, Sidewalk Assessment Project.
Action: Open & Close Public Hearing, Motion to approve, Roll Call
Other Business.
15. Action on Resolution No. 29-08, a resolution authorizing the city manager to enter into a liquor operating agreement with BraVo’s on a
temporary basis until the new restaurant licenses are issued.
Action: Motion to approve, Request Public Comment, Roll Call
16. Public hearing and action on Res. 28-08, a resolution of intent to lease real property to a private person and authorizing the Mayor to sign an
agreement with the South Dakota Kart Club, Inc.
Action: Open & Close Public Hearing, Motion to approve, Roll Call
17. Action on Resolution No. 30-08, a resolution awarding bids for the Downtown Streetscape project.
Action: Motion to approve, Request Public Comment, Roll Call
18. Adjourn.
April 15, 2008 City Council Packet
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5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council on items
for that particular meeting, introduce future topics, and provide a time for Council members to introduce topics.
8. City Clerk Reports:
A. Upcoming Council Meetings
April 29th
Reception for Ginger Thomson
5:00 pm Work Session:
o Swiftel Center Expansion Plans - Swiftel Center Advisory Board.
o Annual Reports from City Volunteer Boards, Committees & Commissions
o Project Insight Reports (remaining reports & discussion on how to use info)
o Revised policy on government access channel.
6:00 pm Action Meeting:
- Action on May volunteer appointments
- Action to approve Council goals / minutes
- Public hearing - Ordinance No. 15-08: Action on an application for a conditional use to
establish a drive-in food service on Lots 12 – 14, Block 6, Original Plat Addition
(425/427 Main Avenue).
- Public hearing - Ordinance No. 16-08: Action on an application for an amendment to a
conditional use to establish four (4) additional dwelling units in an apartment on a
portion of Lot 18, and Lot 19, except the W85 feet of Lot 19, College Addition (649
Faculty Drive).
- Public hearing - Ordinance No. 17-08: Action on amendments to the sign ordinance
pertaining to electronic message signs.
May 13th
- Oath of Office Ceremony for City Council Members
- Hospital Campus Expansion Plans.
- Mayor’s Awards for Historic Preservation
April 15, 2008 City Council Packet
45
B. Council Invites & Obligations
April 13th
Sunday
Habitat
Groundbreaking
1:30 pm
April 14th
Monday
SD Rural Enterprise
Community Opportunity
Briefing
4:00 pm
Sioux Falls
Washington Pavilion
April 15th
Tuesday
City Council
5:00 pm
April 21st
Monday
MinnDakota
9 am arrival
10:00 am
Volstorff Ballroom on
the campus of SDSU.
April 25th
Friday
Army & Air Force ROTC
Military Appreciation Day
Review & Awards
1:00 pm
Campus Green
April 29th
Tuesday
City Council
5:00 pm
May 7th
Wednesday
I-29 Meeting
Large Group
3-5 Pm
Sioux Falls
City Hall Bldg., Old
Council Chambers
(same room as last
time).
May 13th
Tuesday
Big Sioux Water Festival 9:45 am to 2
pm
May 13th
Tuesday
City Council
5:00 pm
May 15th
Thursday
Special Olympics
Torch Run
3 pm High
School
4 pm City
Hall
Time
tentative
May 18-21
ISCS Conference
May 27th
Tuesday
Council Meeting
5:00 pm
May 29th
Thursday
Sioux Falls Tour
1-5 pm
May 31st
Saturday
Wall Raising
Habitat
8:00 am
June 7th
Sunday
Habitat
Dedication Ceremony
1:00 pm
April 15, 2008 City Council Packet
46
5:00 P.M. WORK SESSION
** Work sessions are open to the public. During the work session the city staff would brief the council on items
for that particular meeting, introduce future topics, and provide a time for Council members to introduce topics.
9. City Council member introduction of topics for future
discussion*.
*Any Council member may request discussion of any issue at a future meeting
only. Items can not be added for action at this meeting. A motion and second is
required starting the issue, requested outcome, and time. A majority vote is
required.
April 15, 2008 City Council Packet
47
6:00 P.M. REGULAR MEETING
1. Call to order.
2. Pledge of Allegiance.
3. City Clerk records council attendance.
4. Action to approve the following Consent Agenda Items *
A. Agenda.
B. Minutes.
C. Action on Resolution No. 31-08, a resolution designating Pioneer Park for Summer Arts Festival.
D. Action on Resolution No. 32-08, a resolution approving the official canvass of the April 8, 2008
municipal election ballot.
E. Action on the appointment of Nancy Hartenhoff-Crooks to the Transportation Board
(Brookings Committee for People who have Disabilities Representative).
F. Action on an appointment of Jessie Kuechenmeister to the Brookings Committee for People
who have Disabilities.
G. Action on Resolution No. 33-08, a resolution authorizing the city manager to enter into a Fixed
Base Operator’s Agreement with Pheasant’s Fury Aviation, LLC.
H. Action on a request from Michael and Susan Dorn to abate a portion of the 2008 Drainage Fee
for the N 465’ of the S 500’ of the E 419.25 of the NE ¼ of Section 30-110-49.
I. Action on a request from Michael and Susan Dorn to abate a portion of the 2008 Drainage Fee
for Lot 5, Vandervliet Addition, known as 2209 32nd Street South.
J. Action on Resolution No. 36-08, awarding bids for 2008-02STA 15th Street South, Camelot
Drive, & Christine Avenue Street Assessment Project.
K. Action on a revised Preliminary Plat of a portion of Block 8, 10, and 11, Moriarty 4th Addition.
L. Action on Preliminary Plat for Sieler Addition in the NW ¼ of the SE ¼ of Section 35-110-50
(formerly Hunter’s Ridge).
Action: 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/Reports/Special Requests:
5. Mayoral Proclamations:
o April 13-19 - Public Safety Telecommunicator’s Week (Joint City/County Proclamation)
o May 14th - Brookings Activity Center Day
6. Open Forum.
7. SDSU Report.
Ordinances – 1st Readings **
8. Ordinance No. 15-08: Action on an application for a conditional use to establish a drive-in food service
on Lots 12 – 14, Block 6, Original Plat Addition (425/427 Main Avenue).
Public Hearing: April 29, 2008 (note: A super majority vote of 5/2 will be required on this item to pass)
9. Ordinance No. 16-08: Action on an application for an amendment to a conditional use to establish four
(4) additional dwelling units in an apartment on a portion of Lot 18, and Lot 19, except the W85 feet of
Lot 19, College Addition (649 Faculty Drive).
Public Hearing: April 29, 2008
10. Ordinance No. 17-08: Action on amendments to the sign ordinance pertaining to electronic message
signs.
Public Hearing: April 29, 2008
** No vote is taken on the first reading of ordinances. The title of the ordinance is read and the date for the public hearing is announced.
Ordinances – 2nd Readings / Public Hearings:
11. Ordinance No. 12-08 - An Ordinance Revising The Composition, Appointment And Criteria For
Appointment Of Members Of The Brookings Health System Board Of Trustees.
Action: Motion to approve, Request Public Comment, Roll Call
12. Ordinance No. 13-08 – An Ordinance Amending Article II of Chapter 22 of the Code of Ordinances of
the City of Brookings and Pertaining to the Adoption of the 2006 International Building Code and the
2006 International Residential Code with Certain Amendments Thereto.
April 15, 2008 City Council Packet
48
Action: Motion to approve, Request Public Comment, Roll Call
13. Ordinance No. 14-08 – An Ordinance Amending the Joint Jurisdiction Area Zoning Ordinance pertaining
to a private stable as a special exception in the Residence R-1A District.
Action: Open & Close Public Hearing, Motion to approve, Roll Call
14. Public Hearing and Action on Resolution No. 35-08, Levying Assessment for 2007-01SWR, Sidewalk
Assessment Project.
Action: Open & Close Public Hearing, Motion to approve, Roll Call
Other Business.
15. Action on Resolution No. 29-08, a resolution authorizing the city manager to enter into a liquor operating
agreement with BraVo’s on a temporary basis until the new restaurant licenses are issued.
Action: Motion to approve, Request Public Comment, Roll Call
16. Public hearing and action on Res. 28-08, a resolution of intent to lease real property to a private person
and authorizing the Mayor to sign an agreement with the South Dakota Kart Club, Inc.
Action: Open & Close Public Hearing, Motion to approve, Roll Call
17. Action on Resolution No. 30-08, a resolution awarding bids for the Downtown Streetscape project.
Action: Motion to approve, Request Public Comment, Roll Call
18. Adjourn.
April 15, 2008 City Council Packet
49
6:00 P.M. Meeting
CONSENT AGENDA #4
A. Agenda.
B. Minutes.
C. Action on Resolution No. 31-08, a resolution designating Pioneer
Park for Summer Arts Festival.
D. Action on Resolution No. 32-08, a resolution approving the official
canvass of the April 8, 2008 municipal election ballot.
E. Action on the appointment of Nancy Hartenhoff-Crooks to the
Transportation Board (Brookings Committee for People who have
Disabilities Representative).
F. Action on an appointment of Jessie Kuechenmeister to the Brookings
Committee for People who have Disabilities.
G. Action on Resolution No. 33-08, a resolution authorizing the city
manager to enter into a Fixed Base Operator’s Agreement with
Pheasant’s Fury Aviation, LLC.
H. Action on a request from Michael and Susan Dorn to abate a portion
of the 2008 Drainage Fee for the N 465’ of the S 500’ of the E 419.25
of the NE ¼ of Section 30-110-49.
I. Action on a request from Michael and Susan Dorn to abate a portion
of the 2008 Drainage Fee for Lot 5, Vandervliet Addition, known as
2209 32nd Street South.
J. Action on Resolution No. 36-08, awarding bids for 2008-02STA 15th
Street South, Camelot Drive, & Christine Avenue Street Assessment
Project.
K. Action on a revised Preliminary Plat of a portion of Block 8, 10, and
11, Moriarty 4th Addition.
L. Action on Preliminary Plat for Sieler Addition in the NW ¼ of the SE
¼ of Section 35-110-50 (formerly Hunter’s Ridge).
Action: Motion to approve, request public comment, roll call
April 15, 2008 City Council Packet
50
CONSENT AGENDA #4
4B. Minutes.
The minutes from the City Council’s March 18, 2008 and March 25, 2008 meetings are enclosed for
council review and action.
April 15, 2008 City Council Packet
51
Brookings City Council
March 18, 2008
(unapproved)
The Brookings City Council held a special meeting on Tuesday, March 18, 2008 at 4:00 p.m., at
City Hall in joint session with the Brookings County Commission. The following city members
were present: Mayor Scott Munsterman, Council Members Julie Whaley, Mike Bartley, Ryan
Brunner, Tim Reed, Tom Bezdichek, and Ginger Thomson. City Manager Jeffrey Weldon, City
Attorney Steve Britzman, and City Clerk Shari Thornes were also present.
The group discussed the following issues in a work session setting: Brookings County Rail
Authority; joint space collaboration opportunities; and 34th Avenue improvement project for an
overpass and interchange plans. No action was taken by either governing
body.
Rail Authority. Mark Kratochvil, Deputy State’s Attorney, said he reviewed the Brookings
County Rail Authority statutes and finds them to be all inclusive and there are provisions for
investments and expansions. It appears that there are powers and authority for the expanded
mission. The City of Volga is a partner in the agreement with the County.
There was discussion regarding restructure the Rail Authority to expand the membership. It
was clarified that there would not be a net membership loss or jeopardize a community’s
standing if the Rail Authority were expanded. Amending the current existing structure will be
easier than creating a new rail authority and no problems were anticipated with any of the
communities.
Munsterman said the City is very interested in proceeding forward and would be happy to be
present at any meetings with the City of Volga if that would be helpful. Don Larson, County
Commissioner, said he was chair of the Rail Authority and would be calling a meeting in the
near future to discuss the expansion.
Joint Space Collaboration. City Manager Jeffrey Weldon presented the following updated
report on cost estimates regarding the 1921 building.
JOINT CITY-COUNTY GOV’T CENTER; build new
City space needs; 21,000 sf (City space needs report)
County space needs; 19,000 sf (County space needs report)
Total space needs 40,000 sf
Note: The above square footages represent current departments identified in each respective report
(excludes fire, police EM, county resource center offices).
Cost of new construction $173/sf X 40,000 sf = $6,920,000 (joint city-cty)
County Admin building only = $3,971,480 (current proposal)
1921 BLDG. RENOVATION – JOINT CITY-COUNTY FACILITY
(A) Cost of renovation of all of 1921 building: (McCarthy letter of 1-21)
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$52/sf for 7000 sf balance of first floor = $ 364,000
$52/sf for 27,720 sf for second floor = $ 1,441,440
Total cost of renovation = $ 1,805,440
1921 BLDG. RENOVATION – COUNTY FACILITY ONLY
(B) Cost of renovation of portion of 1921 building: (County info at public mtg.)
First floor remodel (23,040 sf) = $ 864,290
Project costs = $ 102,500
Total cost of renovation = $ 966,790
Rent rate for 2009: Owner has offered to rent renovated first floor space at current rate; this
assumes he will extend this offer to the second floor at a rounded up rate of $10/sf.
Renovation will take balance of 2008 so occupancy and rent payments would be for 2009.
$10/sf rental rate X 55,440 sf both levels = $ 554,440 per year for 2009
Purchase building in 2010: Owner has offered to sell building on 1-1-10 for $3,108,000
Total cost of renovation and ownership of 1921 Building:
Renovation A ($1,805,440) + 1 yr. rent ($554,440) + purchase ($3,108,000) = $5,467,880
Renovation B ($966,790) + 1 yr. rent ($230,400) + purchase ($3,108,000) = $4,305,190
The main difference between the renovate existing and new construction is the cost per square
foot. Renovation of 1921 Building provides more square footage (55,440 sf) than building new
(40,000 sf).
Sitework: Whether the decision is to build new or renovate existing, a parking lot will be
needed. New construction for a 70-space parking lot is $2,000 per space, or $140,000.
Summary:
County alone-new construction $3,971,480
County alone-renovate ’21 Bldg. $ 966,790
County alone-renovate/own ’21 Bldg. $4,305,190
County-City new construction $6,920,000 or $3,460,000 each
County-City renovate ’21 Bldg. $5,467,880 or $2,733,940 each
There are economies of scale to be realized with consolidated facilities. The most cost-efficient
option would appear to be joint occupancy of a renovated and purchased 1921 Building;
assuming the building meets the operational and programmatic needs of both entities.
As a means of moving this issue forward, the City would like to know the County’s level of
interest in pursuing a consolidated facility. If so, each entity will need to undertake their own
respective due diligence on the operational and programmatic needs.
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Weldon noted that the potential rental income of second floor is not included in the
Renovation B plans.
Emil Klavetter, County Commissioner, asked if the developer’s renovation estimates included
an elevator, a vault, additional restrooms on main floor and some fire sprinkling. He noted
that the County’s architect estimated a 15 percent contingency plus fees.
Weldon referenced two letters from Steve McCarthy, the project developer; January 2008 and
October 1, 2007. McCarthy’s renovation estimate is at $52 per square foot from the exterior
to interior coordinator and doesn’t believe it includes an elevator.
Weldon commented that architect’s fees and contingency are “soft” costs and the numbers he
has presented are “hard” construction figures.
Klavetter felt a 7% fee rate was too low. The percentage is from TSP and not McCarthy.
Weldon said there are economies of scale that can be realized with consolidating functions, if
this project makes sense relative to timing and finances. A combined project enables the city
and county to pool resources and potential give a better return to the taxpayers. It is nice
that the 1921 building exceeds the combined space needs, which would allow for more
movement within the building and rental income.
Weldon said that the City is at a juncture. The County has taken a position to build new, but
offered to continue a joint space discussion. As a means of moving forward, he asked the
County Commissioners their level of interest in pursuing a joint facility.
Klavetter said the County’s space needs have gotten worse and they need to keep pushing
ahead with the new building. He asked for an estimated timeframe from the city.
Munsterman said the City could put more work into the feasibility of this project for analysis,
but doesn’t want to go to that effort if the County isn’t interested.
Klavetter asked where this project was on the city’s priority list. Munsterman said the Council
will hold a strategic planning session next week and will determine where this project lies as a
priority.
Weldon noted that the County will have two construction budgets; one for the new building
and one for the courthouse renovation for the court system. Klavetter said there won’t be
much remodeling in the historical courthouse building and the County plans to turn it over to
the Court System as is.
Mary Negstad, County Commissioner, said there may be one area that a new door is needed
for accessibility purposes.
Ginger Thomson asked if all the County offices would be in one building and the Courthouse
would contain the court system only. Yes.
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Mary Negstad commented that the former “Sawnee Hotel,” which is currently the Dakota
Teen Challenge, would make a great location for a combined law enforcement center which
would replace the jail on the courthouse square. She noted that the County will need to do a
new law enforcement center in the future and suggested it would be a wonderful idea to use
that area and buy it jointly.
Weldon said the Teen Challenge Center is looking for better facilities and is looking to sell the
property.
Don Larson, County Commissioner, thanked Weldon, Munsterman and Stephanie Vogel for
their work on this project. He said if there is anything to gain from this meeting it’s whenever
the County or City is seeking state or federal funds, those entities always ask if joint
collaboration has been researched. Research shows there is a cost savings to the taxpayers
by various levels of government working together to share facilities and programs. These
discussions puts both the City and County in good standing for grants.
Deanna Santema, County Commissioner, said the big thing is timing and trying to get the City
and County schedule to mesh together. The County needs to decide and then move forward
and they can’t wait forever for the City. She also commented that the City can’t rush their
process to fast and a joint facility needs to be right for both entities at the same time.
However, she feels confident that a joint law enforcement center would be something to
seriously consider in the near future. In the case of the court system she felt the courts
staying in the courthouse made the most sense, particularly from a safety standpoint. Timing is
the key issue and the County can’t expect the court system to wait forever.
Thomson asked if more input was needed from city or county employees. Weldon said the
County has completed their review and the City only studied the City Hall administrative
offices and Police Department.
Thomson asked if the City employees had considered the possibility of office configuration in
the 1921 building. No, that would be the next step in programmatic analysis.
Tim Reed said the City Council is at a critical decision point of determine where to allocate
funds and how long would it take to figure out if the 1921 building would work for the City’s
needs.
Santema said there were pros and cons to the 1921 building from their employees.
Klavetter said another issue to consider is that the 1921 building is providing affordable housing
and office space in the community.
Negstad said she had heard from tenants that the apartments are not very efficient and were
cold.
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Munsterman said the City Council will look at this issue during the strategy session. If it
appears that it is a project the city wants to move forward on, the city would do it and get it
done in the County’s timeline. However, the City would need the County’s okay before the
City proceeds in doing the extra work.
Klavetter said the County’s needs were yesterday. The County is currently looking at building
in the courthouse square green space and some have asked to avoid that area. The County will
explore other opportunities to build elsewhere than within the square. He noted that the
County has already invested a lot of time and money in this project.
Munsterman thanked the County Commissioners for their patience and for having these
conversations with the City Council.
Larson commented that both entities have limited financial resources and several projects
under consideration, all of which require funding. He suggested it would be a good idea for the
County to also do a strategic planning session. Perhaps a percentage of one project could be
leveraged to facilitate another project.
Mike Bartley said a good point was made in that the 1921 building is already in use for housing
and office space and it could be assumed those uses would continue if the County built
somewhere else. The savings of funds for a joint facility may not be that significant with the
taking of a building off the tax roles. Maybe the County could take a different city block and
make big changes with new construction for a joint facility and preserve the 1921 building for
community needs.
Larson noted that there’d be additional costs for a new footprint. Bartley said he wouldn’t rule
that out and liked the new construction option.
Klavetter said he didn’t know how compatible the county offices were with the city, other than
in law enforcement.
Bartley asked what the most immediate need for the County was. Klavetter said court services
first and law enforcement was second.
Weldon said the city’s biggest need is for law enforcement.
Bartley said the County needs to release space for court services then the City and County will
need to make decisions soon. Klavetter said he didn’t know if the time frame was such that the
County could plan on utilized that space for offices.
Reed said the City should know very soon and report back to the County.
The County was asked which was in more dire need; the sheriff’s office or the jail. Both are in
the same level of need.
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Santema noted that when discussing the combining of the City and County offices, the primary
issue is the use of the building together and not combining programming and offices. Each
entity would require specific sections and additionally there’d be shared meeting rooms and
other public spaces. She commented that the current chambers aren’t big enough for the
zoning board and additional restrooms would be needed. The City officials agreed that the
goal would be a shared space and not share programming.
It was suggested that the County Commission could utilize the City’s current council chambers
and televise their meetings.
Santema reminded the group that the County at one time owned the 1921 building and gave it
away along with a $400,000 HUD grant. Renovations were done by the private developer in
order to make it rentable; however, some people think the County still owns the building.
It was clarified that the $400,000 grant was utilized for a revolving loan fund.
Klavetter said over the last year of discussing the 1921 building, he had identified 15 different
concerns with that building.
Thomson asked how much of the building is new. Klavetter said he didn’t know, but assumed
there were many things that were still 87 years old such as plumbing and wiring. The windows
were replaced with originally sized large windows, but he had concerns about energy efficiency.
He cited a study indicating there was black mold in the building and also expressed concerns
about the below ground garages. He said it’s a wonderful old building and what it’s now being
used for is great. It’s a historic building and now preserved into the future. It’s safe.
However, if the County had voted to tear it down (and had succeeded) it would be a beautiful
place to build a new office building.
Thomson asked if the County had identified any other offsite alternatives that would work.
Klavetter said yes, east of the Courthouse there are several college rentals that are not in the
best shape. However, that is a historic district and he questioned if that would be allowed. He
felt the County administrative offices should be located near the Courthouse and there are
other properties that could be explored.
Negstad if the County built a new building it would be attractive and not distracting from the
historic district and in 50 years would be historical.
Munsterman said he’d be happy to attend any County Commission meetings to keep the group
updated.
34th Avenue Improvement Project For An Overpass And Interchange Plans. The County was
thanked for their partnership on this project. Weldon updated the group that Al Kurtenbach
had received favorable feedback from the business leaders about the private investment in this
project and was cautiously optimistic. It will be very important to get this study into the state
and federal funding pipeline. Weldon has the names and addresses of the Aurora and Trenton
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Townships and will keep them advised of this project. Once funding is in place it will take a
couple months to complete the study and it should be done by this fall.
Reed mentioned that he recently met with the State’s Federal Delegation and they were
pleased to hear the two entities had come together on this project.
Munsterman noted that this issue came to us from the private side and they drove the issue,
with the city and the county doing their parts.
Santema reminded the City Council to keep the Townships representatives advised and
notified, noting that they don’t have any funds but these are their roads and they shouldn’t be
leapfrogged.
Larson asked as they proceed with the study would the overpass be designed in such a way to
allow for on and off ramps or would the federal regulations present that. Munsterman said the
current design is an overpass and an interchange would have to be farther down the road. He
also thought there was a “closeness factor” to the next interchange, but this is a good question
for HDR to answer.
Dan Hanson, Planning and Zoning Administrator, said the interstate has controlled access and
there could be an interchange at any mile.
Adjourn. A motion was made by Thomson, seconded by Whaley, to adjourn. All present
voted yes; motion carried. Meeting adjourned at 5:02 p.m.
CITY OF BROOKINGS
Scott D. Munsterman, Mayor
ATTEST:
Shari Thornes, City Clerk
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Brookings City Council
March 25, 2008
(unapproved)
The Brookings City Council held a meeting on Tuesday, March 25, 2008 at 4:30 p.m., at City
Hall with the following members present: Mayor Scott Munsterman, Council Members Julie
Whaley, Mike Bartley, Ryan Brunner, Tim Reed, Ginger Thomson, and Tom Bezdichek (arrived
at 5:15 p.m.). City Manager Jeffrey Weldon, City Attorney Steve Britzman, and City Clerk Shari
Thornes were also present.
4:30 P.M. WORK SESSION
Report from Council Member Tim Reed on NLC Conference. Council Member Tim
Reed gave a report on the National League of Cities Conference he attended March 8-12, 2008
in Washington. He attended workshops on the National transportation bill, the federal budget
process, issues and questions, safe routes to school, and lobbying the federal delegation. He
also met with Senators Johnson and Thune and Congresswoman Herseth-Sandlin’s staff
regarding local issues. He delivered the innovation campus proposal on funds for
infrastructure. He noted that there wasn’t much opportunity during the conference to share
issues with other cities. The focus was to lobby. He recommended sending one to two council
members per year. He felt it was important to be in front of our Federal delegation at least
once per year and to stay in touch with their staff members on a regular basis. He noted that
we’re lucky to have the access that we have to our federal delegation.
Project Insight Reports from Council Members. Several university communities agreed
to participate in the City of Brookings “Project Insight” survey. Council members were
assigned communities and specific representatives to contact. The Council members reviewed
what information they learned from their assigned communities.
Munsterman suggested that each member highlight what they have learned and then have a
discussion on how to use the information. He will be attending an update on the SDSU Master
Plan on April 1st and plans to use some of that information at that meeting.
Thomson gave the following report on Missoula, Montana:
Economic Development:
1) Has your City established specific steps, programs, or incentives to help grow your
economic base? Missoula does not have anything specific. They have relied on tax
increment financing (TIF) districts especially for downtown which has rejuvenated the
area resulting in an expansion to west and south of downtown. They have a fairly
strong agency that manages it with their own board, director and staff of five. Missoula’s
re-development agency employees are employed by the city. They have invested a lot
into their riverfront and a park gathering place with a pavilion and carousel, which was
all done with TIF. A Farmers Market is also located downtown. They have an improved
sidewalk system—which does not have bump-outs because it is a state highway system.
Missoula has its own economic development corporation which assists in the funding for
special projects.
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Missoula is the economic hub of western Montana. Their retail trade area services a
population of approximately 150,000. (Missoula itself is about 68,000; and with suburbs
it is approximately 90,000. The university has an enrollment of about 12,000).
2) Does your City have a formal economic development plan/strategy in place? Missoula
does not specifically have a formal economic development plan/strategy.
3) Does the City have an affordable housing and/or other housing development strategy?
Missoula is trying to develop a more proactive approach to this issue. They have a
housing authority which is independent of the city. However, they are trying to
promote the housing problem and have created a video they show to public boards,
agencies, and service groups. The video is speaking about the problem, not necessarily
offering a solution. The median house is out of reach for typical mid-level income.
Their new mayor is trying to figure out a solution, trying to find more land, etc.
Code Enforcement:
1) What is your City’s plan for Code Enforcement and its implementation? Three of their
city offices (building inspection, zoning and engineering) have individuals that enforce
various provisions of the codes.
2) Does your City perform proactive enforcement or is it complaint basis only? The City
operates on a complaint basis only, not a proactive approach.
3) With respect to rentals, how does the City address the number of “unrelated” people
within a structure (i.e. non-family households)? How many are allowed per unit? The
City formerly had a code that defined “family”, which was taken to court and declared
illegal. They currently don’t have restrictions regarding who can occupy a house. This
is a problem as enrollment at the university has grown from 8,000 to 12,000 in the last
few years. Personally, his own neighborhood has gone from single family to numerous
rentals. Since they cannot restrict occupancy, Missoula responds to complaints about
conditions. They are currently considering an ordinance which would create a program
where landlords could agree to a voluntary inspection, and they would in turn receive a
seal for compliant rental. Promote to students “Look for the Seal” and you can be
assured of some minimal safety. The average rental has about five students. They do
have a community police officer who “specializes” in that area.
Development impact and other fees:
1) How does your City finance new subdivisions and developments? Developers are
required to build the infrastructure that immediately serves the site and the city has a
stringent standard. The City has struggled with offsite infrastructure development.
Four years ago they adopted impact fees for police, fire, parks, and community services.
To assist in the process, they hired a national consultant. State law now states that you
must have an expert analyze the incremental cost of the development. Sewer has
collected the impact fee for 20 years. They do not own the water system, however,
they wish they did. Developers praise the city’s sewer development fee. They
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implemented a new impact fee for transportation. They assess it with the building
permit, even new commercial pays. Single dwelling went from about $1,000 to $2,000
in fees. A park impact fee is also included. Commercial is quite a bit more.
Construction of a 10,000 SF office building used to be $7,000 in impact fees. It will now
be $20,000 with the transportation impact fee, which went into effect in January.
Missoula is still only assessing about half of what they could. Their Chamber of
Commerce is quite opposed for obvious reasons, but the city counters that the
infrastructure is necessary to serve new business and industry.
2) Who pays for replacement of arterial roads? They are dependent on federal and state
gas tax and is deficient in funding, which is why they look to the transportation impact
fee as an aid to it.
3) Does your City use traditional bonding and assessments, fees systems, or development
impact fees? Historically, Missoula has used special improvement districts which allow
them to bond the cost over 20 years. The biggest use has been residential wastewater
system and also stormwater. They have used another law which allows them to bond
curb and sidewalk assessments to property owners (they finance over 12-20 years and
pay municipal bond rate interest).
4) Does your city have design guidelines to protect community aesthetics such as signage
and landscaping for new developments? Yes. The guidelines have been fairly restrictive
which has been a continuous controversy. They have always required a certain
percentage of a commercial lot to be landscaped. The downtown area has a city-owned
parking district with structure.
Financial:
1) What type of incentives does your City provide for economic development? Missoula
mainly provides TIFs and they have their non-profit economic development corporation.
2) Does your City have any housing projects subsidized by tax increment funding? Yes.
Missoula has a housing authority that oversees the projects.
Town & Gown:
1) What municipal services do you provide on campus (fire, police, public transportation,
other)? The university has their own police department which is supported by the city when
necessary. The city provides fire protection. The university does not pay the city for these
services. The community and university use an independent bus system, not private. The
bus organization collaborates with the university.
2) Does the university pay the city for these services? The university subsidizes the bus
transportation.
Library:
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1) In what ways does your public library participate in economic and/or cultural growth?
They have a county library.
2) Does your public library share common resources with the University or Public School
District? There may be minor collaboration with the University or Public School
District.
Event Center:
1) Does your community have a multi-purpose facility, arena or convention center?
If so, is it city, county, university owned?
If city owned, is it managed by the City or a management company?
Does it cash flow?
They do not have one. However, they are considering a performing arts center. The university
has a center that is used primarily for sports. It seats about 8,000 and they’ve had Elton John
perform twice. The Rolling Stones have performed in their football stadium which seats about
20,000.
Partnerships:
1) Cite any examples of unique successful partnership arrangements your City has between
Universities/Colleges.
(i.e. community Park and Recreation agencies in the area of joint
development/management of recreation or wellness facilities, physical education or
sports facilities, arts and cultural facilities or programs)
There are no specific examples. They work hard to communicate with each other and to know
what the other is doing.
Reed gave the following report on Grand Forks, North Dakota:
The Mayor is part-time, has no administrative duties. Those duties are the responsibility of the
city administrator. The Mayor seems stronger then our form of government and has a full-time
assistant.
Economic Development. Grand Forks does have an established plan and programs to help
grow their economic base. The city has funded a growth account that is used by the Regional
EDC. It currently stands at $4 million. The account can be used to purchase land, fund
infrastructure improvements, spec buildings, and also for incentives.
Grand Forks has completed an area of 20 affordable homes where the entire infrastructure was
paid for by the city. It has been very successful and they are moving on with phase 2 for
another 20 homes.
Code Enforcement. Grand Forks rezoned areas close to campus to avoid having too many
rentals in one area. The city enforces code by complaint and proactive inspections. If a
landlord receives 3 complaints their rental license is revoked. They allow 4 unrelated people in
a unit.
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Development impact and other fees. In new areas marked for development 50% of the
infrastructure costs are paid for by the developer and 50% are paid for by the city and then
assessed back to the property when fully developed.
Grand Forks has very strict guidelines for development, which are enforced.
Town and Gown. Grand Forks is responsible for fire, storm drainage control, and building and
health inspections on campus. The city gave the university $100,000 per year for five years as
seed money to hire professors/researchers that in turn would be able to get research grants.
The full Council meets with the full Student Body Government quarterly and leaders of both
entities meet monthly.
They have a “Just Say Hi” program to get students to know neighbors, which has been very
successful.
Event Center. The Alerus Center is owned by the city. The city has a ¼% sales tax that funds
the capital it required to do the center and the ongoing expenses. Although it is now cash
flowing, they are charging a parking fee and that gives them the additional revenue to cover
expenses.
Their Mayor offered meeting half way.
Reed reported on Stillwater, Oklahoma:
He had a conference call with Mayor Roger McMillian, and he would like to receive a copy of
the full report if we do one.
Economic Development. Stillwater does not have any proactive Economic Development Plan.
Although the Mayor explained how they worked with Mercury Marine to build an expansion on
the current plant located in Stillwater instead of in China, most of the incentive package was in
utilities concessions. The city owns the electric utility.
Affordable housing is a issue that they are trying figure out. A large percentage of the wage
earners commute to Stillwater. OSU employment is around 4,800 and 45-48% live outside of
Stillwater because of housing costs. When a development was created with some modified
standards to reduce the price, they found that the people still stayed or purchased homes in
outlying communities.
Code Enforcement. Stillwater code enforcement is both proactive and complaint based.
When OSU received a gift of over $400 million for a new athletic village they removed 850
homes (23 acres) which happened to be the most substandard housing in town. Recently more
issues have arisen and the city is becoming more proactive.
Development impact and other fees. Developers pay 100% of the infrastructure needs.
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Stillwater recently adopted a new set of development guidelines that has been in the making for
10 years. It has taken a lot of compromising with pro and con development.
Town and Gown. The university didn’t do a good job with communicating the new athletic
village with the town’s people and the city. So the T&G relationship has been strained and
many in the city are asking more from the University. The Mayor felt that the pressure has
made the city look to the University to pay more of their own way. Over 40% of fire calls are
located on campus. OSU received a break on water and that has been recently reversed.
Event Center. Stillwater does not own any event or convention center.
Brunner reported on Laramie, Wyoming:
Economic Development. They did not provide many specifics on economic development. They
don’t have any affordable housing or housing strategies in place. This community appears to be
fairly independent and most were privately operating with no government involvement.
The City doesn’t finance new developments and the main roads are state highways. The
collectors are handled by the city. They don’t currently have impact fees, but would consider
them in the future.
They have limited guidelines on development standards for aesthetics.
Code Enforcement. Laramie’s code enforcement consists of nuisance responses on a complaint
basis. Rentals are similar to Brookings, which is three or less unrelated are allowed.
However, in the R3 zone they allow 4 unrelated.
Laramie does not have a public library.
Event Center. The Convention Center is owned by the University.
Partnerships. They cited partnerships in golf and tennis.
Town and Gown. The City provides the University with emergency services, review of
building plans, and fire inspections at no cost. Ambulance service is provided on campus, but
at cost. The university contributes one percent to the annual fire budget and also contributed
to the cost of fire trucks.
Whaley reported on Logan, Utah:
Economic Development.
#1 - Logan does have a process in place to offer incentives to businesses or developers that
bring projects that meets the city’s economic goals which includes job creation, wage levels,
capital investment, catalytic effect, etc. The majority of such incentives are limited to projects
occurring in the city’s six Redevelopment Project Areas or its one Economic Development
Project Area. A 12-member Economic Development Committee makes recommendations that
are presented to their Redevelopment Agency Board. They are also in the process of seeking
local approval to use CDBG funds for the establishment of a Business Development Fund for
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projects in their historical downtown. They respond to direct inquiries as well as those that
come through the state economic development department.
#2 - Logan does have an economic development strategy in place to guide the work of their
economic development department and committees. While it is not formal in the sense of its
being approved by the city legislative leaders, it is in harmony with the city’s general plan which
has been formalized.
#3 - The city works with providers of affordable housing to ensure that there is an adequate
supply. Roughly 20% of all redevelopment/economic development project area revenues are
earmarked to assist such projects get off the ground. They assist those projects that are
appropriately-funded and for which there is a market to support it, be it units for veterans, for
the elderly, etc.
Code Enforcement #1/#2: The city has a Code Compliance Inspector and a Neighborhood
Improvement Coordinator for the enforcement of commercial and residential code issues. The
residential side is currently completely complaint-driven, while the commercial side is a
combination. Being a university town, there is a fair number of illegal rental units and the city
will be embarking on a proactive effort to curb this problem by primarily focusing on illegal
parking in the rights-of-way.
#3 - The city addresses the number of unrelated people in rentals by allowing up to three (3)
unrelated individuals to live in any given structure.
Development impact and other fees
#1 - Typically, the city would like to see the land developer pay for roads and other
infrastructure going into new developments. If only one side of the street is being developed,
many times the city will cover half of a road and then get reimbursed once the opposite side is
developed.
#2 - Roads typically would be dedicated to the city and then the city would carry the expense
to maintain and replace them, if necessary.
#3 - The City has used bonding where it wanted to lead the development. Impact fees were
implemented about a year and a half ago. Building permit fees have been in place for years.
Assessments have been used. For example, in the downtown area, property owners are
assessed based on lineal frontage or square footage, the majority of the cost to install new
streetscape improvements.
#4 - The city does have design guidelines to protect community aesthetics. These can be found
on their website www.loganutah.org and then select the Community Development
Department, followed by clicking on the Land Development Code link.
Financial
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#1 - Logan primarily offers tax increment rebates associated with their redevelopment and
economic development project areas. In the past, however, other incentives such as cost of
infrastructure and sales tax rebates have been given.
#2 - Yes, the city has subsidized affordable housing projects with tax increment revenues.
Town & Gown. The city responds to fire and medical emergencies at the university.
According to the city fire marshal, the city does not require the university to pay for this
service. The university has their own fire marshal. The university has their own police force,
but the city has expertise that it would lend if needed (i.e. SWAT, homicide investigation, etc.).
Library. The library maintains on its website information about events of historical significance
in Logan’s history as a means of preserving our cultural heritage. A community calendar also
keeps citizens apprised of various cultural events that are happening. The library is an anchor
to downtown Logan. As such, it is a player in the economic development of the downtown.
Currently, the library is being explored as to how it can contribute to the economic vitality of
the downtown area to a greater degree.
Event Center. Logan does have an arena which is owned by the university. The city does not
have a convention center. However, a private developer is currently in the process of building
a 31,000 square foot conference center. The city provided an incentive through its
redevelopment agency, however the O/M expenses will be fully carried by the
developer/operator.
Partnerships. The university has an electrical power producing turbine. The University
purchases power from the city’s electrical power department because it is cheaper than what
they can generate on their own. However, the city purchases some of its peak power from the
university as it has a better rate than some of the power available on the open market.
Munsterman reported on Manhattan, KS:
Economic Development:
1) Has your City established specific steps, programs, or incentives to help grow your
economic base? They have a copy of the economic development model and recently
modified it.
2) Does your City have a formal economic development plan/strategy in place? Yes.
3) Does the City have an affordable housing and/or other housing development strategy?
Manhattan is struggling with the definition of affordable housing. They have a military
post 18 miles away. The valuations have gone through the roof in the last 6-7 years. A
housing development map is updated every month. Platted, developers, etc… are on
one source.
Code Enforcement:
1) What is your City’s plan for Code Enforcement and its implementation? No comment.
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2) Does your City perform proactive enforcement or is it complaint basis only?
Manhattan has six enforcement officers under their fire department. They are sending a
copy of their policy.
3) With respect to rentals, how does the City address the number of “unrelated” people
within a structure (i.e. non-family households)? How many are allowed per unit?
Four unrelated people per structure is the limit. Landlords are not required to register.
Down zoned areas around campus to residential (multi family overlay district).
Development impact and other fees:
1) How does your City finance new subdivisions and developments?
New subdivisions and developments are under a special assessment process. The city
pays for the upfront cost, and then the costs are apportioned to each land owner.
Specials added on to the lot buyer include water, sewer, and street. Instead of the
developer paying upfront, it is bonded over a 20 year period, then it is assessed to buyer
for the remaining 19 years on the lot. This process allows new subdivisions and
developments to be affordable.
2) Who pays for replacement of arterial roads?
In the city limits the city replaces the arterial roads. The technical park is provided for
by a joint agreement between the city and the county.
3) Does your City use traditional bonding and assessments, fees systems, or development
impact fees?
Currently, Manhattan utilizes all of the above with the exception of development impact
fees. However, they are looking into the application of these fees.
3) Does your city have design guidelines to protect community aesthetics such as signage
and landscaping for new developments?
Yes, there are zoning regulations to maintain the aesthetics of the community.
Financial:
1) What type of incentives does your City provide for economic development?
The City and County split a one-fourth sales tax for economic development.
2) Does your City have any housing projects subsidized by tax increment funding?
Manhattan does not subsidize housing projects; however, a downtown redevelopment
project is subsidized.
Town & Gown:
1) What municipal services to you provide on campus (fire, police, public transportation,
other)?
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Fire service is provided on campus; police service is not. Governed by a law board
city/county joint venture. They will send us a good example they are looking in Kearney
Nebraska… share resources but operate separately.
2) Does the university pay the city for these services?
Fire – yes, but $8,000 per year (minimal). Also the largest false alarm agencies in town.
Library:
1) In what ways does your public library participate in economic and/or cultural growth?
2) Does your public library share common resources with the University or Public School
District?
Event Center:
1) Does your community have a multi-purpose facility, arena or convention center?
i. If so, is it city, county, university owned?
ii. If city owned, is it managed by the City or a management company?
iii. Does it cash flow?
Partnerships:
1) Cite any examples of unique successful partnership arrangements your City has between
Universities/Colleges (i.e. community Park and Recreation agencies in the area of joint
development/management of recreation or wellness facilities, physical education or
sports facilities, arts and cultural facilities or programs).
A City built incubator is on KSU in order to use K State research. There are three
partners and it has been working well.
Bartley and Bezdichek with provide their reports at a later date.
Liquor Application Presentations. The City of Brookings accepted applications for its one
remaining unrestricted liquor operating agreement. Proposals were submitted by BraVo’s, the
Shamrock, Gonz Productions, Inc., and Star Hospitality. Representatives of each were present
to make their formal request to the City Council.
Dean Gulbranson, Star Hospitality, requested to speak first because now that the Governor has
approved Senate Bill 126 creating restaurant licenses, it has shed a different light on the future
usage of the liquor licenses. Gulbranson said he and his associates had talked about the Swiftel
Center expansion project for a long time. Not knowing what the process would be and the
status of the proposed legislation, he and his associates stepped forward to proceed with
acquiring the last remaining license. He said he believes in the Swiftel Center expansion project
and feels it’s an opportunity for the community of Brookings. When all studies are done and
the City is ready to proceed with a convention center, his company will be ready to proceed
with the opportunity of a full service motel to service that project. He believes the convention
center and attached motel/restaurant will open doors for Brookings to larger events that come
due to those facilities. He said with that in mind (studies must be completed) his company
would not need a liquor license for an extended period of time. He could come back in July
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when the city will react to Senate Bill 126 by passing an ordinance that could allow for
additional liquor licenses. Gulbranson announced that his company was withdrawing their
request for the available liquor operating agreement.
Kip Pharis, BraVo’s owner, asked if it would be possible that everyone could have a liquor
license the first of July.
Steve Britzman, City Attorney, said that would be possible, the city can address the ordinance
ahead of time and as of July1st that law would be in effect, and the City can pass an ordinance in
anticipation of that effective date. He didn’t know if the City has done that too often to tie in
with the actual day that the law allows an activity to occur, but he thought in this case we
could.
Pharis said the question he has is because of a letter from the Governor about the law going
into effect July 1st and in talking with the Governor’s staff they indicated there’s no reason it
can’t go into affect July 1st or a week later. He commented that this is Brookings and everyone
here wants to build a better Brookings. He commented that one business is not better than
another and asked if everyone could work together on this issue. He asked with this one
liquor license, if it is important that there are different restrictions verses something else. He
asked according to law, does it say you have to give this one away before you give the other
ones away. If so, then do it consecutively. He urged the council to consider that everyone
receive a license the first week in July. Munsterman asked Pharis if he was suggesting the city
council not issue this one tonight. Pharis said he was “game” for that. He also noted that all
the applicants have money invested in Brookings.
Mike Bartley commented that the current liquor operating agreement could be issued on a
temporary basis until July when another license was issued and the Council could also place
additional restrictions or conditions on that agreement to make it look like the restaurant bill
then convert it later. He noted that there are different ways to go at it. If there’s a desire and
a need to issue something this evening, the Council has the capability of doing that and didn’t
think it was a large detriment to everyone if it all happens in July. The Council will have an
ordinance to pass, and if the Council could get started soon so the ordinance is ready by July
1st. Until then, the Council could issue the remaining license on a temporary basis and make it
look like the restaurant bill. He said the city could anticipate additional licenses in 2010 based
on population for the full liquor licenses and not restricted, such as this one. The Council has
some options to award this tonight if they choose to do so.
Munsterman asked Pharis if he was asking the Council to hold until July 1st. Pharis said he just
wanted what was best for Brookings. Pharis said he had heard it could take as long as October
1st before the restaurant licenses were available and didn’t want to leave anyone behind.
Everyone that applied should get a license. It depends on what the Council wants and set the
criteria for what they want for this community and BraVo’s may fit this perfectly. He urged the
Council to expedite the process as soon as possible and requested it be fair for everyone. His
company employs 120 people and has been open for 5 ½ months. He feels it plays an
important part that Pizza Ranch has been in town for eight years, and now adding BraVo’s,
provides something that was lacking in the community. He was for giving all at once or
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whatever is fair for everyone. He’s been open without a liquor operating agreement for 5 ½
months and feels others can do the same.
Tim Reed asked if Pharis intended to allow smoking on the patio. Pharis said he hadn’t
determined that, but commented that it’s just a matter of one to two years before smoking is
banned statewide.
Reed noted that the new restaurant licenses will not permit smoking anywhere on the
premises. Clarification was asked regarding this issue.
Britzman said the new licenses define the premises for consumption of alcohol. Normal liquor
licenses allow for consumption on the patio; however, with the new licenses “no smoking” is
tied to the definition of premises. If smoking were allowed on the patio then alcohol could not
be served. With that clarification Pharis said that smoking would not be allowed on the patio.
Reed commented that the available license is less restrictive than the new ones available in July.
He asked which license is the best fit.
Pharis said it would be nice to have the license that allows smoking.
Jay Bender thanked the City Council for their work on getting the liquor bill passed and for
trying to make a decision on issuing the remaining license. He found out how the City of Sioux
Falls does it with a lottery system and doesn’t make decisions. He urged support of awarding
the unrestricted license to BraVo’s, citing that he felt that this is what Brookings needed – a top
class restaurant. He agreed with the no smoking. With BraVo’s he now has a place to bring his
clients to. He suggested issuing the license tonight to BraVo’s and the Council could add
restrictions on this license and swap it out on July 1st for the new restaurant license. In his
opinion, the new restaurant licenses were designed for this restaurant and maybe everyone
who has applied qualifies for the new licenses. He encouraged the Council to issue this
remaining liquor license to one of the three applicants, noting that all are great and deserving
and that BraVo’s meets the criteria for the new bill.
Mike Bailey, co-owner of the Shamrock, asked if the “special events license” could be used at
the Shamrock. He said that between now and July 1st, the Shamrock has 23 private parties
booked and of those there’s the potential to average $35,000 in liquor sales between now and
July 1st. He asked if the Shamrock could use a special events license until the new licenses are
available and then everyone get the licenses at the same time.
Britzman said provided the Shamrock is eligible as a convention hall, which he thought they met
the definition of that as defined in the past, then they would be eligible to apply for temporary
on-sale liquor licenses as a convention hall. We have a city ordinance that spells out that
procedure. However, the facility would have to be on the official “convention” list. With that
definition available, it would indicate if their facility would qualify.
Thomson asked if there was a limit on the number of temporary licenses issued to the same
party. Britzman said no, but it is subject to approval unless they partner with an on-sale
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licensee. It would be subject to public hearing and come before the city council for approval
under the city ordinance.
Reed noted that was what the city does with the Swiftel Center. Britzman said that approval
has been turned over to the city manager. Reed asked if that was something we could do for
all of them. Britzman said it would require an ordinance change. It is driven by state statute
that requires a public hearing before the city council unless the applicant is an on-sale licensee.
Bartley asked how soon an ordinance could be drafted. Britzman said it would take probably
45 days to complete the ordinance process. It would be a different process to create a
convention facility. Bartley asked if the second step would be for authorization for the city
manager to sign off on the licenses. Britzman noted that because the Shamrock would be
serving, a public hearing and council action would be required for each event date, but all could
be done in one hearing.
There was discussion on the process regarding the Swiftel Center. The City Clerk read the
local ordinance pertaining to its designation: “A public hearing on the issuance of the
temporary convention hall on-sale alcoholic beverage license shall be held during a regular
meeting of the city council except that no public hearing is required if the person applying for
the license holds an operating agreement for a municipal on-sale alcoholic beverage license or if
the Swiftel Center is the applicant. The issuance of the convention hall temporary on-sale
alcoholic beverage license is at the discretion of the city council.”
(Bezdichek arrived)
Bailey said that most of the booked events start the middle of May. He asked when the new
licenses become available if the City could switch his convention designation to the unrestricted
license, noting that many of their events stay late into the evening.
Bartley clarified that the time restrictions were taken out of the final bill and there are no
operational hours that are different in the restaurant license. However, the City could create
different hours for those licenses by ordinance.
Reed asked if the Shamrock would need a public hearing for every day they want to provide
service; but if they know all the dates could this all be done in one hearing. Britzman said yes.
Britzman said the distinction with the Swiftel Center is that it already has an on-sale license
because it’s owned by the City. Therefore, a public hearing isn’t required.
Munsterman asked if the creation of a convention facility and the hearings on the dates could be
done in one step. Britzman said yes, the Shamrock could submit their requests for all the dates
and the Council could take action on all of them.
Jeffrey Weldon, City Manager, asked if designating the Shamrock would set precedence for
similar facilities, noting a number of businesses that rent out space that could fall under the
same category being discussed.
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Ginger Thomson said she thought the temporary license was a good option and expressed
willingness to go that route assuming the Shamrock met the basis requirement of a convention
facility.
Munsterman asked with the new law in July, if all the applicants tonight qualify for those
licenses. Britzman said he hasn’t reviewed the law and a line-by-line analysis is needed to draft
the city’s ordinance. It appeared to him that the Shamrock and BraVo’s met the basic
requirements of the ordinance. However, he noted that it would be nice for the City Council
to work their way through the ordinance. The process would be to convert the new law to a
draft ordinance and then receive feedback from other municipal attorneys for a more complete
understanding of how this new restaurant license would work. He has not yet started the
process. Those two applicants appear to fit within the basic requirements; however, he
reiterated it would be nice to have the opportunity to fully analyze and draft the ordinance first.
Reed asked if the Council action to award a liquor agreement was referable. Britzman said no,
the issuing of a license is an administrative act and is not subject to referral. It’s not setting a
policy that affects a wide number of people and it’s not permanent.
Reed said these businesses have events and it would be important to know if they will have a
license. He suggested the City do the ordinance process as much as possible prior to July so all
the applicants will know when the licenses are available and can plan their businesses around it.
Bartley commented that it is important the Council understands that the new ordinance would
be referable. It is also important to understand that the ordinance to establish restaurant
licenses has not been drafted and the law doesn’t tell us how to draft it. The city will have to
be extremely careful that it isn’t challengeable. We need a model draft bill that treats everyone
fairly and stands the test of time. That process will take one to two months to complete, but
could be completed by July 1st.
Britzman said the ordinance isn’t that complicated, but there was the desire of the cities to
share and coordinate in this process. Britzman has volunteered to start the process in motion.
Draft ordinances should be done within a month.
Brunner said if the City models the ordinance after the new legislation, the precedence we’d be
setting would be one which no one else would want to follow, as they would just apply for the
license. The precedence would match the new law.
Reed said he’s assuming Brunner is referring to other rental facilities such as Old City Hall, 311
Center, and Old Sanctuary and if temporary licenses would be granted to them or not. He’s
not sure if they’d qualify, because they don’t have food service onsite. It’s good to pause and
get through this process to have a better understanding of it.
Bartley suggested additional restrictions, such as square footage, be placed in the convention
designation resolution which would eliminate the smaller facilities.
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Al Gregg asked for clarification on the definition of a “full service restaurant” and about the
new convention center bill of 35,000 people or more. Britzman cited the new state law
regarding the restaurant definition: “Full-service restaurant,” any restaurant at which a waiter
or waitress delivers food and drink offered from a printed food menu to patrons at tables,
booths, or the bar. Any restaurant that only services fry orders or food and victuals such as
sandwiches, hamburgers, or salads is not a full-service restaurant…”.
Regarding Gregg’s convention question, Britzman said that was earlier language in the new bill
that was removed.
Garner Hansen, owner of Gonz Productions, said his business along with rest of those applying
for the liquor license is deserving. His proposed restaurant/bar would be similar in qualities to
the Shenanigan’s in Sioux Falls and Aberdeen. He expressed concern about the food and
alcohol percentage split for the restaurant licenses. He said the Sioux Falls location is not a
60/40 food to liquor and is not sure if Aberdeen is either. Both locations are very popular.
Those businesses also allow smoking and he would like to as well. He asked to be considered
for the one remaining “unrestricted” license because that would pertain to most of the
businesses in the area where he’s located. His business is very different from the other
applicants by being located downtown, citing other downtown competitors.
Ryan Brunner asked Hansen when he expected Shenanigan’s would open. Hansen said he has
been watching the Streetscape project and felt that the summertime when the street is torn up
would be a good time to focus on the interior. However, he is waiting on a decision from the
City Council before moving ahead with that investment.
Brunner asked if the City could issue the current license temporarily, swap it out in July for a
restaurant license and then reissue as an unrestricted license on July 1st. Britzman said that was
conceivable.
Thomson asked Hansen if he had a business plan with a business description that addressed
target demographics, competitors, etc. Hansen said those items were addressed in the
business plan the Council had and has had for some time.
Hansen distributed menus from another Shenanigan’s as an example of a future menu.
Hansen said based on what he’s seen in Sioux Falls, where he works four days a week, the
license that would suit him best would be the unrestricted. He didn’t think his business would
make it past the one year “check-up” on the food/liquor ratio if given the “restaurant” license.
He felt the other two applicants would best fit in the 60/40 ratio. He plans to run
entertainment in the evenings after the supper crowd. He firmly believed that it’s the
unrestricted license that he needs. He clarified that Shenanigan’s is not a franchise in South
Dakota and has no restrictions. He also has a close, personal relationship with the owner of
the other two locations.
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Thomson asked if the menu would be similar. Hansen said yes, but would make some changes.
Maybe not as many televisions and would make it a fun atmosphere for entertainment after
supper (band, karaoke show, etc.).
John Gustafson asked what the restrictions would be for the new restaurant licenses.
Britzman said 60% of the income must come from food and liquor would not exceed 40% of
total sales, the closing time would be the same at 2:00 a.m., and no smoking would be allowed.
Gustafson noted that the Elks and VFW both have unrestricted licenses, but are open only a
few nights. Would they qualify for restaurant licenses? He suggested the Council could look at
taking back those licenses, which would free up two unrestricted licenses. He noted that he
was present to speak on behalf of the Shamrock’s application, noting the owners had made a
huge investment into the community.
Matt Kurtenbach felt there were nice options presented, noting that Hansen was not up and
running yet and the temporary designation was an option for the Shamrock. He urged the
Council to proceed with awarding the remaining unrestricted agreement to BraVo’s until the
new ordinance was developed. This way the license could generate some revenue.
Reed asked if the Council proceeds with issuing the liquor operating agreement on a temporary
basis and goes forward tonight, would there involve time to negotiate and put the lease
together and then come back to the City Council for approval. Reed asked how long it would
take to go into effect. Britzman said at the next Council meeting in order to give the public a
chance to be informed of that action item. Reed asked if there would be a waiting period.
Britzman said no, it would take effect on April 15th.
Dave Kneip commended the Council on working hard to achieve the new liquor legislation. He
commented that the special event permit for the Shamrock was a good idea. He endorsed
BraVo’s for the available license. He also noted that he knows Garner Hansen well and that
he’s a nice kid who has worked hard. He cautioned the Council not to scrutinize too hard that
he is not a national franchise; the company he’s working with is a good company.
Carol Hansen urged the Council to award the unrestricted license to Gonz Productions. She
noted that Garner also has the Main Street Pub and with the street being torn up this summer,
they’d like to serve liquor up until that point and then gut the building this summer. The new
Shenanigan’s will be the place to go with sports and entertainment including some local bands.
She urged the Council to issue the unrestricted license to Gonz Productions and retain after
July 1st because the 60/40 criteria would not work for his business.
Mike Bailey, Shamrock, said he may want the unrestricted license as well citing concerns that
the 60/40 percentage may be difficult for his business with the wedding parties and liquor sales.
Bartley said room rentals would also count towards the 60% non-alcohol sales. He thought
video lottery sales could also count in the 60% category.
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Reed asked what the definition of a “printed menu” meant in the new restaurant legislation.
Bartley said that could be a wall board.
Hansen said he understood the Shamrock’s desire to serve alcohol now for their events
because he knows what type of money and the types of events they stand to lose without
liquor. He hoped that the City could figure something out to help their business. He suggested
the convention designation for the Shamrock, leaving the unrestricted license for his business
or BraVo’s. He said he wouldn’t mind being able to sell drinks tomorrow and thought Pharis
felt the same. Either way, he would need the unrestricted license after July 1st. His proposal
would need the unrestricted license and BraVo’s has indicated they would take the restaurant
license.
A motion was made by Munsterman, seconded by Bartley, to place for action on the regular
action agenda a decision on the operating agreement in place; to enter into negotiations for
that agreement with criteria in place and action on the negotiated agreement on April 15th.
Discussion: Action on the negotiated agreement would occur on April 15th. Britzman urged the Council
to know how the new law works before taking action on licensing issues. He recommended the Council
work their way through the new law. He said the Council would be free to issue the unrestricted license
on a temporary basis. However, he felt it would be helpful to have the new ordinance laid out before
any action is taken. It was noted that this issuance would be on a temporary basis only. Bartley said
issuance should be effective until the new restaurant class licenses are issued. Those licenses would be
non-transferable, issued only to those businesses and non-smoking. Reed asked if the temporary license
would be until July 1st, a definite time period, and then re-issue. Munsterman asked if the City Council
could take action on these two items tonight without it being on the published agenda. Britzman said
yes, the public has been informed on this subject matter. The action taken by the Council on April 15th
would be a resolution authorizing the city manager to sign an agreement. The resolution would be to
issue the current operating agreement on a temporary basis until July 1st to BraVo’s and would have
similar restrictions to the new restaurant licenses and the Council would begin the process to designate
the Shamrock as a convention hall and issue temporary licenses. Motion was withdrawn by
Munsterman and Bartley. No action was taken.
City Council Meeting Action Meeting
Consent Agenda: A motion was made by Reed, seconded by Thomson, to approve the consent
agenda with the following additions: #6A: Action to proceed with issuing a liquor operating
agreement and #6B action to place on the April 15th agenda the designation of a convention hall with
restrictions as identified and issuance of temporary licenses and hearing.
A. Agenda, as amended.
B. Action to approve City Council Minutes from the March 11 Meeting.
C. Action on Resolution No. 26-08, appointment of Election Judges for April 8,
2008 municipal/school election.
Resolution No. 26-08
Appointment of Election Judges
WHEREAS, a City of Brookings Municipal Election will be held on April 8, 2008 for the positions of
three Council members and one School Board member; and
WHEREAS, as required by SDCL 9-13-16.1, the City Council must appoint Election Superintendents
and Deputies and set their rate of compensation; and
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WHEREAS, the following superintendents and deputies are hereby appointed at a rate of $8.50 per
hour for superintendents, $8.00 per hour for deputies, and a flat fee of $15.00 for the April 7, 2008
Election School:
Resolution Board: David Peterson and Larry Hult. Alternate- Karen Cook; PRECINCT 1 -
Tompkin’s Alumni Center - Harold Widvey, Supt., LaRayne Wahlstrom, Richard Wahlstrom,
alternate Madeline Francis; PRECINCT 2 - First Lutheran Church - Neva Jean Corlett, Supt.,
Norma Linn, Leslie Tlustos, Marcella Hadley, alternate; Lillian Pengra-alternate, PRECINCT 3 -
City Hall - Verle Barg, Supt., Barb Woolworth, Linda Santema, Russell Lokken, alternate;
PRECINCT 4 – Ascension Lutheran Church - Sue Knutzen, Supt., Marilyn Foerster, Sharon
Anderegg, Karen VanderWal, alternate, PRECINCT 5 – Bethel Baptist Church - Carleen Dixon,
Supt., Marlys Berkland, Sue Karolczak, Hazel Hauff, alternate; PRECINCT 6 – United Church of
Christ - Charlene Forsythe, Supt., Robert Kortlever, Delores Canaday, Mary Peterson-alternate.
D. Action on an Abatement request from Gulbranson Development
Company, Inc. to abate a portion of the 2007 taxes in the amount of
$588.00 for NE¼, NE¼ excluding exceptions but including S80’ N1430’
W238’ 34-110-50 (Timberline).
E. Action on Resolution No. 27-08, STP – Urban System Priority List.
Resolution No. 27-08
STP-Urban System Priority List
WHEREAS, the City of Brookings has designated certain streets to be included in the STP-Urban
System of Streets as defined by the SDDOT; and
WHEREAS, the SDDOT has designated certain funds, Federal and State to be used for
construction, reconstruction and major repair of the STP-Urban System Streets; and
WHEREAS, the City of Brookings has been requested to establish a priority list of projects to be
considered for funding by the SDDOT;
NOW, THEREFORE, the City of Brookings hereby resolves that the following projects be
considered in the order listed:
Priority Bid
No. Project Location Year Type of Work Length (mi.) Cost
1. 34th Ave from
US 14 to Prince Drive 2010 Grading, Curb & Gutter, 0.7 $1,250,000
2. Medary Ave. S. from
20th St. S. to 32nd St. S. 2012 Milling & Asphalt Overlay 1.6 $1,000,000
& Pavement Markings
F. Action to extend the Temporary Fixed Based Operating Agreement for an
additional 60 days and approve $715 per month for an additional two
months.
On the motion, all present voted yes; motion carried.
Addition: Liquor Operating Agreement. A motion was made by Thomson, seconded by
Brunner, to proceed with issuing the liquor operating agreement to BraVo’s on a temporary
basis until July 1st. Bartley suggested amending the motion to state: “issuing the license until
the new restaurant licenses are issued.” Both accepted the change as a friendly amendment.
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Discussion: Whaley said we’re issuing the license on a temporary basis to BraVo’s. Her concern is that
the City has accommodated the Baileys’ with the temporary licensing option. She’d like to see stated in
this operating agreement when the temporary license for BraVo’s expires, it be awarded to
Shenanigan’s so Hansen can create his business. She said BraVo’s is up and running. The Shamrock is
up and running. Both are doing well. We’re all here to get businesses going. This license would give
Gonz Productions the opportunity to venture into his business knowing he will have the unrestricted
license so he can continue on with his work.
Reed expressed concern that he wasn’t 100% sure that the Shamrock facility will work now and into
the future under the new restaurant licenses and he would need to know that for sure before issuing
the unrestricted license to another business. The restaurant issue still bothers him because the
Shamrock is a convention facility. He asked the City Attorney to double check the 60/40 food to liquor
criteria in order to make sure the Council fully understands this issue and go through this process before
it gives up the last unrestricted license.
Whaley said she didn’t think the Council should give out the license at all until it had gone through the
process of defining the new restaurant ordinance, particularly since the comment has been made that
the Shamrock may not fit the criteria. She said the City Council is here to help Brookings grow and
make it possible for businesses to get going, and we have two up and running but are putting the
handcuffs on another. She noted that the City Council has been working on the liquor license issue for
5 to 6 years and there’s been one person here every time when this liquor license issue has come up
(Garner Hansen) and the City Council has never made a direct question to him. She said the City
Council has answered everyone else’s questions, but not his, and is not comfortable with issuing to
BraVo’s with conditions as they are.
Brunner asked how long it would take to clarify these issues. Britzman said he could provide responses
at the April 15th meeting.
Bartley said he didn’t think the Shamrock’s business plan was a bar; it’s a convention and banquet
facility. As such, he didn’t think it would have any issue meeting the 60/40 rule. If it can’t meet the
60/40 rule, then it’s a bar by the liquor definition. Most of the chain restaurants report liquor revenue
is 30% or less of gross sales is liquor and 70% or higher is their food. He didn’t think there’d be that
issue with the Shamrock. He was comfortable they will meet the criteria for 60/40 food to liquor
percentage for the restaurant license. He said that was an issue that was hotly debated in committee
and they were assured that it does. Until the test of time, the reporting requirements are there and
they will have to report the percentage of food and non alcohol receipts.
Bartley related to issuing to Shenanigan’s request, the Council could continue to issue the agreement to
Bravo’s and take additional action to issue that license to another, Shenanigan’s or not, after the April
15th Council meeting and that would still allow adequate time. He noted that the City would then be
creating a non-restricted license which does require food. The City Council would have to look at the
Shenanigan’s application in a different light. Bartley said Hansen wouldn’t have to open a
Shenanigans; he could open a straight bar and that’s the issue the Council will need to resolve. Do we
open creating an agreement that is unrestricted and then restrict it? He thought it could be done.
However, once the Council moves down that path, it will need to be careful because the other operating
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agreements the City has doesn’t have those restrictions. He felt this was an entirely different
discussion regarding issuing the license in an unrestricted manner.
Thomson asked Hansen for clarification if the reason he wanted the unrestricted license after July 1st
was to allow smoking. Hansen reiterated that the Sioux Falls and Aberdeen locations don’t fit the
60/40 food to liquor percentage; both being in the 55 to 45 percent food, depending on the time of
year. He felt he would be in the same situation in downtown Brookings, which is very different than
either establishment (Shamrock and BraVo’s). His customers come downtown to play during evening
houses. To give him a license that doesn’t allow smoking when all the other businesses downtown do,
would hinder his business. He has put in an application for a license for the past four years. He said he
needs to know come July 1st if he will have a license. Everyone seems to be in agreement that the other
two will get a license and it’s not fair to hold this license and open it up to another set of people. He
said it’s only fair to get an answer on this license.
Thomson asked if there was a review process if the city granted the unrestricted license and in a year’s
time it didn’t become the place the Council thought it would become.
Bezdichek said he felt the City could, with every one of the liquor licenses; on an annual review they
could revoke any license at any time. He said that just because a business gets a license, it doesn’t
mean these licenses are for perpetuity. Maybe the City needs to do better to make certain each
establishment is doing what they said they would do? Are there any violations? He felt the city could
pull any licenses at any time and not just at the annual review. It could be done mid-stream, mid-year,
if the business doesn’t meet the city’s expectations. He cited the Old Sanctuary as an example. A one
year review was discussed and he argued that the City has the right to review all licenses at any time.
He felt if a business was not doing what they have told the City they would do for the betterment of
Brookings; yes, the City could pull them.
Reed noted that the City has never pulled a license, even a temporary one; and the city never took it
back. He felt the City would need a major reason to revoke a license such as laws broken, a felon, or
too many complaints. He felt once the City makes a decision to award a license; it’s for life.
Otherwise, in Sioux Falls they sell them; that’s where the difference is.
Weldon asked if the City could issue a license now to a specific applicant to take effect on July 1st.
Britzman said yes, but he’d want to know the type of license. The City could set the future effective
date for the operating agreement because they are ours to set the terms. Weldon noted that the rules
are effective on July 1st. Britzman cautioned that it would be premature to do that without establishing
an ordinance to guide the City in doing so and doesn’t feel the Council could do that effectively without
everyone reading that ordinance and then acting. Weldon noted how it wouldn’t be fair to the
applicant because they wouldn’t know what rules they’d have to follow.
On the motion with the friendly amendment “to proceed with issuing the liquor operating
agreement to BraVo’s on a temporary basis until the new restaurant licenses are issued.” All
present voted yes; except Whaley voted no; motion carried.
Convention Designation/Shamrock. A motion was made by Reed, seconded by
Thomson, to take action on April 15th a resolution designating the Shamrock as a Convention
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Facility with square footage requirements and a public hearing and action on the temporary
liquor license. Discussion: Brunner asked if the research on the previous questions from the liquor
agreement discussion could be done in time for the next meeting. Britzman will have information
ready at that time regarding how to transfer the license back from BraVo’s to the City and then to
Gonz Productions. On the motion, all present voted yes, motion carried.
1st Reading – Ordinance No. 12-08. First reading was held on Ordinance No. 12-08, an
Ordinance Revising the Composition, Appointment and Criteria for Appointment of Members
of the Brookings Health System Board of Trustees. Public Hearing: April 15th
1st Reading – Ordinance No. 13-08. First reading was held on Ordinance No. 13-08, an
Ordinance Amending Article II of Chapter 22 of the Code of Ordinances of the City of
Brookings and Pertaining to the Adoption of the 2006 International Building Code and the 2006
International Residential Code with Certain Amendments Thereto. Public Hearing: April 15th
1st Reading – Ordinance No. 14-08. First reading was held on Ordinance No. 14-08, an
Ordinance Amending the Joint Jurisdiction Area Zoning Ordinance pertaining to a private stable
as a special exception in the Residence R-1A District. Public Hearing: April 15th
2nd Reading – Ordinance No. 11-08 – Budget. A motion was made by Brunner, seconded
by Bartley, to approve Ordinance No. 11-08, an Ordinance Entitled “An Ordinance Authorizing
A Supplemental Appropriation To The 2008 Budget For The Purpose Of Providing For
Additional Funds For The Operation Of The City. All present voted yes; motion carried.
Building Upon the Public Right-of-Way – dba dhr Design Services LTD. Discussion
was held on a Request for Building Upon the Public Right-of-Way from Donna Ramsay, dba dhr
Design Services LTD, at 310 4th Street, Brookings, South Dakota.
Donna Ramsay, applicant, introduced her attorney Charlie Larson who was to speak on her
behalf.
Larson noted they were here a month ago and was asked to gather additional information so
the city council could make a decision on Donna Ramsay’s request for a building permit and a
variance to build on the public right of way to encroach on the city sidewalk. He noted that he
has that additional information and requested an opportunity to review the information and
asked the council grant the variance and building permit at the end.
Larson commented that there are some other issues that have come up, such as if the
downstairs bathrooms are ADA compliant. He said they could discuss this, but it has
absolutely nothing to do with the reason he is present. They are asking for a variance to
encroach in the public right-of-way and asking for a building permit to permit the deck that is
currently constructed. In the interest of time, he suggested those items be left out.
At the conclusion of the February 26, 2008 council meeting he had asked if there were any
concerns with the 11 criteria that Mrs. Ramsay has been asked to comply with. The city
council discussed and noted the 3 criteria; one was related to insurance and doesn’t know if
that’s still an issue, another was criteria #3 which was to provide an adequate site plan. He has
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provided a site plan containing all the necessary measurements and criteria, which the city
should have received last Tuesday. He asked if there were any questions and if it met the
criteria?
Greg Miller, building inspector, said the site plan was adequate.
Reed asked if this was as-built or if it was the actual plan. This is post construction. Yes, this is
as-built.
Larson said the largest issue was with criteria #1, which was “the applicant shall explore other
alternatives that would remove the need for the use of public property.”
Larson said he provided the Council with a Preservation Brief (PB) from the Department of the
Interior. He asked as the council reviews the various changes, he’d like for them to keep some
of these points in mind. The PB reiterates that the passage of the ADA grants a civil right to all
individuals. The PB also states that the solution shall provide the greatest amount of
accessibility and that all changes should be reversible. Reversible means that if the new feature
were later removed, the essential form and integrity of the building would still be there. The
PB states multiple times that the door everyone should pursue to be located at the front door
so people with disabilities can use the same access as the general public. It is common sense to
not require someone to go to the back door. On Page 7 of the PB, it states that the
doorframes should not be widened. The reason for that is on historical buildings, widening the
doorframe can disturb the historical integrity of the building and can change the way the
building looks. He quotes the PB, stating that most historic buildings are not exempt from
providing accessibility, and with careful planning, historic properties can be made more
accessible so that all citizens can enjoy our nation’s diverse heritage. Larson said that’s what his
client is trying to do. She’s trying to make the building accessible for everyone, both for safety
reasons and access for everyone.
Larson referred to the Historic Buildings City Hall Supplemental Analysis and Code Review,
dated March 16, 2008 which reviewed each door option. The report narrative on each
doorway is cited below.
“Door No. 1: Current doorway 30 inches wide and is too narrow to meet IBC code
or ADA guidelines as an exit. The minimum width is to be 36 inches. Furthermore the
opening would require a change in the door to swing out in the path of egress. As you
can see from the photo, widening of door may not be feasible without consulting a
structural engineer to analyze the support of the curved arch lintel over the door and
adjacent window. This modification requires destruction of exterior brickwork,
window sill and possibly the scrollwork keystone at the center of the arch. Also the
opening does not meet the spirit of ADA or NPS Brief No. 32 for its approach as the
“back door” to the facility. If a ramp were constructed to serve this door, the ramp
would need to be located towards the rear of the building where the existing parking
spaces are currently. The accessible route from the “public way” would require the
route to cross behind parking spaces (where the current deck is now) along the alley
which is an unsafe condition and should be avoided.”
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Larson referred to the photograph. The top of the door is an arch that would have to be
removed and this would disturb the historical integrity and make the entrance look different.
He noted this isn’t the front entrance, which is not in keeping with the spirit of the ADA. He
said they felt Door #1 has problems. He noted from the report, that this location would
require people to go behind the parking spots to enter the building. Someone in a wheelchair
would run the risk of someone backing over them because they couldn’t be seen. They would
have to literally go behind the parking spots to access this door.
Bartley asked if the access to this doorway was half way down the building and that that wasn’t
desirable. Yes, that is correct. Bartley asked if it wasn’t true that the ramps are currently there
start half way back on the building. Larson said the ADA doesn’t mean where people access
the ramp; it’s where they enter the building. They don’t want to subject people with disabilities
to have to go through the back entrance. It’s not in the same location.
“Door No. 2: Current door is 35 inches wide. Door is too narrow to meet IBC or
ADA guidelines as an exit. Widening will require saw cutting of concrete structural
wall. The steps are poured-in-place concrete integral with the surrounding floor
system. Modifications to this entire section of the building make any work in this area
undesirable. As you can see by the photo the door sill height can not be raised to the
level of the upper main level because of a lack of head clearance beneath the steps
which serve the second floor. The landing also serves as a landing for the stairs existing
up from the lower level. To modify any portion of this doorway or the stairs to
connect the two levels of the main floor would require considerable structural
modifications, the destruction of the cast iron rail and newel posts of the interior stair
and may in fact create other code violations.”
It’s too narrow to meet the IBC, which requires 36” inches. It would require reconstruction of
the door by widening, which would require cutting into poured concrete and would effect the
integrity of the building. The bigger reason this door won’t work is the height. There’s not
enough clearance to get through, so you can’t raise the level for a ramp because there wouldn’t
be enough head clearance. The architect pointed this out in his report that modifications to
this door would result in other code violations.
Munsterman requested staff comment on each option as we go.
Miller said he didn’t have any issue with doors #1 or #2. With door #2, 35” is wide enough
but the location of the door isn’t very good. Miller clarified that 35” does meet ADA and IBC
standards.
“Door No. 3: Opening is a modern aluminum storefront set in a modern aluminum
skinned insulated panel wall that is installed at the approximate location of the original
side entrance doorway. The current configuration is too close to last interior step and
does not provide ample landing area at the bottom of the steps. From the exterior
photo you can verify that the door system can be raised approximately 34 inches to be
level with the upper main floor but the system should not move towards the exterior
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façade very far in order to maintain the exterior brick-work and stone detailing. To
make this doorway work, a raised floor system would need to be constructed over the
steps and another exterior landing can connect to an exterior ramp system. All
modification can be made without impacting any historic fabric. However this location
does not meet the spirit of ADA or NPS Brief No. 32 for this approach can be seen as
the “back door” to the facility. Satisfying the requirements of this door to make it an
accessible entrance does not however guarantee an compliant accessible route because
not only does this door or door #1 need to be accessible, but also door #4 would need
to meet accessibility requirements as well for this to qualify as an accessible route.”
Larson said door #3 will cause many problems. There’s a set of steps inside that door. This
would require raising the door 34” and build a ramp to get people up to the door. Then there
would be a platform where the steps inside. This would result in someone going up a ramp,
through the door, and inside to a level area. This will affect the outside of the building because
it will require moving the door up four feet. Also, this isn’t the front door so it doesn’t meet
the ADA criteria. The biggest issue with Door #3, is if you do option #3, then you must do
option #4. He recommended addressing both issues. Door #3 won’t destroy the historical
integrity of the building, but option #4 will cause significant problems.
Larson said door #4 is an interior door. The front entrance where the deck is currently on the
northeast side. As one enters that door, it requires a turn to the south to door #3. There are
two ways the architect feels this could be done, but neither one is advisable. The first way is to
move the interior door to the left, so it would require literally cutting a new door in and close
the wall up where the door is now. The reason for that is there are steps coming down for the
apartments upstairs, and for fire egress the door can’t swing towards the stairs because that
causes fire safety violation. The door must swing out to accommodate ADA, but in order to
do that it becomes a fire violation. The architect proposed moving the door. Moving that door
would result in having to move the original electrical service and voice data termination block.
It would be very expensive to move and is an original feature of the building. These would
result in non-reversible changes to the building that would alter the historic integrity. It would
require a structural engineer to determine if it could be done.
The second option is to move the door towards the north which would require building a new
room. It would require an alcove with 3 walls and a ceiling. It would result in two small
unusable rooms. This would allow the door to swing out, but putting in a new wall causes
issues with a historic building. The demolition to the existing concrete wall would be a major
project.
He said in order to do door #3, option#4 would also be required, either A or B.
Weldon commented that he didn’t believe that cost was a legitimate hardship when considering
a variance under state law. He asked the Council to look at Door #3. He asked why that door
couldn’t be raised, noting the archway and false alcove, to accommodate the raised elevation.
He said it looked like it would take a less intrusive ramp than is currently there.
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Larson said if you raised this, you would have to do one of the options with door #4. It would
still require people to get in and out. The architect said that this is possible, but it must include
one of the options with door #4.
Weldon asked Larson if he was saying that door #4 can’t swing into room #18. Larson said no,
it cannot swing out because it’s a fire safety problem with the apartments upstairs. The egress
for fire safety is down the stairs. The door would open into their path of travel and the
exterior door is to the left. The swing of the door would cause additional code violations.
Swinging into the room doesn’t meet ADA as it needs to be an egress door from that space.
Larson made further clarifications regarding the problems with door #4, citing it swings into the
room. ADA requires it swing the other way, out, for an egress door. It swings inside now.
To swing out, it would result in blocking egress in the stairway.
Weldon asked where the egress for the apartments was located. Larson said the apartment
tenants use the stairs.
Weldon asked what was wrong with leaving door #4 the way it is; that way it doesn’t block the
steps or the egress. Larson said then it wouldn’t be ADA compliant. If they made door #4
with ADA egress, it would have to swing the other way, and they would also have to do just
door #4. Just doing door #4 gets someone into the room.
Weldon commented that it isn’t compliant now as built? Larson said it was compliant because
of door #6.
Larson said the architect was asked to address the other alternatives and determine if any of
the other doors and alternatives could be used as an ADA egress. He said they are trying to
satisfy criteria #1. He looked at the other doors. Doors #1 and #2 won’t work for various
reasons. Door #3 would require doing #4 as well. The two go together. All that door #4
does is allow one to get into the room where the exit is, but doesn’t allow egress. Door #6
allows someone to get through and get out of the building and the door swings outward.
“Door No. 4: This door serves as the main secondary exit from the upper main level.
The opening is 36 inches wide. If the doorway was to serve as the main accessible exit
the swing would need to be reversed to swing in the path of the egress. Doing so
creates an obstacle to those exiting down the stairs (visible just through the door.
Door number 3 is just outside this door and to the left.) To meet accessibility
requirements as an entrance/exit this opening would be required by code to be
relocated to eliminate this conflict
Possible solutions:
A) Move door to the east (left in photo) away from stair to provide adequate
landing area for those individuals coming down the stairs. Within the section of
wall to the left is the, now disconnected, original electrical service entrance
(visible in the photo of door #3) and a voice/data termination block currently in
use. The option to cut a new door into the wall could be prohibitively expensive
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to move due to cutting a hole into a solid concrete wall with unknown structural
implications can not be determined at this time. The unique historic qualities of
the original electric service panel should be saved if other solutions are possible.
The relocation of the voice/data termination block for the building would also be
prohibitively expensive to relocate if other solutions are available.
B) The doorway could be moved to north (towards the viewer) into room to allow
the egress swing to swing out and not impede into exit stair. This would require
the construction of three walls and a ceiling within the room to create an alcove
to recess the door. An alcove would effectively divide the room and reduce its
available floor area and the ability to use it as an gathering space. The room
would become a large entry vestibule. The change would require the demolition
of approximately 18 to 24 inches of the existing structural concrete wall that the
current door resides in. It can not be determined if this change is feasible
without a structural analysis. This additional wall demolition is to accommodate
the ADA maneuvering clearances for approaches of swinging doors (refer to
Exhibit 2 of the original report). As stated for door #3 this option must
accompany either option at Door No. 1 or Door No. 3 to create an accessible
route for the use of this space as an entrance/exit.”
Miller said door #3 could be raised up and it’s not compliant as it sits because there’s not
enough banding at the bottom for people to walk in and out, so the city staff felt the ramp
could have been put in that door with it raised. Then the situation with door #4, the architect
has used that as an exit to exit people out of the space because the occupant load is greater
than door #6 could handle, so half of the people would have to exit out of Door #4. That
situation already exists where the door swings in; it’s already non-compliant as it sits. It doesn’t
make a difference whether it’s ADA or egress for fire, that’s irrelevant. It doesn’t swing in the
direction of travel for ADA, it swings in the direction of travel for a fire or for emergency exit.
The swing of the door has nothing to do with the ADA.
Munsterman asked Miller if this was to be the main entrance with the platform with door #3,
does door #4 swing need to change? Miller said the existing building code in the historical
building section of the IBC would allow that door to swing in so as to not change and/or
damage the integrity of that historical building. The city could allow that door to swing in as
long as there’s one other door that swings out of that space. The door that goes out from that
space does not have to be ADA compliant. One of the exits would have to meet ADA.
Munsterman asked where that would be in this situation if the landing was in door #3 and door
#4 was the way that it is, where would be the other egress? Miller said the other egress
would be door #6, but that doesn’t have to necessarily be the ADA exit. You have an ADA
exit somewhere else. Munsterman clarified that this satisfies the ADA on one end and egress
on the other. Miller said that was correct.
Larson asked Miller if he agreed that if door #3 were the ADA entrance would that cause
problems with door #4. He said if he understood it correctly, the City would grant an
exception for that door because it’s an historic building. Miller said that was correct.
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Larson said that begs the question, why can’t his client get a variance if the city will allow an
exception on the inside, all his client is asking for is a variance which is an exception. He noted
that the deck is constructed, so if his client were to get an exception for door #4, it would
require tearing down the deck, move this door up four feet, put a ramp in, put some block on
the inside to go up the stairs, just to get an exception which is all his client is asking for now.
Door #3 cannot be ADA compliant without door #4, which has been established. But, because
it’s a historical building there’s a question whether or not his client has to comply with the
ADA and he thinks that she does. The ADA states that any time you make a change you have
to make the building as accessible as possible and historic buildings are not exempt from that.
Door #6, is as accessible as possible, and won’t make a code violation for fire safety. He said
we all agree that door #3 cannot be made ADA compliant without door #4 being changed and
wouldn’t be fire egress safety compliant.
Miller noted that door #4 isn’t compliant now as it exists.
Larson asked which is it; does his client have to comply with ADA or doesn’t she. Miller said
when referring to that door not being compliant, the city is authorized to allow it to swing in to
a historic building. Larson asked because it’s a historic building, his client can have an
exception. Miller said that was correct and it’s part of the code. It’s not part of the exception
staff makes; it’s an exception the code gives. Larson said the code also states the building be
made as accessible as possible. Miller said yes.
Bartley noted that the code grants the exception for that door swing. It’s not an issue as it
exists because it’s a historic building. Larson said no; as it is now, the Preservation Brief, citing
the ADA and the Department of the Interior, ‘historic properties are not exempt from the
Americans with Disabilities Act requirements. To the greatest extent possible, historic
buildings must be as accessible as non-historic buildings.”
Larson said if door #6 couldn’t be made compliant, then there would be an exception that no
doors would need to be made compliant, but they can. Door #6 swings out satisfying fire
safety and ADA. The building is as accessible as possible without destroying the historical
integrity of the building or without causing other code violations. Because you have a historic
building, you don’t get a free pass but you do get a little leniency if it’s not feasible. Here, door
#6 only required the installation of a ramp. Door #6 allows entrance and it’s also the front
door, which is what the ADA says is the best door to do.
Munsterman asked if the Disability Committee was in the loop on this. He asked if we had any
information on this.
Shari Thornes, City ADA Coordinator, clarified that the Brookings Committee for People with
Disabilities role is to advocate for people with disabilities and one of their activities is to
provide informal technical assistance. She noted that the technical assistance is intended to be
informal guidance only. She did facilitate the Committee’s interaction with this private business
and the Committee made a recommendation to the City Manager as that time in 2004 to
review the City’s policies and practices to provide for a resolution to at least look at a variance
process. That was done by the Committee making a recommendation to Alan Lanning, the
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City Manager at that time, and the city went forward and drafted a resolution with Steve
Britzman involved. That resolution went to the Historic Preservation Commission and they
made some changes to it and now the Council has the final product before them.
Munsterman asked if they went through that process.
Thornes said the Committee looked at this issue and felt a review of the City’s policies was
needed and to create a resolution and the City did so. That was the Committee’s
recommendation related to this project.
Reed asked Miller when he is doing an inspection and making decisions based on historic or
ADA, if that was actually a variance or something else. It seems like it’s at two different levels
of variances. The variance that the Council grants is for a bigger issue.
Britzman agreed that this issue can be confusing. There are different types of variances and we
understand that variances need to be looked at where we have an ADA problem. He noted
that the ADA is also flexible. Not only does the city have to be flexible in looking at variances
of its rules; the ADA also allows a person some room of flexibility so that for example Mrs.
Ramsay’s building was new construction, then door #6 where the current deck structure is
located would have to meet specific issues. The ADA requirements would be reviewed and be
somewhat different. It would have to meet the criteria of new construction. However, with a
historic building that deck can be made as ADA compliant as readily achievable. That would
not necessarily lead to the same result if you had a new building. It’s to do the best you can
under the circumstances to make it ADA compliant. If constructing a deck on a historic
building, in the location where the deck is now, she needed to come all the way to the lot line
in order to make it as accessible as possible and the city had a setback and required 3 inches
away from the lot line, the city would need to look at a variance to make it accessible. On the
other hand, he said he thinks there’s a distinction between the types of variances. Granting
that type of variance might be one within the setback or property. That is a policy decision of
the council or building official. The distinction and the real crux of the issue before the Council
is whether the city is required to go beyond granting a variance and actually conveying a
property interest. Does the law require the City to convey property in order to meet the
ADA? He thinks that conveying property is different than granting a variance. That is the
legal position he would take is that it is different to require a city to convey a property interest.
In this case, we have a property line (lot line) and the ADA would look at that deck and if it was
located within or on the property line as surveyed, it would still be the best that could be
accomplished under the circumstances if it was right on the lot line. It’s a matter of small
distance to get back to the lot line. It would only shave a certain amount of the deck off and
would likely be functional for those with disabilities and meet the ADA requirements because
there the property owner would have done everything that is readily achievable within the
property ownership interest that she has. To him, that would be ADA compliant if kept within
the lot line. That’s why he doesn’t feel that going over the lot line is necessary to comply with
the ADA. You don’t have to grant a variance at that particular location to comply with the
ADA. He questioned if the ADA is hard and fast and you have to have a deck with this many
square feet? That’s not the case with a historic building, but could be the case with a brand
new building. In this case, if she does all that is readily achievable for her, the key words –
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“readily achievable,” it’s to make it usable for people with disabilities. The one advantage we
have is that there isn’t that much distance involved and trimming it back to the property line
would not make it not accessible or usable by people with disabilities. He illustrated these
points to show how far does the city have to go in accommodating this request.
Thornes stated that she had reviewed all the findings and reports from staff and the city
attorney and would agree with all of them related to both historic preservation references and
the ADA. She commented that from both the preservation aspect and from an accessibility
aspect it’s commendable that Mrs. Ramsay would wish to improve the accessibility to her
building, but historic buildings present challenges in accessibility. She agreed with Mr. Miller in
that a remodel does require spaces be made accessible but to the maximum extent feasible. In
the historic building and in many cases that just isn’t possible. In many cases providing access
through the front door isn’t possible either. In a historic building its desirable to provide access
to all the spaces; however, not all like spaces have to be made accessible under the ADA in a
historic building. It’s all about programming and practices. Accessibility can be provided
through modified business practices and programs. Back to the historic structure and the
integrity of the building, reversible is desirable but alternations including widening a doorway
can be done to provide access and the National Park Service would allow it. A good example
that she pointed out to the Council is the former Carnegie Library, which is a city owned
facility providing access to a National Register individually listed building, which provided access,
but not through the front door. That was done with modifications of a window made into a
door with a three stop elevator on the side of the building. Access through the front door was
not technically feasible.
Larson said there’s a difference between the example Thornes cited and Ramsay’s building
because it is feasible and she’s done it. The greatest extent feasible. It is feasible through door
#6 and cutting out a window isn’t necessary. He agreed that the ADA does grant leeway, but it
says to the greatest extent feasible making it as accessible as non-historic buildings and that was
done here. It didn’t require moving a window, or rebuilding walls, all it requires is a couple
inches of the city sidewalk. He agreed with Britzman in that it’s just a few inches. His client
isn’t asking for the entire sidewalk. As for the property interest, by no means is Donna Ramsay
asking for a property interest in that property. One of the other criteria, if the building was
destroyed, removal of the deck would be required. She agreed and is not claiming a property
interest. She is just asking for a variance. As for shaving a few inches off, it’s not going to
matter to him, but it would matter to someone in a wheelchair. He’d hate to see someone
have go to a different door or see someone carried up over a few inches. He agreed that it’s
not much; it’s just a few inches. He pointed out an earlier illustration a month ago. The case
could not have been any closer. It involved a historic building in a downtown district that
required a ramp on the city sidewalk to be ADA accessible. That memo said the city has to
grant the variance and that was for the entire ramp to sit on the sidewalk. His client is asking
for 10 inches and feels it’s dramatically different and the way she’s doing it is so minor. Just
asking for a little leeway. One of the earlier things is for the betterment of Brookings – grant
accessibility for historic buildings. Allow people to come in and out and it’s safe to do so.
That’s the betterment of Brookings. The building code is to protect people and that’s all they
are asking for.
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“Door No. 5: This door as an exit, let alone as an accessible exit is completely
impossible to modify to meet any code and can only be seen as an existing condition and
left as-is. The passage is too narrow. There are head clearance issues which can not be
overcome without modifying another set of stairs which serve the upper floor and a
required exit stair from the lower level. All the doors are 30 inches wide and because
all of the walls are poured-in-place concrete, with structural ties between walls, floors
and stair construction, this area cannot be widened without major structural engineering
and construction expense.”
Bartley commented that the historical significance isn’t in play at this time. Larson clarified that
the door isn’t the issue; the historical significance issue that he’s been referring to is the cutting
out of brick into the building. Larson noted that the ADA doesn’t focus on the door itself; it
focuses on the building. That’s why reversible changes are better.
Larson closed by referring to a television commercial he’s seen with someone in a wheelchair
who is unable to access the voting precinct through the front and has to use the side door.
The message in the commercial is to “do the right thing” and Larson said that’s all his client is
asking for is for the City to do the right thing. It’s not just on Donna’s wish, the federal
government does require variances when it’s reasonable to do so when it won’t inflict hardship
on the city. He didn’t believe granting a variance creates a hardship on the city.
Public comment:
Doris Roden, 727 Main Avenue, said with the passage of the ADA act, access to all properties
open to the public is now a civil right and under Title 3, owners of places where the public is
invited must make readily achievable changes. That means changes that can be easily
accomplished without much expense. When alternations, including rehabilitation and
restoration work are made, then specific accessibility requirements are triggered. Those
requirements were triggered for this building – they’re necessary. ADA states whenever
possible, access should be through a primary public entrance. To even suggest that original
steps at the front of this building should be replaced doesn’t make sense to her. The steps
occupied more space in the public right-of-way and forced people with limited mobility to a
secondary entrance. Roden said she attended the trial of the City of Brookings vs. Ramsay and
what she witnessed was the judge’s frustration that the two parties could not work out a
variance for accessibility into a building with zero setbacks, which most of the buildings in the
Commercial Historic District are. He admonished both sides that they should work together
to make that happen. If the existing ramp and deck need to be modified with specific details or
by a matter of inches to accommodate the needs of people with limited abilities, then she asked
the City to work with the property owner to make that happen. She suggested the Council
members put themselves in that position. Roden said she interpreted a denial of the application
as unwillingness on the part of the City to work with the property owner to support changes at
the primary entrance to accommodate individuals with limited abilities.
Tom Bozied commented that he couldn’t believe the City was still talking about this issue five
years later. He said about five or six years ago he had a piece of property and on the west side
of the property the lot line was on the street and the city asked if they could have an easement
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to put a sidewalk in. He said he didn’t understand why some common sense couldn’t be put
into play here. It seems to him that if the city can ask for property through an easement, then
why can’t it go the other way? He said the only thing he can think of is common sense.
Karen Cardenes, 316 17th Avenue South, stated how proud she was of Donna Ramsay. She
didn’t know Donna until a couple years ago and came late to this issue. She agreed with
Bozied and doesn’t understand why we’re still at this issue. Donna did something that a lot of
the owners of downtown historical building owners have never attempted to do, which is to
make their properties accessible. She has a personal background. Her late husband was
disabled. When she taught at USD she served on a committee that was working on making
that institution accessible. One reason she served on that committee was once she attended a
faculty meeting and heard comments from colleagues suggesting there be one accessible campus
out of all the state’s universities, and all of them can go to that campus and the rest of us won’t
have to worry. One of the issues they had at USD was a lot of historic buildings and it was
difficult to make them accessible. In the course of working on that committee she met a lot of
people including a person from Sioux Falls who was quadriplegic. He came on campus one day
when there was heavy snow and she learned very fast you can have all the curb cuts you like,
but a 4” snow drift won’t make much difference. He reviewed various accessibility features, he
noted that most disabled people have been told for so long that they have no right and they
have had to fight so hard to get to where they are. You don’t have to worry about the little
tiny things, but you have to try to make accessibility as much as you can. At SDSU, they make
education accessible. If there’s a classroom that’s not accessible they move the class to an
accessible location. You can’t do that in the entertainment business. If you hold a wedding or
reception, the event can’t be moved somewhere else.
Brunner asked staff for background on the court ruling, the lawsuit, and the appeal that already
took place, and review it so he makes sure he understands the stop work order that was issued
and how the process played out.
Munsterman asked staff to review from square one. He didn’t know when Donna came to talk
about her deck.
Greg Miller provided chronological history. It came to light in spring of 2004. Mrs. Ramsay
came into his office. She called Greg and asked Steve to come and inspect the deck. When he
went to do that he looked for a building permit and there had not been one issued to build
that. He brought that up to her and that’s when this started. She came in to get the building
permit. At that time the deck was framed up, but without the ramp. The deck and stairs were
framed without any railing or decking at that time. She requested he look at the framing to do
an inspection on it and he commended her for calling his office because she felt she had a
permit and had been using the same permit from 2000. He couldn’t find there was any mention
of the deck on the permit that was issued in 2000. From there, she wanted the City to issue a
building permit for that deck and in looking at it they didn’t have any way of determining where
the property line was because there wasn’t a plat drawing that showed where the building sat
on that property. So his office asked for that, like they do for any building permit, asked for a
site drawing on how this structure would sit on the property within the line. That is what was
asked for at the time and did not get one. So the city said they could not issue a building
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permit without having the set of plans. From there, over the course of possibly a year, there
were several letters sent by his office to Mrs. Ramsay. In 2005 they were starting to build the
ramp onto the deck and at that time he went over and issued a stop work order. They were
working at the time. He put the tag on the side of the deck and said until this gets resolved on
the property line and a building permit in place, work needs to stop. They continued to build
over the tag and built the ramp, and from there went on to court.
Britzman said it was in the fall of 2004 that the issue was brought to the City Council which
promoted the establishment of these criteria. Following that, there was quite a bit of
discussion about the criteria and lot line. Then a series of letters occurring after that time
period requesting Mrs. Ramsay come in to get the building permit and then it reached a point in
time where the construction continued, as indicated by Miller, and work continued on the deck
after sending the letters. That prompted the City to take legal action to enforce our building
code because we didn’t have a building permit and we made it clear that we needed one in the
correspondence. This is consistent with the facts that the Supreme Court found, and that was
that there was not a building permit issued on this property for this deck. The Court found in
the trial the stop work order had been violated. And, the building/deck was constructed on
public property without prior permission. The complaints that gave rise to that case all were
issued long after we had a discussion in the Council Chambers about the problems with the
locations of the structure. The case was affirmed by the Supreme court and won’t disagree
that the Court suggested, as mentioned by Roden, that it would be ideal for the parties to get
together and communicate, and that was probably lacking along the way in terms of open
communications on this particular issue. For whatever reason, the dialogue was not established
satisfactorily. The court case has been concluded and affirmed convictions on those three
ordinance violations and the issues before the council now are just somewhat affected by that
particular case, because the City Council has a real narrow issue before it and it’s no doubt that
it’s a complicated legal issue. We formed an opinion that may be technical and may not solve
the decision that each city council member must make. Our opinion is that the deck does not
have to be the same dimensions to satisfy the ADA. We felt the deck could be constructed in
such a way that it would not encroach upon the public right-of-way, and now we unfortunately
have an encroachment. Tom Bozied made the comment that it’s not a large encroachment
and Britzman said that we all know that. At present the deck does not have to be its current
size to comply with the ADA. He said he thinks it has been a legitimate question if it will meet
ADA standards, and thinks there is no doubt that the deck does not have to be that size to
meet ADA standards.
Brunner asked Larson and Ramsay if they agreed with that timeline and asked if there were any
discrepancies in that timeline as provided.
Larson said the story doesn’t start in 2004 when Greg Miller went to check on the deck.
Larson said Donna Ramsay went in to get a building permit in 2001, working with Ray Froehlich
and Pete Bolzer to make her building ADA and fire safety compliant. He noted that Froehlich
was not called to testify at her criminal trial and there’s no testimony on this, but it’s never
been refuted that Froehlich worked with Ramsay to get where they’re at. She clearly thought
there was a building permit for the deck. She’s the one who called and requested an inspection
before installing the boards, illustrating that she wasn’t trying to hide anything. Larson said the
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other important point is that Donna went in and filed for a building permit and was denied.
She was told at that time that there was no way that the city engineer would provide a
variance. That wasn’t true, there was a method. Two months before Donna requested a
variance, Robb Rasmussen (Sioux River Cyclery) requested a variance for ornamental reasons
and Dan Hanson sent a letter saying go ahead. It was really that simple. So Donna was
required to go in front of the City Council and the Council develops the criteria after she has
already applied and that’s why we’re here. Much of the chronology was right, but was trying to
fill in the blanks.
Munsterman requested clarification on the variance.
Miller said the difference on the Rasmussen building was they were putting a new façade on the
building so they encroached by the thickness, almost half the thickness of a brick. There is
some language that allows encroachment for a façade.
Munsterman said the variance that we’re talking about two different sets of criteria.
Miller said that the city didn’t have a variance procedure to allow something to be built on
someone else’s property. A variance procedure is allowing one to build within a setback which
is still within the owner’s property, not on someone else’s property. The city doesn’t have a
variance procedure in place to build outside of the property line other than what the City
Council came up with in 2005.
Munsterman commented that this is a real defining point that Britzman was trying to make.
When the Disability Committee looked at this they made the recommendation and the Council
approved the variance to allow someone to build on someone else’s property, rather than
within their property line. That’s the variance process the City Council was asking Ramsay to
go through in 2005?
Britzman said true. Ramsay appeared in front of the Council, but the criteria was not satisfied
the first time she appeared, and was invited to come back but she did not. He thinks the
testimony at the trial was that she didn’t desire to proceed under that criteria.
Larson noted a letter from Dan Hanson granting permission to build on the city right-of-way, 4
inches, for ornamental facing. He asked if the distinction was that for ornamental reasons you
get a letter, but for the ADA you have to comply with 11 criteria? He said he didn’t
understand the distinction; we’re building on the city right-of-way either way. Other than one
is for ornamental reasons and one’s to comply with the ADA, he didn’t see the distinction.
Britzman said he knows that distinction does exist. That façade does not begin at the ground
level, but raised where that occurs. There are technical distinctions for intrusions on the right
of way that are distinguishable.
Larson disagreed that the façade intrusion, stating it is on the sidewalk and Hanson’s letter says
it only applies to the first story, so it can’t go four inches above ground level.
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Britzman noted that Dan Hanson has addressed the distinctions between the two issues. He
believes that there is a distinction between that issue and this particular request.
Larson asked for clarification from Britzman on the size of the deck. Britzman said the size of
the deck is determined as to what is readily achievable. Assuming the property line was a
private property owner, Ramsay would not be required to comply with ADA to build the deck
on her neighbor’s property.
Larson didn’t think that was a good analogy because the ADA requires that cities make
exceptions to their policies and procedures and that’s what they are asking for.
Britzman noted with the policies and procedures, there’s a dist between conveying. Is the city
of Brookings required to convey a property interest of some sort or right to occupy the city’s
property? That’s a legal distinction.
Larson said he’s never seen anything that required the city to convey that property. His client
is asking for a variance and not asking to convey property.
Britzman asked if the deck could be made smaller and still comply with the property line. The
deck would still be ADA compliant, wouldn’t it?
Larson said that was his point; that the deck cannot be made smaller. It could be reduced but it
would not be ADA compliant.
Britzman disagreed that the deck would be ADA compliant because with a historic building the
standards for ADA is as large a deck is as readily achievable and that’s all the way up to the
property line.
Larson said it was the city’s responsibility to meet the “readily achievable” test by granting
variances to their policies and procedures. Larson said obviously door #6 is readily achievable,
and didn’t think it was productive to argue back and forth at this point.
“Door No. 6: This opening is the current main entrance and is a modern aluminum
storefront door. It is 36 inches wide and is considered the “front” door to the building
and is thus the most desirable to maintain that function as an accessible entrance as well.
In the current configuration no modifications are required to the opening or the door
leaf itself. However the accessible route will require a ramp and deck surface to meet
the requirements of current building codes. The current deck constructed on site very
nearly meets current codes with some modifications for the addition of handrails,
modified tread nosings and walking surface demarcation required to bring the structure
into compliance with ADA guidelines. Upon field measurement it was found that the
deck railing was installed 74 inches in a perpendicular measurement from the face of
door. Per ADA guidelines, chapter 4.13.6. Figure 25 (see original report’s Exhibit 2)
when a door is approached from the side as the front entry is, an area 54 inches wide
by the width of the door, plus 24 inches is required. Field measurement of existing
ornamental brick around the door shows that the brick projects 10 inches into this
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clearance. It could be argued that the effective approach to the door could be required
to be 64 inches (54 inches plus the 10 inches of brick projection) instead of the current
74 inches. The projection of the deck could be reduced by 10 inches and if the AHJ
would make a ruling on the ornamental brickwork at the front entry, this projection
could be reduced even further. However to meet the code minimum, the deck landing
area/door approach would require the deck to project onto the sidewalk.”
Britzman said the architect would probably agree that it would still satisfy the ADA if you
reduce the deck size.
Thomson asked if what is being suggested about reducing the deck size is to shave off the area
that encroaches on the public right-of-way. Britzman said also on the alley side, to be
technically compliant. An ADA officer auditing the building would say that you’ve done all you
can do within your property.
Bartley asked what the encroachment was on the sidewalk. Miller said 1’4” or 1’6” onto the
north sidewalk. There was discussion regarding exact measurements, but Miller felt it was over
a foot.
Larson asked if Miller would agree that the encroachment is less than 30% of the width of the
sidewalk, which is one of the criteria. Miller said yes.
Bartley asked for exact measurements or a range. It was noted that the different surveys give
different measurements. He agreed with Bozied that it seems this gets a bit ridiculous. He
asked what the encroachment was on the alley; how many inches, feet?
Larson said it is 1’5” on the sidewalk. Miller said a survey shows 4” on the alley side. He
noted that the city had a survey done that shows somewhat different, but both are over the
property line.
Bartley asked if the alley was not an ADA compliance issue to narrow that. Miller said that was
correct and the deck could be narrower to satisfy the city issue with the encroachment on the
alley.
Bartley noted that the encroachment on the alley right now has nothing to do with the ADA, it
would be required to be corrected. Miller agreed that he would want that corrected.
Bartley said a part of this variance would be to allow or remove the alley encroachment.
Larson said there are two different ways to do it. One survey finds a 2-3 inch encroachment
and the other survey finds no encroachment. He noted that the landmarks downtown are not
all to scale. The surveyor conducted two different methods; one resulted in none and the
other was two inches. To be fair to the Council, Larson said he provided the one with two
inches. He noted that it’s less than 30% and not a safety issue.
Miller said from a local surveyor verifying that the deck is encroaching 6” into the alley and 8”
at the end. There is a discrepancy in the two surveys.
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Bartley said there seems to have been a communication issues on both sides of this issue and if
both sides are going to give a little on this particular one, he personally doesn’t like the
encroachment into the sidewalk as far as it does and maybe splitting the difference for half. The
party would have to do reconstruction on the deck to bring it into compliance with that
variance and correct the alley completely. If we’re going to make a compromise, both parties
have to suffer somewhat in the solution. One party has to reconstruct the deck and the other
has to give up a little variance. He asked Britzman if that would be possible
Britzman said that would be entirely possible, but it would be up to the Council.
Britzman asked Miller if there would be any problem with the city if the encroachment was
reduced by half. Miller said he didn’t have a problem with it and could verify where that is.
The other issue is bringing the ramp up to code. Right now it is not compliant with the code,
which he discussed with the architect. The slope is adequate, but it’s without railings and the
ramp surface must be addressed.
Larson urged the Council to grant the building permit and agreed that there are some problems
because his client stopped building and was criminally convicted, so she does need to do more
work. He urged the Council to grant the permit and if Ramsay doesn’t comply within a
reasonable amount of time, then she can come back. It’s not a reason to prevent it; it’s a
reason to grant the variance so she complies with the building permit.
Bartley asked for clarification on what issues the Council needs to resolve, asking if the council
would take action on granting a variance and issuing a building permit. Miller said staff was
looking at two issues of the alley side and the sidewalk. Staff didn’t feel there was any reason
for the deck to encroach over the property line on the alley. It doesn’t serve any purpose and
was built after the fact over the alley. The other issue is up the council (related to the sidewalk
encroachment).
Bartley asked as to the procedure this evening to grant a variance and a request for a building
permit. Britzman said it would be action to grant a variance under the criteria to allow a
structure to remain on the public right-of-way. That is the decision for the Council.
Bartley asked if the Council makes that decision this evening, then the building permit could be
granted. Britzman, said yes, that would be correct.
Bezdichek asked Bartley to think of it as accessibility within the building. The lower level
cannot get to the top level and now we’re talking about getting accessibility to the top level, but
the top level can’t get to the lower level. So the person in the top level will have to go out the
same door they came in, go down the ramp to go to the bottom level. He asked Bartley why
we aren’t trying to fix this on the inside. We can get to the lower level but can’t get to the top
and now we can get to the top, but can’t get to the lower. He questioned if this was
reasonable. He said it just doesn’t make sense. Fix it inside. Now we’re at the top, what are
we going to do for a variance to get that person down to the bottom? Bartley said it appears
that they’ll have to go outside and down through the bottom door.
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Larson noted that Ramsay bought a $3,000 ramp to get people from the bottom to the top, but
couldn’t install it for logistical reasons. Larson said she tried.
Bartley said we will fight this thing forever, but if we grant some sort of variance, meeting in the
middle, but requiring the distance off the alleyway be maintained. It will cost them some money
to bring the ramp into compliance anyway, so let’s just make it correct. If we feel that reducing
the encroachment by half would allow for decent access to that front door and Donna agrees
to that, obviously there’d be some expense, but he’d feel better if it encroached by half of the
distance rather than the full distance. The amount could be debated, but the compromise
would solve the issue at this point.
MAIN MOTION: A motion was made by Bartley, seconded by Munsterman, to reduce the
encroachment on the north side by the sidewalk by 50 percent, that we eliminate the
encroachment on the alley, and that the deck be brought into compliance with the building
code and ADA.
Discussion:
Larson responded to Bartley’s comment that both sides should suffer. He said Ramsay has spent
thousands of dollars on this issue, she’s been criminally convicted, she’s been humiliated, she’s been in
the press: she’s suffered. It’s hard for him to say what is proposed is reasonable because Ramsay has
already suffered. And now we’re asking for a variance. The deck is what it is and he doesn’t really
understand why it’s in the middle and why it’s not one or the other. If it’s not a safety issue, it is purely
compromise because you don’t want it to go on forever.
Bartley said part of it is compromise, but reducing it a full foot and a half does make it a little ADA
accessible. Taking six inches off instead of 1 ½ feet maybe makes it more accessible and still meets
the criteria to a certain degree and the applicant asked for our consideration for the people who are
disabled and half the distance is a consideration on their behalf.
Reed said when we look at this issue and how we are going forward, that deck doesn’t exist. He said
that’s what we need to bring it back to – there is no deck there. He noted he went through the same
mistake personally when he put in a driveway that encroached too far into a front yard, and as he went
forward he investigated how much it would cost to cut it back even though he was going for a variance.
Even though he knew that a mistake was made and so when he approached for a variance, he didn’t
approach that it’s there, can we change it. He said he approached from this is what I was thinking,
applied for a variance, and ignored the fact that it was already done.
Reed said as the Council is talking about this, he felt the compromise was reasonable, but cited the
March 2008 TSP report (page 8) that suggested the deck landing could be reduced by 10 inches and
still meet ADA. He said this is the compromise the Council is talking about and it’s in the TSP report.
We did need to go through each issue and receive comments first from staff. Reed asked Miller if he
agreed with that statement in the report. Miller said yes, he didn’t personally measure it, but the
architect did say it could be reduced 10 inches from the existing state and still meet ADA. That’s 10
inches at the 90% angle from the door. It would probably leave a little encroachment, a matter of a
couple inches, according to the architect. Larson said to clarify the guidelines, it’s going to pull the
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diagonal part back and part of the deck would still be at that 15 inch encroachment. Reed said the
point is that this type of work should have been done at the beginning, but instead the deck was
continuously worked on. What he comes back to is this is the kind of agreement we should have had in
the first place. If we want to negotiate how far it is, he’s okay with that. The question was all or none,
but he felt the point is are we going to do what can be done and that should have been done before
the deck was built. The deck doesn’t exist.
SUBSTITUTE (withdrawn): A substitute motion was made by Reed, seconded by Whaley, that
we follow the recommendation that is provided on page 8 of the TSP report, that the deck
could be reduced by 10 inches. Discussion on substitute motion: Thomson asked if it was 10 inches
on north side and nothing on thealley side. Reed said the alley doesn’t matter. Bartley had no problem
to reduce to 10 inches. Bartley suggested making it an amendment rather than a substitute so that the
other items could remain in the motion. Reed and Whaley withdrew the substitute motion. NO
ACTION WAS TAKEN.
FRIENDLY AMENDMENT: Reed made a motion to amend stating, “to follow the
recommendation that was provided on Page 8 of the TSP Report dated March 2008 in the
design of the deck as drawn being reduced by 10 inches.” Bartley and Munsterman accepted
the amendment as friendly.
ACTION: A motion was made by Bartley, seconded by Munsterman, to grant a
variance to allow for a structure to remain in the public right-of-way by reducing
the encroachment on the north side/sidewalk side by following the
recommendation that was provided on Page 8 of TSP report dated March 2008
report in the design of the deck as drawn being reduced by 10 inches, eliminate the
encroachment on the alley, and bring the deck into compliance for building code
and ADA.
Discussion: Larson asked to clarify, because it may be two different things. He said the architect
explained it to him that the 10 inches was from the door out so it would pull in the diagonal part but
not affect the other part of the north side. It would reduce the encroachment, but not everything would
be pulled in 10 inches and was concerned there was different interpretations. If this is pursuant to the
architect’s report that’s one thing, but if it’s to pull everything in 10 inches, that’s another. Munsterman
said the Council has made the motion pursuant to Mr. Wieskamp’s report and believed that was
identified.
Larson suggested a counter proposal. Ramsay was willing to pull in the north side by 10 inches
pursuant to the report, but the east side that encroaches by an inch or two he requested to leave it
where it is because the cost would be prohibitive. It would require cutting off theentire side of the deck
and replace it for two inches and the north side is an easier fix. In the spirit of compromise, we’re
asking to do that and Donna would appreciate it and maybe we could get this thing resolved. Weldon
asked if the deck rail would have to be adjusted anyway. Miller said the guard rail would have to be
raised. Larson said that wouldn’t include cutting two inches off of the deck. Miller said it would have to
be moved to cut two inches off. Larson said as far as bringing it up to code, grant the permit, grant the
variance, give us a reasonable amount of time to bring it up to code, that won’t be an issue.
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Bartley said it seems to him that the City would want to remove the encroachment on the alley as a
matter of practicality because the city may have requests in the future and there are other things
happening that encroach into the alley and he would hate to see the city go down the slippery slope of
allowing one and saying no to others after that. He recommended the Council stand fast on removing
the encroachment (in the alley) and agreed that it is an additional expense but so is going to Federal
Court, so he hoped we could resolve this and cut a couple inches off the deck and replace the railing
because we need to anyway. He’d feel more comfortable if we modified that and granted a few inches
in the front (sidewalk side).
Larson said as for a slippery slope, Robb Rasmussen was granted a four inch variance for ornamental
reasons and they’re asking for two inches here. It’s built, and he didn’t think people would go out and
start building decks that are ADA compliant that encroach into the city sidewalk. He thinks the counter
proposal is more than reasonable and willing to give in. She’s fought this for four years and now is
willing to comply with the architect’s report. He noted that the Council has the ability to grant that
variance and urged them to do so and asked that they not make her jump through any more hoops
and cut the rest of that deck off.
Munsterman asked if we are six inches or two inches into the alley. Miller said it’s either 6/10 or 8/10
of a foot.
Whaley said she was looking at this as more of a problem in the alley with snow and cars, that’s a
tremendous amount. With having to get the deck back onto Ramsay’s property, having to comply with
the one in the front, and we’re still encroaching out farther than six inches which is farther than
Rasmussen’s. She suggested it may be easier to remove the deck and start over when you’re talking
about the amount of time, effort, and material it would take to get the deck out of the right-of-way. It
may be easier to start over to make it smaller.
Larson said now we’re talking about the difference in the two surveys which was two inches. Ramsay
was told she couldn’t use the city’s survey. He questioned if she couldn’t use it then, why are we using
it now. Munsterman asked why she was told that she couldn’t use the survey. Larson said he didn’t
know, it should have been a matter of public record, but she was told that she could not submit the
City’s survey to satisfy criteria #3. Miller commented that the City paid for a survey for the court case.
The survey wasn’t done prior to going into court.
Whaley agreed with Bezdichek and noted that we have this big deck in the alley and it encroaches on
the sidewalk, but in order to go down to the banquet in Section A2 you have to go outside, around, and
come back in. She felt it was easier to start over from day one as if the deck doesn’t exist and
everything goes back to steps like it’s supposed to and everything is followed from there.
Thomson said she wants to see a ramp that allows accessibility up to that level, but she doesn’t want to
see it encroaching on public right-of-way. Regarding the earlier comment made about accommodating
students attending class at historic buildings by moving the class location, could also be said about
events held in this building. She suggested rather than the upper level, an event could be shifted to the
main level that allows them to access the building like able bodied people can.
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Reed said the way we’re looking at it, we are trying to work towards ADA and to say we’re not friendly
to it is unfair, because it was a process issue and we’re trying to work through it and that’s why he
recommended it the way that he did. He reiterated that the Council should look at this issue as if the
deck didn’t exist and how should it be done correctly.
Brunner agreed with Bartley about finding a compromise; the solution with the ten inches on the north
and following the TSP report. However, he is not as sympathetic to the additional cuts to the alley
because there was a stop work order issued that was not followed, and had some of this been taken
care of a few years ago we may not have had the additional costs of the alley encroachment. That is a
sticking point for him; the process with the lack of the permit and stop work order issued and yet the
deck was completed. He commented that the measurement discrepancies in the alley were something
we should have solved a few years ago. He liked the proposed compromise because it is workable, it
still meets ADA compliance and is still cognizant of the needs of someone in a wheelchair. It may
mean a little more work on the alley side of the deck, but it still meets the needs of those who need the
ADA compliance and at the same time not encroaching on the alley.
Larson asked for clarification on the motion the way it reads now.
Larson noted that per the judge’s order, the deck was to be removed by April 15th. He doesn’t know
what Ramsay will do. He asked if he could work on some agreement to extend that deadline.
Britzman said that timeline could be extended. It’s for the suspension of the fines, but the judge did
order the two parties to communicate but we were delayed a bit with additional information and that
shouldn’t work against Mrs. Ramsay. Britzman recommended we could work out an arrangement on
the timing to comply with the suspended fines.
Weldon asked if the city should have a date to get an answer from the property owner if this proposal
was acceptable. How long would she have to comply if the motion was approved with action taken?
Munsterman thought once the council votes, that decision is made and compliance would have to occur.
Britzman asked how long would she have to comply if this motion is approved with the action that
we’re taking tonight. We can work out arrangements on the fine suspension issue if the city council
allows him to do that.
Miller recommended 30-60 days regarding the timeframe to issue the permit. Bartley asked how long
once a permit is issued is normal to comply, or does the Council need to establish that time addressed
in a motion. Miller said it is until completion, or until work has stopped for 180 days. After that the
permit is revoked.
Thomson said she thinks the City Council is a reasonable group and she wanted to impress on people
that communication is key to any kind of progress that takes place. She noted that so many people,
when they have an issue before the Council, see each of the Council members individually which gives
the Council a better understanding of the issue. She hoped that if anyone has any issues in the future,
that they are afraid to communicate with the Council members individually.
Bartley commented to address Weldon’s question. If the Council passes the motion that sets the
building permit parameters in place, Mrs. Ramsay would have to apply for that permit in a timely
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fashion to avoid the court ordered fines. Would that be an administrative decision? Weldon asked
when we would get an answer if it is acceptable to the property owner or not.
Larson said it will take time to obtain a contractor and estimates. Donna will have to think about this.
If the building permit is granted and if Donna rejects the variance, then the building permit is gone.
We want to make sure that all votes are done tonight and they don’t have to come back before the
Council. He estimated it would take six months to finish construction.
Britzman asked if someone will be advised if she decides to not proceed.
Larson asked for 30 days to decide what to do.
Bartley asked how does that fit with the courts. Britzman and Larson would need to reach an
agreement on the fine suspension. With the appeal, the time period was suspended. Where we are at
right now is how much time is on the fines. This is a separate issue and not guiding us here. It is a
personal matter for Ramsay. Britzman noted that the applicants met the expectation of the court to
bring this issue to the Council so we should work out a reasonable timeframe to proceed with the deck
and removal process. Bartley asked if this should be an amendment or a separate motion. A separate
motion would be easier.
ON THE MOTION: All present voted yes; except Bezdichek voted no; motion carried.
ACTION: A motion was made by Brunner, seconded by Reed, that the property owner has
thirty (30) days to respond back to the city in terms on whether she will proceed. All present
voted yes; except Bezdichek voted no; motion carried.
Liquor License Process. Reed said the City Council has had one liquor operating
agreement on the shelf until a decision was made, which was done tonight. However, he was
concerned what happens with that license after July 1st. Does it go back on the shelf? He’d like
the Council to come back and discuss that process as to what happens to that license.
ACTION: A motion was made by Reed, seconded by Whaley, to place discussion on the April
15, 2008 work session regarding the process for the unrestricted liquor license after the
restaurant licenses are issued. Munsterman asked if the ordinance would take a month.
Britzman said he could have a draft for the April 15th meeting. Bartley said his full intention is that
we’ll issue that license once it comes back. He thinks we should and if Shenanigan’s is the proper
vehicle then we should address that, but still need a discussion to assess if we need to advertise again
or not. All present voted yes; motion carried.
Larson noted that the building permit issue hadn’t been addressed. Munsterman said the
building permit would not be council action. Britzman asked staff if any further information or
documentation was needed to proceed with the permit. Miller said they would need to work
out the encroachment on the east side noting there is a pin across the alley by the corner of
the Fite Building and maybe that can be verified by measurements in comparison with the
survey. Miller said he didn’t know if it’s 2 or 6 inches and that’s a lot of difference, and he
wants to know which survey he is supposed to follow. No further council action is needed.
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Adjourn. A motion was made by Thomson, seconded by Reed, to adjourn. All present voted
yes; motion carried. Meeting adjourned at 9:16 p.m.
CITY OF BROOKINGS
Scott D. Munsterman, Mayor
ATTEST:
Shari Thornes, City Clerk
April 15, 2008 City Council Packet
100
CONSENT AGENDA #4
C. Action on Resolution No. 31-08, a resolution designating
Pioneer Park for Summer Arts Festival.
Resolution No. 31-08
A Resolution Authorizing the Brookings Summer Festival
Committee to Have Exclusive Use of Pioneer Park
WHEREAS, the Brookings Summer Festival will be held in Pioneer Park on July 9-15, 2008, and
WHEREAS, the Summer Festival Committee has requested the exclusive use and control of
Pioneer Park and its facilities for said festival, plus additional days for preparation and take-
down, and
WHEREAS, the Summer Festival Committee has provided evidence of liability insurance
coverage including the City of Brookings as named insured, and
WHEREAS, the Summer Festival Committee has agreed to accept responsibility for the
conduct of the Summer Festival on said premises, now therefore,
BE IT HEREBY RESOLVED, that the use of Pioneer Park and its facilities as a public park shall
terminate for the period of July 9 through July 15, 2008.
BE IT FURTHER RESOLVED, that the City Council does hereby grant the exclusive use of
Pioneer Park and its facilities during the Brookings Summer Festival to the Summer Festival
Committee.
FURTHER, IT IS RESOLVED, that the Summer Festival Committee shall be responsible for
maintaining said facilities and cleaning them and returning them to the City of Brookings in good
condition following the festival.
Passed and approved this 15th day of April 2008.
CITY OF BROOKINGS
Scott D. Munsterman, Mayor
ATTEST:
Shari Thornes, City Clerk
April 15, 2008 City Council Packet
101
CONSENT AGENDA #4
D. Action on Resolution No. 32-08, a resolution approving
the official canvass of the April 8, 2008 municipal election
ballot.
RESOLUTION No. 32-08
Canvassing the April 8, 2008 Municipal Election
WHEREAS, on the 8th day of April 2008, there was held in the City of Brookings, South Dakota,
an election for the purpose electing three city council members, and
WHEREAS, the judges and clerks of said election have returned to the City Council of the
City of Brookings the official results for the purpose of the official canvass, and
WHEREAS, the City Council on April 8, 2008 has canvassed the results for the purpose of
determining the official election outcome, and
NOW, THEREFORE, BE IT HEREBY RESOLVED By the City Council of the City of Brookings, South
Dakota that the official vote at the City Election held April 8, 2008 was as follows:
City Council
1 Year (1)
Ryan
Brunner
Larry
Mix
Joyce
Hodges
Over
Votes
Under
Votes
Total
Ballots
Cast
Rural Ballots Cast Total Votes
Cast
Precinct 1
44 23 17 0 1 85 84
Precinct 2 131 42 64 0 8 245 237
Precinct 3 82 66 51 0 6 249 44 199
Precinct 4 271 137 139 6 17 595 27 545
Precinct 5 286 116 193 5 22 622 595
Precinct 6 204 109 96 3 24 436 409
TOTAL 1018 493 560 14 78 2232* 71 2069
City Council
3 Year (2)
Ginger
Thomson
Mike
Bartley
Mike
McClemans
Over
Votes
Under
Votes
Total
Ballots
Cast
Rural
Ballots
Cast
Total
Votes
Cast
Precinct 1
40 43 51 0 36 85 134
Precinct 2 131 145 124 0 90 245 400
Precinct 3 108 104 117 0 81 249 88 329
Precinct 4 304 308 336 0 192 595 54 944
Precinct 5 315 352 370 0 207 622 1037
Precinct 6 220 252 249 2 149 436 721
TOTAL 1118 1204 1247 2 755 2232* 142 3565
*2280 indicated on grand total, however, this includes 48 from Aurora.
Dated at Brookings, South Dakota, this 15th day of April 2008.
CITY OF BROOKINGS
___________________________
Scott D. Munsterman, Mayor
ATTEST:
____________________
Shari Thornes, City Clerk
April 15, 2008 City Council Packet
102
CONSENT AGENDA #4
E. Action on the appointment of Nancy Hartenhoff-Crooks
to the Transportation Board (Brookings Committee for
People who have Disabilities Representative).
Nancy Hartenhoff-Crooks is being appointed to the Transportation Board to
fill the unexpired term of Kurt Cogswell (01/01/2011) and is the official
representative from the Brookings Committee for People who have
Disabilities.
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CONSENT AGENDA #4
F. Action on an appointment of Jessie Kuechenmeister to
the Brookings Committee for People who have
Disabilities.
Jessie Kuechenmeister is being appointed to fill the unexpired term of Emily
Bennett (1/01/2009).
April 15, 2008 City Council Packet
104
CONSENT AGENDA #4
G. Action on Resolution No. 33-08, a resolution authorizing
the city manager to enter into a Fixed Base Operator’s
Agreement with Pheasant’s Fury Aviation, LLC.
City staff has been working with Randy Hanson, owner of Pheasant Fury Aviation, LLC
regarding a Fixed Based Operating Agreement and a Fuel Farm Hose Maintenance
Agreement.
The Fixed Based Operating Agreement provides for a five year term, which may be
renewed. The FBO agreement requires the FBO to offer services for the sale and
delivery of aviation fuels, flight line services, and maintenance of a 24-hour lobby to
serve pilots and aircraft personnel only. The FBO is also authorized to offer other
aviation services including operation of an aircraft maintenance repair shop, flight
training, sales of aviation parts and accessories, aircraft rental, charter operations, air
charter services, travel aviation and pilot shop.
The Fixed Base Operator Agreement does include a request for a monthly stipend of
$715.00 per month. After discussion with City Finance Director Rita Thompson, it was
determined this could be funded in the airport budget utilizing the advertising funds (not
needed at this time because there is no commercial service) and contractor services
funds (used occasionally if a private contractor is required for large snow events).
The Airport Board discussed the draft agreement at their March 17th and April 7th
meetings. The following is an excerpt from the Airport Board’s April 7th Meeting:
Discussion and Approval of Fixed Base Operator’s Agreement:
Motion by Lynn Riedesel, Second by Jim Bailey, to approve the Fixed Base Operator’s
Agreement. All present voted aye, Motion Passed.
This resolution will authorize the City Manager to enter into the Fixed Based Operator
Agreement with Pheasant’s Fury Aviation, LLC.
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Resolution No. 33-08
Resolution for Fixed Base Operator’s Agreement
WHEREAS, the City of Brookings is desirous in having a Fixed Base Operator at the
Brookings Regional Airport to serve the area aviation needs; and
WHEREAS, the City of Brookings is desirous in entering into an agreement with
Pheasant’s Fury Aviation, LLC of Brookings South Dakota for Fixed Based Operator services;
and
THEREFORE, BE IT RESOLVED that the City of Brooking duly authorizes the City
Manager of the City of Brooking to sign all documents for the Fixed Base Operator’s
Agreement between Pheasant’s Fury Aviation, LLC and the City of Brookings.
This resolution is effective immediately upon passage.
Passed and approved this 15th day of April 2008.
CITY OF BROOKINGS
____________________________
Scott Munsterman, Mayor
ATTEST:
________________________
Shari Thornes, City Clerk
April 15, 2008 City Council Packet
106
FIXED BASE OPERATOR’S AGREEMENT
THIS FIXED BASE OPERATOR’S AGREEMENT is entered into by and between the
CITY OF BROOKINGS, South Dakota, a Municipal Corporation, hereinafter referred to as
“CITY”, and PHEASANT’S FURY AVIATION, LLC of Brookings, South Dakota, (hereinafter
referred to as the “OPERATOR”),
WITNESSETH:
WHEREAS, the City owns and operates an Airport known as the Brookings Regional
Airport, located in Brookings, South Dakota (hereinafter referred to as the “Airport”) with the
power to grant rights and privileges with respect thereto; and,
WHEREAS, the Operator is engaged in the business of providing aeronautical services
to the general public as a Fixed Base Operator; and
WHEREAS, the City in its operation of the Airport deems it advantageous to enter into
an agreement with the Operator granting Operator the rights necessary to conduct a
nonexclusive Fixed Base Operation on the Airport; and
WHEREAS, the Operator owns the facilities necessary to conduct a Fixed Base
Operation and under a lease agreement with the City and leases adequate premises at the
Airport for the conduct of such Fixed Base Operation.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
herein contained and other valuable consideration, the City and Operator hereby mutually
agree as follows:
ARTICLE I – TERM
Section 1.1 Term. The initial term of this Agreement shall be five (5) years, beginning as
of June 1, 2008 and ending on May 31, 2013. This Agreement shall terminate at an earlier date if
Pheasant’s Fury Aviation, LLC, the City, and a third party enter into an agreement to have the
third party perform Fixed Base Operations in lieu of Pheasant’s Fury Aviation, LLC or as
otherwise allowed in accordance with this agreement.
Section 1.2 Option to Renew. Subject to Operator having performed the terms and
conditions of this Agreement during the initial term to the reasonable satisfaction of the City,
this agreement shall be renewed or extended with the approval of the City and such approval
shall not be unreasonably withheld. In the event of renewal or extension, the terms of any
renewal or extension shall be established by negotiation between the parties and incorporated
herein by written amendment.
ARTICLE II – FBO PREMISES
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Section 2.1 Fixed Base Premises. This Agreement does not lease or convey to Operator
any right to occupy or use any real estate, nor does it authorize Operator to construct any
facility improvements on the Airport. These rights are intended to be conferred in separate
lease agreements between the City and Pheasant’s Fury Aviation, LLC.
Section 2.2 Location where Services May Be Performed. Any and all buildings, grounds,
ramps or other facilities which may be necessary for the Operator to provide fixed base
operation services (“ FBO Services”) shall be leased pursuant to a separate lease referred to
above. The expiration or early termination, for any reason, of any such lease necessary for
Operator to provide required FBO Services, as defined hereinafter, and only such lease,
excluding any other leases to which Operator is a party and which are not necessary for
Operator to provide the required FBO Services, shall result in the immediate termination of
this Agreement without further notice; however, the expiration of the term, or early
termination of this Agreement shall not be deemed to be an event of default under or a reason
to terminate any of the other leases held by the Operator.
The specific buildings, ramps and other facilities leased by Operator, where Operator is
granted the right and obligation to provide each of the FBO Services defined in Section 3.1
hereof are shown on Exhibit “A”, which is attached hereto and made a part hereof.
ARTICLE III – RIGHTS AND OBLIGATIONS OF THE OPERATOR
Section 3.1 FBO Services. The Operator shall have the non-exclusive right, privilege
and obligation to provide the Required Services set forth in paragraph A below and shall have
the right but not the obligation to provide the Authorized Services set forth in paragraph B
below (the Required Services and the Authorized Services being hereinafter referred to
collectively as the “ FBO Services”). In performing the FBO Services, Operator shall (1)
demonstrate to the reasonable satisfaction of the City that Operator either (i) owns or
operates a fueling facility at the Airport that is adequate to provide the FBO Services, or (ii) has
an agreement for access to a fueling facility on the Airport that is adequate to provide the FBO
Services.
A. Required Services. The Operator shall be required to provide the following
services and facilities and engage in the following required activities at the Airport during
the normal business hours of operation and on-call twenty-four (24) hours per day,
three hundred sixty five (365) days per year:
1. The sale and into-plane delivery of aviation fuels, lubricants and other
related aviation products for both GA and commercial airline operations;
2. Flight line services and assistance to aircraft operators, and apron
servicing of aircraft, including, but not limited to, itinerant parking, ,
storage and tie down service, for both based and itinerant aircraft;
3. Maintenance of a 24 hour lobby facility to serve pilots and aircraft
personnel only;
4. In addition to the maintenance of a 24 hour lobby facility described in
Section A. 3., immediately above, Operator, upon payment by the City of
the sum of $715.00 per month, (this sum may be negotiated at the
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discretion of The City upon the return of EAS), will also make available
the following amenities and additional portions of Operator’s facilities as
shown on Exhibit “A-1”:
⇒ Upper level – approximately 340 square feet
Full kitchen, dining room table and chairs
⇒ Main level – approximately 1,244 square feet
Heated Foyer areas from parking lot and field
Pilot and passenger lounge/TV area
Work desk area
Free access to wireless internet and weather info
Free local phone service
Bathrooms
B. Authorized Services: In addition to the services required to be provided by the
Operator pursuant to Section 3.1, Paragraph A, Required Services, above, the Operator
is authorized, but not required, to provide the following services or activities:
1. Maintenance and operation of a repair shop for the repair and
maintenance of based and transient aircraft (aircraft power plant and
airframe maintenance and repair operations);
2. Sales, service and installation of avionic and engine parts and instruments
and accessories;
3. Flight training, including ground school;
4. Aircraft rental;
5. Aircraft charter operations; and
6. Air taxi service.
7. Special flight services, including aerial sight seeing, aerial advertising and
aerial photography; and
8. Sale of new or used aircraft;
9. Pilot Shop;
10. Sub-leasing of office and hangar space pursuant to the Airport Rules and
Regulations;
11. Catering of meals;
12. Travel Agency;
13. Hot-air de-icing
14. Car rental
15. Courtesy Car
C. No Other Services. The Operator is not authorized to engage in any other
business or provide any services at or in connection with the Airport except as
authorized herein without the written consent of the City, which consent shall not be
unreasonably withheld.
Section 3.2 Operating Standards. In providing any of the FBO Services, Operator shall
furnish good, prompt and efficient service adequate to meet all reasonable demands for the
FBO Services at the Airport and shall meet or exceed the following standards:
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A. FBO Standards. If the City hereafter adopts Standards for FBO Services at the
Airport that are reasonable and customary within the industry for operation of an FBO
(“ FBO Standards”), the Operator must meet or exceed the City’s FBO Standards to
the extent it is reasonably capable without resulting in undue expense or burden to the
Operator.
Operator understands and agrees that it will no longer have the right to provide
or perform a particular Required FBO Service if following thirty (30) days written
notice given by the City, clearly specifying the service deficiency, it fails to upgrade
and/or improve its performance of the particular Required Service to the reasonable
satisfaction of the City.
B. Services to be Non-Discriminatory. Operator shall offer the FBO Services
authorized herein on a fair, reasonable and non-discriminatory basis to all users of the
Airport. Operator shall charge nondiscriminatory prices for each unit of sale or service;
provided, however, that Operator may be allowed to make non-discriminatory
discounts, rebates or other similar types of price reductions.
C. Employees. Operator shall employ personnel with the necessary technical
qualifications and certificates or licenses as may be required to effectively and efficiently
provide the FBO Services required or authorized in this Agreement. Operator shall
provide any necessary training, and maintain close supervision and control over the
conduct, demeanor and appearance of its employees so as to assure a high standard of
service to its customers.
D. Laws, Rules and Regulations. Operator shall comply with all Federal, State and
local laws, rules, regulations and other local business requirements which may apply to
the conduct of Operator’s business authorized hereunder, including any applicable rules
and regulations promulgated by the City. Operator shall keep in effect and post in a
prominent place all necessary and/or required licenses or permits.
E. Environmental Protection. Operator represents and warrants that any handling,
transportation, storage, treatment or usage of toxic or hazardous substances by
Operator that will occur during the term of this Agreement or any renewals thereof
shall be in compliance with all applicable Federal, State and local laws, regulations,
administrative rulings, orders, ordinances and requirements, and all City and Airport
rules, regulations and requirements pertaining to the protection of the environment,
including but not limited to those regulating the storage, handling and disposal of waste
materials. Operator and any agent or party acting under the direction of, or with the
consent of Operator shall not receive, treat, store, transport, dispense or dispose of any
“hazardous substance” as defined in Section 101 (14) of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended from
time to time (“CERCLA”). Operator and any agent or party acting at the direction of, or
with the consent of, Operator shall not receive, store, transport, dispense or dispose of
any petroleum products (including crude oil or any fraction thereof) on any premises on
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the Airport except at and on any facilities of or on the Airport designated by the City
for the receipt, storage and dispensing of aviation fuels and lubricants including those
areas within Operator’s premises in which receipt, storage and dispensing of aviation
fuels and lubricants is customary and usual (e.g. Operator’s repair shop) (collectively
“Approved Fuel Farm”), and provided that, in the receipt, storage, handling, transport
and dispensing of any such aviation fuels and lubricants at or on such Fuel Farm and the
transport to and dispensing thereof into aircraft on the airport, Operator and any such
agent or party acting at the direction of, or with the consent of, Operator will conduct
such activities in accordance with all applicable laws, and the rules and regulations of the
Airport.
Section 3.3 Signage. Operator may, at its expense, install or place in or on the
Airport premises appropriate signage to identify its Fixed Base Operations. Said sign or signs
shall conform to any overall directional graphics or sign program or ordinances or regulations
established by the City and be of a size, shape and design, and placed at a location or locations
approved by City, which approval shall not be unreasonably withheld. Operator shall remove, at
its expense, all lettering, signs, and placards so erected on the Airport at the expiration of the
term of this Agreement.
Section 3.4 Rights Non-Exclusive. The rights granted to Operator hereunder are
not exclusive, and Operator agrees that the City may in its sole discretion grant to third parties
rights and privileges upon the Airport which are identical in part or in whole to those granted
to Operator, provided that such third parties are qualified to exercise such rights and privileges.
ARTICLE IV – USE OF AIRPORT
Section 4.1 Use of Public Airport Facilities. In providing the aeronautical services at the
Airport, the Operator shall be entitled to the nonexclusive use, in common with others
authorized by the City, of the Airport, including runways, taxiways, parking aprons, roadways,
appurtenances, and all facilities, equipment, improvements and services which have been, or
may hereafter be provided for common use at or in connection with the Airport.
Section 4.2 Ingress and Egress. The Operator shall have the right of ingress and egress
to and from the areas from which FBO Services are authorized by means of connecting
taxiways, roadways, streets, driveways and sidewalks designated by the City for such purpose,
for use in common with others having rights of passage thereon. The use of any such taxiways
or roadways shall be subject to the Rules and Regulations of the Airport which are now in
effect or which may hereafter be reasonably promulgated from time to time. The City may, at
any time, temporarily or permanently, close any such roadway or taxiway, as long as a
reasonable means of ingress and egress remains available to the Operator. The Operator
hereby releases and discharges the City, it’s Boards, officers, employees and representatives,
and all other governmental authorities and their respective successors and assigns, of and from
any and all claims, demands or causes of action which the Operator may at any time hereafter
have against any of the foregoing, arising or alleged to arise out of the closing of any areas
provided that a reasonable alternate means of access remains available to the Operator.
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Section 4.3 Obligations of City. City shall keep and maintain the Airport and its
appurtenances, including the landing area, lighting, runways, taxiways and roadways, and other
publicly owned facilities located thereon in such condition during the term of this Agreement as
will permit the safe landing and taking off of aircraft using the Airport; provided that in the
event of snow or ice storms, City shall have such time as is reasonably necessary in which to
clear the several Airport runways, taxiways and roadways of accumulated ice and snow.
The City reserves the right to take any action it considers necessary to protect the
aerial approaches of the Airport against obstruction, together with the right to prevent
Operator from erecting, or permitting to be erected any buildings or other structures on or
adjacent to the Airport which, in the reasonable opinion of the City, would limit the usefulness
of the Airport or constitute a hazard to aircraft.
ARTICLE V – FUELING FARM AGREEMENT
Section 5.1. Description of Fueling Farm. The City of Brookings' fueling farm consists of
the fuel tanks, equipment and apparatus described on Exhibit "B", attached hereto and made a
part of this agreement.
Section 5.2. Authorization, Term and Compliance. The City of Brookings hereby
authorizes Pheasant’s Fury Aviation, LLC to operate the fueling farm during the term of this
agreement in accordance with the terms and conditions of this agreement. Pheasant’s Fury
Aviation, LLC agrees that it will operate the fueling farm at all times during the term of this
agreement in accordance with the City of Brookings Airport Board By-laws, Operations
Manual, Rules and Regulations and the terms and conditions of this Agreement. During the
term of this Agreement, Pheasant’s Fury Aviation, LLC shall have the exclusive right to operate
the City of Brookings' fueling farm, but this shall not constitute an exclusive right to sell fuel at
the Brookings Municipal Airport.
Section 5.3. Term. The Fueling Farm portion of this Agreement shall remain in effect for
the same term as this FBO Agreement, however the Fueling Farm portion of this Agreement
may be terminated by either party by giving the other party written notice of at least thirty (30)
days. No cause is required to terminate the Fueling Farm portion of this Agreement upon said
thirty (30) days notice. The parties agree that upon termination of the Fueling Farm portion of
this Agreement, the fuel remaining in the fueling farm shall be measured and Pheasant’s Fury
Aviation, LLC shall be reimbursed for their cost of such fuel.
Section 5.4. Fee. In consideration for the operation of the fueling farm, Pheasant’s Fury
Aviation, LLC shall pay the City of Brookings a flowage fee of $.06 (Six Cents) per gallon for all
aviation fuel pumped from the City of Brookings' fueling farm and sold.
Section 5.5. Independent Contractor. Pheasant’s Fury Aviation, LLC is and shall
perform this Agreement as an independent contractor and, as such, shall have and maintain
complete control over all of its representatives and operations. Neither Contractor nor
anyone employed by it shall be, represent, act, purport to act, or be deemed to be the agent,
representative, employee or servant of the City of Brookings.
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Section 5.6. Access/Repairs/Inspections. The City of Brookings shall have access at all
times to the fueling farm for any purpose, except to operate the fueling farm during the term of
this Agreement, unless Pheasant’s Fury Aviation, LLC fails to operate the fueling farm prior to
the expiration of the thirty (30) day termination notice period. The City of Brookings may
make repairs as necessary, and will attempt to minimize the time when the fueling farm is not
available for operation. The City of Brookings, at its expense, will repair tanks and pumps if
there is a mechanical failure. Pheasant’s Fury Aviation, LLC will provide regular maintenance of
the fuel farm at their expense to include furnishing and installing filters and furnishing and
installing delivery hoses and grounding cables. The parties understand that a representative of
the City of Brookings may observe the fueling procedures and consult with representatives or
employees of Pheasant’s Fury Aviation, LLC as necessary concerning the operation of the
fueling farm.
Section 5.7. Indemnification. Each party shall defend, indemnify and save the other and
its Representatives harmless against all liabilities, losses, damages, costs and expenses which any
or all of them may hereafter incur or pay out as a result of the willful misconduct or negligent
acts or omissions of the indemnifying party or its Representatives.
Section 5.8 Insurance. Pheasant’s Fury Aviation, LLC shall not begin performance of this
Agreement until insurance, in coverages and amounts acceptable to the City of Brookings is
obtained, and until it has obtained such liability and errors and omissions insurance and
provided proof of such insurance in the form of a certificate of insurance to the City of
Brookings, naming the City of Brookings as an additional insured on all such insurance policies,
and in a form which is deemed satisfactory and appropriate by the City of Brookings.
Section 5.9 Miscellaneous. The obligations of the parties under this Section Five (5) are
of a continuing nature and effect and shall survive the termination of this Agreement.
ARTICLE VI – RENTALS & FEES
Section 6.1 Buildings and Land Rent. All rents for the use of any premises or facilities on
the Airport from which Operator provides FBO Services shall be as set forth in the separate
lease agreement between the City and Pheasant’s Fury Aviation, LLC
Section 6.2 FBO Fees and Charges. Operator agrees to pay to City, for the right and
privilege of providing the FBO Services, the following fees:
A. Fuel Flowage Fees. Operator shall, on or before the twentieth (20th) day of each
calendar month during the term hereof and of the calendar month immediately
following the end of the term of this Agreement, pay to the City, without further
demand, a fuel flowage fee of six (.06) cents per gallon for each gallon of aviation fuel
(avgas or jet-A), including “into plane” or “contract” fuel Together with its payment,
Operator shall submit to City copies of receipts which set forth the total number of
gallons of all fuel delivered by Operator’s fuel supplier as well as records of all fuel sold
by Operator during the preceding month so the City may verify the accuracy of the
amount of such fuel to which the fuel flowage fee applies.
City shall have the right to increase the fuel flowage fee rate from time to time.
City shall notify Operator in writing of its intent to increase the then prevailing fuel
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flowage fee rate, indicating the new rate proposed and the date such rate is scheduled
to go into effect, at least thirty (30) days prior to the proposed effective date. Operator
may appeal the implementation of the proposed new rates to the City by submitting a
request to the Airport Manager. The City may, but shall not be required to, adjust the
new rates based upon the comments or objections of Operator and the new rates
adopted by the City shall be final.
If during the term of this Agreement, aviation fuel (avgas or jet-A) should be
supplanted as an aircraft propellant, either totally or to any substantial degree, by any
other fuel (whether in a solid, liquid or gaseous state), the parties shall negotiate and
agree to the payment of a fee which, on the basis of the practice then existing in the
industry, will give the City a fair return based on the quantities of such other fuel or
fuels delivered to Operator at the Airport during the remaining term hereof.
Section 6.3 Failure to Pay Fees and Charges. In the event Operator shall fail to pay any
fee or charge hereunder, within fifteen (15) days after the same shall become due, such fee or
charge shall bear interest from the date such sum should have been paid until paid, with interest
at the rate of ten percent (10%) per annum. Notwithstanding the foregoing, the City may, at its
option, terminate this Agreement following the Operator’s failure to cure the default in
payment within seven (7) days after receipt of written notice.
ARTICLE VII – ASSIGNMENT & SUBLETTING
This Agreement, or any part hereof, may not be assigned, transferred or subleased by
either party, by process or operation of law or in any other manner whatsoever, without the
prior written consent of the City, which consent shall not be unreasonably withheld or delayed.
Any proposed assignment, transfer or sublease of a part or all of the rights and
privileges granted to Operator hereunder to a subcontractor or sub-licensee must be pursuant
to a written agreement that clearly specifies the services to be provided by such entity which
shall include a provision binding the sublessee to pay all fees due the City in accordance with
those fees prescribed herein. Operator shall remain fully responsible to the City for the
activities and unpaid fees of any services provided by such entities. Operator understands that,
in order to maintain responsibility and control, Required FBO Services may only be sublet or
sub-licensed to one party.
Operator shall submit to the City copies of proposed written agreements, together with
proof of insurance, and such other information or documentation as may be reasonably
required by the City. The City shall maintain a list of all approved agreements between
Operator and approved subcontractors and sub-licensees.
ARTICLE VIII – INDEMNITY AND INSURANCE
Section 8.1 Indemnification. Operator agrees at all times during the term of this
Agreement to indemnify, hold harmless and defend the City, its Boards, officers, employees and
representatives against any and all liability, including claims, demands, losses, damages, costs or
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expenses, including reasonable attorney fees, which the City, its Boards, officers, employees and
representatives may sustain, incur or be required to pay by reason of bodily injury, personal
injury or property damage of whatsoever nature or kind arising out of or in connection with or
occurring during the course of this Agreement unless such liability arises out of the negligence
of the City, its Boards, officers, employees and representatives.
Section 8.2 Environmental Indemnification.
A. Operator hereby agrees to indemnify, defend, protect, and hold harmless
City, its Boards, employees, and representatives, and their respective successors
and assigns, from any and all claims, judgments, damages, penalties, fines, costs,
liabilities, and losses (including, without limitation, loss, or restriction on use of
rentable space or sums paid in settlement of claims, reasonable attorneys’ fees,
consultant’s fees, and expert’s fees) that arise during or after the term of this
Agreement directly or indirectly from the presence of hazardous materials on, in,
or about the premises used by Operator to provide FBO Services hereunder, or
elsewhere on the Airport if such claims, judgments, damages, penalties, fines,
costs, liabilities, and losses (including, without limitation, loss, or restriction on use
of rentable space or sums paid in settlement of claims, attorneys’ fees, consultant’s
fees, and expert’s fees) result from events perpetrated or caused by Operator or
Operator’s agents.
This indemnification by Operator of City, its Boards, employees, and
representatives, includes, without limitation, any and all costs incurred in
connection with any investigation of site conditions or any cleanup, remedial,
removal, or restoration of work required by any federal, state, or local
governmental agency or political subdivision because of the presence of such
hazardous material in, on, or about any premises used by Operator to provide
FBO Services, or the soil or ground water on or under any buildings, or any
portion thereof, leased or used by Operator at the airport. Operator shall
promptly notify City of any release of hazardous materials in, on, or about any
premises used by Operator to provide FBO Services that Operator becomes
aware of during the term of this Agreement, whether caused by Operator, its
agent, or other persons or entities.
B. The City hereby agrees to indemnify, defend, protect and hold harmless
Operator, its owners, employees, and representatives, and their respective
successors and assigns, from any and all claims, judgments, damages, penalties,
fines, costs, liabilities, and losses (including, without limitation, loss, or restriction
on use of rentable space or sums paid in settlement of claims, reasonable
attorneys’ fees, consultant’s fees, and expert’s fees) that arise during or after the
term of this Agreement directly or indirectly from the presence of hazardous
materials on, in, or about the premises, or elsewhere on the Airport if such
claims, judgments, damages, penalties, fines, costs, liabilities, and losses (including,
without limitation, loss or restriction on use of rentable space or sums paid in
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settlement of claims, attorneys’ fees, consultant’s fees, and expert’s fees) result
from events perpetrated or caused by the City.
This indemnification by City of Operator, its owners, employees, and
representatives, includes, without limitation, any and all costs incurred in
connection with any investigation of site conditions or any cleanup, remedial,
removal, or restoration of work required by any federal, state, or local
governmental agency or political subdivision because of the presence of such
hazardous material in, on, or about any premises used by Operator to provide
FBO Services, or the soil or ground water on or under any buildings, or any
portion thereof, leased or used by Operator at the airport. City shall promptly
notify Operator of any release of hazardous materials in, on, or about the Airport
that City becomes aware of during the term of this Agreement, whether caused
by City, its agent, or other persons or entities, however City shall not be
obligated to indemnify Operator if the release of hazardous materials is caused by
such other persons or entities or other airport users or airport tenants.
Section 8.3 Compliance with Labor Laws and Regulations. Operator shall comply with
all Federal, State and local codes, laws, regulations, standards, and ordinances, including those of
the Occupational Safety and Health Administration (OSHA), the South Dakota Department of
Labor and all City rules and orders governing the providing of the services and sale of goods
provided for under this Agreement.
Section 8.4 Insurance. Operator agrees that, in order to protect itself and the City, its
Boards, employees and representatives under the indemnity provisions of this Article 8,
Operator will at all times during the term of this Agreement procure and keep in force and
effect insurance policies as outlined in Exhibit “C”. Operator shall provide copies of such
policies of insurance to City upon request.
Policies shall be issued by a company or companies authorized to do business in
the State of South Dakota. The City shall be given thirty (30) days advance notice of
cancellation or nonrenewal, or material reduction of coverages during the term of this
Agreement. Upon execution of this Agreement, Operator shall furnish City with a certificate of
insurance, with the City shown as an additional insured. City reserves the right to reasonably
amend the monetary limits or coverages herein specified during the term of this Agreement to
provide for inflationary conditions and changes in the size and extent of Operator’s business,
but in so doing will give Operator at least thirty (30) days prior written notice. In the event any
action, suit or other proceeding is brought against the City, upon any matter herein indemnified
against, the City shall, within five (5) working days, give notice thereof to the Operator and
shall cooperate with their attorneys in the defense of the action, suit or other proceeding.
If Operator fails to comply with the terms of this Section, City shall have the right, but
not the obligation, to cause insurance as aforesaid to be issued, and in such event Operator
shall pay the premium for such insurance as additional rent upon the City’s demand.
ARTICLE IX – RULES & REGULATIONS
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Operator agrees to observe and obey all applicable laws, orders, ordinances or
regulations of any governmental agency or authority with jurisdiction over the Airport, as may
be amended from time to time, including, but not limited to, rules and regulations of the
Federal Aviation Administration (“FAA”) or the Transportation Security Administration
(“TSA”) and all rules and regulations of the City as established by the City Council, Airport
Board or Airport Manager, governing the conduct and operation of the Airport and its facilities.
Operator shall comply with all applicable rules, regulations and procedures of the City
as established by the Airport Board, Airport Manager, and FAA and TSA relating to Airport
security and shall control its FBO Operation so as to prevent unauthorized persons from
gaining access to the air operations area of the Airport. Operator shall be responsible for and
pay, as an additional fee, any fine or other penalty assessed against the City as a result of
Operator’s breach of this section. If such rules and regulations become burdensome and create
a financial hardship, this agreement may be terminated for this reason by Operator upon thirty
(30) days written notice to the City.
ARTICLE X – GOVERNMENT REQUIREMENTS
Section 10.1 Grant Assurances. This Agreement shall be subject and subordinate to the
provisions of any existing or future agreement between the City and the United States, or any
agency thereof, relative to the operation and maintenance of the Airport, the execution of
which has been or may be required as a condition precedent to the expenditure of Federal
funds for the development or operation of the Airport; and any lawful assurances, heretofore
or hereafter given by the City to the United States or the State of South Dakota, in respect to
and in connection with any grants or aid for the improvement of the Airport.
Section 10.2 Non-Discrimination. Notwithstanding any other or inconsistent provision
of this Agreement, during the performance of this Agreement, Operator, for itself, its heirs,
personal representatives, successors in interest and assigns, as part of the consideration for this
Agreement, does hereby covenant and agree that:
A. No person shall be excluded from participation in, denied the benefits of, or
otherwise be subjected to discrimination in the use of the Airport premises affected by conduct
of the Fixed Base Operator’s business on the grounds of race, color, religion, sex or national
origin;
B. No person shall be excluded from participation in, denied the benefits of, or
otherwise be subject to discrimination in the construction of any improvements on, over or
under the Airport premises, and the furnishing of services therein or thereon, on the grounds
of race, color, religion, sex or national origin;
C. Operator shall use the Airport in compliance with all other requirements
imposed by or pursuant to Title 49, Code of Federal Regulations, Department of
Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally
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Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil
Rights Act of 1964, and as said regulations may be amended.
In the event of breach of any of the above nondiscrimination covenants, the City shall
have the right to terminate this Agreement, to re-enter and repossess any Airport premises
used by the Operator that are necessary for and used by Operator to provide FBO Services
pursuant to this Agreement and hold the same as if said Agreement had never been made or
issued. This provision does not become effective until the procedure of 49 CFR Part 21 have
been followed and completed, including expiration of appeal rights.
Section 10.3 Airport Development. It is understood and agreed that the rights granted
by this Agreement will not be exercised in such a way as to interfere with or adversely affect
the use, operation, maintenance, or development of the Airport.
Section 10.4 Airport Protection Clause. The City hereby reserves for the use and
benefit of the public, the right of aircraft to fly in the airspace overlying the Airport land,
together with the right of said aircraft to cause such noise as may be inherent in the operation
of aircraft landing at, taking off from, or operating on or in the vicinity of the Airport, and the
right to pursue all operations of the Airport.
ARTICLE XI – NOTICES
Any notice under this Agreement shall be in writing and shall be deemed to be duly
given if delivered personally or sent by registered or certified mail, to the following address, or
such other address as the parties may designate to each other in writing from time to time:
1. To City, address to:
Brookings Regional Airport
311 Third Avenue, P.O. Box 270
Brookings, SD 57006
Attention: Airport Manager
2. To Fixed Base Operator, address to:
Pheasant’s Fury Aviation, LLC
1311 Main Ave. S.
Brookings, SD 57006
Attn: Randy Hanson
ARTICLE XII – DEFAULT AND TERMINATION
Section 12.1 Termination By Fixed Base Operator. Provided Operator is not in default
of its obligations hereunder, this Agreement shall be subject to termination by Operator upon
the happening of any one or more of the following events of default:
A. the Operator loses its rights to operate at the Airport for a period of ninety (90)
consecutive days because of the exercise of the power of a governmental
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authority;
B. the substantial damage to or destruction of all or a material part of the Airport
facilities necessary for Operator’s Fixed Base Operation if such damage is not to be
repaired and it materially limits the Operator’s ability to provide the FBO Services;
C. the default by the City in the performance of any of the terms, covenants or
conditions of this Agreement, and the failure of the City to remedy, or undertake to
remedy such default for a period of thirty (30) days after receipt of written notice from
Fixed Base Operator specifying the default.
Section 12.2 Events of Default-Termination By City. This Agreement shall be subject to
termination by City upon the happening of any one or more of the following events of default:
A. the failure of Operator to make any payment of fees or any other payment required
to be made by Operator hereunder when due which failure is not remedied within ten
(10) days after receipt by Operator of City’s written demand;
B. the failure of Operator to keep, observe or perform any of the other terms or
conditions of this Agreement to be kept, observed or performed by Operator, including
but not limited to the failure to perform any of the Required or Authorized FBO
Services to the reasonable satisfaction of the City, and the continued failure to observe
or perform any such terms or conditions after a period of thirty (30) days after receipt
by Operator of City’s written demand except with respect to Authorized FBO Services
in which case Operator may terminate the authorized service which is the subject of the
default within said thirty (30) day period and upon such termination of the service, such
default shall be deemed cured;
C. the repeated failure (defined for this purpose as at least three (3) such failures within
any consecutive twelve (12) month period) to make any payment of fees or any other
payment required to be made by Operator within ten (10) days after such payment is
due as herein provided whether or not such failure had previously been cured by
Operator following receipt of written notice of default from City;
D. the reported failure (defined for this purpose as at least three (3) such failures within
any consecutive twelve (12) month period) to keep, observe or perform any of the
other terms conditions of this Agreement to be kept, observed or performed by
Operator, including but not limited to the failure to perform any of the Required or
Authorized FBO Services to the reasonable satisfaction of the City, whether or not such
failure had previously been cured by Operator following receipt of written notice of
default from City;
E. the filing by Operator of a voluntary petition in bankruptcy, including a
reorganization plan, the making of a general or other assignment for the benefit of
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creditors, the adjudication of Operator as bankrupt or the appointment of a receiver for
the property or affairs of Operator and such receivership is not vacated within thirty
(30) days after the appointment of such receiver.
Section 12.3 Exercise of Termination Rights Due to Default. Upon the occurrence of an
event of default as set forth in Sections 12.1 and 12.2 above, giving rise to the right by the non-
defaulting party to terminate this Agreement, such termination shall be effective only upon
written notice to the defaulting party of such termination and this Agreement shall terminate
immediately following receipt of such written notice to the defaulting party unless the notice
provides for a later termination date.
ARTICLE XIII – MISCELLANEOUS PROVISIONS
Section 13.1 Relationship of Parties. Operator is an independent contractor. Nothing
contained in this Agreement shall be deemed or construed by City or Operator or by any third
party to create the relationship of principal and agent or of partnership or of joint venture or of
any association whatsoever between City and Operator.
Section 13.2 Rights Cumulative. No Waiver by either party of any violation or breach of
any of the terms, provisions and covenants of this Agreement shall be deemed or construed to
constitute a waiver of any other violation or breach of any of the terms, provisions and
covenants herein contained. Except as otherwise expressly provided in this Agreement, all
rights and remedies of each party enumerated herein shall be cumulative and none shall exclude
any other right or remedy allowed by law or in equity. Likewise, except as otherwise expressly
provided herein, the exercise by a party of any remedy provided for herein or allowed by law
or in equity shall not be to the exclusion of any other remedy. The failure of a party to insist
upon the other party’s compliance with any of that party’s obligations under this Lease in any
one or more instances shall not operate to release the other party from its obligation to
comply with all of its other obligations and requirements under this Agreement.
Section 13.3 Force Majeure. Neither party shall be held to be in breach of this
Agreement if it is prevented from performing any of the obligations hereunder by reason of
strikes, boycotts, labor disputes, embargoes, shortage of energy or materials, acts of God, acts
of sabotage, or any other circumstances for which it is not responsible or which are not within
its control; provided, however, this section shall not apply to or relieve Operator of the
obligation of paying the fees, rents or other charges payable to the City pursuant to this
Agreement or any other agreement or lease between Operator and City except in the event
that the national airspace is closed by governmental order for a period in excess of 30 days in
which case Operator’s fees shall abate during such period of time.
Section 13.4 Invalidity. The City and Operator agree that in the event any covenant,
condition or provisions herein contained is held to be invalid by any court of competent
jurisdiction, the invalidity so determined shall in no way affect any other covenant, condition or
provision herein contained; provided that such invalidity does not materially prejudice either
the City or the Operator in their respective rights and obligations contained in the valid
covenants, conditions and provisions of this Agreement.
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Section 13.5 Conflict of Laws. This Agreement was made in and shall be governed by
and construed in accordance with the laws of the State of South Dakota. If any covenant,
condition or provision contained in this Agreement is held to be invalid by any court of
competent jurisdiction, such invalidity shall not affect the validity of any other covenant,
condition or provision herein contained.
Section 13.6 Attorneys’ Fees. If the City incurs any expenses (including, but not limited
to, court costs and reasonable attorneys’ fees) as a result of a default by Operator under this
Agreement, then such expenses shall be reimbursed by Operator as additional rent, whether or
not such default is subsequently cured. Further, if any legal proceeding at law or in equity arises
hereunder or in connection herewith (including any appellate proceedings or bankruptcy
proceedings), the prevailing party shall be awarded costs, reasonable expert fees and reasonable
attorneys’ fees incurred in connection therewith (including fees and charges for services of
paralegals or other personnel who operate for and under the supervision of such attorneys and
whose time is customarily charged to clients).
If the Operator incurs any expenses (including, but not limited to, court costs and
reasonable attorneys’ fees) as a result of a default by the City under this Agreement, then such
expenses shall be reimbursed by the City, whether or not such default is subsequently cured.
ARTICLE XIV – PRIOR FIXED BASE OPERATION AGREEMENTS
City and Operator agree that this Agreement, together with the Exhibits attached
hereto, contains the entire agreement between the Parties concerning the right to perform
FBO Services and conduct a Fixed Base Operation at the Airport, and that all other
representations or statements heretofore made, whether verbal or written, are merged herein.
However, this Agreement shall not affect the validity of any existing lease between the
City and Operator. In the event there shall be a conflict between the provisions of this
Agreement and any other existing agreement between City and Operator the provisions of
each Agreement shall be interpreted to give effect to all of their respective provisions.
This Agreement may be amended only in writing, executed by duly authorized
representatives of each party.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals this ____
day of _______________________, 2008.
CITY OF BROOKINGS
By: ________________________________
City Manager
ATTEST:
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____________________________________
City Clerk
PHEASANT’S FURY AVIATION, LLC
By: ________________________________
__________________________
Its: __________________________
Exhibit “A”
Leased Facilities
________________________________________
A tract of land, being 13,589 square feet, including a hangar being approximately 130 feet by 82
feet, to also include two small entrance vestibules, situated in the Northwest One-fourth of the
Southwest One-fourth (NW¼SW¼), Section Twenty-six (26), Township One Hundred Ten
(110) North, Range Fifty (50) West of the 5th P.M., Brookings County, South Dakota, which
tract has been measured and described as Lot “X”, and shown on Exhibit “A”
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Exhibit “B”
Description of Fueling Farm Facilities
________________________________________
1. Two 6,000 gallon underground Av Gas tanks with an above ground cabinet housing the
hose and pumps
2. One 10,000 gallon underground Jet A tank with an above ground cabinet housing the
hose and pumps
3. One Fuel Master FMU 2500 control unit with credit card capabilities, a receipt printer
and a smart card reader for use with the Av Gas system
4. One transaction printer for use inside the FBO building
5. One computer to be connected to the Fuel Master FMU 2500 unit from inside the FBO
building
6. One smart card encoder for use with the computer previously stated
7. Access to the Terminal Building to use the Fuel Monitoring System located in the utility
room
Below is a picture with the Fueling Farm Facilities highlighted in red
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Exhibit “C”
Insurance Requirements of Fixed Base Operator
________________________________________
General liability insurance protecting both the City and Operator against claims for injury or
damages to persons or property, said policy to have general liability limits of at least One Million
Dollars ($1,000,000.00) single limit, and One Million Dollars ($1,000,000.00) aggregate. The
general liability insurance limits are subject to change and Operator agrees to change limits of
insurance if required by the City.
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CONSENT AGENDA #4
H. Action on a request from Michael and Susan Dorn to
abate a portion of the 2008 Drainage Fee for the N 465’
of the S 500’ of the E 419.25 of the NE ¼ of Section 30-
110-49.
The City Engineer received a request from Michael and Susan Dorn to examine the
drainage fee for Parcel 40960-11049-301-05, N 465’ of S 500’ of E 419.25’ of NE ¼, of
Section 30-110-49 (no address for this parcel). This is a 4.47 acre parcel which is
currently a bare property. However, the drainage fee was calculated as though it were
a developed property. The fee for an undeveloped property is much less than the fee
for a developed property. The correct drainage fee is as follows:
2008 drainage fee charged: $1,282.91
2008 drainage fee recalculated: $70.10
Amount to be abated from 2008 taxes: $1,212.81
The Brookings County will abate this amount after approval from the City Council.
Jackie Lanning, PE
Brookings City Engineer
PO Box 270
311 3rd Avenue
Brookings, SD 57006
605-692-6629
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CONSENT AGENDA #4
I. Action on a request from Michael and Susan Dorn to
abate a portion of the 2008 Drainage Fee for Lot 5,
Vandervliet Addition, known as 2209 32nd Street South.
The City Engineer received a request from Michael and Susan Dorn to examine the
drainage fee for Lot 5, Vandervliet Addition, otherwise known as 2209 32nd Street
South. This is a 5 acre parcel which is currently a bare property. However, the
drainage fee was calculated as though it were a developed property. The fee for an
undeveloped property is much less than the fee for a developed property. The correct
drainage fee is as follows:
2008 drainage fee charged: $1,143.68
2008 drainage fee recalculated: $78.41
Amount to be abated from 2008 taxes: $1,065.27
The Brookings County will abate this amount after approval from the City Council.
Jackie Lanning, PE
Brookings City Engineer
PO Box 270
311 3rd Avenue
Brookings, SD 57006
605-692-6629
April 15, 2008 City Council Packet
128
CONSENT AGENDA #4
J. Action on Resolution No. 36-08, awarding bids for 2008-
02STA 15th Street South, Camelot Drive, & Christine
Avenue Street Assessment Project.
This project is an assessment project that is located adjacent to the new elementary school site.
The City Council approved Resolution No. 32-07, which authorized the City to proceed with
the assessment project. The project includes water and sanitary sewer mains and services,
storm sewer, grading, gravel, and curb & gutter. The majority of the project costs will be
assessed, and the City will also pay for the extra width and thickness costs for 15th Street South,
and oversize pipe costs for the 30” diameter storm sewer. The street portion of the project
was designed by the City Engineering staff, and the utility portion of the project was designed by
Banners Associates. The project will be administered by the City Engineering department.
Bids were opened on Tuesday, April 8, 2008 at 1:30 pm at Brookings City Hall and we received
the following bids:
Winter Brothers Underground, Inc., Sioux Falls, SD $493,000.00
Prunty Construction Co., Inc., Brookings, SD $500,000.00
Rounds Construction Co., Inc., Brookings, SD $515,454.80
Bowes Construction, Inc., Brookings, SD $517,482.20
H & W Contracting, Sioux Falls, SD $651,812.10
Scott Olson Digging, Huron, SD $691,460.95
The low bid $493,000 was approximately 25% lower than the engineer’s estimate of
$655,050.00. Recommend awarding the project to the low bid of $493,000 from Winter
Brothers Underground, Inc., of Sioux Falls, SD.
Resolution No. 36–08
Resolution Awarding Bids on Project 2008-02STA
15th Street South, Camelot Drive and Christine Avenue Assessment Project
Whereas, the City of Brookings opened bids for Project 2008-02STA 15th Street South, Camelot Drive
and Christine Avenue Assessment Project on Tuesday, April 8, 2008 at 1:30 pm at Brookings City Hall; and
Whereas, the City of Brookings has received the following bids for Project
2008-02STA 15th Street South, Camelot Drive and Christine Avenue Assessment Project:
Winter Brothers Underground, Inc., Sioux Falls, SD $493,000.00
Prunty Construction Co., Inc., Brookings, SD $500,000.00
Rounds Construction Co., Inc., Brookings, SD $515,454.80
Bowes Construction, Inc., Brookings, SD $517,482.20
H & W Contracting, Sioux Falls, SD $651,812.10
Scott Olson Digging, Huron, SD $691,460.95
Now Therefore, Be It Resolved that the low bid of Winter Brothers Underground, Inc., Brookings,
for $493,000.00 be accepted.
Passed and approved this 15th day of April 2008.
April 15, 2008 City Council Packet
129
CONSENT AGENDA #4
K. Action on a revised Preliminary Plat of a portion of Block
8, 10, and 11, Moriarty 4th Addition.
Applicant: Paul Moriarty
Proposal: Modify the lot layout of a residential subdivision
Background: This area has been under continual revision since 1989. The developer has
presented several plans over the years that involved changes to streets and area
densities.
Specifics: This plan is a revision from the one approved in June 2005. The major change
is the addition of lots along the north side of Torrey Pines Drive. There are minor
revisions to Blocks 10 and 11.
This proposal will prevent access to the remainder of Block 8 from 17th Avenue
South and Torrey Pines Drive. This area has transitioned from a traditional lower
density design to a residential block design that usually indicates future high-density uses.
Most of Block 8 is unplatted so access can be controlled, as needed, through the final
platting process. City Engineer’s Comment: Drainage: This portion of the Moriarty
Fourth Addition does not have a preliminary drainage plan. I anticipate that the
detention pond would be located on Lot 2; however, this will be indicated on the
drainage plan. Recommend approval of this preliminary plat contingent upon an
approved preliminary drainage plan.
Recommendation: The Planning Commission voted 6 yes and 0 no to
recommend approval of the preliminary plat subject to an approved
preliminary drainage plan. This plan has now been approved so the
contingency is lifted.
April 15, 2008 City Council Packet
130
Planning Commission
Brookings, South Dakota
February 5, 2008
OFFICIAL MINUTES
Vice-chairperson Greg Fargen called the regular meeting of the City Planning
Commission to order on February 5, 2008 at 7:00 PM in the Council Chamber at City Hall.
Members present were David Kurtz, Stacey Howlett, Mike Cameron, Al Gregg, Al Heuton, and
Fargen. John Gustafson, Larry Fjeldos, and Curt Ness were absent. Others present were Scott
Hodges, Keith Rounds, Dean Gulbranson, Peter Mork, City Engineer Jackie Lanning, Planning
Administrator Dan Hanson, and others.
Item #3 – Paul E. Moriarty has submitted a preliminary plat of a portion of Blocks 8, 10, and
11, Moriarty Fourth Addition
(Kurtz/Cameron) Motion to approve the preliminary plat.
(Cameron/Kurtz) Amendment to the motion to add “contingent upon approval of a
preliminary stormwater drainage plan.” All present voted aye. AMENDMENT CARRIED.
The motion, as amended, was voted on. All present voted aye. MOTION CARRIED.
SUMMARY OF DISCUSSION
Item #3 – Hanson reviewed the previous designs and noted that the plan was a partial revision
of three blocks. Scott Hodges asked where the stormwater detention would be. Lanning
replied that Lot 10 in Block 11 and an area in the southwest corner of the unplatted portion of
Block 8 were proposed. She added that the preliminary drainage plan was not approved yet for
the basin.
April 15, 2008 City Council Packet
134
CONSENT AGENDA #4
L. Action on Preliminary Plat for Sieler Addition in the NW
¼ of the SE ¼ of Section 35-110-50 (formerly Hunter’s
Ridge).
Applicant: Oakwood Equity Group LLC
Proposal: Create a medium-density residential subdivision
Background: A previous preliminary plat for this area was approved in 1979 and later
modified in 1992. No final platting occurred in the area but development to the south
and east has reached the boundaries of this acreage. The land was rezoned for medium-
density residential development in early February 2008.
Specifics: The various elements of this subdivision plan are addressed below:
Street Design – All streets and cul-de-sacs in the subdivision are “local” streets and
meet minimum width and radius requirements. Cardinal Drive and Remington will be
extended into the subdivision.
Land Design – The subdivision consists of lots around two cul-de-sacs and a row of lots
that abut an existing row in an adjacent subdivision. The lots range in size from
approximately 7,000 square feet to 16,500 square feet. Lots 22, 24, and 26 do not meet
the minimum lot area requirements of the district. I recommend that these lots be
increased in size versus granting a variance.
Open Space – The plan involves nine (9) acres. Therefore, no open space is planned.
Pheasant Nest Park is approximately 1½ blocks to the northeast.
Drainage Plan – Surface drainage flows generally from southwest to northeast. Specifics
will be addressed by the city engineer.
Grading Plan – Grading is expected to be minimal based on preliminary design
information.
City Engineer’s Comments: We have not received a preliminary drainage plan for this
development, although the consultant is developing one. I anticipate the detention
would be located in the northern part of the development; however, I do not have any
plans to that effect. I will give the Planning Commission a verbal update regarding the
status of the drainage plan at the meeting.
Recommendation: The Planning Commission voted 6 yes and 0 no to
recommend approval of the preliminary plat subject to approval of a
preliminary drainage plan. The city engineer has received and approved a
preliminary drainage plan and has thereby removed the contingency.
April 15, 2008 City Council Packet
135
Planning Commission
Brookings, South Dakota
March 4, 2008
OFFICIAL MINUTES
Chairperson Greg Fargen called the regular meeting of the City Planning Commission to
order on March 4, 2008 at 7:45 PM in the Council Chamber at City Hall. Members present
were David Kurtz, Stacey Howlett, Curt Ness, Al Gregg, Al Heuton, and Fargen. John
Gustafson, Larry Fjeldos, and Mike Cameron were absent. Also present were Mark Mattecheck,
City Engineer Jackie Lanning, Planning Administrator Dan Hanson, and others.
Item #3 – Dean Krogman has submitted a preliminary plat of the Sieler Addition in the NW¼
of the SE¼ of Section 35-T110N-R50W.
(Kurtz/Ness) Motion to approve the preliminary plat
(Kurtz/Gregg) Amendment to the motion to add “provide a preliminary stormwater
drainage plan is approved by the city engineer.” All present voted aye. AMENDMENT
CARRIED.
The motion, as amended, as voted on. All present voted aye. MOTION CARRIED.
SUMMARY OF DISCUSSION
Item #3 – The various elements of the plan were reviewed by the Comission. Hanson noted
that a revised preliminary plan showed all lots as meeting the frontage width and lot area
requirements.
Kurtz asked if the preliminary drainage plan had been approved. Lanning replied no and
recommended a contingency to any motion to approve. Heuton asked what type of density was
planned for the subdivision. Mark Mattecheck, representing the developers, stated that 33
single-family homes were proposed.
April 15, 2008 City Council Packet
138
Presentations/Reports/Special Requests:
5. Mayoral Proclamations:
o April 13-19 - Public Safety Telecommunicator’s Week
(Joint City/County Proclamation)
A representative of Brookings 911 Dispatch will be present to
accept the proclamation.
o May 14th - Brookings Activity Center Day
April 15, 2008 City Council Packet
139
National Public Safety Telecommunicator’s Week
April 13-19, 2008
WHEREAS, emergencies can occur at anytime that require police, sheriff, fire or emergency
medical services;
WHEREAS, when an emergency occurs the prompt response of police officers, sheriff’s
deputies, firefighters and paramedics is critical to the protection of life and preservation of
property;
WHEREAS, the safety of our police officers, sheriff’s deputies, firefighters and paramedics is
dependent upon the quality and accuracy of information obtained from citizens who telephone
the Brookings Communications Center;
WHEREAS, Public Safety Call Telecommunicators are the first and most critical contact our
citizens have with emergency services;
WHEREAS, Public Safety Telecommunicators are the single vital link for our police officers,
sheriff’s deputies, firefighters and paramedics by monitoring their activities by radio, providing
them information and insuring their safety;
WHEREAS, Public Safety Telecommunicators of the Brookings Communications Center have
contributed substantially to the apprehension of criminals, suppression of fires and treatment of
patients;
WHEREAS, each Telecommunicator has exhibited compassion, understanding and
professionalism during the performance of their job in the past year;
THEREFORE BE IT RESOLVED, that the City Council of the City of Brookings and the County
Commission of the County of Brookings declare the week of April 13-19, 2008, to be the
National Telecommunicator’s Week in the City and County of Brookings, in honor of the men
and women whose diligence and professionalism keep our city, county and citizens safe.
April 15, 2008 City Council Packet
140
IN WITNESS WHEREOF, I have hereunto set forth my hand and caused to be affixed the Great Seal of
the City of Brookings, this 31st day of March, 2008.
Scott D. Munsterman, Mayor
Deanna Santema, County Commission
Chairperson
April 15, 2008 City Council Packet
141
MAYORAL PROCLAMATION
CITY OF BROOKINGS, SOUTH DAKOTA
WHEREAS: Older Americans are significant members of our society, investing their wisdom and
experience to help enrich and better the lives of younger generations; and
WHEREAS: The Brookings Activity Center has acted as a catalyst for mobilizing the creativity,
energy, vitality, and commitment of the older residents of Brookings; and
WHEREAS: Through the wide array of services, programs and activities, Brookings Activity
Center empowers older citizens of Brookings to contribute to their own health and well-being and
the health and well-being of their fellow citizens of all ages; and
WHEREAS: The Brookings Activity Center in the city of Brookings affirms the dignity, self-
worth, and independence of older persons by facilitating their decisions and actions tapping their
experiences, skills, and knowledge; and enabling their continued contributions to the community.
NOW, THEREFORE, BE IT RESOLVED, that I, Scott Munsterman, Mayor of the City of Brookings,
do hereby proclaim Wednesday, May 14, 2008 as:
BROOKINGS ACTIVITY CENTER DAY
And call upon all citizens to recognize the special contributions of the Activity Center participants
and the special efforts of the staff and volunteers who work every day to enhance the well being of
the older citizens of our community.
IN WITNESS WHEREOF, I have placed the Seal of the City of Brookings, State of South Dakota,
this of 14th day of May, 2008.
Scott D. Munsterman, Mayor
April 15, 2008 City Council Packet
142
6. INVITATION FOR A CITIZEN TO SCHEDULE TIME
ON THE COUNCIL AGENDA FOR AN ISSUE NOT
LISTED.
At this time, any member of the public may request time on the agenda for an item not
listed. Items are typically scheduled for the end of the meeting; however, very brief
announcements or invitations will be allowed at this time.
7. SDSU REPORT.
April 15, 2008 City Council Packet
143
Ordinances – 1st Readings **
8. Ordinance No. 15-08: Action on an application for a
conditional use to establish a drive-in food service on Lots
12 – 14, Block 6, Original Plat Addition (425/427 Main
Avenue).
Public Hearing: April 29th
(Note: A super majority vote of 5/2 will be required on this item to pass)
** No vote is taken on the first reading of ordinances. The title of the ordinance is read and the date
for the public hearing is announced.
Applicant: Dick Fergen
Proposal: Establish a drive-in food service in the Central Business District
Background: The applicant owns a restaurant located at the corner of Main Avenue and
5th Street. He also owns the two (2) vacant lots to the south. These lots were occupied
by buildings until the south building was destroyed in a fire in the mid 1980s. The other
building was severely damaged and razed. The lots are currently used for parking.
Specifics: The applicant is proposing to establish a drive-up food service from a window
in the south wall of the restaurant. The plan shows two (2) drive-up lanes that converge
at a service window. Traffic would enter the site from the alley and exit onto Main
Avenue. The south half of the lot has a drive-thru land and four (4) parallel parking
spaces.
I have inserted the standards that must be complied with as a prerequisite to approval
along with comments associated with each standard.
Sec. 94-270.2 Drive-in Food Service
This use shall be located where ample on-premise vehicle stacking is available. The site
design shall provide for clear sight angles for safe pedestrian and vehicular movement on
and off the site. All egress points shall be designed to permit right turns only in order to
reduce traffic conflicts. Menu boards, external illumination and intercommunication
systems shall be designed to have a minimal impact on adjacent property. The service
window location shall be not less than 50 feet from an adjacent property. The City
Engineer and /or Traffic Safety Committee shall review any proposal that causes a
reduction in on-street parking and submit their findings to the commission.
The drive-up lanes are each about 72 feet in length. This is measured from the property
line to the initial point of contact which is the menu boards. A restaurant must have at
least 120 feet of stacking.
April 15, 2008 City Council Packet
144
The exit aisle is shifted towards the center of the lot. There are some outdoor eating
areas and minor landscaping proposed on each side of the exit. The driveway would be
12 feet from the building to the south and 19 feet from the restaurant wall. The site plan
shows two (2) drive-up lanes and a drive –thru lane exiting onto Main Avenue.
The egress onto Main Avenue shows a right turn only arrow. However, there is nothing
that prevents or deters a left turn. A modified curb design could be an option, but it is
unclear how this would blend with the streetscape plan for downtown.
The plan does not show any detail as to how the menu boards and intercom system are
designed. The plan also fails to show how the drive-up area will be illuminated.
The service window is located 50 feet from the adjacent property to the south.
The City Engineer brought the proposal to the Traffic Safety Committee on Thursday,
March 20. The committee heard from the applicant and others regarding several aspects
of how traffic would enter and exit the site. It was noted that four (4) parking spaces
would be lost along Main Avenue with the driveway in its proposed location. The
Traffic Safety Committee Minutes are attached.
A motion to recommend approval of the plan was lost by a vote of 1 for, 5 against with
one abstention.
Additional attachments include letters from the DBI and BHPC.
Recommendation: The Planning Commission voted 3 yes and 4 no to
recommend that this conditional use not be approved.
April 15, 2008 City Council Packet
145
Ordinance No. 15-08
An Ordinance pertaining to an application for a Conditional Use for a drive-in food
service in the Business B-2 District.
Be it ordained by the governing body of hyte City of Brookings, South Dakota that said
Conditional Use shall be approved for a drive-in food service on Lots 12, 13, and 14, Block 6,
Original Plat with the following conditions:
None.
All sections and ordinances in conflict herewith are hereby repealed.
First Reading: April 15, 2008
Second Reading:
Published:
CITY OF BROOKINGS
Scott D. Munsterman, Mayor
ATTEST:
Shari L. Thornes, City Clerk
April 15, 2008 City Council Packet
146
Planning Commission
Brookings, South Dakota
April 1, 2008
OFFICIAL MINUTES
Chairperson Greg Fargen called the regular meeting of the City Planning Commission to
order on April 1, 2008 at 7:00 PM in the Council Chamber at City Hall. Members present were
David Kurtz, Curt Ness, Al Gregg, John Gustafson, Larry Fjeldos, Mike Cameron, and Fargen.
Stacey Howlett and Al Heuton were absent. Also present were Dick Fergen, John Moriarty,
Robb Rasmussen, Doris Roden, Calista Crooks, Doug O’Neill, Mike McClemans, City Engineer
Jackie Lanning, City Planner Dan Hanson, and others.
Item #5 – Dick Fergen has submitted an application for a conditional use to establish a drive-in
food service in the Business B-1 District on Lots 12, 13, and 14, Block 6, Original Plat
(Ness/Kurtz) Motion to approve the conditional use. Kurtz, Gustafson, and Ness voted
aye. Gregg, Fjeldos, Cameron, and Fargen voted no. MOTION FAILED.
SUMMARY OF DISCUSSION
Item #5 – Dick Fergen stated he was proposing a drive-up food service. He understood safety
was a major concern and felt he had addressed all the major issues. The plan had a speed bump
in the private lot. A low wall at the end of the drive-up lane would prevent vehicles from
reaching the sidewalk. The exit would have a stop sign with lights attached that would alert
pedestrians that a vehicle was approaching. A "right turn only" sign would be in the boulevard
area. The driveway through the downtown sidewalk would have pavement markings and ramps
from the driveway leading to the sidewalk on both sides.
Ness asked Fergen what differences there were between the streetscape plan and his
plan. Fergen responded that two trees in the sidewalk area could not be planted due to the
driveway location. Ness asked how many on-street parking spaces would be eliminated. Hanson
replied four (4). Fergen remarked that 13 parking spaces would be lost near each intersection
with the new streetscape plan.
Fargen inquired about the lane dividers. Fergen stated one was raised, and one was level.
Kurtz felt the lanes could be reduced in width to gain a wider sidewalk along the north wall of
the neighboring building.
Cameron noted that curbing was proposed through the sidewalk area. Lanning stated
that, except for industrial uses, sidewalks are required to be continuous through driveways.
Fergen’s plan had ramps with truncated domes leading to an asphalt surface. Cameron felt the
plan favored motorists and would be detrimental to pedestrian traffic. Kurtz commented that
the city could regulate the actual design in the right-of-way.
April 15, 2008 City Council Packet
147
John Moriarty and Robb Rasmussen, neighboring property owners, supported the
application. Doris Roden, Downtown Business, Inc. Director, referred to a letter from the DBI
Design Committee that opposed the application. Reasons included sight angles reduced due to
zero (0) foot setback of adjacent buildings, cars entering the street at mid-block, and stacked
cars in drive-up could create stacking into alley and 5th Street. She felt that historic district
preservation could be jeopardized and several cities she researched had prohibited drive-in
food services in their downtown. She added that downtown street closures occurred from
time to time. She did not believe that the streetscape plan eliminated as many parking spaces as
previously mentioned.
Roden felt the best alternative was to build a new building or leave it as green space.
The commercial area was compact, and the proposal was incompatible with other businesses.
Calista Crooks of Bloomin’ Villa opposed the request because the streetscape plan was
geared toward pedestrian traffic. The mid-block driveway was adverse to the plan and potential
congestion in the alley was a major concern. The alley was one-way north to south and
deliveries could be difficult.
Kurtz felt the proposal met the standards. He thought traffic would be moving slowly
through the sidewalk area. He compared this request to driveways that were common along
Main Avenue years ago when auto dealers and implement dealers had businesses downtown.
He did not recall any issues between pedestrians and cars.
Cameron pointed out that the Traffic Safety Committee’s recommendation was that the
application not be approved. Therefore, not all standards had been met.
Fjeldos said the important issue to consider was if this were a proper land use. He had
to also consider the public’s health, safety, and welfare. He added that the stacking of cars over
a sidewalk was a concern. He felt the Traffic Safety Committee’s recommendation should be
considered. He noted that the replacement of stop lights with stop signs will reduce the gap in
traffic, and exiting motorists could get impatient. He pointed out that the third lane would
allow someone to drive through the lot onto Main Avenue.
Kurtz did not feel blocking the alley was of great concern since it was blocked now
whenever a vehicle stopped.
April 15, 2008 City Council Packet
164
Ordinances – 1st Readings **
9. Ordinance No. 16-08: Action on an application for an
amendment to a conditional use to establish four (4)
additional dwelling units in an apartment on a portion of
Lot 18, and Lot 19, except the W85 feet of Lot 19,
College Addition (649 Faculty Drive).
Public Hearing: April 29th
** No vote is taken on the first reading of ordinances. The title of the ordinance is read and the date for the
public hearing is announced.
Applicant: Douglas and Mary O’Neill
Proposal: Increase the units in an apartment building from six to 10.
Background: The College Addition was platted in 1953. The addition consisted of 25
lots. Covenants in place at the time allowed Lots 19 and 20 to be developed for multiple
housing. The owners of the College Addition had a Faculty Housing Company that
constructed a four (4) unit apartment on Lot 19 in 1955.
Based on the 1966 Comprehensive Plan, the College Addition was given a Residence R-
2 District classification. This district allowed apartments by special exception
(conditional use). Therefore, an expansion would also require a conditional use.
In 2004, the applicant received permission to expand the original apartment into a 6-
plex. This involved two 3-bedroom units. The required parking on site increased to 12.
Specifics: The proposed addition will have four (4) units, each containing two (2)
bedrooms. This will require an additional 12 parking spaces. The required parking on
the lot will be 24 with this proposal.
The applicant also owns the adjacent duplex to the south (655 Faculty Drive). The
proposal includes transferring the back portion of this lot to 649 Faculty Drive. The land
remaining would still be required to meet the minimum lot area, yard areas, and parking
for the duplex.
The combined area for the 10-plex would be approximately 35,700 square feet. The
maximum density allowed in the R-2 District for this lot would be 15 units.
The parking lot layout includes a variety of parking types (90 degree, angled, and
parallel). All appear to meet parking design standards except for the space near the
southeast corner of 655 Faculty Drive. This space or the southern most parallel space
could be eliminated to increase functionality. The five (5) new spaces proposed along
April 15, 2008 City Council Packet
165
the west side of the lot near the sidewalk would not be permitted without a variance.
The acceptable number of spaces on the lot would be 25 with this plan.
Landscaping regulations would be met with the open area west of the original 4-plex.
Adjacent uses include an apartment to the west, a duplex to the south, married student
housing to the north and a commercial district to the east.
Recommendation: The Planning Commission voted 6 yes and 1 no to
recommend approval of the Conditional Use.
April 15, 2008 City Council Packet
166
Ordinance No. 16-08
An Ordinance pertaining to an application for an amended Conditional Use for an
apartment with 10 units in then Residence R-2 District.
Be it ordained by the governing body of the City of Brookings, South Dakota that said
Conditional Use shall be approved for an apartment with 10 units on a portion of Lots 18 and
Lot 19, except the W85’ of Lot 19, College Addition with the following conditions:
None.
All sections and ordinances in conflict herewith are hereby repealed.
First Reading: April 15, 2008
Second Reading:
Published:
CITY OF BROOKINGS
Scott D. Munsterman, Mayor
ATTEST:
Shari L. Thornes, City Clerk
April 15, 2008 City Council Packet
167
Planning Commission
Brookings, South Dakota
April 1, 2008
OFFICIAL MINUTES
Chairperson Greg Fargen called the regular meeting of the City Planning Commission to
order on April 1, 2008 at 7:00 PM in the Council Chamber at City Hall. Members present were
David Kurtz, Curt Ness, Al Gregg, John Gustafson, Larry Fjeldos, Mike Cameron, and Fargen.
Stacey Howlett and Al Heuton were absent. Also present were Dick Fergen, John Moriarty,
Robb Rasmussen, Doris Roden, Calista Crooks, Doug O’Neill, Mike McClemans, City Engineer
Jackie Lanning, City Planner Dan Hanson, and others.
Item #6 – Douglas and Mary O’Neill have submitted an application for a conditional use to add
four (4) dwelling units in an apartment on a portion of Lot 18 and Lot 19, except the W85’ of
Lot 19, College Addition
(Cameron/Mess) Motion to approve the conditional use. Gregg, Fjeldos, Cameron,
Kurtz, Ness, and Fargen noted aye. Gustafson voted no. MOTION CARRIED.
SUMMARY OF DISCUSSION
Item #6 – O’Neill was present to answer any questions. Cameron asked if modifications to the
plan were considered. Hanson responded that one parallel parking space should be eliminated
to improve the spacing in the rear. He also noted that the proposed parking spaces along the
front lot line would not be permitted by right.
Gustafson asked about changes to the legal description. O’Neill responded that the
property would be replatted. Gregg inquired about adequate parking. Hanson replied that the
minimum parking requirements were met according to the site plan. Fargen asked what the
maximum density allowance was for this lot. Hanson answered 15 units.
April 15, 2008 City Council Packet
174
Sec. 94-126. RESIDENCE R-2 TWO-FAMILY DISTRICT
(a) Intent. This district is intended to provide for areas of residential use with a density of six to eighteen
dwelling units per acre. This district provides for single-family, two-family, townhouse and multiple-family
residential uses plus support facilities such as schools, parks, churches and community and public buildings.
(b) Scope of Regulations. The regulations set forth in this section or set forth elsewhere in this title,
when referred to in this section, are the regulations of the Residence R-2 Two-Family District.
(c) Permitted Uses.
1. Single-family dwelling including accessory uses incidental thereto such as private garages,
parking areas, etc.
2. Two-family dwelling including accessory uses incidental thereto such as private garages,
parking areas, etc.
(d) Permitted Special Uses: A building or premises may be used for the following purposes in
conformance with conditions prescribed herein:
1. All permitted special uses and conditions as stated in Sections 94-124(d)(R-1A) and 94-125(d)(R-
1B).
2. Single-family zero (0') sideyard dwelling.
a. A maximum of four (4) attached dwelling units are permitted.
b. Additional lot area requirements apply (subsection f of this section).
3. Funeral home or mortuary.
a. One of the frontages of the premises shall abut upon an arterial or collector street.
(e) Conditional Uses.
1. Vocational or trade school
2. Retirement or nursing home
3. Group home
4. Major home occupation
5. Public recreation facility
6. Non-municipal library, museum, art gallery, community center, private club or lodge
7. Domestic abuse shelter
8. Townhouse
9. Apartment or condominium
10. Boardinghouse
11. Office
12. Bed and breakfast establishment
13. Fraternity/Sorority
14. Day Care Facility
(f) Density, Area, Yard and Height Regulations.
The R-2 district regulations shall be as follows:
Per Min. Min. Min. Min. Min. Max.
Unit Lot Lot Front Side Rear Height
Density Area Width Yard Yard Yard
April 15, 2008 City Council Packet
175
Sq.Ft. Sq.Ft.
Single-Family
Dwelling 7,500 7,500 50' 25' 7' 25' 35'
SF 0' Sideyard
2 Units 6,000 12,000 80' 25' 0' or 7' 25' 35'
on non-
party wall
SF 0' Sideyard
3 Units 5,000 15,000 100' 25' 0' or 7' 25' 35'
on non-
party wall
SF 0' Sideyard
4 Units 4,500 18,000 120' 25' 0' or 7' 25' 35'
on non-
party wall
Two-Family Dwellings
Condominiums
Townhouses
2 Units 4,950 9,900 65' 25' 7' 25' 35'
3 Units 4,100 12,300 80' 25' 7' 25' 35'
4 Units 3,675 14,700 95' 25' 7' 25' 35'
Apts, Condos,
Townhouses*
5 or more Units 2,420** 16,000 100' 25' 7'*** 25' 35'
Per Min. Min. Min. Min. Min. Max.
Unit Lot Lot Front Side Rear Height
Density Area Width Yard Yard Yard
Sq.Ft. Sq.Ft.
Other Allowable
Uses 7,500 50' 25' 7'*** 25' 35
*Three hundred (300) square feet of landscaped area shall be provided for each dwelling unit exclusive
of required building setback areas, access drives and parking lots. Two thirds (2/3) of the landscaped
area shall be located in a continuous, single tract which contains no portions thereof which are not
contiguous, adjacent and abutting to either the entire width or entire length of said tract. Parking lots
shall be screened from single and two-family residential uses according to Section 94-401.
**A maximum of 18 dwelling units per acre shall be allowed.
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***The sideyard will be required to be increased to 10 feet when the building is 3 or more stories in
height.
Density per family requirements shall not apply to dormitories, fraternities, sororities, nursing
homes or other similar group quarters where no facilities are provided in individual rooms.
(g) Accessory Uses. Accessory uses and building permitted in the R-2 District are buildings and uses
customarily incidental to any of the permitted uses in the district.
(h) Parking Regulations. Parking, loading and stacking within the R-2 District shall be in conformance
with the regulations set forth in division 4 of article VI.
(i) Sign Regulations. Signs within the R-2 District shall be in conformance with the regulations set forth
in division 5 of article VI.
(j) Other Regulations. Development within the R-2 District shall be in conformance with the
regulations set forth in article II.
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177
Ordinances – 1st Readings **
10. Ordinance No. 17-08: Action on amendments to the
sign ordinance pertaining to electronic message signs.
Public Hearing: April 29th
** No vote is taken on the first reading of ordinances. The title of the ordinance is read and the date for the public hearing is announced.
Background: Zoning amendments pertaining to electronic message display characteristics of
signs were tabled at the January meeting. A committee involving city staff, interested citizens,
and members from the Planning Commission, Brookings Historic Preservation Committee, and
Downtown Business Inc. discussed substituting the Design Review District concept with
amendments within the sign regulation section of the zoning ordinance.
Specifics: Table 5 of Division 5, Signs, was modified to include regulations for portable signs
with electronic message display (EMD) capabilities and prohibit permanent signs with EMD
capabilities in the historic downtown, central and university residential historic districts, on
individually listed historic places and within 150 feet of the residential historic districts and
historic places.
Other changes including an expanded definition for an EMD, sign design requirements, a
distinction regarding LED illumination and a size restriction for other institutional uses are also
part of the amendments.
Excerpt: The Brookings Historic Preservation Commission met on March 20th and made the
following recommendation to the Planning Commission: ACTION: A motion was made by Powers,
seconded by Bibby, to support the proposed ordinance revision with the following change to substitute
the word “animated” for “EMD” and to submit to the Planning Commission for approval. All present
voted yes; motion carried.
A letter from the DBI is also attached.
Recommendation: The Planning Commission voted 5 yes and 0 no to recommend approval of
the amendments.
April 15, 2008 City Council Packet
178
ORDINANCE NO. 17-08
An ordinance amending the zoning ordinance of the City of Brookings pertaining to electronic
message display signs for the purposes of administration of the zoning ordinance
Be it ordained and enacted by the governing body of the City of Brookings, South Dakota: that Chapter
94, Division 5, Signs, shall be amended as follows:
Section 94-461
Animated sign -Any sign that uses movement, electric message or change of lighting, either natural
or artificial, to depict action or create a special effect or scene.
Electronic Message Display – A sign capable of displaying words, symbols, figures or
images that can be electronically or mechanically changed by remote or automatic
means. Characteristics are defined as follows:
a. Dissolve – a mode of message transition on an electronic message display
accomplished by varying the light intensity or pattern, where the first message
gradually appears to dissipate and lose legibility simultaneously with the gradual
appearance and legibility of the second message.
b. Fade - a mode of message transition on an electronic message display
accomplished by varying the light intensity or pattern, where the first message
gradually reduces in intensity to the point of not being legible and the
subsequent message gradually increases in intensity to the point of legibility.
c. Frame – a complete, static display screen on an electronic message display
d. Frame effect – a visual effect on an electronic message display applied to a single
frame to attract the attention of viewers.
e. Scroll – a mode of message transition on an electronic message display where
the message appears to move vertically across the display surface
f. Transition – a visual effect used on an electronic message display to change from
one message to another.
g. Travel – a mode of message transition on an electronic message display where
the message appears to move horizontally across the display surface
Section 94-469
1) All signs with electronic message display capabilities shall have internal ambient
light monitors installed that automatically adjust the brightness level.
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179
SECTION 94-473
TABLE 5
PERMITTED SIGN CHARACTERISTICS BY ZONING DISTRICT
CHARACTERISTIC FW A ALL
R’S
RB-4 B-1 B-2 B-2A B-3 B-4 ALL
I’S
INS (a)
Electronic
Message display-
EMD (b)
N
N N
P
P(c) P
P
P P P
P (d)
Changeable Copy N N N P P P N P P P P
Illumination, Internal N N N P(c) P
(f)
P P(c) P P P P (e)
Illumination, External P P N P(c) P
(f)
P
P
P(c) P P P (e)
Illumination, Surface
lighted (e)
N
N
N N P
(f)
P N P
P
N N
Neon N N N N P
(f)
P N P P N N
Non-Illuminated P P P P P P P P P P P
Reflective P P N N P P N P P N N
P=Permitted N=Not allowed
This column does not represent a zoning district. It applies to institutional uses permitted in residential
districts. Such uses may include, but are not necessarily limited to churches, schools, apartment
complexes, retirement homes, funeral homes, libraries, fraternities and sororities.
b) Light intensity shall remain consistent throughout a message, movement or scene. Flashtubes or
similar devices shall not be permitted. This characteristic shall not include stationary LED
illumination. LED illumination shall be considered as internal illumination.
Portable signs with EMD capabilities shall be permitted in the A, RB-4, B-1, B-2, B-2A, B-3, B-4, B-5, I-
1, I-1R and I-2 District subject to the regulations in Section 94-470(e) and shall be permitted for any
institutional use in conjunction with special events and public services for a period not to exceed 7
consecutive days nor more than 30 cumulative days within a calendar year.
c) Signs with EMD capabilities shall be regulated as follows:
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No sign with EMD capabilities, other than a portable sign, shall be permitted in the Brookings
Historic Commercial District within the Business B-1 District as depicted in the 1999 Historic
Preservation Plan or any amendments thereto on the following parcels:
• East 1/2, Fourth Railroad Addition
• W100’ of lots 1 and 2; W80’of lot 3, Block 1, Original Plat Addition
• Lots 1-14, Block 2, Original Plat Addition
• Lots 1-17 and lot A and the N15’ of the E93’ of lot 18, Block 3, Original Plat
Addition
• E119’ of lot 1, all of lots 2-14, Block 6, Original Plat Addition
• Lots 1-13 and the W81.5’ of lot 14, Block 7, Original Plat Addition
• Lot D, Railroad Addition
• Lots 8, 9, and 10, Block 13, Second Addition
• S5’ of lot 7, all of lots 8-14, Block 14, Second Addition
• E 1/2, Temple Block Addition
d) Signs with EMD capabilities shall be regulated as follows:
1. Only institutional uses such as churches, libraries and schools shall be allowed signs with EMD
capabilities subject to other restrictions as stated in this section.
2. No sign with EMD capabilities, other than a portable sign, shall be permitted for any
institutional use in the Central Residential Historic District and University Residential Historic
District nor for any institutional use within 150 feet of either districts boundary as depicted in
the 1999 Historic Preservation Plan or any amendments thereto.
3. No sign with EMD capabilities, other than a portable sign, shall be permitted for any
institutional use within 150 feet of an individually listed property on the National Register of
Historic Places as depicted in the 1999 Historic Preservation Plan or any amendments thereto.
4. Institutional uses not regulated by subsections 2 and 3 above shall be limited to one sign with a
maximum size of 24 square feet.
e) No direct light or significant glare from the sign shall be cast onto any adjacent lot that is zoned and
used for residential purposes.
f) Any lighting involving motion or the appearance of motion shall be prohibited.
Any or all ordinances in conflict herewith are hereby repealed.
FIRST READING: April 15, 2008
SECOND READING: April 29, 2008
PUBLISHED:
CITY OF BROOKINGS, SOUTH DAKOTA
___________________________________
Scott D. Munsterman, Mayor
ATTEST:
________________________
Shari Thornes, City Clerk
April 15, 2008 City Council Packet
181
Planning Commission
Brookings, South Dakota
April 1, 2008
OFFICIAL MINUTES
Chairperson Greg Fargen called the regular meeting of the City Planning Commission to order
on April 1, 2008 at 7:00 PM in the Council Chamber at City Hall. Members present were David Kurtz,
Curt Ness, Al Gregg, John Gustafson, Larry Fjeldos, Mike Cameron, and Fargen. Stacey Howlett and Al
Heuton were absent. Also present were Dick Fergen, John Moriarty, Robb Rasmussen, Doris Roden,
Calista Crooks, Doug O’Neill, Mike McClemans, City Engineer Jackie Lanning, City Planner Dan Hanson,
and others.
Item #7- The City of Brookings has submitted amendments to the Zoning Ordinance pertaining to
electronic message display signs.
(Cameron/Gustafson) Motion to take the question from the table. All present voted aye. MOTION
CARRIED.
(Kurtz/Ness) Amendment to the motion to delete subsection (c) of Table 5. Kurtz and Ness voted aye.
Gregg, Fjeldos, Cameron, Gustafson, and Fargen voted no. MOTION FAILED.
The motion was voted on. Gregg, Fjeldos, Cameron, Gustafson, and Fargen voted aye. Kurtz and Ness
voted no. MOTION CARRIED.
Item #7 – Hanson explained that the revised ordinance focused on changes to Table 5 of the ordinance
versus creating a design review district. The changes prohibited EMD signs in the historic part of
downtown, the central, and university residential historic districts and within 150 feet of these districts
or any individually listed historic place.
Doris Roden stated that the DBI supported the ordinance.
Cameron and Ness supported leaving the “EMD” term in the ordinance and not replacing it with
“animated”. Kurtz opposed the ordinance and did not see that a problem existed. He felt EMD signs
should not be banned downtown. Roden remarked that her survey did show that a majority of business
owners favored eliminating the signs.
Fjeldos agreed with the conceptual idea of the amendments but felt the issues were complicated, and
the amendments may not be the best solution. He felt that technology will advance to where the sign
ordinance would have to be reviewed again in a few years. Fargen remarked that the amendments may
not create a perfect ordinance, but progress was made. He felt input from other citizens was critical.
April 15, 2008 City Council Packet
187
Ordinances – 2nd Readings / Public Hearings:
11. Ordinance No. 12-08 - An Ordinance Revising the
Composition, Appointment and Criteria for
Appointment of Members of the Brookings Health
System Board of Trustees.
Action: Motion to approve, Request Public Comment, Roll Call
City Manager Recommendation – Approve
ORDINANCE NO. 12-08
An Ordinance Revising The Composition, Appointment And Criteria For Appointment
Of Members Of The Brookings Health System Board Of Trustees.
BE IT ORDAINED AND ENACTED BY THE COUNCIL OF THE CITY OF
BROOKINGS, STATE OF SOUTH DAKOTA, AS FOLLOWS:
I.
Sec. 42-92. Composition, appointment, criteria for appointment, and name.
(a) The board of trustees shall consist of eight (8) members. In addition, physician-
representatives shall be appointed as described below.
(b) The board of trustees shall be known as the “Brookings Health System Board of
Trustees”. The Brookings Health System consists of the Brookings Hospital,
Home Health/Hospice Agency, Brookhaven Estates and Brookview Manor.
(c) The board may grow to more than nine (9) members. Five (5) members shall be
appointed by the mayor with the advice and consent of the city council and may
reside within or outside the city limits, provided they reside within and are
electors of the County of Brookings and shall be residents and electors of the city.
Three (3) members shall be residents and electors of the county and may reside
within or outside the limits of the City of Brookings, residing outside the
corporate limits of the city and shall be appointed by the county commission.
(d) In addition, a practicing physician representative from each clinic whose physicians are
members of the active medical staff of the Brookings Hospital and who have been
members of the active medical staff of the Brookings Hospital for at least one (1)
year are eligible for appointment by the mayor, with the advice and consent of the
City Council, to serve on the Brookings Health System Board of Trustees. Such
physician representatives shall have all of the voting privileges as other members of
April 15, 2008 City Council Packet
188
the board of trustees, and may reside within or outside the city limits, provided
they reside within the County of Brookings.
(e) Individuals recommended to the city council or the county commission to serve as
members of the board of trustees shall evidence an interest in fostering and
maintaining a system of quality health care through support of the purpose of the
Brookings Health System as stated in section 42-72. The physician members may
be asked at times to recuse themselves if there is a conflict of interest with their
particular practice and contractual or other issues under discussion. The term of
appointment shall be for three (3) years. Advice from physician representatives is
particularly needed to provide information from his or her medical background
that would be beneficial to the needs of the hospital, and, in addition, to represent
the members of the active medical staff of the Brookings Hospital.
(f) Appointment shall be made without reference to race, gender, sexual orientation, age,
handicap, religion, country of origin, or political affiliation.
II.
Any or all ordinances in conflict herewith are hereby repealed.
FIRST READING: March 25, 2008
SECOND READING: April 15, 2008
PUBLISHED:
CITY OF BROOKINGS, SOUTH DAKOTA
Scott D. Munsterman, Mayor
ATTEST:
Shari L. Thornes, City Clerk
April 15, 2008 City Council Packet
189
Ordinances – 2nd Readings / Public Hearings:
12. Ordinance No. 13-08 – An Ordinance Amending Article
II of Chapter 22 of the Code of Ordinances of the City of
Brookings and Pertaining to the Adoption of the 2006
International Building Code and the 2006 International
Residential Code with Certain Amendments Thereto.
The City of Brookings is currently enforcing the 2003 International Building Code, the 2003
International Residential Code, the 2003 International Mechanical Code and the 2003
International Existing Building Code. The State of South Dakota has recently adopted the 2006
International Building Code and the 2006 International Residential Code, and Brookings City
staff has been reviewing the 2006 versions of these codes and amendments.
The Board of Appeals met to discuss the adoption of the new 2006 codes, and also discussed
the amendments that should be made. The Board of Appeals made the following
recommendation at their March 11, 2008 meeting:
BOARD OF APPEALS MINUTES
March 11, 2008
A Building Code Board of Appeals meeting was called to order by Spencer Hawley on Tuesday,
March 11, 2008 at 1:00 PM in the City Hall Meeting Room. Members present were Dick Anderson,
Gerald Foster, Ray Froehlich, Dan Rettedal and Hawley. Others present were Building Services
Administrator Greg Miller, Engineering Tech Brandon Long, Deputy Fire Chief Pete Bolzer, and City
Engineer Jackie Lanning.
(Anderson/Froehlich) Motion to approve the amendments to the 2006 Edition of the International
Building Code. All present voted aye. MOTION CARRIED.
(Foster/Anderson) Motion to support the amendments from the 2003 International Building Code along
with the present amendments and include all in one ordinance. All present voted aye. MOTION
CARRIED.
The amendments are summarized as follows:
• Amend to allow for board of appeals
• Amend to require building permits for sidewalks and driveways
• Amend for expiration dates of permits
• Amend to authorize for investigation fee
• Amend for wind loads
• Amend for snow loads
• Amend for egress requirements
• Amend for smoke alarm requirements
• Amend sprinkler requirements for apartments with 16 units and above
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190
These amendments are the same amendments that are currently in effect with the current
building codes, and the Board of Appeals recommended that these same amendments be made
to the 2006 IBC and 2006 IRC. This ordinance will adopt the 2006 International Building Code,
the 2006 International Residential Code, the 2006 International Mechanical Code, and the 2006
International Existing Building Code, which may be used in Lieu of Chapter 34 of the 2006
International Building Code and the stated amendments thereto.
Action: Motion to approve, Request Public Comment, Roll Call
City Manager Recommendation - Approve
April 15, 2008 City Council Packet
191
ORDINANCE NO. 13-08
AN ORDINANCE AMENDING ARTICLE II OF CHAPTER 22 OF THE CODE OF
ORDINANCES OF THE CITY OF BROOKINGS AND PERTAINING TO THE ADOPTION
OF THE 2006 INTERNATIONAL BUILDING CODE, THE 2006 INTERNATIONAL
RESIDENTIAL CODE, THE 2006 INTERNATIONAL MECHANICAL CODE, AND THE 2006
INTERNATIONAL EXISTING BUILDING CODE WITH CERTAIN AMENDMENTS
THERETO.
BE IT ORDAINED by the City of Brookings that Article II of Chapter 22 of the Code of
Ordinances of the City of Brookings be amended to read as follows:
I.
Article II. Building Code
Sec. 22-31. Adoption.
There is adopted by the city those certain codes known as the 2006 Edition of the International
Building Code, the 2006 International Residential Code, the 2006 International Mechanical
Code, and the 2006 International Existing Building Code, which may be used as an alternate to
Chapter 34 of the 2006 International Building code, as recommended by the International Code
Council, collectively referred to as the “International Building Code”, “building code” or
“code”. A copy of the building code is on file in the office of the City Clerk and is available for
inspection.
Sec. 22-32. Conflicts.
In the event of any other conflict between the provisions of the International Building Code
adopted by this article and other provisions of city ordinance, state law or rules or regulations
of the city, the provisions of city ordinance, state law or the rules or regulations of the city shall
prevail and be controlling.
Sec. 22-33. Definitions.
The following words, terms and phrases, when used in the building code adopted in section
22-31, shall be defined, except where the context clearly indicates a different meaning, as
follows:
Municipality means the City of Brookings.
Sec. 22-34. Establishment of office of building official.
The office of building official is created, and the city manager shall designate the executive
official in charge, who shall be known as the building official and whose duties shall be as
outlined in the International Building Code adopted in section 22-31.
Sec. 22-35. Fees; permits.
(a) No permit required by the building code shall be issued until the fee prescribed by
resolution shall have been paid. No amendment to a permit shall be approved until the
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192
additional fee, if any, resulting from an increase in the estimated cost of the building or
structure, shall have been paid.
(b) For the demolition or removal of a building that is furnished with water and/or sewer, a
permit may be granted; provided, however, that in such case, a deposit guaranteeing the
abandonment of the water services and guaranteeing the abandonment of the sewer
services shall be deposited at the time of application for such permit, the deposit to be in
an amount to be determined by policy of the utility board. Such deposit, but not the fees,
will be refunded upon completion of the work or the city will arrange for such work at
actual cost, plus ten percent to be paid from such deposit. The demolition or removal
shall be completed within 30 days after the issuance of the permit. If water and sewer
services are to be reused or new services required for a new structure in the immediate
future at the same location, deposits may be waived by the building official.
Sec. 22-36. Amendments.
The following amendments to the building code are adopted and incorporated into the
building code:
Section R105.2. Work exempt from permit, is amended by deleting the following subsection:
5. Sidewalks and driveways not more than 30 inches (762 mm) above adjacent grade
and not over any basement or story below.
Section 105.5 and R105.5 Expiration, is amended by replacing Section 105.5 and R105.5
Expiration as set forth in the International Building Code with the following:
105.5 and R105.5 Expiration. Every permit issued by the building official under the
provisions of this code shall expire by limitation and become null and void if the building
or work authorized by such permit is not commenced within 180 days from the date of
such permit, or if the building or work authorized by such permit is suspended or
abandoned at any time after the work is commenced for a period of 180 days. Before
such work can be recommenced, a new permit shall be first obtained to do so, and the
fee therefore shall be one-half of the amount required for a new permit for such work
provided no changes have been made or will be made in the original plans and
specifications for such and provided further that such suspension or abandonment has
not exceeded one year. In order to renew action on a permit after expiration, the
permitee shall pay a new full permit fee.
Any permittee holding an unexpired permit may apply for an extension of the time
within which work may commence under that permit when the permittee is unable to
commence work within the time required by this section for good and satisfactory
reasons. The building official may extend the time required by this section for good and
satisfactory reasons. The building official may extend the time for action by the
permittee for a period not exceeding 180 days on written request by the permittee
showing that circumstances beyond the control of the permittee have prevented action
from being taken. No permit shall be extended more than once.
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Every permit issued by the building official under the provisions of this code shall expire
and become null and void if the building or work is not completed within two years for
all occupancies from the date issued.
Section 108.2 and R108.2, Schedule of permit fees, under 108.5 and R108, Fees, is amended to
read as follows:
108.2 and R108.2 Investigation Fee. An investigation fee, in addition to the permit fee
shall be collected whether or not a permit is then or subsequently issued. The
investigation fee shall be equal to the amount of the permit fee required by this code.
The minimum investigation fee shall be the same as the minimum fee set forth in section
R108. The payment of such fee shall not exempt any person from compliance with all
other provisions of this code nor from any penalty prescribed by law.
Section 112 and R112, board of appeals, is amended to include the following:
112.1 and R112.1. General. In order to hear and decide appeals or orders, decisions or
determinations made by the building official relative to the application and interpretation
of this code, and to determine the suitability of alternate materials and methods of
construction, there shall be and is created a board of appeals consisting of members
who are qualified by experience and training to pass on matters pertaining to building
construction and who are not employees of the jurisdiction. The building official shall
be an ex-officio member of and shall act as secretary to such board, but shall have no
vote on any matter before the board. The board of appeals shall consist of five
members. Each member shall be appointed for a term of five years. The successors
shall be appointed upon the expiration of the respective terms to serve five years. A
vacancy shall be filled by the mayor with the concurrence of the city council for the
unexpired term of any member who resigns, dies or is removed. The board of appeals
shall elect a chairperson and vice-chairperson from its members. They shall adopt rules
of procedure for conducting the business of the board of appeals, and shall render all
decisions and findings in writing to the appellant with a duplicate copy to the building
official.
112.2 and R112.2. Limitations of authority. The board of appeals shall have no
authority relative to the interpretation of the administrative provisions of this code, nor
shall the board be empowered to waive requirements of this code that pertain to or
affect life safety.
Section R301.2(1) Climatic and Geographic Design Criteria
1. Ground Roof Snow Load.........................................................40 psf contour
Roof slopes with a rise of three inches (76.2 mm) or less to 12 inches (305 mm) shall be
designed for a full or unbalanced snow load of not less than 30 pounds per square foot
(1.44kN/square meter) of horizontal projection. Where a roof system is designed to slope
less than one-quarter inch (6.35 mm) per 12 inches (305 mm), a surcharge load of not less
April 15, 2008 City Council Packet
194
five pounds per square foot (0.24kN/square meter) in addition to the required live load due
to snow shall be designed for.
Roof slopes with over three inches (76.2 mm) of rise per 12 inches (305 mm) shall be
designed for a full or unbalanced snow load of not less than 25 pounds per square foot
(1.2kN/square meter) of horizontal projection.
Potential unbalanced accumulation of snow at valleys, parapets, roof structures, and offsets
in roofs of uneven configuration shall be considered.
2. Wind Speed 90 mph
3. Seismic Design Category A
4. Weathering Severe
5. Frost Line Depth 42 inches (1,067
mm)
6. Termite Damage Slight to
Moderate
7. Winter Design Temperature-11 Degrees Fahrenheit
8. Ice Barrier Underlayment Requirement yes
9. Air Freezing Index 2,500
10. Mean Annual Temperature 46 degrees
Fahrenheit
Section 1608.1, General, under Section 1608, Snow Loads, is amended to read as follows:
Section 1608.1 General. The building official has determined the minimum roof live load
to be 40 pounds per square foot uniform load ground snow load.
Section R310.1 Emergency escape and rescue required, under Section R310, Emergency Escape
and Rescue Openings is amended to include the following additional subsection:
Section R310.1 Emergency escape and rescue required. Basements and every sleeping room
shall have at least one operable emergency escape and rescue opining. Such opening
shall open directly into a public street, public alley, yard or court. Where basements
contain one or more sleeping rooms, emergency egress and rescue openings shall be
required in each sleeping room, but shall not be required in adjoining areas of the
basement. Where emergency escape and rescue openings are provided, they shall have
a sill height of not more than 44 48 inches (1118 mm) above the floor….
Section R310.1.5 Basement Minimum Sill Height. R310.1.1 Minimum opening area. All
emergency escape and rescue openings shall have a minimum net clear opening of 5.7
4.6 square feet (0.530m2).
R310.2.1 Ladder and steps. Window wells with a vertical depth greater than 44 48 inches
(1118mm) shall be equipped with a permanently affixed ladder or steps usable with the
window in the fully open position….
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Delete Section 310.5
310.5 Emergency escape windows under decks and porches. Emergency escape windows are
allowed to be installed under decks and porches provided the location of the deck
allows the emergency escape window to be fully opened and provides a path not less
than 36 inches (914 mm) in height to a yard or court.
Section R313.1 Smoke alarms under Section R313 Smoke Alarms is amended to include the
following additional subsections:
Section R313.1 Smoke alarms.
4. A smoke detector installed in a stairwell shall be so located as to ensure that smoke
rising in the stairwell cannot be prevented from reaching the detector by an intervening
door or obstruction.
5. A smoke detector installed to detect a fire in the basement shall be located in close
proximity to the stairway leading to the floor above.
6. The smoke detector installed on a story without a separate sleeping area shall be
located in close proximity to the stairway leading to the floor above.
7. Smoke detectors shall be mounted on the ceiling at least four inches (102 mm) from
a wall or on a wall with the top of the detector not less than four inches (102 mm) nor
more than 12 inches (305 mm) below the ceiling.
Section 903.2.7 Group R, under Section 903, Automatic Sprinkler Systems, is amended to read
as follows:
Section 903.2.7 Group R. An automatic sprinkler system installed in accordance with Section
903.3 shall be provided throughout all buildings with a Group R –1 fire area and a Group R-4
fire area with more than eight occupants. An automatic fire extinguisher system shall be
provided throughout all buildings with a Group R-2 fire area of more than two stories in height,
including basements, or having 16 or more dwelling units.
II.
Any or all ordinances in conflict herewith are hereby repealed.
FIRST READING: March 25, 2008
SECOND READING: April 15, 2008
PUBLISHED: April 18, 2008
CITY OF BROOKINGS, SD
_________________________
Scott D. Munsterman, Mayor
ATTEST:
______________________________
Shari Thornes, City Clerk
April 15, 2008 City Council Packet
196
Ordinances – 2nd Readings / Public Hearings:
13. Ordinance No. 14-08 – An Ordinance Amending the Joint
Jurisdiction Area Zoning Ordinance pertaining to a
private stable as a special exception in the Residence R-
1A District.
Proposal: Allow a private stable to be established by special exception in the Residence R-1A
District in the Joint Jurisdictional Area
Background: Stables are currently allowed as a special exception in the Ag District in the Joint
Jurisdiction Area. Private stables are currently allowed as a conditional use in the Ag, R-1, and
R-1A Districts within the City of Brookings.
The city created two (2) categories of stables in 1994, a private stable and a riding
stable. The distinction was created because both uses existed, and there was a need to control
a riding stable to a grater degree due to its potential impact on adjacent uses.
Specifics: The definitions for both a private and riding stable are recommended so the
distinction is in the ordinance. This will clarify the difference between the two.
The special exception is proposed with standards regulating the minimum lot area and
maximum number of horses. The standards also dictate the location of any pasture and the
distance a horse would have to stay from an adjacent residence. Lastly, certain types of fencing
are prohibited. These regulations are similar to those in the city.
Recommendation: The City and County Planning Commissions voted unanimously to
recommend approval of this zoning amendment.
Action: Motion to approve, Request Public Comment, Roll Call
City Manager Recommendation - Approve
April 15, 2008 City Council Packet
197
Ordinance No. 14-08
An ordinance revising the Zoning Ordinance of the Joint Jurisdiction Area surrounding
the City of Brookings pertaining to Private Stables in the Residence R-1A District
Be it ordained by the City of Brookings, South Dakota that Article II, Section 200 and
Article IV, Section 412 of Ordinance 14-80 be amended to read as follows, to wit:
Article II. Definitions
Section 200.385
Stable, Private: Any lot or building or part thereon where horses or other equine animals are
maintained, trained or cared for by the landowner for the sole purpose of pleasure.
Section 200.386
Stable, Riding: Any lot or building or part thereon where horses or any equine animals are
maintained, boarded, trained or cared for in return for remuneration.
Article IV. Agricultural, Residential, Floodplain and Aquifer Districts.
Section 410. Residence R-1A single family.
Section 412. Uses allowed as special exceptions by the Board of Adjustment.
.9 Private Stables shall be established on lots with a minimum area of one and one-half acres.
Three-quarters of one acre of land shall be provided for each horse located thereon. No
pasture shall be located within the required front yard setback and no horse shall be allowed to
be kept or corralled within 100 feet of any building used for human habitation other than by the
owner of such animal. No fencing shall be made of barbwire or connected to an electrical
current.
Any or all ordinances in conflict herewith are hereby repealed.
FIRST READING: March 25, 2008
SECOND READING: April 15, 2008
PUBLISHED: April 18, 2008
CITY OF BROOKINGS, SOUTH DAKOTA
___________________________________
Scott D. Munsterman, Mayor
ATTEST:
________________________
Shari Thornes, City Clerk
April 15, 2008 City Council Packet
198
NOTICE OF HEARING
UPON A CHANGE IN ZONE REGULATIONS
NOTICE IS HEREBY GIVEN that amendments to the Zoning Ordinance of the Joint
Jurisdiction Area Surrounding the City of Brookings have been submitted pertaining to a private
stable as a special exception in the Residence R-1A District.
NOTICE IS FURTHER GIVEN that said changes will be acted on by the City and County
Planning Commissions at 7:00 PM on Tuesday, March 4, 2008, at the Brookings County
Resource Center at 826 32nd Avenue, Brookings, South Dakota. Any action taken by the City
and County Planning Commissions is a recommendation to the City Council and County
Commission.
Any person interested may appear and be heard in this matter.
Dated this 22nd day of February, 2008.
_________________________________
Secretary, City Planning Commission
April 15, 2008 City Council Packet
199
Joint City/County
Planning Commissions
March 4, 2008
OFFICIAL MINUTES
A joint meeting of the County Planning Commission and the City Planning Commission
was called to order by City Chairperson Greg Fargen on March 4, 2008 at 7:00 PM in the
Resource Center at 826 32nd Avenue. County Planning Commission members present were
Chair Duane Knutson, Randy Jensen, Darrell Kleinjan, Darrell Nelson, Robert Rochel, Mary
Kidwiler, and Jeff Robbins. Emil Klavetter was absent. City Planning Commission members
present were Curt Ness, David Kurtz, Stacy Howlett, Al Gregg, Al Heuton, and Fargen. John
Gustafson, Mike Cameron and Larry Fjeldos were absent. Others present were Brookings
County Zoning Officer Bob Hill, City Engineer Jackie Lanning, City Planner Dan Hanson, and
others.
Item #2 – The City of Brookings has submitted amendments to the Zoning Ordinance of the
Joint Jurisdiction Area Surrounding the City of Brookings pertaining to a private stable as a
special exception in the Residence R-1A District
(Kurtz/Heuton) Motion to approve the amendments. All present voted aye. MOTION
CARRIED.
(Kidwiler/Kleinjan) Motion to approve the amendments. All present voted aye.
MOTION CARRIED.
SUMMARY OF DISCUSSION
Item #2 – Hanson stated that the amendment would be similar to the same use that is
currently allowed in the city as a conditional use. He noted that four (4) larger areas in the Joint
Jurisdiction Area were zoned R-1A, Nelson Addition, Southern Estates Addition, and two (2)
unplatted acreages.
The use had several standards that would have to be met prior to approval. These
included a minimum lot area, area minimums for each horse, pasture location, separation
requirements from adjacent houses, and prohibiting certain types of fencing.
Heuton asked how the use would be treated if a landowner did not charge a fee for
maintaining someone else’s horse. Hanson replied that the horses per acre density would still
be enforced as if it were the landowner’s animal. Bob Hill, County Zoning Officer, remarked
that a horse or colt would be considered as one animal unit.
Gregg asked how this amendment would impact existing stables. Hanson responded that
those uses would be allowed to continue as they had in the past.
April 15, 2008 City Council Packet
200
Section 410. Residence R-IA single family.
a. Permitted uses.
.1 Single-family dwelling.
.2 Churches and similar places of worship, which may include day-care facilities with such
use, confined to within the church worship and educational facilities. (Ord. No. 7-89,
10-10-89).
.3 Public, parochial schools of general instruction.
.4 Public libraries, museums, parks, playgrounds and similar community facilities.
.5 Governmental administration and services such as office, firehouse, police, first aid, civil
defense and like uses; however, this section shall not be interpreted to permit such uses
as warehousing, indoor and outdoor storage of vehicles, road-building equipment and
supplies.
.6 Accessory uses incidental to any of the foregoing permitted uses, such as private garages,
parking lots, etc.
412. Uses allowed as special exceptions by the Board of Adjustment.
.1 Agriculture as a living, provided that there is no display of products other than in growth
visible from the public right-of-way.
.2 Public utility substations or pumping stations, upon a showing that such structure is
essential to serve the immediate neighborhood, that it cannot be located in any other
type of district and that it is housed in buildings that harmonize with the character of
the neighborhood and has adequate screening and landscaping and meets all other
standards of this ordinance.
.3 Home occupation. (Ord. No. 17-89, 10-10-89)
.4 Swimming pool not operated for profit, meeting recognized construction and safety
standards and all other requirements of this ordinance.
.5 Nonmunicipal libraries, museums, art galleries and community centers, whether or not
operated for profit; non-commercial clubs and lodges.
.6 Hospitals provided that the health officer of the City shall first certify that in the
proposed location, such use will not have a detrimental effect on the health of the
surrounding neighborhood and further provided that a nurse's home as an accessory use
is permitted only on the same lot as the hospital.
.7 Removable roadside stands for the sale of farm products produced on the premises,
provided however, that any such stand shall be situated not less than forty (40) feet
from the street right-of-way line or lot line and shall have adequate parking spaces, and
in no event, less than four (4) parking spaces. Such stands shall be removed during
seasons when products are not being offered for sale.
.8 Accessory uses incidental to any of the foregoing special exceptions.
413. Area regulations.
.1 Lot area and width. A lot area of not less than fifteen thousand (15,000) square feet per
family shall be provided for every building hereafter erected or used in whole or in part as a
dwelling. Each lot shall have a building frontage of not less than one hundred (100) feet.
.2 Front yard. There shall be a front yard on each street on which the lot abuts, which yard
shall be not less than forty (40) feet in depth.
April 15, 2008 City Council Packet
201
.3. Side yard. There shall be two (2) side yards on each lot neither of which shall be less than
fifteen (15) feet in depth.
.4 Rear yard. There shall be a rear yard on each lot, which yard shall not be less than thirty
(30) feet.
Supplementary regulations. See regulations prescribed in Article VII, Sections 700, 720, 730 and
740.
April 15, 2008 City Council Packet
202
Ordinances – 2nd Readings / Public Hearings:
14. Public Hearing and Action on Resolution No. 35-08,
Levying Assessment for 2007-01SWR, Sidewalk
Assessment Project.
The City Council approved Resolution 20-08, Levying Assessment for 2007-01SWR,
Sidewalk Assessment Project. We discovered that there was an error in the hearing
date on the assessment notice that was mailed to the affected landowners. To assure a
legal assessment hearing, this hearing was rescheduled to April 15, 2008, and a new
corrected notice was mailed by first-class mail to all affected landowners.
The 2007-01SWR Sidewalk and Curb & Gutter repair project was a project to replace
landowner sidewalks causing trip hazards. Resolution 50-07 authorized the sidewalk
assessment project, the project was completed in 2007 and the final change order was
approved. The resolutions to prepare the assessment roll and fix the date for the
hearing have been approved and the assessment is ready to be levied. The assessment
cost for each landowner is calculated by using their specific sidewalk cost plus the 6%
engineering and administration fee. Each landowner was mailed a copy of the
assessment roll showing the cost for each property and a notice of this hearing. The
assessment roll gives each owner a breakdown in cost showing sidewalk, valve
replacement and concrete sawing. This resolution will rescind Res. 20-08, and levy the
assessment which will authorize the Finance Office to send each owner a bill for the
repairs. The payments are recovered into the assessment fund.
Action: Motion to approve, Request Public Comment, Roll Call
City Manager Recommendation - Approve
April 15, 2008 City Council Packet
203
RESOLUTION NO. 35-08
LEVYING ASSESSMENT FOR SIDEWALK ASSESSMENT
PROJECT NO. 2007-01SWR
WHEREAS, the City Council has provided for the following work to be completed
under Project No. 2007-01SWR. (2007 Sidewalk Repair Sites)
BE IT RESOLVED by the City Council of the City of Brookings, South Dakota, as
follows:
1. The City Council has made all investigation which it deems necessary and has found
and determined that the amount which each lot or tract will be benefited by the
construction of the sidewalk improvement heretofore designated as Sidewalk
Assessment Project No. 2007-01SWR is the amount stated in the proposed
assessment roll.
2. The assessment for Sidewalk Assessment Project No. 2007-01SWR is hereby
approved and the assessment thereby specified are levied against each and every lot,
piece or parcel of land thereby described.
3. Such assessments, unless paid within thirty (30) days after the date of mailing of a
statement of account by the City, shall be collected by the City in accordance with
the procedure for Plan One in Sections 9-43-30 to 9-43-41, South Dakota Compiled
Laws of 1967, as amended with interest of 10% on the unpaid balance.
4. Assessments amounting to less than $300.00 shall be paid in one payment.
This resolution will rescind Resolution No. 20-08, approved by City Council on
February 26, 2008.
Passed and approved this 15th day of April 2008.
CITY OF BROOKINGS
________________________________
__
Scott D. Munsterman, Mayor
ATTEST:
_________________________________
Shari Thornes, City Clerk
April 15, 2008 City Council Packet
204
Name
Sidewalk Location Mailing Address1 CityStateZip
TB Partnership 103 6th Street 611 6th Street Brookings, SD 57006
Rogerio Gomes 125 7th Street 125 7th Street Brookings, SD 57006
Chris Bauman 206 Harvey Dunn 1406 3rd Street Brookings, SD 57006
Theo Mittan 222 8th Street 222 8th Street Brookings, SD 57006
First Lutheran Church 325 8th Street PO Box 300 Brookings, SD 57006
Zeno Wicks 612 5th Avenue Box 342 Brookings, SD 57006
Christofer Eberline 616 5th Avenue 616 5th Avenue Brookings, SD 57006
Robert Bauman 616 8th Avenue 1406 3rd Street Brookings, SD 57006
Douglas Filholm 202 7th Street 202 7th Street Brookings, SD 57006
TB Partnership 629 12th Avenue 611 6th Street Brookings, SD 57006
Patrick Lyons 703 8th Street 1620 Robin Road Brookings, SD 57006
Mark Kelsey 711 8th Avenue 711 8th Avenue Brookings, SD 57006
Charles McCullough 715 8th Avenue 715 8th Avenue Brookings, SD 57006
Curt Kabris 716 8th Street 716 8th Street Brookings, SD 57006
Lavonne Moller 721 8th Avenue 721 8th Avenue Brookings, SD 57006
Kent Resmen 724 12th Avenue 1301 Orchard Dr. Brookings, SD 57006
Kyle Prodoehl 718 12th Avenue 3026 Sunny View Dr. Brookings, SD 57006
Lonny Beynon 725 12th Avenue 5801 Josh Wyatt Dr. Sioux Falls, SD 57108
Carol Pitts 729 12th Avenue 725 4th Street Brookings, SD 57006
Gilbert Family Trust 804 6th Avenue 605 9th Street Brookings, SD 57006
Patricia Fishback 835 6th Avenue 423 8th Street Brookings, SD 57006
Kyle Prodoehl 908 8th Avenue 3026 Sunny View Dr. Brookings, SD 57006
Kirk Simet 917 6th Avenue 917 6th Avenue Brookings, SD 57006
Wisconsin Evangelical
Lutheran
919 9th Avenue 919 9th Avenue Brookings, SD 57006
Brian Artz 1017 3rd Avenue 1017 3rd Avenue Brookings, SD 57006
Paul Moriarty 1031 3rd Avenue P.O. Box 705 Brookings, SD 57006
Dorothy Ishol 1049 7th Avenue 3305 Sunny View Dr. Brookings, SD 57006
Brad Farber 1303 7th Street 701 Railway St. Bruce, SD 57220
April 15, 2008 City Council Packet
205
Other Business.
15. Action on Resolution No. 29-08, a resolution authorizing
the city manager to enter into a liquor operating
agreement with BraVo’s on a temporary basis until the
new restaurant licenses are issued.
Enclosed Resolution No. 29-08 would authorize the City Manager
to enter into a liquor operating agreement with BraVo’s Inc. on a
temporary basis until the new restaurant licenses are issued.
The City Attorney has prepared the enclosed operating
agreement with the temporary language pursuant to the Council’s
discussion and action on March 25th.
Action: Motion to approve, Request Public Comment, Roll Call
April 15, 2008 City Council Packet
206
Resolution No. 29-08
BraVo’s Inc. Operating Agreement
BE IT RESOLVED by the City of Brookings, South Dakota, that the City Council hereby
approves an Operating Liquor Management Agreement between the City of Brookings and
BraVo’s Inc. for the purpose of a liquor manager to operate the on-sale establishment or
business for and on behalf of the City of Brookings at 610 Medary Avenue, also known as
BraVo’s.
BE IT FURTHER RESOLVED that the City Manager be authorized to execute the
Agreement on behalf of the City, which shall be for a temporary period until the City is legally
able to issue On-Sale Licenses for Full-Service Restaurants (Full-Service Restaurant Licenses).
Passed and approved this 15th day of April 2008.
CITY OF BROOKINGS
Scott D. Munsterman, Mayor
ATTEST:
Shari Thornes, City Clerk
April 15, 2008 City Council Packet
207
TEMPORARY LIQUOR OPERATING AGREEMENT
BraVo’s, Inc.
THIS AGREEMENT made and entered into by and between the CITY OF BROOKINGS, a
municipal corporation of the State of South Dakota, hereinafter referred to as the “City” and
BraVo’s, Inc., (dba BraVo’s), Kip and Michelle Pharis, owners, hereinafter referred to as the
“Manager”.
WITNESSETH:
WHEREAS, the City has been issued an on-sale alcoholic beverage license and is
engaged in the sale of alcoholic beverages, and
WHEREAS, the City desires to enter into a temporary operating agreement on a limited
basis with the Manager for the purpose of operating an on-sale establishment or business for
and on behalf of the City pursuant to law during the for a temporary period until the City is
legally able to issue On-Sale Licenses for Full-Service Restaurants (Full-Service Restaurant
Licenses). the City does not issue this Operating Agreement for the usual duration or while the
City considers issuance of this Operating Agreement under the City Council’s procedures for
issuance of its Operating Agreements. This Agreement is effective on the date of execution of
this Agreement and ends upon thirty (30) days notice by City to Manager, but in any event,
ending no later than the earliest date the City is legally able to issue issues Full-Service
Restaurant Licenses under the newly enacted 2008 Full-Service Restaurant On-Sale legislation
(2008 legislation) Senate Bill 126, and
WHEREAS, the Manager has offered to have facilities in which to temporarily operate
said on-sale establishment solely upon the premises hereinafter described.
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
I.
This Agreement is made and entered into on a temporary and limited basis between the
parties hereto to allow the Manager to operate a retail on-sale premises, pursuant to and in
accordance with all of the terms and conditions of this Agreement in accordance with all State
laws and City Ordinances now in effect and as may be enacted in the future.
II.
The Manager shall be individually responsible for all operating expenses of said on-sale
establishment, including but not limited to utilities, taxes, insurance and license fees, if any.
The Manager shall furnish all equipment and fixtures necessary to operate the
establishment.
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208
III.
The on-sale establishment shall be located upon real estate in the City of Brookings,
South Dakota, described as:
Lots Three (3), Four (4) and Five (5) in Block One (1) of Randi
Peterson’s Addition to the City of Brookings, County of Brookings,
State of South Dakota.
IV.
The Manager shall dispense only alcoholic beverages supplied by the Municipal off-sale
establishment.
V.
The Manager understands and agrees that the term of this Temporary Operating
Agreement is of limited duration because this Temporary Operating Agreement is intended to
be used by the Manager (Bravo’s, Inc.) only during the period the City desires to use this
Operating Agreement on a temporary basis or until it issues this Operating Agreement for the
usual 5 year duration, whichever the case may be. This Agreement shall terminate upon thirty
(30) days notice by City to the Manager and no later than the earliest date the City is able to
issue issues Full-Service Restaurant Licenses under the newly enacted 2008 legislation. Senate
Bill 126
VI.
Either the Manager or the City may terminate this Agreement without cause upon ninety (90)
days written notice served by either party upon the other. The City reserves the right to
immediately suspend or revoke this Agreement without ninety (90) days written notice for
alcohol related violations in accordance with the provisions of Resolution No. 25-88 or any
amendments thereto or for any late payments for alcoholic beverages supplied by the Municipal
off-sale establishment to be sold on the premises of Manager.
VII.
The Manager shall receive as full compensation for its services rendered, the net profit from the
on-sale establishment under its management, and the sole profit to be derived by the City shall be
the markup hereinafter set forth on alcoholic beverages furnished by the municipality to the
Manager for the purposes of resale on the premises as above described.
VIII.
The Manager shall pay to the City for all alcoholic beverages sold by the City to the Manager for
resale on the above-described premises, the actual cost of distilled spirits and wine supplied by
the City, plus eleven percent (11%) in excess of such cost; the Manager shall pay to the City for
April 15, 2008 City Council Packet
209
all malt beverages sold by the City to the Manager for resale on the above-described premises,
the actual cost of malt beverages, plus ten percent (10%) in excess of such cost. The actual cost
shall include cost price and transportation charges. The markup percentages provided in this
Agreement are subject to change by the City of Brookings. In the event markup percentages are
changed by Ordinance, then the markup percentages provided by City Ordinance shall supercede
the markup percentages provided herein. The Manager further agrees that if either of the
markup percentages shall be increased at any time by the City, the Manager shall pay the markup
as so increased.
IX.
A complete and detailed record shall be maintained by the City of all alcoholic beverages supplied
to the on-sale Manager and such alcoholic beverages so supplied shall be evidenced by
prenumbered invoices prepared in triplicate showing the date, quantity, brand, size and actual
cost of such item, and such invoice shall bear the signature of the authorized representative of
the on-sale Manager or its authorized representative. One copy thereof shall be retained by the
Municipal off-sale establishment, one copy shall be retained by the on-sale establishment, and one
copy shall be filed with the City Clerk. All copies shall be kept as permanent records and made
available for reference and audit purposes. The Manager also agrees to maintain a complete
record of all alcoholic beverages received from the City.
X.
In consideration of the covenants and agreements herein contained, the Manager agrees to pay
the CITY OF BROOKINGS, One Thousand Five Hundred and no/100 Dollars ($1,500.00),
constituting the Annual License Fee on or by the date of execution of this Agreement, and on or
by the first day of each year thereafter as long as this Agreement shall remain in force and effect.
The Manager further agrees that if the annual fee shall be increased at any time by the legislature,
the Manager shall pay the amount of any such increase. In addition, the Manager agrees to pay
the federal stamp fee.
In consideration of the covenants and agreements herein contained, the Manager agrees
to pay to the CITY OF BROOKINGS, on the date of execution of this Agreement, for the initial
period of this Agreement and through September 1, 2008, December 31, 2002 a pro-rated
portion of the Annual License Fee of One Thousand Five Hundred and no/100 Dollars
($1,500.00), with the pro-ration computed based upon the period April 15, 2008 June 1, 2002
through September 1, 2008 December 31, 2002. On or before January 1, 2009 2003, if this
Agreement is still in effect, the Manager agrees to pay to the CITY OF BROOKINGS the Annual
License Fee of One Thousand Five Hundred and no/100 Dollars ($1,500.00) and further agrees to
pay said Annual License Fee by the first day of each year thereafter, as long as this Agreement
shall remain in force and effect. The Manager further agrees that if the annual fee shall be
increased at any time by the City or legislature, the Manager shall pay the amount of any such
increase. If the Managers payments of the Annual License Fee exceed the correct pro-rated
portion of the amount of Annual License Fee actually payable for the duration of this Agreement
(and the duration is presently uncertain) then the City shall reimburse the amount of Annual
April 15, 2008 City Council Packet
210
License Fee which exceeds the correct pro-rated amount for the period this Agreement is
actually in effect.
In addition, the Manager agrees to pay the federal stamp fee.
XI.
The Manager agrees to keep the premises in a neat, clean and attractive appearance, and Manager
further agrees to operate said on-sale establishment only on such days and at such hours as
permitted by state law and city ordinances.
XII.
The Manager shall have the right to return, at any time, alcoholic beverages received from the
City and to receive in return any deposit made for such alcoholic beverages; in the event of
termination of the business, all unused alcoholic beverages, which may be resold without discount
may be returned to the City and the Manager shall be reimbursed for the cost of such alcoholic
beverages.
XIII.
The Manager agrees to abide by the credit policies of the City and acknowledges, by execution of
this Agreement, receipt of a copy of the credit policies of the City. The City reserves the right to
change or terminate its credit policies at any time, but shall be required to provide written notice
to Manager prior to the effective date of the change or termination date of the credit policies.
XIV.
The Manager agrees to furnish the City upon demand, evidence of payment of the following:
A. All salaries of on-sale employees;
B. Social Security and withholding taxes on said employees;
C. Worker’s Compensation insurance premiums covering said employees;
D. Unemployment taxes on the payrolls of said employees;
E. General liability insurance protecting both the City and Manager against claims for
injury or damages to persons or property, said policy to have general liability limits of
at least Five Hundred Thousand Dollars ($500,000.00) single limit, and One Million
Dollars ($1,000,000.00) aggregate, and a limitation of Fifty Thousand Dollars
($50,000.00) for damage to property. The general liability insurance limits are subject
to change and Manager agrees to change limits of insurance if required by the City;
F. Rent and utility bills;
G. Any and all miscellaneous expenses, including taxes.
April 15, 2008 City Council Packet
211
XV.
The Manager agrees to observe all Federal and State laws and all ordinances of the City of
Brookings.
XVI.
The City covenants and agrees to furnish the on-sale license to Manager pursuant to the terms
and conditions of this Operating Agreement and the terms and conditions of the on-sale license.
XVII.
The City shall have the right to make inspections and investigations of the premises during the
hours of operation, and make audits and examinations of the records of the Manager relating to
the on-sale establishment.
XVIII.
It is further specifically understood and agreed that the waiver of the rights of the City under this
Agreement shall not constitute a continuous waiver, and any violation or breach of the terms of
this agreement by the Manager shall constitute a separate and distinct offense and grounds for
immediate termination and revocation of this Agreement.
XIV.
This agreement shall not be assignable to another person or location without the written consent
of the City.
IN WITNESS WHEREOF, the parties hereto have executed this agreement this ____ day of April, 2008.
CITY OF BROOKINGS, South Dakota
A Municipal Corporation
By:
Jeffrey W. Weldon, City Manager
ATTEST:
Shari Thornes, Brookings City Clerk
BRAVO’S, INC., MANAGER
April 15, 2008 City Council Packet
212
By:
_________________________________
__
Its:
________________________________
April 15, 2008 City Council Packet
213
Other Business.
16. Public hearing and action on Res. 28-08, a resolution of
intent to lease real property to a private person and
authorizing the Mayor to sign an agreement with the
South Dakota Kart Club, Inc.
In 1983 the City Commission approved a lease agreement with the Dakota Plains Kart
Club, Inc. a local go-cart racing non-profit organization that permitted them to develop
and operate a race track facility on city property.
The site is located at NorthBrook Park which is east of Medary Avenue and north of
the Highway 14 Bypass, north of SDSU, and is adjacent to the Chittick Community
Gardens on the south and BMU well fields and the Big Sioux Bowmen Outdoor Archery
Range to the north.
Named the University Plains Speedway, the race track has operated continuously and
successfully to the present. However, in recent years, participation has declined
somewhat and local volunteers necessary to keep it operating are harder to find. The
track is recognized by others in the area as a very good facility and worthy of being
maintained. At this point in time, the local group is concerned that they can not
continue, financially or with the support people necessary. They have been in contact
with the South Dakota Kart Club, Inc. of Renner, South Dakota (just north of Sioux
Falls), who has a very active membership, and have been operating for several years at a
rented facility in their area, actually designed as a motorcycle race track,
With the cooperation of the Brookings group, they are interested in transferring their
home base to Brookings and assuming the lease agreement, or one similar to what the
Brookings group now has. Several local racers would likely become members of the
Sioux Falls club. The original 1983 lease was for 10 years, was renewed verbally in
1993, and has continued verbally to the present, so a new written lease agreement
needs to be written. A draft proposal to accomplish this has been prepared by local
attorney Robert Fite, who is also the most active local member of the Brookings group.
This draft proposal would need to be reviewed by the City Attorney and compared to
the original lease and current needs of the city.
The Kart club pays all its own operating expenses and for any improvements they make
to the facility. An annual Certificate of Liability Insurance ($1,000,000-$2,000,000) is
provided to the city. The current lease contains no provision for rent, and realistically,
given the difficulty of meeting operating expenses, would be difficult to expect now, at
least for the present. Perhaps a review after five years would be appropriate. The
Dakota Kart Club is organized as a non-profit corporation and recognized as such by
the S.D. Secretary of State.
It is anticipated there would be at least seven Saturday night races each summer, some
of them a double race. 80-100 racers would be average, from the tri-state area, with
April 15, 2008 City Council Packet
214
300-400 spectators, so there is some economic impact. In a year or two they would
like to host a regional or maybe even a national race event.
It would appear this new lease agreement is essential to the continuation of races and
the future of the facility. If it ceases to operate, the track becomes a liability to the city,
and under the terms of the original lease, must be removed from the site. We are
really very fortunate, I believe, to have this opportunity. It is just another example of
the wide range of recreational activities Brookings has to offer.
Action: Open & Close Public Hearing, Motion to approve, Roll Call
City Manager Recommendation – Approve
April 15, 2008 City Council Packet
215
RESOLUTION NO. 28-08
RESOLUTION OF INTENT TO LEASE REAL PROPERTY TO PRIVATE ENTITY
BE IT RESOLVED by the governing body of the City of Brookings, South Dakota that
the City of Brookings intends to enter into a Lease with South Dakota Kart Club, Inc., a South
Dakota Corporation, for a period of Five (5) years and pertaining to the following described
property:
The West Half of the Southwest Quarter (W½SW¼) of Section Thirteen (13),
Township One Hundred Ten (110) North, Range Fifty (50) West of the 5th P.M.,
within the City of Brookings, Brookings County, South Dakota, less the North
Seven Hundred Feet (N 700') of the East Seven Hundred Twenty Feet (E 720') and
the North Nine Hundred Fifty Feet (N 950') of the West Six Hundred Feet (W
600') less any Highway right of ways of the West Half of the Southwest Quarter
(W½SW¼) of said Section Thirteen (13).
The purpose of this Lease is to provide a location for kart racing. The term of the Lease
is five years. The Lease provides that as rent for the above-mentioned premises, the infield,
bleachers, parking and restroom facilities shall be available for use by the City of Brookings Park
and Recreation Department for sponsored activities.
BE IT FURTHER NOTED, that a Public Hearing on this Resolution was held on this
15th day of April, 2008 at 6:00 o'clock P.M. at the City Council Chambers and that all persons
were given an opportunity to be heard on the intent to lease real property.
Passed and approved this 15th day of April, 2008.
CITY OF BROOKINGS
Scott D. Munsterman, Mayor
ATTEST:
Shari L. Thornes, City Clerk
April 15, 2008 City Council Packet
216
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and executed this ____ day of
_________________, 2008, by and between the CITY OF BROOKINGS, a South Dakota
municipal corporation, its licensees, successors, transfers and assigns, hereinafter called
“Lessor”, and the SOUTH DAKOTA KART CLUB, INC., a South Dakota corporation,
hereinafter called “Lessee”;
WITNESSETH:
WHEREAS, Lessor, is possessed of certain land being located and situated on the
premises described as follows, to-wit:
The West Half of the Southwest Quarter (W½SW¼) of Section Thirteen (13),
Township One Hundred Ten (110) North, Range Fifty (50) West of the 5th P.M.,
within the City of Brookings, Brookings County, South Dakota, less the North
Seven Hundred Feet (N 700') of the East Seven Hundred Twenty Feet (E 720') and
the North Nine Hundred Fifty Feet (N 950') of the West Six Hundred Feet (W
600') less any Highway right of ways of the West Half of the Southwest Quarter
(W½SW¼) of said Section Thirteen (13); and
WHEREAS, the above-described premises were leased to the DAKOTA PLAINS KART
CLUB, INC., by a lease agreement dated April 26, 1983, for an initial ten-year term, with
renewals as provided therein; and
WHEREAS, the purpose of such lease was for the construction, erection and
maintenance of a kart racetrack facility and related improvements thereto, said facilities and
improvements to be built, constructed and maintained on the premises aforesaid; and
WHEREAS, a kart racetrack facility with related improvements was constructed on said
premises, and said premises have been continuously maintained and operated as such racing
facility from and after April 26, 1983; and
WHEREAS, an agreement which is satisfactory to Dakota Plains Kart Club, Inc. has been
reached whereby the SOUTH DAKOTA KART CLUB, INC. has obtained permission to use
said facility with leasehold improvements and now desires to assume operation of the racing
facility; and
WHEREAS, to facilitate such operation, SOUTH DAKOTA KART CLUB, INC., herein
referred to as Lessee, is desirous of having the lease to the above-described real estate
transferred to its organization; now therefore
IT IS MUTUALLY AGREED, COVENANTED AND UNDERSTOOD, by and between
the parties hereto that the Lessor, in consideration of the rents and covenants hereinafter
mentioned, does hereby demise, lease and let unto the said Lessee, and the said Lessee does
hereby lease, hire and take from the said Lessor, that portion of the above-described premises
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upon which the racing facility has been constructed and maintained upon the following terms
and conditions.
1. IT IS AGREED, by and between the parties hereto that Lessee shall be entitled to
have and to hold the above-leased premises unto itself and its successors as hereinafter
provided, for and during the full term of five (5) years from and after the ____ day of
__________________, 2008. Thereafter, subsequent renewals shall be under such terms as
are mutually agreed upon by the parties.
2. IT IS FURTHER AGREED, that the Lessee shall be privileged to operate said kart
racing facility, which operation shall be in compliance with all applicable laws, statutes and
ordinances of the City of Brookings.
3. IT IS FURTHER AGREED, that the use of the above-described premises shall be
subject to certain utility easements reserved in favor of Lessor, said utility easement being
recorded in the office of the Register of Deeds in Book 102 of Miscellaneous, at pages 484-485
therein.
4. IT IS FURTHER AGREED, that as rent for the above-mentioned premises, the
infield, bleachers, parking and restroom facilities shall be available for use by the City of
Brookings Park and Recreation Department for sponsored activities. It is understood that these
activities will be scheduled at such times as do not conflict with the Lessee’s use of the facilities
and such scheduling shall be mutually agreed upon by both parties.
5. IT IS UNDERSTOOD AND ACKNOWLEDGED, that the electrical hook-up was
paid for by the prior Lessee and that the actual cost of the utility usage shall be borne by the
party using such facility.
6. IT IS FURTHER AGREED, that Lessor shall not be liable for any personal injury or
property damage occurring on or to the leased premises or to any persons thereon, and Lessee
shall assume all liability for any injury or damages that may arise from any accident that occurs
on the leased premises and which arises from Lessee’s use of said premises. Further, Lessee
waives all claims against Lessor for injury or damage to persons or property sustained by
Lessee or any person on the leased premises arising from Lessee’s use of said premises. Lessee
shall be responsible for maintaining all spectator, participant and premises liability insurance in a
minimum amount of one million dollars ($1,000,000.00) for each occurrence, and two million
dollars ($2,000,000.00) aggregate coverage pertaining to Lessee’s use of the leased premises,
and shall furnish proof of the same to Lessor with Lessor named as an additional insured party.
Any deviation from the minimums will require prior approval from the Lessor. It is further
understood and agreed that Lessee shall be responsible for all clean up of the leased premises
when such clean up is required as a result from Lessee’s use of the premises.
7. IT IS FURTHER AGREED, that for any use of the leased premises, other than
specifically authorized herein, Lessee shall first obtain the permission of the City of Brookings,
which request shall be governed by the regular permission procedures pertaining to city park
use and said permission shall not be unreasonably withheld.
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8. IT IS FURTHER AGREED, that the Lessor specifically covenants and agrees that
the leasehold interest of Lessee shall not be subject to summary forfeiture or cancellation. If
any violations of the terms of this lease agreement are noted, Lessee shall be given written
notice thereof and shall be permitted thirty (30) days from the date of said notice in which to
correct the deficiencies. In the event that Lessee fails to remedy any deficiencies or violations of
the lease agreement as hereinbefore provided, Lessor may, at its election, cancel and forfeit this
lease. In the event of such default, Lessor shall have the right to purchase from Lessee any fixed
assets or improvements constructed by Lessee, which may be useful in other recreational uses
of the property, the value of which shall be determined by appraisal. In the event that Lessor
does not desire to purchase such assets or improvements, Lessee shall be given a reasonable
time to remove its property from the premises or to forfeit the same. Further, Lessor may
require that all grading and dirt work be returned to its original condition.
9. IT IS FURTHER AGREED, that upon performing the covenants of this Lease,
Lessee shall peaceably and quietly have, hold and enjoy the said demised premises for the term
or terms aforesaid and that upon termination of this lease agreement, said Lessee shall be
privileged to remove at its own cost and expense any and all improvements built, constructed,
erected, maintained and placed on the premises for the purposes herein contained. Provided,
however, that in the event that Lessee desires not to renew this lease agreement under its
present terms, then and in that event, Lessor shall have the option of purchasing from Lessee
any fixed assets or improvements constructed by Lessee which may be useful in other
recreational uses of the property, the value of which shall be determined by appraisal.
10. IT IS FURTHER AGREED, that Lessee will keep and maintain the leased premises
during the aforesaid term in a good state of repair. In the event that Lessor requires that the
grading and dirt work be returned to its original condition as hereinbefore provided, the fixed
assets or improvements of Lessee shall be held by Lessor as security, and shall not be removed
by Lessee until such grading and dirt work is accomplished.
11. IT IS FURTHER AGREED, that Lessee may not assign this lease or sublet the leased
premises without first obtaining the permission of the City of Brookings, which permission shall
not be unreasonably withheld.
12. IT IS FURTHER AGREED, that annually, at the conclusion of the racing season and
no later than December 31st, South Dakota Kart Club representatives shall meet with city staff
to review the past year’s activities. A purpose of this meeting would be to identify any changes
in the working relationship that could improve the next year’s operation. Items discussed at this
meeting may include, for informational purposes only, a review of the club’s annual financial
statement as normally compiled for non-profit corporations.
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IN WITNESS WHEREOF, the parties hereunto set their respective hands and seals the
day and year first written above.
ATTEST: CITY OF BROOKINGS, Lessor
Shari Thornes, City Clerk Scott D. Munsterman, Mayor
ATTEST: SOUTH DAKOTA KART CLUB, INC., Lessee
Mylan Mork, Secretary Loren Zomer, Vice President
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220
Other Business.
17. Action on Resolution No. 30-08, a resolution awarding
bids for the Downtown Streetscape project.
To: Brookings City Council
From: Jeff Weldon, City Manager, Allyn Frerichs, Park, Rec & Forestry Director, and Jackie Lanning,
City Engineer
The 2008-03STI Downtown Streetscape Project entails construction work on Main Avenue from 6th
Street to Front Street, which includes new water and sanitary sewer mains and services, new sidewalk,
light poles, trees, curb & gutter, pavement and other streetscape amenities.
The City of Brookings opened bids on Tuesday, March 18th, 2008 at 1:30 pm at Brookings City Hall and
the following bids were received:
Bid Schedule No. 1:
Base Bid Items:
Engineer’s Estimate: $3,005,627.00
Winter Brothers Underground, Inc., Sioux Falls, SD $3,687,292.50
Duininck Brothers, Inc., Prinsburg, MN $3,821,790.50
Prunty Construction Co., Inc., Brookings, SD $3,907,345.27
Add Bid Alternate No. 1 (Walkway Pavement Custom Joint Pattern):
Engineer’s Estimate: $8.040.00
Duininck Brothers, Inc., Prinsburg, MN $26,800.00
Prunty Construction Co., Inc., Brookings, SD $71,757.00
Winter Brothers Underground, Inc., Sioux Falls, SD $73,700.00
Add Bid Alternate No. 2 (Walkway Pavement Custom Color Concrete):
Engineer’s Estimate: $16,080.00
Duininck Brothers, Inc., Prinsburg, MN $50,250.00
Winter Brothers Underground, Inc., Sioux Falls, SD $107,200.00
Prunty Construction Co., Inc., Brookings, SD $107,635.50
Add Bid Alternate No. 3 (Walkway Pavement Additional Color Concrete):
Engineer’s Estimate: $40,200.00
Duininck Brothers, Inc., Prinsburg, MN $80,400.00
Winter Brothers Underground, Inc., Sioux Falls, SD $107,200.00
Prunty Construction Co., Inc., Brookings, SD $143,514.00
Add Bid Alternate No. 4 (Parking Area Concrete Pavement):
Engineer’s Estimate: $143,528.00
Winter Brothers Underground, Inc., Sioux Falls, SD $123,956.00
Prunty Construction Co., Inc., Brookings, SD $130,480.00
Duininck Brothers, Inc., Prinsburg, MN $172,886.00
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221
Bid Schedule No. 2:
Roadway Surfacing:
Engineer’s Estimate: $144,095.00
Bowes Construction, Inc., Brookings, SD $125,870.00
Add Bid Alternate (Parking Area Asphalt Pavement):
Engineer’s Estimate: $56,168.00
Bowes Construction, Inc., Brookings, SD $49,055.00
Bid Schedule No. 1 is the base bid for the streetscape project, which includes add alternates for
enhanced concrete sidewalks and concrete pavement for the parking area. Bid Schedule No. 2 is the
base bid for asphalt roadway surfacing, which includes an add alternate for asphalt pavement for the
parking area. The roadway surfacing project would need to include the bid alternate for either the
concrete pavement or asphalt pavement in the parking area.
We have examined each of the bid items in the bids and investigated the options available for funding
this project. Options include:
1. redesigning the full streetscape/utility project and rebidding the project
2. redesigning the project to include streetscape only and rebidding the project
3. awarding the bids and proceeding with the project as designed
4. awarding the bids and researching ways to modify portions of the project to provide some cost
deductions through change orders
The project cost using the low bid is over the current budget for this project. The budget will need to
fund the bids that are awarded, construction contingency, engineering services, testing services by an
independent firm, and funds to purchase trees/ landscape materials/benches/garbage receptacles (by
City). Tree planting and landscaping will be by City forestry personnel.
BROOKINGS MUNICIPAL UTILITY ISSUE
The 2008 amended budget included an estimate of $350,000 for water/sewer mains and $380,000 for
water/sewer services for a total of $730,000. The actual bids for these two items total $682,535.00,
which includes no amount for general bid requirements. The $682,535.00 is 18% of the total bid. We
are proposing that BMU pay 18% of the general requirement portion, which is $84,960. This would
require BMU to fund an additional $37,495 above the budget amendment amount.
The following is an itemization of these costs:
EXPENDITURES
Bid Schedule 1, Base Bid: $3,687,292
(includes water/sewer items at $682,535.00, but no BMU general requirements)
Bid Schedule 2 plus alternate, Asphalt surfacing: $174,925
Allowance for landscaping, benches, garbage receptacles $100,000
Engineering, Inspection, materials testing: $170,000
Allowance for construction contingency: $339,560
Projected project cost reductions after redesign ($100,000)
Total Project Costs $4,371,777
FUNDS AVAILABLE (2008 amended budget figures):
Water/Sewer Mains, paid by BMU $350,000
Streets and Sidewalks $2,557,000
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222
Signal $100,000
Streetscape Contingency $339,560
Water/Sewer Services, paid by assessment fund $380,000
Total funds available (includes utilizing $239,560 of streetscape contingency) $3,726,560
BUDGET SHORTFALL: $645,217
We have examined the City’s available funds along with Finance Manager Rita Thompson, and propose
the following funds can be utilized to cover the extra expenses:
• $37,495: Extra BMU payment for general requirements (additional $47,465 already included
in the budget amendment for a total of $84,960, which is 18% of administrative costs)
• $200,000: Delay City Hall Front Entrance Remodeling
• $100,000: Delay a portion of the fire truck depreciation payment for one year
• $107,722: Transfer from Liquor Reserve
• $100,000: Transfer from 2nd Penny Reserves
• $100,000: Transfer or loan from Solid Waste Reserve
Total: $645,217 We are financing the contingency of $339,560 as approved in the budget amendment
02-08 in January (see attachment).
If the project is awarded, these funds will be included in a future budget amendment and change orders
will be addressed.
Staff recommends that the contract be awarded for the low bid to Winter Brothers Underground, Inc.,
Sioux Falls, SD for the Base Bid of $3,687,292.50 with no bid alternates for Bid Schedule No. 1; and the
low bid to Bowes Construction, Inc., Brookings, for Roadway Surfacing for $125,870.00 and Bid
Alternate (Parking Area Asphalt Pavement) for $49,055.00 for Bid Schedule No. 2.
Action: Motion to approve, Request Public Comment, Roll Call
City Manager Recommendation – Approve
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223
Resolution No. 30-08
Resolution Awarding Bids on Project 2008-03STI
Downtown Streetscape Project
Whereas, the City of Brookings opened bids for Project 2008-03STI Downtown
Streetscape Project on Tuesday, March 18th, 2008 at 1:30 pm at Brookings City Hall; and
Whereas, the City of Brookings has received the following bids for Project
2008-03STI Downtown Streetscape Project:
Bid Schedule No. 1:
Base Bid Items:
Engineer’s Estimate: $3,005,627.00
Winter Brothers Underground, Inc., Sioux Falls, SD $3,687,292.50
Duininck Brothers, Inc., Prinsburg, MN $3,821,790.50
Prunty Construction Co., Inc., Brookings, SD $3,907,345.27
Bid Alternate No. 1 (Walkway Pavement Custom Joint Pattern):
Engineer’s Estimate: $8.040.00
Duininck Brothers, Inc., Prinsburg, MN $26,800.00
Prunty Construction Co., Inc., Brookings, SD $71,757.00
Winter Brothers Underground, Inc., Sioux Falls, SD $73,700.00
Bid Alternate No. 2 (Walkway Pavement Custom Color Concrete):
Engineer’s Estimate: $16,080.00
Duininck Brothers, Inc., Prinsburg, MN $50,250.00
Winter Brothers Underground, Inc., Sioux Falls, SD $107,200.00
Prunty Construction Co., Inc., Brookings, SD $107,635.50
Bid Alternate No. 3 (Walkway Pavement Additional Color Concrete):
Engineer’s Estimate: $40,200.00
Duininck Brothers, Inc., Prinsburg, MN $80,400.00
Winter Brothers Underground, Inc., Sioux Falls, SD $107,200.00
Prunty Construction Co., Inc., Brookings, SD $143,514.00
Bid Alternate No. 4 (Parking Area Concrete Pavement):
Engineer’s Estimate: $143,528.00
Winter Brothers Underground, Inc., Sioux Falls, SD $123,956.00
Prunty Construction Co., Inc., Brookings, SD $130,480.00
Duininck Brothers, Inc., Prinsburg, MN $172,886.00
Bid Schedule No. 2:
Roadway Surfacing:
Bowes Construction, Inc., Brookings, SD $125,870.00
Bid Alternate (Parking Area Asphalt Pavement):
Bowes Construction, Inc., Brookings, SD $49,055.00
Now Therefore, Be It Resolved that the low bid of Winter Brothers
Underground, Inc., Sioux Falls, SD, for Base Bid of $3,687,292.50 with no bid
alternates be accepted for Bid Schedule No. 1; and that the low bid of Bowes
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Construction, Inc., Brookings, for Roadway Surfacing for $125,870.00 and Bid
Alternate (Parking Area Asphalt Pavement) for $49,055.00 be accepted for Bid
Schedule No. 2.
Passed and approved this 15th day of April 2008.
CITY OF BROOKINGS
________________________________
Scott D. Munsterman, Mayor
ATTEST:
_________________________
Shari Thornes, City Clerk
April 15, 2008 City Council Packet
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18. Adjourn.