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Home My WebLink About2023_08_08 CC PKTCity Council City of Brookings Meeting Agenda - Final Brookings City Council Brookings City & County Government Center 520 3rd St., Suite 230 Brookings, SD 57006 Phone: (605) 692-6281 "We are an inclusive, diverse, connected community that fuels the creative class, embraces sustainability and pursues a complete lifestyle. We are committed to building a bright future through dedication, generosity and authenticity. Bring your dreams!" Council Chambers6:00 PMTuesday, August 8, 2023 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. 6:00 PM REGULAR MEETING 1. Call to Order / Pledge of Allegiance. 2. Record of Council Attendance. 3. Action to approve the agenda. 4. Open Forum. At this time, any member of the public may make a brief announcement or invitation, or request time on the agenda for an item not listed. Items to be added to the agenda will be scheduled at the end of the meeting. Individuals will state their name and city of residence for the record. Public Comment is limited to a maximum of three minutes per person. The comments and views expressed by the public are those of the speakers and do not necessarily reflect the views or positions of the City of Brookings or City Council. 5. Consent Agenda: 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. At the request of any one Council Member or the City Manager, an item may be removed from the Consent Agenda and placed on the regular agenda whenever additional discussion on an item is necessary. Items removed from the Consent Agenda will be discussed at the beginning of the formal items. 5.A.ID 23-0338 Action to approve City Council meeting minutes. Page 1 City of Brookings August 8, 2023City Council Meeting Agenda - Final 7/25/2023 MinutesAttachments: 5.B.RES 23-067 Action on Resolution 23-067, a Resolution authorizing the City Manager to sign an On-Sale Wine Operating Agreement renewal for Guadalajara II, Inc., dba Guadalajara Mexican Restaurant, Juan Carlos Vega, owner, 1715 6th Street, Suite F, Village Square Mall #1, Brookings, South Dakota. Legal description: Lot 6, Suite 'F', Village Square Mall Addition. Resolution Operating Agreement Location Map Attachments: 5.C.RES 23-068 Action on Resolution 23-068, a Resolution authorizing the City Manager to sign an On-Sale Wine Operating Agreement renewal for Den Wil Hospitality Group, Inc., dba Wilbert’s / Comfort Suites University, Dennis Bielfeldt, owner, 931 25th Avenue, Brookings, South Dakota. Legal description: Lot 3, Block 2, Telkamp Addition. Resolution Operating Agreement Location Map Attachments: 5.D.RES 23-069 Action on Resolution 23-069, a Resolution authorizing the City Manager to sign an On-Sale Convention Liquor Operating Agreement renewal for Den Wil Hospitality Group, Inc., dba Wilbert’s / Comfort Suites University, Dennis Bielfeldt, owner, 931 25th Avenue, Brookings, South Dakota. Legal description: Lot 3, Block 2, Telkamp Addition. Resolution Operating Agreement Location Map Attachments: 5.E.RES 23-072 Action on Resolution 23-072, a Resolution Accepting a Donation for the Construction of 8 Pickleball Courts. Memo Resolution Tentative Site Plan Attachments: 5.F.ID 23-0347 Action to adjust the 2023 City Council Meeting Calendar 6. Presentations/Reports: 6.A.ID 23-0342 Introduction of new and/or promoted City of Brookings employees. 6.B.ID 23-0315 Proclamation: A Day to Celebrate the Cultures of Our Community ProclamationAttachments: 6.C.ID 23-0343 Report: 2023 2nd Quarter Finance Report Page 2 City of Brookings August 8, 2023City Council Meeting Agenda - Final PresentationAttachments: 6.D.ID 23-0339 Reports: City Council Ex-Officio Reports 7. Contracts/Change Orders: NONE 8. Ordinance First Readings: No vote is required on the first reading of an Ordinance. The title of the Ordinance is read. Public Comment and Council discussion is permitted. The date for the second reading or public hearing is announced. 8.A.ORD 23-021 Introduction and First Reading on Ordinance 23-021, an Ordinance Amending Article II of Chapter 38 - Flood Damage Prevention in City, of the Code of Ordinances of the City of Brookings, South Dakota. Public Hearing and Action: August 22, 2023. Memo Ordinance - clean Ordinance - marked Attachments: 8.B.ORD 23-026 Introduction and First Reading on Ordinance 23-026, an Ordinance Authorizing Amendment No. 7 to the 2023 Budget. Second Reading and Action: August 22, 2023. Memo Ordinance Attachments: 9. Public Hearings and Second Readings: 9.A.ORD 23-025 Second Reading and Action on Ordinance 23-025, an Ordinance Authorizing Amendment No. 6 to the 2023 Budget. Memo Ordinance Attachments: Motion: Action to Approve, Request Public Comment, Roll Call Legislative History 7/25/23 City Council read into the record 9.B.ID 23-0334 Public Hearing and Action on a request for an On-Off Sale Malt License for The Crown, dba Danger Von Dempsey’s, Jayme Erickson, owner . Location: 770 22nd Avenue South. Legal Description: Lot 2, Brookings Mall Addition, Suite 770. Memo Legal Notice Location Map Attachments: Motion: Motion to Approve, Open & Close Public Hearing, Roll Call 9.C.ID 23-0036 Public Hearing and Action on a request for an On-Off Sale Malt License, Page 3 City of Brookings August 8, 2023City Council Meeting Agenda - Final with Video Lottery, for Commonwealth Gaming & Holding Corp, dba Deuces Casino, Suite 105E, Bryant Soberg and Kirby Muilenburg, owners, 223 6th Street, Suite 105E, legal description: S114’ of W 69.3’ of Lot 20 and S114’ of Lot 21, Block 3, Henry Addition, Suite 105E. Pending occupancy permit issuance and final inspection per the Community Development Dept. Memo Proposed Building Plan Legal Notice - July 2023 Legal Notice - January 2023 City Attorney Opinion on AR 48.02.11.02 City Attorney Memo on Video Lottery - 2018.05.02 Video Lottery - State Statues and Admin Rule City Council Minutes excerpts Location Map Attachments: Motion: Motion to Approve, Open & Close Public Hearing, Roll Call Legislative History 1/24/23 City Council tabled 9.D.ID 23-0035 Public Hearing and Action on a request for Video Lottery for Commonwealth Gaming & Holding Corp, dba Deuces Casino, Bryant Soberg and Kirby Muilenburg, owners, 223 6th Street, Suite 105E, legal description: S114’ of W 69.3’ of Lot 20 and S114’ of Lot 21, Block 3, Henry Addition, Suite 105E. Memo Current Video Lottery List CC Minutes excerpt - Deuces Casino items City Attorney Memo on Video Lottery - 2018.05.02 City Attorney Opinion on AR 48.02.11.02 Video Lottery - State Statues and Admin Rule Legal Notice - January 2023 Legal Notice - July 2023 Proposed Building Plan Location Map Attachments: Motion: Motion to Approve, Open & Close Public Hearing, Roll Call Legislative History 1/24/23 City Council tabled 9.E.RES 23-005 Public Hearing and Action on Resolution 23-005, a Resolution authorizing the City Manager to enter into an On-Off Sale Wine Operating Agreement for Commonwealth Gaming & Holdings, Co., dba Deuces Casino, Bryant Soberg and Kirby Muilenburg, owners, 223 6th Page 4 City of Brookings August 8, 2023City Council Meeting Agenda - Final Street, Suite 105E, Brookings, South Dakota, legal description: South 114’ of the West 69.3’ of Lot 20, and the South 114’ of Lot 21, Block 21, Block 3, Henry’s Addition, Suite 105E. Memo Resolution Operating Agreement City Council Minutes excerpt Hearing Notice - January 2023 Hearing Notice - July 2023 Location Map Attachments: Motion: Motion to Approve, Open & Close Public Hearing, Roll Call Legislative History 1/24/23 City Council tabled 9.F.ID 23-0335 Public Hearing and Action on a request to transfer an On-Off Sale Malt License for Ray’s Corner, 401 Main Avenue, from Fergen Enterprise, Inc., Mike Fergen, owner, to Icon Investments, Todd Voss, owner. Legal description: Lot 1, Ray’s Corner Addition. Memo Legal Notice City Code and SDCL References Location Map Attachments: Motion: Motion to Approve, Open & Close Public Hearing, Roll Call 9.G.ID 23-0336 Public Hearing and Action on a request to transfer an On-Off Sale Malt License, with video lottery authorization, for Ray’s Corner, 401 Main Avenue, Suite B, from Fergen Enterprise, Inc., Mike Fergen, owner, to Icon Investments, Todd Voss, owner. Legal description: Lot 1, Suite B, Ray’s Corner Addition. Memo Legal Notice City Code and SDCL References Location Map Attachments: Motion: Motion to Approve, Open & Close Public Hearing, Roll Call 9.H.RES 23-066 Public Hearing and Action on Resolution 23-066, a Resolution authorizing the City Manager to enter into an On-Sale Liquor Operating Agreement with Icon Investments, Todd Voss, owner, for Ray’s Corner, 401 Main Avenue. Legal description: Lot 1, Ray’s Corner Addition. Page 5 City of Brookings August 8, 2023City Council Meeting Agenda - Final Memo Resolution Operating Agreement Notice of Public Hearing Code and SDCL References Location Map Attachments: Motion: Motion to Approve, Open & Close Public Hearing, Roll Call 9.I.ID 23-0340 Public Hearing and Action on a request to transfer an On-Off Sale Malt License, with video lottery authorization, for 2515 6th Street, from 25th Avenue LLC, dba The Lodge, Dennis Beilfeldt, owner, to On In 2 LLC, dba Boss’ Pizzeria & Sports Bar, Dallas Wilkinson and Darren Newborg, owners. Legal description: Block 12, Telkamp Addition. Memo Legal Notice City Code and SDCL References Location Map Attachments: Motion: Motion to Approve, Open & Close Public Hearing, Roll Call 9.J.RES 23-071 Public Hearing and Action on Resolution 23-071, a Resolution authorizing the City Manager to enter into an Full Service On-Sale Restaurant Liquor Operating Agreement for 2515 6th Street, On In 2 LLC, dba Boss’ Pizzeria & Sports Bar, Dallas Wilkinson and Darren Newborg, owners. Legal description: Block 12, Telkamp Addition. Memo Resolution Operating Agreement Acceptance Agreement Legal Notice Location Map Attachments: Motion: Motion to Approve, Open & Close Public Hearing, Roll Call 9.K.ID 23-0346 Public Hearing and Action on a request to transfer an On-Off Sale Malt License for George’s Pizza, 311 Main Avenue, from George’s Pizza, Inc., Panagiota Theodosopoulos, owner, to MzP3 Enterprises LLC, Justin Price and Janice Minder, owner. Legal description: Lot 6, Block 3, Original Plat Addition. Memo Legal Notice City Code and SDCL References Location Map Attachments: Motion: Motion to Approve, Open & Close Public Hearing, Roll Call Page 6 City of Brookings August 8, 2023City Council Meeting Agenda - Final 9.L.RES 23-070 Public Hearing and Action on Resolution 23-070, a Resolution authorizing the City Manager to enter into an On-Off Sale Wine Operating Agreement for MzP3 Enterprise LLC, dba George’s Pizza, Justin Price and Janice Minder, owners, 311 Main Avenue, Brookings, South Dakota, legal description: Lot 6, Block 3, Original Plat Addition. Memo Resolution Operating Agreement Legal Notice Map Attachments: Motion: Motion to Approve, Open & Close Public Hearing, Roll Call 10. Other Business: NONE 11. City Council member introduction of topics for future discussion. Any Council Member may request discussion of any topic at a future meeting. Items cannot be added for action at this meeting. A motion and second is required which states the topic, requested outcome, and time frame. A majority vote is required. 12. Executive Session 12.A.ID 23-0348 Executive Session, pursuant to SDCL 1-25-2.3, for consulting with legal counsel or reviewing communications from legal counsel about proposed or pending litigation or contractual matters. 13. Adjourn. Brookings City Council: Oepke G.Niemeyer, Mayor; Nick Wendell, Deputy Mayor Council Members Wayne Avery, Holly Tilton Byrne, Bonny Specker, Brianna Doran, Andrew Rasmussen Brookings City Council Staff: Paul M. Briseno, City Manager Steven Britzman, City Attorney Bonnie Foster, City Clerk Public Comment is limited to a maximum of three minutes per person. Individuals will give their name and city of residence for the record. Public Comment may be submitted prior to the meeting by the following means: 1) Email comments to the City Clerk (cityclerk@cityofbrookings-sd.gov), 2) participate remotely, or 3) via eComment (https://cityofbrookings.legistar.com/Calendar.aspx ). Comments provided will become part of the official record and subject to review by all parties and the public. The comments and views expressed by the public are those of the speakers and do not necessarily reflect the views or positions of the City of Brookings or City Council. Meetings are broadcast live and recorded. Go to www.cityofbrookings-sd.gov for more information. Government Channel 9 Rebroadcast Schedule: Wednesday 1:00 pm / Thursday 7:00 pm / Friday 9:00 pm / Saturday 1:00 pm Upon request, accommodations for meetings will be provided for persons with disabilities. Please contact the City ADA Coordinator at (605) 692-6281 at least three (3) business days in advance of the meeting. Page 7 City of Brookings City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ID 23-0338,Version:1 Action to approve City Council meeting minutes. Attachments: 07/25/2023 City Council Minutes City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ Brookings City Council July 25, 2023 (unapproved) The Brookings City Council held a meeting on Tuesday, July 25, 2023 at 6:00 PM, at the Brookings City & County Government Center, Chambers, with the following City Council members present: Mayor Oepke Niemeyer, Council Members Wayne Avery, Brianna Doran, Andrew Rasmussen, Bonny Specker, and Holly Tilton Byrne. Absent: City Council Member Nick Wendell. City Manager Paul Briseno, City Attorney Steve Britzman, and City Clerk Bonnie Foster were also present. Agenda. A motion was made by Council Member Tilton Byrne, seconded by Council Member Specker, that the agenda be approved. The motion carried by the following vote: Yes: 6 - Niemeyer, Avery, Tilton Byrne, Specker, Doran, and Rasmussen; Absent: 1 - Wendell. Open Forum. Jeanette Gibbons, Brookings, SD encouraged the City Council and members of the public to see the movie "Sound of Freedom," raising awareness on the issue of sex trafficking of children. Consent Agenda. A motion was made by Council Member Tilton Byrne, seconded by Council Member Doran, to approve the Consent Agenda. The motion carried by the following vote: Yes: 6 - Niemeyer, Avery, Tilton Byrne, Specker, Doran, and Rasmussen; Absent: 1 - Wendell. A. Action to approve the July 11, 2023 City Council Minutes. B. Action on appointment to the Business Improvement District #1 Board: appoint Melisa Yager (term expires 1/1/2024). C. Action on Resolution 23-061, a Resolution declaring surplus property for the City of Brookings. Resolution 23-061 - Declaring Surplus Property Whereas, the City of Brookings is the owner of the following described equipment formerly used at the City of Brookings: Parks, Recreation & Forestry Dept.: bus stop shelter Public Library: 3 - card tables, 1 - 3 tiered beige cart with removable wheels, 1 book cart with 2 flat shelves and removable wheels Brookings Police Dept.: 2019 Ford Explorer, VIN#1FM5K8AC2LGA83140; 55 Tasers (Serial #s: X13006MIK, X13005C00, X13006M3V, X13003Y85, X13005AFH, X130093RD, X13002RKE, X13007DD4, X13006M1M, X13005C0C, X13006M3E, X13006M12, X130002YY, X13002TV7, X13000M84, X13002TR8, X13002TM2, X13000M9X, X13006M37, X13002TK8, X130051YE, X13006M1T, X13005XH8, X13002RKF, X13006M1E, X130038V9, X13006M1F, X13002TME, X13002TMO, X13006M1A, X13006M10, X130022TN, X13005ACN, X130038XP, X13006MOP, X13006M1R, X13005AN3, X00-558058, X00-465435, X00-558032, X00-465478, X00-465462, X00-647179, X00-465445, X00-647225, X1200614A, X00-465481, X130038X9, X13006M38, X13002TVM, X00-557374, X00-557446, X13002K00, X13006M1N, X13006M14); 1 – 6 cubby wall locker; 8 gray/black wall partitions with 4 credenzas; 6 – glass mirrors; 6 – 4-drawer file cabinets; 1 – metal file cabinet; 1 – 5-drawer metal file cabinet; 1 – cabinet with white board; 2 – bookshelves (5 shelves and 3 shelves); 4-drawer wooden file cabinet; 2 – office chairs; 10 – blue chairs; 10 – 8- foot tables; 1 – 6-foot table; 1 – desk with credenza; 3 – under desk file cabinets; 1 – gray desk; 1 – blue table; 39 – plastic chairs; 1 – TV stand; 69 – fiberglass chairs; 44 – metal folding chairs; 3 – 4 ½ foot shelves; 2 – small 5-drawer file; 1 – 2-drawer CD holder; shotgun cleaning kit; padded suitcase; paper shredder; 5 – Varda Silent Alarm; record system; 2 – wood tables; 1 – antique typewriter; 1 – roll top desk; 1 – Sony Handycam Video Hi8; 1 – canon digital camera; RCA VHS Camcorder; 1 – Lortone Compact Lapidary Tumbler; 2 - desks (damaged); 5 – office chairs (broke); 4 – metal credenzas (damaged); metal wall shelf (damaged); wood wall cabinet (damaged); 2 – Galls spotlights (don’t work); Gen Rad Groudn Level Meter (doesn’t work); Neihoff Hi- Tension Tachometer (doesn’t work); Vari-Price 50 by Vendo (doesn’t work); 3 – under cabinet lights (don’t work); 15 – desk office phones (old); Zetron M3240D PSAP Telephone (doesn’t work); 10 Mobile Radios (EF Johnsons: #53176F511A 15528, #53176F341A 12693, #53176F501A 14928, #53176F511A 15496, #53176F511A 15103, #53176F521A 15572, #53176F501A 14972, #53176F511A 15095; Ericsson #441185; Uniden #95019943); 10 – Portable Radios (Motorola: #018TFS7922, #018TFS7917, #018TFS7876, #018TFAL778, #018TFS7928; Mag One: # 278MU1462, #0278LA3733, #0278MU1477, #0278MU1479, #0278MU1456). Public Works – Engineering Dept.: Trimble R10 Serial #: 5251420747 Public Works – Solid Waste Dept.: 2006 Chevy Silverado 2500, Bobcat Angle Broom, Colman 5000 Watt Generator, Loader Tires, Mac Vac Whereas, in the best financial interest, it is the desire of the City of Brookings to dispose of as surplus property; and Whereas, the City Manager is hereby authorized to sell or dispose of said surplus property. Now, Therefore, Be It Resolved by the governing body of the City of Brookings, SD, that this property be declared surplus property according to SDCL Chapter 6 -13. D. Action on Resolution 23-065, a Resolution authorizing the City Manager to execute an amendment to an agreement, extending the Fixed Base Operator Agreement at the Brookings Regional Airport. Resolution 23-065 - Resolution Authorizing the City Manager to Execute an Amendment to Agreement which will Extend the 2018 Agreement with Pheasants Fury Aviation, LLC Whereas, the City of Brookings signed the original Fixed Base Operator (FBO) agreement with Pheasants Fury Aviation, LLC on July 24, 2018; and Whereas, the City of Brookings desires to extend the FBO agreement for a period of five (5) years. Now, Therefore, It is Hereby Resolved by the City Council of Brookings, South Dakota that the City Manager is authorized to sign an amendment to agreement that will extend the existing FBO agreement with Pheasants Fury Aviation, LLC for a period of five (5) years. Proclamation. Mayor Niemeyer present a Proclamation to representatives from the Brookings Disability Awareness Committee to celebrate the Americans with Disabilities Act 33rd Anniversary Day. MAYORAL PROCLAMATION Whereas, the Americans with Disabilities Act (ADA) was passed on July 26, 1990, as the first comprehensive declaration of equality for people with disabilities and protects rights in all aspects of employment, in accessing public services, and guaranteeing access to private establishments; and Whereas, the goals of the community aligns with providing people with disabilities with the opportunities and support to achieve full integration and inclusion in society, in an individualized manner; and Whereas, disability is a natural part of the human experience that does not diminish the right to enjoy the opportunity to live independently, enjoy self -determination, make choices, contribute to society, and experience full integration and inclusion with necessary services and supports. Now, Therefore, Be It Resolved, that I, Oepke G. Niemeyer, Mayor of the City of Brookings, do hereby proclaim July 26, 2023 as Americans with Disabilities Act 33rd Anniversary Day And call upon the people of Brookings to recognize and celebrate the progress that has been made by reaffirming the principals of equality and inclusion and recommitting our efforts to reach full ADA compliance for people with disabilities in the City of Brookings; and to continue advocating for full inclusion and equity of individuals with disab ilities in all aspects of society. Resolution 23-057. A motion was made by Council Member Specker, seconded by Council Member Doran, that Resolution 23-057, a Resolution Approving the Installation of a New Roofing System for the Dacotah Bank Center Roof, be approved. The motion carried by the following vote: Yes: 6 - Niemeyer, Avery, Tilton Byrne, Specker, Doran, and Rasmussen; Absent: 1 - Wendell. Resolution 23-057 - A Resolution Approving the Purchase and Installation of a 24 Gauge Standing Seam Roofing Project for the Dacotah Bank Center lower roof. Whereas, the lower roof of the Dacotah Bank Center was damaged in the 2022 derecho; and Whereas, a new roofing system was recommended by the City’s insurance provider; and Whereas, City staff reviewed alternative roofing systems, and are recommending replacement of the existing steel roof with a new standing seam steel roof; and Whereas, City staff has identified a steel roofing contract with Duro-Last, Inc., which will satisfy the City’s needs and provide the best value over the long-term; and Whereas, the proposed contract falls within the replacement cost value determined by the City’s insurance provider; and Whereas, Duro-Last, Inc., is a member of The Interlocal Purchasing System (TIPS), which is cooperative purchasing agency, and can provide the roofing material required for this project pursuant to a cooperative purchasing contract; and Whereas, Woodall Companies, the roofing company performing the project, has elite contractor status with Duro-Last, Inc. Now, Therefore, Be It Resolved that a contract with Duro-Last, Inc., through The Interlocal Purchasing System (TIPS) Contract #210205 in the amount of $540,110.43, is hereby approved for the re-roofing of the lower roof of the Dacotah Bank Center, and the City Manager and City Clerk are authorized to sign the documents required to complete this project. FIRST READING – Ordinance 23-025. Introduction and first reading was held on Ordinance 23-025, an Ordinance Authorizing Amendment No. 6 to the 2023 Budget. Second Reading and Action: August 8, 2023. Ordinance 23-020. A motion was made by Council Member Tilton Byrne, seconded by Council Member Doran, that Ordinance 23-020, an Ordinance Establishing the Number of Video Lottery Machine Placements in the City of Brookings, SD, be approved. The motion carried by the following vote: Yes: 6 - Niemeyer, Avery, Tilton Byrne, Specker, Doran, and Rasmussen; Absent: 1 - Wendell. Resolution 23-062. A motion was made by Council Member Specker, seconded by Council Member Avery, that Resolution 23-062, a Resolution to Vacate a Portion of Street Right-of-Way North of 8th Street, be approved. The motion carried by the following vote: Yes: 6 - Niemeyer, Avery, Tilton Byrne, Specker, Doran, and Rasmussen; Absent: 1 - Wendell. Resolution 23-062 - Resolution Vacation a Portion of Street Right-of-Way North of 8th Street Whereas, a petition to vacate has been filed with the City Clerk of the City of Brookings; and Whereas, the petition was filed in proper form and signed by one hundred percent (100%) of the adjacent property owners. Now, Therefore, Be It Resolved, by the City Council of the City of Brookings that the north three hundred and six feet by eighty feet (306’ x 80’) of street right-of-way north of 8th Street abutting Lots 1 and 2, Block 1, University First Addition and the SE ¼ of SE ¼, excluding South 160 feet of West 283.7 feet, and excluding Lots 1 and 2, Block 2, University First Addition, and except Lot H3 in SE ¼ of SE ¼ in Section 24, Township 110 North, Range 50 West, in the City of Brookings, Brookings County, State of South Dakota. Progress Report. Jake Meshke, Deputy City Manager, provided a progress report highlighting the City’s activities / projects. City Council Member introduction of topics for future discussion. A motion was made by Council Member Avery, seconded by Council Member Doran, to remove from the table the Commonwealth Gaming, dba Deuces Casino, applications for an On-Off Sale Malt License with Video Lottery, and an On-Off Sale Wine License, and place on the August 8, 2023 Agenda. The motion carried by the following vote: Yes: 6 - Niemeyer, Avery, Tilton Byrne, Specker, Doran, and Rasmussen ; Absent: 1 - Wendell. Executive Session. A motion was made by Council Member Doran, seconded by Council Member Tilton Byrne, to enter into Executive Session at 6:22 p.m., pursuant to SDCL 1-25-2.3 Consulting with legal counsel or reviewing communications from legal counsel about proposed or pending litigation or contractual matters. The motion carried by a unanimous vote. A motion was made by Council Member Tilton Byrne, seconded by Council Member Doran, to exit Executive Session at 6:39 p.m. The motion carried by a unanimous vote. Adjourn. A motion was made by Council Member Tilton Byrne, seconded by Council Member Rasmussen, that this meeting be adjourned at 6:40 p.m. The motion carried by a unanimous vote. CITY OF BROOKINGS, SD Oepke G. Niemeyer, Mayor ATTEST: Bonnie Foster, City Clerk City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:RES 23-067,Version:1 Action on Resolution 23-067, a Resolution authorizing the City Manager to sign an On-Sale Wine Operating Agreement renewal for Guadalajara II, Inc., dba Guadalajara Mexican Restaurant, Juan Carlos Vega, owner, 1715 6th Street, Suite F, Village Square Mall #1, Brookings, South Dakota. Legal description: Lot 6, Suite 'F', Village Square Mall Addition. Summary: The City of Brookings enters into On-Sale Wine Operating Agreements for a 10-year period, with a mid-term renewal at five years. This Resolution would allow the City Manager to enter into the remaining 5-years of the 10-year agreement. The original 10-year Agreement was entered into May 2018. An alcohol compliance check was failed in June 2022. All state required processes have been completed. Recommendation: Staff recommends approval Attachments: Resolution Operating Agreement Location Map City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ Resolution 23-067 On-Sale Wine Operating Agreement – 5-year mid-term renewal Guadalajara II, Inc., dba Guadalajara Mexican Restaurant Be It Resolved by the City of Brookings, South Dakota, that the City Council hereby approves the renewal of an On-Sale Operating Alcohol Management Agreement for Wine between the City of Brookings and Guadalajara II, Inc., dba Guadalajara Mexican Restaurant, Juan Carlos Vega, owner, for the purpose of an alcohol manager to operate the on-sale establishment or business for and on behalf of the City of Brookings at 1715 6th Street, Suite F. Legal description: Lot 6, Suite 'F', Village Square Mall Addition. Now, Therefore, Be It Further Resolved that the City Manager be authorized to execute the Agreement renewal on behalf of the City, which shall be for the remaining 5 years of the 10-year Agreement. Passed and approved this 8th day of August, 2023. CITY OF BROOKINGS, SD Oepke G. Niemeyer, Mayor ATTEST: Bonnie Foster, City Clerk ON-SALE WINE OPERATING AGREEMENT – 5-year mid-term renewal Guadalajara II, Inc., dba Guadalajara Mexican Restaurant THIS AGREEMENT is 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 Juan Carlos Vega, owner, Guadalajara II, Inc., dba Guadalajara Mexican Restaurant, hereinafter referred to as “Manager.” The City and Manager are referred to as the “parties” herein. 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 an 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, and WHEREAS, the Manager has offered to have facilities in which to 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 limited basis between the parties 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, and 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. III. The on-sale establishment shall be located upon real property in the City of Brookings, South Dakota, described as: Lot 6, Suite 'F', Village Square Mall Addition., City of Brookings, Brookings County, South Dakota IV. The Manager shall dispense only alcoholic beverages supplied by the Municipal Off - Sale establishment. V. This Agreement constitutes a renewal of the current Operating Agreement and shall be in full force and effect for a period of five (5) years. 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 alcoh olic 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 in a timely manner 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 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 pre-numbered invoices prepared in triplicate showing the date, quality, 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 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 1st day of November of each year thereafter as long as this agreement shall remain in force and effect. The payment of the Annual Renewal License Fee will not extend the term of this Operating Agreement beyond the term provided therein. 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. 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 which are eligible to be returned, 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 sh all 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 the 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; and G. Any and all miscellaneous expenses, including taxes. XV. The Manager agrees to observe all Federal and State laws and 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 has 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. XIX. 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 which is effective this 8th day of August, 2023. CITY OF BROOKINGS, South Dakota A Municipal Corporation By: ATTEST: Paul Briseno, City Manager Bonnie Foster, City Clerk MANAGER By: Brookings County, SD Developed by Parcel ID 406330000000600 Sec/Twp/Rng -- Property Address 1707 6TH ST BROOKINGS Alternate ID n/a Class NADC Acreage n/a Owner Address SIXTH STREET ASSOCIATES LLC 1323 MAIN AVE S BROOKINGS SD 57006 District 4001 Brief Tax Description VILLAGE SQUARE ADDN, W 323.6' OF S 220' OF LOT 6, ADA PARCEL 1 & 2, 71,192 SF (Note: Not to be used on legal documents) Date created: 7/27/2023 Last Data Uploaded: 7/27/2023 1:05:16 AM 190 ft Overview Legend Brookings City Limits City Limits Township Boundary Sections Parcels Roads City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:RES 23-068,Version:1 Action on Resolution 23-068, a Resolution authorizing the City Manager to sign an On-Sale Wine Operating Agreement renewal for Den Wil Hospitality Group, Inc., dba Wilbert’s / Comfort Suites University, Dennis Bielfeldt, owner, 931 25th Avenue, Brookings, South Dakota. Legal description: Lot 3, Block 2, Telkamp Addition. Summary: The City of Brookings enters into On-Sale Wine Operating Agreements for a 10-year period, with a mid-term renewal at five years. This Resolution would allow the City Manager to enter into the remaining 5-years of the 10-year agreement. The original 10-year Agreement was entered into May 2018. An alcohol compliance check was failed in August 2022. All state required processes have been completed. Recommendation: Staff recommends approval Attachments: Resolution Operating Agreement Location Map City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ Resolution 23-068 On-Sale Wine Operating Agreement – 5-year mid-term renewal Den Wil Hospitality Group, Inc., dba Wilbert’s / Comfort Suites University Be It Resolved by the City of Brookings, South Dakota, that the City Council hereby approves the renewal for an On-Sale Operating Alcohol Management Agreement for Wine between the City of Brookings and Den Wil Hospitality Group, Inc., dba Wilbert’s / Comfort Suites University, Dennis Bielfeldt, owner, for the purpose of an alcohol manager to operate the on-sale establishment or business for and on behalf of the City of Brookings at 931 25th Avenue. Legal description: Lot 3, Block 2, Telkamp Addition. Now, Therefore, Be It Further Resolved that the City Manager be authorized to execute the Agreement renewal on behalf of the City, which shall be for the remaining 5 years of the 10-year Agreement. Passed and approved this 8th day of August, 2023. CITY OF BROOKINGS, SD Oepke G. Niemeyer, Mayor ATTEST: Bonnie Foster, City Clerk ON-SALE WINE OPERATING AGREEMENT – 5-year mid-term renewal Den Wil Hospitality Group, Inc., dba Wilbert’s / Comfort Suites University THIS AGREEMENT is 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 Dennis Bielfeldt, owner, Den Wil Hospitality Group, Inc., dba Wilbert’s / Comfort Suites University hereinafter referred to as “Manager.” The City and Manager are referred to as the “parties” herein. 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 an 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, and WHEREAS, the Manager has offered to have facilities in which to 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 limited basis between the parties 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, and 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. III. The on-sale establishment shall be located upon real property in the City of Brookings, South Dakota, described as: Lot 3, Block 2, Telkamp Addition, City of Brookings, Brookings County, South Dakota IV. The Manager shall dispense only alcoholic beverages supplied by the Municipal Off - Sale establishment. V. This Agreement constitutes a renewal of the current Operating Agreement and shall be in full force and effect for a period of five (5) years. 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 in a timely manner 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 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 pre-numbered invoices prepared in triplicate showing the date, quality, 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 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 1st day of November of each year thereafter as long as this agreement shall remain in force and effect. The payment of the Annual Renewal License Fee will not extend the term of this Operating Agreement beyond the term provided therein. The Manager further agrees that if the annual f ee shall be increased at any time by the legislature, the Manager shall pay the amount of any such increase. 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 which are eligible to be returned, 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 the 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; and G. Any and all miscellaneous expenses, including taxes. XV. The Manager agrees to observe all Federal and State laws and 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 has 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. XIX. 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 which is effective this 8th day of August, 2023. CITY OF BROOKINGS, South Dakota A Municipal Corporation By: ATTEST: Paul Briseno, City Manager Bonnie Foster, City Clerk MANAGER By: Brookings County, SD Developed by Parcel ID 405950020000305 Sec/Twp/Rng -- Property Address 929 25TH AVE BROOKINGS Alternate ID n/a Class NADC Acreage n/a Owner Address SND LLC 910 4TH ST BROOKINGS SD 57006 District 4001 Brief Tax Description TELKAMP ADDITION, LOT 3B BLK 2 2.87 ACRES (Note: Not to be used on legal documents) Date created: 7/27/2023 Last Data Uploaded: 7/27/2023 1:05:16 AM 190 ft Overview Legend Brookings City Limits City Limits Township Boundary Sections Parcels Roads City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:RES 23-069,Version:1 Action on Resolution 23-069, a Resolution authorizing the City Manager to sign an On-Sale Convention Liquor Operating Agreement renewal for Den Wil Hospitality Group, Inc., dba Wilbert’s / Comfort Suites University, Dennis Bielfeldt, owner, 931 25th Avenue, Brookings, South Dakota. Legal description: Lot 3, Block 2, Telkamp Addition. Summary: The City of Brookings enters into On-Sale Convention Liquor Operating Agreements for a 10-year period, with a mid-term renewal at five years. This Resolution would allow the City Manager to enter into the remaining 5-years of the 10-year agreement. The original 10-year Agreement was entered into May 2018. An alcohol compliance check was failed in August 2022. All state required processes have been completed. Recommendation: Staff recommends approval Attachments: Resolution Operating Agreement Location Map City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ Resolution 23-069 On-Sale Convention Liquor Operating Agreement – 5-year mid-term renewal Den Wil Hospitality Group, Inc., dba Wilbert’s / Comfort Suites University Be It Resolved by the City of Brookings, South Dakota, that the City Council hereby approves the renewal of an On-Sale Operating Alcohol Management Agreement for Convention Liquor between the City of Brookings and Den Wil Hospitality Group, Inc., dba Wilbert’s / Comfort Suites University, Dennis Bielfeldt, owner, for the purpose of an alcohol manager to operate the on-sale establishment or business for and on behalf of the City of Brookings at 931 25th Avenue. Legal description: Lot 3, Block 2, Telkamp Addition. Now, Therefore, Be It Further Resolved that the City Manager be authorized to execute the Agreement renewal on behalf of the City, which shall be for the remaining 5 years of the 10-year Agreement. Passed and approved this 8th day of August, 2023. CITY OF BROOKINGS, SD Oepke G. Niemeyer, Mayor ATTEST: Bonnie Foster, City Clerk ON-SALE CONVENTION LIQUOR OPERATING AGREEMENT – 5-year mid-term renewal Den Wil Hospitality Group, Inc., dba Wilbert’s / Comfort Suites University THIS AGREEMENT is 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 Dennis Bielfeldt, owner, Den Wil Hospitality Group, Inc., dba Wilbert’s / Comfort Suites University, hereinafter referred to as “Manager.” The City and Manager are referred to as the “parties” herein. 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 an 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, and WHEREAS, the Manager has offered to have facilities in which to 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 limited basis between the parties 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, and 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. III. The on-sale establishment shall be located upon real property in the City of Brookings, South Dakota, described as: Lot 3, Block 2, Telkamp Addition, City of Brookings, Brookings County, South Dakota IV. The Manager shall dispense only alcoholic beverages supplied by the Municipal Off - Sale establishment. V. This Agreement constitutes a renewal of the current Operating Agreement and shall be in full force and effect for a period of five (5) years. 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 in a timely manner 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 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 shal l 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 pre-numbered invoices prepared in triplicate showing the date, quality, 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 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 1st day of November of each year thereafter as long as this agreement shall remain in force and effect. The payment of the Annual Renewal License Fee will not extend the term of this Operating Agreement beyond the term provided therein. The Manager further agrees that i f the annual fee shall be increased at any time by the legislature, the Manager shall pay the amount of any such increase. 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 which are eligible to be returned, 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 t he 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 the 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; and G. Any and all miscellaneous expenses, including taxes. XV. The Manager agrees to observe all Federal and State laws and 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 has 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. XIX. This agreement shall not be assignable to another person or location without the writte n consent of the City. IN WITNESS WHEREOF, the parties hereto have executed this Agreement which is effective this 8th day of August, 2023. CITY OF BROOKINGS, South Dakota A Municipal Corporation By: ATTEST: Paul Briseno, City Manager Bonnie Foster, City Clerk MANAGER By: Brookings County, SD Developed by Parcel ID 405950020000305 Sec/Twp/Rng -- Property Address 929 25TH AVE BROOKINGS Alternate ID n/a Class NADC Acreage n/a Owner Address SND LLC 910 4TH ST BROOKINGS SD 57006 District 4001 Brief Tax Description TELKAMP ADDITION, LOT 3B BLK 2 2.87 ACRES (Note: Not to be used on legal documents) Date created: 7/27/2023 Last Data Uploaded: 7/27/2023 1:05:16 AM 190 ft Overview Legend Brookings City Limits City Limits Township Boundary Sections Parcels Roads City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:RES 23-072,Version:1 Action on Resolution 23-072, a Resolution Accepting a Donation for the Construction of 8 Pickleball Courts. Summary: City Council required by policy the acceptance of donations for specific projects. This resolution will allow the acceptance of an anonymous donation of not to exceed $450,000 and proceed with the design and construction of 8 post tension concrete pickleball courts at Hillcrest Park in accordance with established procurement guidelines. This donation will augment the City’s contribution and attain grants to develop pickleball courts. Recommendation: Staff recommends approval. Attachments: Memo Resolution Tentative Site Plan City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Kristin Zimmerman, Parks, Recreation & Forestry Director Council Meeting: August 8, 2023 Subject: Resolution 23-072: accepting donation for the Construction of 8 Pickleball Courts Presenter: Kristin Zimmerman, Parks, Recreation & Forestry Director Summary: City Council required by policy the acceptance of donations for specific projects. This resolution will allow the acceptance of an anonymous donation of not to exceed $450,000 and proceed with the design and construction of 8 post tension concrete pickleball courts at Hillcrest Park in accordance with established procurement guidelines. This donation will augment the City’s contribution and attain grants to develop pickleball courts. Staff recommends approval. Background: Parks, Recreation and Forestry has been working with the Pickleball group to secure donations and grants to complete 8 court post tension concrete Pickleball Complex at Hillcrest Park. The City of Brookings committed land and $75,000. Grants received included $200,000. The project was still short. In July 2023, a commitment letter was received to fund the remaining portion of the Pickleball Court Project. Council action is required per policy to accept donations for specific projects. Item Details: This Resolution will allow the City to accept the anonymous donation of not to exceed $450,000 and proceed with the design and construction of 8 post tension concrete pickleball courts at Hillcrest Park in accordance with established procurement guidelines. Hillcrest Park Pickleball Project Funding City of Brookings Parks, Recreation Funds $75,000 Wellmark Foundation: $75,000 Land and Water Conservation Fund: $125,000 Anonymous Donation: $450,000 (not to exceed) Total Secured Funding: $725,000 Opinion of Probable Cost $701,051.50 (April 2023) Project Design $25,000 Operational cost impacts would increase slightly with the required maintenance of the 8 - lit Pickleball Courts. Legal Consideration: None. Strategic Plan Consideration: Fiscal Responsibility – Outside Agency Funding for this project is 90% of the total project cost. Safe, Inclusive, Connected Community – The Pickleball Courts will be a welcomed addition to Hillcrest Park that will allow for a multigenerational recreational and competitive activities. Financial Consideration: The City will enter into a contract with ISG to design and develop a bid packet. Construction contracts will be brought back to the Council as established by our procurement guidelines/standards. Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Move the item to a Study Session 5. Discuss / take no action / table Staff recommends approval of the resolution as presented. Supporting Documentation: Memo Resolution Tentative Site Plan Resolution 23-072 Resolution Accepting a Donation for the Construction of a Pickleball Court W hereas, there has been increasing interest in the City of Brookings construction of a Pickleball Court; and Whereas, an anonymous donor has committed to donate up to $450,000 for the 8-lit post tension concrete pickleball courts to be located at Hillcrest Park. Now, Therefore, Be It Resolved, the City of Brookings graciously accepts the monetary donation as described above and agrees to use the funds to build a 8-lit post tension concrete pickleball courts at Hillcrest Park. Passed and Approved this 8th day of August, 2023. CITY OF BROOKINGS, SD ________________________________ Oepke G. Niemeyer, Mayor ATTEST: ______________________________________ Bonnie Foster, City Clerk of No:Sheet No:609 Main Ave SBrookings, SD605-696-3200Date:Scale:Checked By:Drawn By:CDI Project No.CAD Filename:P:\Brookings Projects\City of Brookings\2023-055 Brookings - Pickleball Court\Design\Preliminary Design\2023-055 Brookings Pickleball Courts - Kaycie.dwg, Proposed, 5/3/2023 8:32 AM, Elizabeth BauerBrookings Pickleball CourtsPreliminary Design2023-055ERBJJC1" = 20'5/3/2023 Proposed SiteNORTH10020Scale: 1"=20'510JEFFREY J.COOLEY11315REG. NO.SOUTH DAKOTA PRELIMINARY17th AveP:\Brookings Projects\City of Brookings\2023-055 Brookings - Pickleball Court\Design\Preliminary Design\2023-055 Brookings Pickleball Courts - Kaycie.dwg, Proposed, 5/3/2023 8:32:45 AM, ebauer City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ID 23-0347,Version:1 Action to adjust the 2023 City Council Meeting Calendar Summary: This action will adjust the 2023 City Council Meeting Calendar to accommodate 2024 Budget Study Sessions to begin at 6:00 p.m. on the following Tuesdays: September 12, September 26, and October 10, 2023. This provides public notice of the change to the City Council meeting calendar. Recommendation: Staff recommends approval. City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ID 23-0342,Version:1 Introduction of new and/or promoted City of Brookings employees. The following City of Brookings promoted employees will be introduced to the City Council and public: ·Ashley Rentsch / Finance office / Finance Manager Ashley Rentsch has been with the City of Brookings Finance Department since March 2020. During her time with the City, her responsibilities have included supervising the accounting team, preparing financial statements, managing grants and audits, and assisting with preparation of the annual budget. In her new role as Finance Director, she will also oversee the Liquor Store. She has a passion for process improvement and innovation at work and is continuously exploring opportunities to “work smarter, not harder.” Ashley has a Master of Professional Accountancy degree from the University of South Dakota, and obtained her Certified Government Financial Manager designation from the Association of Government Accountants in 2021. Ashley has over 15 years of accounting experience in both the public and private sectors. Prior to her role at the City of Brookings, she was the Finance Officer for the City of Volga for over five years and was previously a Billing and Contract Administrator at Meta Payment Systems in Sioux Falls and a Senior Accountant at McLane Company in Northfield, MN. Ashley lives in Volga with her two daughters, Lillie and Eden, and their Mini-Schnauzer named Jasper. In her spare time, she enjoys attending her children’s activities, reading, listening to podcasts, and spending time with family. She considers herself a lifelong learner and enjoys any opportunities for new experiences, continuing education, and community service. ·Corporal Dustyn Engstom. Dustyn has been an employee with the City of Brookings Police Department since September 2018. ·Corporal Austin Kreutner Austin has been an employee with the City of Brookings Police Department since September 2018. ·Unable to be present in person for introduction: o Corporal Luke DeJong o Corporal Jacob Vukovich o Corporal Dana Rogers o Corporal Adam Smith o Corporal Geffrey Pollman City of Brookings Printed on 8/8/2023Page 1 of 1 powered by Legistar™ City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ID 23-0315,Version:1 Proclamation: A Day to Celebrate the Cultures of Our Community Summary: Mayor Niemeyer will present a Proclamation to representatives from the Brookings Economic Development Corporation, South Dakota State University, and Brookings Multicultural Center to celebrate the Cultures of our Community. Attachments: Proclamation City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ Mayoral Proclamation CITY OF BROOKINGS, SOUTH DAKOTA WHEREAS, Brookings’ thriving international community contributes to our community’s high quality of life and provides a vital economic impact to the Brookings area; and WHEREAS, Brookings has greatly benefited from having hundreds of international students from over 80 countries enrolled at South Dakota State University; and WHEREAS, the Brookings Multicultural Center, the Brookings Economic Development Corporation, and the South Dakota State University Office of International Affairs will hold the 2nd Annual International Ice Cream Social and Community Fair to welcome International Faculty and Graduate Students and their families to our community. NOW, THEREFORE, BE IT RESOLVED, that I, Oepke G. Niemeyer, Mayor of the City of Brookings, do hereby proclaim Wednesday, August 16, 2023 as: A DAY TO CELEBRATE THE CULTURES OF OUR COMMUNITY IN WITNESS WHEREOF, I have hereunto set my hand, and caused to be affixed the Great Seal of the City of Brookings, this 8th day of August, 2023. ____________________________ Oepke G. Niemeyer, Mayor City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ID 23-0343,Version:1 Report: 2023 2nd Quarter Finance Report Summary: The Finance Department provides a report at the end of each quarter to update the City Council and public on year-to-date sales tax revenue, economic outlook, budget status, and City Council Priority Projects. Attachments: Presentation City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ Finance Report Second Quarter 2023 2023 YTD Sales Tax Revenue Q2 2023 Economic Update Q2 2023 Budget to Actuals Community ARPA Funding Update City Council Priority Projects Summary Finance Report Overview CFO Sales Tax Report (Cash Basis) Economic Factors: Inflation beginning to stabilize January: 6.4%April: 4.9% February: 6.0%May: 4.0% March: 5.1%June: 3.0% Sources: Bureau of Labor Statistics +7% FY23 B Q1 2022 A Q1 2023 A 23 Pro Budget %Vs. Budget %YoY Sales Tax: 1st Penny 8,888,789$ 4,179,935$ 4,487,853$ 4,039,272$ 11%7% 2nd Penny 8,888,789 4,179,935 4,487,853 4,039,272 11%7% 3rd Penny 1,181,533 560,101 607,111 540,024 12%8% BID(Pillow Tax)266,372 110,424 115,986 100,353 16%5% Total 19,225,483$ 9,030,395$ 9,698,803$ 8,718,921$ 11%7% YTD Tax Revenue By Category Increases in retail trade, services, and manufacturing helped offset declines in wholesale trade and transportation/communications/utilities. - 1,000,000 2,000,000 3,000,000 4,000,000 5,000,000 6,000,000 Agriculture, Forestry and Fishing Finance, Insurance & Real Estate Construction Transportation, Communications,… Manufacturing Wholesale Trade Services Retail Trade 2023 2022 2023 Q2 Economic Update Midwest CPI at 3% as of June 2023 Real GDP grew by 2.4% in the second quarter 1.8% projected 2.0% first quarter Increased consumer spending in both goods and services Positive outlook Cooling inflation Low unemployment Strong consumer spending Recession predictions Mild Later than initially projected Source: US GDP Grew by 2.4% in the Second Quarter of 2023, Way Above Forecast (businessinsider.com) YTD Budget vs. Actual –General Fund Departments Non-Departmental Revenues are insurance reimbursements for derecho-related repairs still being completed in 2023. Overall revenues and expenditures are at expected levels at this point in the year based on conservative budgeting and seasonality of operations. Department Description Exp Budget YTD Exp YTD Balance % Expend Rev Budget YTD Rev YTD Balance % Collect 000 General -$ -$ -$ 0%14,310,605$ 7,139,342$ (7,171,262)$ 50% 401 Mayor & Council 113,935 33,994 79,942 30%- - - 0% 403 City Clerk 327,193 130,420 196,773 40%3,000 10,531 7,531 351% 405 Non-Departmental 1,191,586 25,309 1,166,278 2%- 995,685 995,685 0% 406 City Manager 761,540 324,935 436,605 43%- 13 13 0% 412 City Attorney 141,800 63,830 77,970 45%- - - 0% 414 Human Resources 667,839 237,200 430,639 36%2,000 4,339 2,339 217% 415 Finance 666,447 202,902 463,545 30%28,700 2,182 (26,518) 8% 416 Information Technology 436,775 168,185 268,590 39%- - - 0% 417 Government Buildings 245,508 107,259 138,249 44%- 5,765 5,765 0% 418 Community Development 931,798 458,876 472,922 49%213,785 126,764 (87,021) 59% 420 City/County Administrative Bld 501,425 108,315 393,110 22%249,769 50,760 (199,009) 20% 421 Police Services 4,441,821 2,062,376 2,379,446 46%188,340 125,371 (62,969) 67% 422 Fire Protection Services 902,351 414,902 487,448 46%117,927 32,843 (85,084) 28% 424 Hydrant Rental 110,000 44,495 65,505 40% 430 Public Works 491,539 197,905 293,634 40%- 775 775 0% 431 Street 2,694,689 1,098,669 1,596,021 41%41,500 25,714 (15,786) 62% 442 Animal Control 172,301 102,095 70,206 59%22,900 10,100 (12,800) 44% 449 Hillcrest Aquatic Center 383,904 98,350 285,554 26%194,000 175,903 (18,097) 91% 451 Recreation 595,377 199,656 395,721 34%108,000 39,616 (68,384) 37% 452 Parks 1,877,233 666,825 1,210,408 36%97,750 61,456 (36,294) 63% 453 Larson Ice Center 543,355 232,754 310,601 43%167,500 98,503 (68,997) 59% 454 Forestry 395,788 197,752 198,037 50%3,000 - (3,000) 0% 455 Library 1,402,274 618,254 784,020 44%33,500 5,386 (28,114) 16% 495 Subsidies 2,710,876 378,125 2,332,751 14%8,400 - (8,400) 0% 22,707,353$ 8,173,383$ 14,533,970$ 36%15,790,676$ 8,911,048$ (6,879,628)$ 56% Q1 Budget to Actuals –Other Funds * All Other –Other Government, Special Revenue, Capital Projects, and Enterprise Funds managed by the City. CIP Expenditures Q1 o Final payment for Fire Training Tower o Street & sidewalk project engineering o Library Chiller and ceiling tiles o (4) Police Department Vehicles Q2 o 22nd Avenue Improvements o Payloader –Street Division o HVAC Upgrades -Larson Ice Center Description Exp Budget YTD Exp YTD Balance % Expend Rev Budget YTD Rev YTD Balance % Collect Capital Improvement Fund 17,886,842$ 3,721,910$ 20,642,033$ 21%12,353,539$ 4,767,562$ 7,585,977$ 39% All Other Funds 32,978,752 10,513,014 22,647,964 32%28,408,868 12,162,251 16,246,617 43% Grand Total All Funds 73,572,947$ 22,408,307$ 57,823,967$ 30%56,553,082$ 25,840,860$ 16,952,967$ 46% Community ARPA Funding Update Clark Drew Construction -$200,000 Workforce Housing Phases 1 & 2 at 15th Street S. and 17th Ave S. o 3 buildings/8 living units o 4 buildings/12 living units Interlakes Community Action Partnership (ICAP) -$15,545 Rental and deposit assistance Brookings Area Habitat for Humanity -$27,500 First draw of funds for construction Entity Initiative Target Date Total Amount YTD 2023 Remaining Balance Brookings Behavioral Health & Wellness Mental Health 6/30/2024 1,200,000$ 1,200,000$ Brookings Economic Development Corporation (BEDC)Childcare Facility 6/30/2024 500,000 500,000 Brookings Economic Development Corporation (BEDC)Childcare Coordinator 12/31/2024 80,000 80,000 Clark Drew Construction Workforce Housing 12/1/2023 200,000 200,000 - Brookings Area Habitat for Humanity Affordable Housing 8/1/2024 110,000 27,500 82,500 Interlakes Community Action Partnership (ICAP)Affordable Housing 12/31/2024 110,000 15,545 94,455 Total All Initiatives 2,200,000$ 243,045$ 1,956,955$ City Council Priority Projects Secondary Projects (IN priority order)Cost Indoor Rec Facility* CIP 2032-2033 2,000,000$ Library - Overall Upgrade 2,000,000$ Activity Center - Overall Upgrade 2,000,000$ Total Unapproved Secondary Projects 6,000,000$ Priority Funding after Unapproved Secondary Projects (10,224,135)$ Questions or Comments? Please contact the City of Brookings Finance Department: Ashley Rentsch Finance Director (605)697-8652 arentsch@cityofbrookings-sd.gov Finance Department Web Page: https://www.cityofbrookings-sd.gov/200/Finance-Department Municipal Tax Report: https://performance.envisio.com/dashboard/cityofbrookings/Goal-8765 City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ID 23-0339,Version:1 Reports: City Council Ex-Officio Reports Summary: City Council Members, serving as Ex-Officio members on the Brookings Health System Board of Trustees and Utility Board, will provide verbal reports regarding recent meetings they have attended at the first City Council meeting of the month. Brookings Municipal Utility Board: 1.Council Member Wayne Avery 2.Council Member Andrew Rasmussen Brookings Health Systems Board of Trustees: 1.Council Member Bonny Specker 2.Council Member Brianna Doran City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ORD 23-021,Version:1 Introduction and First Reading on Ordinance 23-021, an Ordinance Amending Article II of Chapter 38 - Flood Damage Prevention in City, of the Code of Ordinances of the City of Brookings, South Dakota. Public Hearing and Action: August 22, 2023. Summary: City Council requested changes to the existing City Code governing floodplain development. The last update to this code was in 1996. Since 1996 there have been significant technological advances, flood plain studies, and evolution of best management practices, along with changes to weather patterns which suggest storms are now more powerful and less predictable. City Code currently requires all structures built within the floodplain be at least one (1) foot above the base floodplain elevation. The proposed ordinance changes will require all structures built within the floodplain to be at least two (2) feet above the base floodplain elevation, and any fill placed in the floodplain be offset by removing the same amount of material from the floodplain to provide compensatory storage. Recommendation: Staff recommends approval. Attachments: Memo Ordinance - clean Ordinance - marked City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Charlie Richter, City Engineer Council Meeting: August 8, 2023 / August 22, 2023 Subject: Ordinance 23-021: Revision to the Floodplain Development Ordinance Person(s) Responsible: John Thompson, Public Works Director Summary: City Council requested a study of the existing floodplain and examine current development practices and policies for areas susceptible to flooding. The City hired storm water consultant ISG to examine the floodplain and provide. Staff presented their findings to the City Council at a study session earlier this year and based on feedback, are proposing a revision to the floodplain ordinance. Staff recommends approval. Background: The City currently has a floodplain development ordinance that dates back to 1996. This ordinance requires, among other things, structures to be constructed one (1) foot above the base flood elevation. At that time, the City utilized model language from FEMA to establish the current ordinance and reflect the minimum FEMA requirements. Item Details: Advancements since 1996 warrant adjustments to the City’s standards for development within the floodplain. These changes include technology, additional data, the evolution of best practices, weather pattern changes, impacts of stormwater movement on others, and further examination of the Brookings flood plain. The City currently requires all structures to be constructed at least one (1) foot above the anticipated 100-year flood elevation (base flood elevation). Many communities have increased the elevation requirement to two (2) and, in some cases, three (3) feet above the base flood elevation based on their specific community environmental impact. After examining Brookings flood plain and desired protection, the proposed revision will require all structures to be constructed at least two (2) feet above the base flood elevation. To prevent property owners from negatively impacting their neighbors by displacing water when filling within the floodplain, the City proposes adopting a compensatory storage standard. The same volume of fill added to the floodplain will be required to be removed from another portion of the floodplain to provide adequate storage of the water displaced by the fill. This requirement has been adopted by numerous communities to protect property owner rights. The change proposed would be a one-to-one requirement. Some other communities have stricter requirements. The applicant will be required to provide the required compensatory storage on the property that is being altered or on a parcel of common ownership that is part of a larger plan of development. Legal Consideration: State statute allows cities to adopt regulations governing development within the floodplain. The proposed changes are consistent with FEMA’s flood insurance requirements. Strategic Plan Consideration: Safe, Inclusive, Connected Community – This policy will provide planning improvements for development within the floodplain. Financial Consideration: None Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Move the item to a study session 5. Discuss / take no action / table Staff recommends approval of the ordinance as presented. Supporting Documentation: Ordinance – clean Ordinance – marked [Type here] Ordinance 23-021 An Ordinance Amending Articles II of Chapter 38 of the Code of Ordinances of the City of Brookings, SD. Be It Ordained by the City of Brookings that Article II of Chapter 38 of the Code of Ordinances of the City of Brookings be amended to read as follows: ARTICLE II. FLOOD DAMAGE PREVENTION IN CITY DIVISION 1. GENERALLY Sec. 38-31. Definitions. The following words, terms and phrases, when used in this article, shall have the meanings provided in this section, except where the context clearly indicates a different meaning: Administrator means the Federal Insurance Administrator. Appeal means a request for a review of the floodplain administrator's interpretation of any provisions of this article or a request for a variance. Base flood means the flood having a one percent chance of being equaled or exceeded in any given year. Basement means any area of a building having its floor below ground level on all sides. Compensatory storage means an excavated equivalent volume of storage created to offset the loss of existing flood storage. Crawlspace means a foundation of solid walls which does not constitute useable space. Development means any manmade change to improved or unimproved real property including, but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations located within the area of special flood hazard. Existing manufactured home park or subdivision means a manufactured home park for which the construction of facilities for servicing the lot upon which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, either final site grading or the pouring of concrete pads, and the construction of streets) are completed before the effective date this ordinance was originally adopted. Expansion to existing manufactured home park or subdivision means the preparation of additional sites by the construction of facilities to service the lots upon which the manufactured homes are to be affixed (including the installation of utilities, either final site grading or pouring of concrete pads, or the construction of streets). Flood and flooding means a general and temporary condition of partial or complete inundation of normally dry land areas from: (1) The overflow of inland waters; and/or (2) The unusual and rapid accumulation or runoff of surface waters from any source. Flood insurance rate map (FIRM) means the official map upon which the Federal Emergency Management Agency has delineated both the areas of special flood hazards and the risk premium zones applicable to the city. Flood insurance study means the official report provided by the Federal Emergency Management Agency which includes flood profiles, the flood boundary-floodway map, and the water surface elevation of the base flood. Floodplain Administrator means the city manager's authorized representative. Floodway means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. Lowest floor means the lowest floor of the lowest enclosed area, including the basement, but excluding crawlspace. An unfinished or flood -resistant enclosure, usable solely for parking of vehicles, building access or storage, in an area other than a basement area, is not considered a building's lowest floor; provided that such enclosure is not built so as to render the structure in violation of the applicable nonelevation design requirements of this article. Manufactured home means a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when attached to the required utilities. The term "manufactured home" does not include a recreational vehicle. A mobile home is considered a manufactured home for purposes of this ordinance. Manufactured home park or subdivision means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale. New construction means structures for which the start of construction commenced on or after the effective date this ordinance was originally adopted. New manufactured home park or subdivision means a manufactured home, park or subdivision for which the construction of facilities for servicing the lots upon which the manufactured homes are to be affixed (including at a minimum the installation of utilities, the construction of streets and either final site grading or the pouring of concrete pads) is completed on or after the effective date this ordinance was originally adopted. Recreational vehicle means a vehicle which is: (1) Built on a single chassis; (2) Four hundred square feet or less when measured at the largest horizontal projections; (3) Designed to be self-propelled or permanently towable by a light-duty truck; and (4) Designed primarily not for use as a permanent dwelling but as a temporary living quarters for recreational, camping, travel or seasonal use. Special flood hazard area (SFHA) means that land in the floodplain subject to a one percent or greater chance of flooding in any given year. Start of construction includes substantial improvement, and means the date the building permit was issued, provided that the actual start of construction, repair, reconstruction, placement, or other improvement was within 180 days of the building permit date. The actual start means the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the state of excavation or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of street and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or which are not part of the main structure. Structure means a walled and roofed building or manufactured home that is principally located above-ground. Substantial damage means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damage condition would equal or exceed 50 percent of the market value of the structure before the damage occurred. Substantial improvement means any reconstruction, rehabilitation, addition or other improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before the start of construction of the improvement. The term "substantial improvement" includes structures which incurred substantial damage regardless of the actual repair work performed. The term "substan tial improvement" does not, however, include either: (1) Any project for improvement of a structure to correct existing violations of state or local health, sanitary or safety code specifications which have been identified by the local code enforcement official or building official and which are the minimum necessary to ensure safe living conditions; or (2) Any alteration of a historic structure, provided that the structure continues to be designated as a historic structure. Variance means a grant of relief from the requirements of this ordinance which permits construction in a manner which would otherwise be prohibited by this ordinance. Sec. 38-32. Statutory authorization. SDCL Chapter 11-4 (SDCL 11-4-1, et seq.) delegates the responsibility to local governmental units to adopt regulations designed to promote the public health, safety and general welfare of the city and its joint jurisdictional area. Sec. 38-33. Findings of fact. (a) The flood hazard areas of the city and within the joint jurisdictional area are subject to periodic inundation which results in the potential for loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety and general welfare. (b) Flood losses are caused, in part, by the cumulative effect of obstructions in areas of special flood hazard which increase flood heights and velocities, and when such obstructions are inadequately anchored, damage uses in other areas. Uses that are inadequately floodproofed, elevated or otherwise protected from flood damage also contribute to the potential for flood loss. Sec. 38-34. Statement of purpose. It is the purpose of this chapter to promote the public health, safety and general welfare, and to minimize public and private losses due to flood conditions to specific areas by provisions designed to: (1) Protect human life and health; (2) Minimize expenditures of public funds for costly flood control projects; (3) Minimize the need for rescue and relief efforts associated with flooding, and generally undertaken at the expense of the general public; (4) Minimize prolonged business interruptions; (5) Minimize damage to public facilities and utilities, such as water and gas mains, electric, telephone and sewer lines, and streets and bridges located in areas of special flood hazard; (6) Help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard to minimize future flood blight areas; (7) Ensure that potential buyers of property are notified that property is in an area of special flood hazard; and (8) Ensure that those who occupy the areas of special flood hazard assume responsibility for their actions. Sec. 38-35. Methods of reducing flood losses. In order to accomplish its purposes, this chapter includes methods and provisions for: (1) Restricting or prohibiting uses which are dangerous to life, health, safety and property due to water or erosion hazards, or which result in damaging increases in erosion or in flood heights or velocities; (2) Requiring that uses vulnerable to floods, including facilities which serve such uses, are protected against flood damage at the time of initial construction; (3) Controlling the alteration of natural floodplains, stream channels and natural protective barriers, which help accommodate or channel floodwaters; (4) Controlling filling, grading, dredging and other development which may increase flood damage; and (5) Preventing or regulating the construction of flood barriers which will unnaturally divert floodwaters or which may increase flood hazards in other areas. Sec. 38-36. Lands to which this article applies. This chapter applies to all areas of special flood hazard within the city and its joint jurisdictional area. Sec. 38-37. Compliance with article provisions. Structures and land which are constructed, located, extended or altered must comply with the regulations provided in this article. Sec. 38-38. Basis for establishing the areas of special flood hazard. The areas of special flood hazard are identified by the Federal Emergency Management Agency in a scientific and engineering report entitled, "The Flood Insurance Study for Brookings County, South Dakota and incorporated areas," dated July 16, 2008, with the accompanying flood insurance rate maps (FIRM). This study and accompanying maps are adopted by reference and declared to be a part of this chapter. The flood insurance study and FIRM are on file at the Community Development Department, City of Brookings, 520 Third Street, Brookings, South Dakota. Sec. 38-39. Abrogation and greater restrictions. This ordinance is not intended to repeal, modify or impair any existing easements, covenants or deed restrictions. However, where this ordinance and another ordinance, easement, covenant or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. Sec. 38-40. Interpretation. In the interpretation and application of this ordinance, all provisions shall be: (1) Considered as minimum requirements; (2) Liberally construed to further the purposes of this ordinance; and (3) Deemed neither to limit nor repeal any other powers granted under state statutes. Sec. 38-41. Warning and disclaimer of liability. The degree of flood protection required by this ordinance is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This ordinance does not imply that land outside the areas of special flood hazard or uses permitted within such areas will be free from flooding or flood damage. This ordinance does not create liability on the part of the city, any officer or employee thereof, or the Federal Emergency Management Agency for any flood damages which result from reliance on this ordinance or of any administrative decision lawfully made under this ordinance. Secs. 38-42—38-60. Reserved. DIVISION 2. ADMINISTRATION AND ENFORCEMENT Sec. 38-61. Development permit required; application. A development permit must be obtained before construction or development begins within any area of special flood hazard established in section 38-38 of this ordinance. Application for a development permit shall be made on forms furnished by the community development department and may include, but not be limited to, plans in duplicate drawn to scale showing the nature, location, dimensions, and elevations of the area in question; existing or proposed structures, fill, storage of materials, drainage facilities, and the location of these proposed improvements. Specifically, the following information is required: (1) Elevation in relation to mean sea level of the lowest floor, including the basement, of all structures; (2) Elevation in relation to mean sea level to which any structure has been floodproofed; (3) Certification by a registered professional engineer or a rchitect that the floodproofing methods for any nonresidential structure comply with the floodproofing criteria provided in the applicable subsection of 38 -82(2); and (4) Description of the extent to which any watercourse will be altered or relocated as a result of the proposed development. Sec. 38-62. Floodplain administrator. (a) Designated. The floodplain administrator is appointed to administer and implement this ordinance by considering any development permit application in accordance with the provisions of this ordinance. (b) Duties and responsibilities. The duties of the floodplain administrator include, but are not limited to: (1) Permit review. a. Review all development permits to determine that the permit requirements of this ordinance are satisfied. b. Review all development permits to determine that all necessary permits have been obtained from federal, state or local governmental agencies from which prior approval is required; c. Review all development permits to determine if the proposed development is located in the floodway. If the proposed development is located in the floodway, ensure that the encroachment provisions of subsection 38 -83(1) are satisfied. (2) Use of other base flood data. When base flood elevation data have not been provided in accordance with section 38-38 of this ordinance, the floodplain administrator may obtain, review and reasonably utilize any base flood elevation and floodway data available from any federal, state or other source as criteria to administer, in accordance with section 38-82, the requirements pertaining to new construction, substantial improvements, or other development in the special flood hazard area. (3) Information to be obtained and maintained. a. Obtain from the applicant and record the actual elevation, in relation to mean sea level, of the lowest floor, including the basement, of all new or substantially improved structures, and whether or not the structure contains a basement. b. For all new or substantially improved floodproofed structures: 1. Verify and record the actual elevation, in relation to mean sea level, to which the structure has been floodproofed; 2. Maintain the floodproofing certifications required in subsection 38- 61(3) of this ordinance. (4) Alteration of watercourses. a. Notify adjacent communities, the county drainage and zoning officer and the State Division of Emergency Services prior to any alteration or relocation of a watercourse and submit evidence of such notification to the Federal Emergency Management Agency. b. Require that maintenance is provided within the altered or relocated portion of the watercourse so that the flood -carrying capacity is not diminished. (5) Interpretation of FIRM boundaries. Make interpretations, where needed, as to the exact location of the boundaries of the areas of special flood hazard (for example, where there appears to be conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall have a reasonable opportunity to appeal the interpretation as provided in section 38-63 of this ordinance. Sec. 38-63. Variance procedure. (a) The board of adjustment shall hear and decide appeals and requests for variances from requirements of this ordinance. (b) The board of adjustment shall also hear and decide appeals if it is alleged there is an error in any requirement, decision or determination made by the floodplain administrator in the enforcement or administration of this ordinance. (c) Those aggrieved by a decision of the board of adjustment, or any taxpayer, may appeal such decisions to the circuit court, as provided in SDCL 11 -4-25. (d) In considering appeals, the board of adjustment shall consider all technical evaluations, all relevant factors, standards specified in other sections of this ordinance, and: (1) The danger that materials may be swept onto other lands to the injury of others; (2) The danger to life and property due to flooding or erosion damage; (3) The susceptibility of the proposed development and its contents to flood damage and the effect of such damage on the individual owners; (4) The importance of the services provided by the proposed development to the city; (5) The availability of alternative locations for the proposed use wh ich are not subject to flooding or erosion damage; (6) The compatibility of the proposed use with the existing and anticipated development; (7) The relationship of the proposed development to the comprehensive plan and floodplain management program for that area; (8) The safety of access to the property in times of flood for ordinary and emergency vehicles; (9) The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and (10) The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, streets and bridges. (e) Upon consideration of the factors provided in subsection (d) of this section and the purposes of this ordinance, the board of adjustment may attach conditions when granting a variance as it deems necessary to further the purposes of this ordinance. (f) The floodplain administrator shall maintain a record of all appeals, including technical information, and report any variances to the Federal Emergency Management Agency. (g) Conditions for variances are as follows: (1) Generally, a variance may be issued for new construction and substantial improvements to be erected on a lot of one-half acre or less in size, contiguous to and surrounded by lots with existing structures constructed below the base level, provided that items in subsection (d) of this sectio n have been fully considered. For a lot size in excess of one-half acre, the technical justifications required for issuing the variance increase with larger lot sizes. (2) Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the state inventory of historic places, without regard to the procedures set forth in the remainder of this section. (3) Variances shall not be issued within any designated floodway if any inc rease in flood levels during the base flood discharge would result. (4) Variances may only be issued upon a determination that, considering the flood hazard, the variance is the minimum necessary variance to afford relief. (5) Variances may only be issued upon: a. A showing of good and sufficient cause; b. A determination that failure to grant the variance would result in exceptional hardship to the applicant; and c. A determination that the granting of a variance will not result in increased flood heights or additional threats to public safety, will not result in extraordinary public expenses, will not create a nuisance, cause damage to the public as identified in subsection (d) of this section or conflict with existing ordinances. (6) Any applicant to whom a variance is granted must be given written notice that the structure will be permitted to be built with a lowest floor below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk from the reduced lowest floor elevation. Sec. 38-64 Expiration A permit shall expire if the proposed development is not commenced within one year after its issuance, or if the work authorized is suspended or abandoned for a period of 180 days after the work commences. Any permit issued prior to adoption of this ordinance shall expire one year after the adoption of this ordinance, or if the work authorized is suspended or abandoned for a period of 180 days after the work commences. Extensions must be requested in writing with justifiable cause demonstrated. The Floodplain Administrator may, except otherwise provided herein, extend the time for action by the applicant for a period not exceeding 180 days. Secs. 38-65—38-80. Reserved. DIVISION 3. FLOOD HAZARD REDUCTION Sec. 38-81. General standards. In all areas of special flood hazard, the following standards are required: (1) Anchoring. a. All new construction and substantial improvements must be anchored to prevent flotation, collapse or lateral movement of the structure and shall be capable of resisting the hydrostatic and hydrodynamic loads. b. All manufactured homes must be elevated and anchored to resist flotation, collapse or lateral movement and capable of resisting the hydrostatic and hydrodynamic loads. Methods of anchoring include, but are not limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable state and local anchoring requirements for resisting wind forces. Specific requirements are: 1. Over-the-top ties shall be provided at each of the four corners of the manufactured home with two additional ties per side at intermediate locations, with manufactured homes which are less than 50 feet long requiring one additional tie per side; 2. Frame ties shall be provided at each corner of the home with five additional ties per side at intermediate points, with manufactured homes which are less than 50 feet long requiring four additional ties per side; 3. All components of the anchoring system must be capable of carrying a force of 4,800 pounds; and 4. Any additions to the manufactured home shall be similarly anchored. c. The provisions of this subsection (1), relative to anchoring, shall not be applicable where the artificial or natural ground beneath a structure is at or above the base flood elevation. (2) Construction materials and methods. a. All new construction and substantial improvements must be constructed with materials and utility equipment resistant to flood damage. b. All new construction and substantial improvements must be constructed using methods and practices which minimize flood damage. c. All new construction and substantial improvements must be constructed with electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within their components during conditions of flooding. (3) Utilities. a. All new and replacement water supply systems must be designed to minimize or eliminate infiltration of floodwaters into the system; b. New and replacement sanitary sewer systems must be designed to minimize or eliminate the infiltration of floodwaters into the systems and minimize or eliminate the discharge from the systems into floodwaters; and c. On-site waste disposal systems must be located to avoid impairment to them or contamination from them during flooding. (4) Subdivision proposals. a. All subdivision proposals shall be consistent with the need to minimize flood damage; b. All subdivision proposals must have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage; c. All subdivision proposals must have adequate drainage provided to reduce exposure to flood damage; and d. Base flood elevation data must be provided for subdivision proposals and other proposed development which contain at least 50 lots or five acres, whichever is less. Sec. 38-82. Specific standards. (a) When the city has received notice of final flood elevations for one or more special flood hazard areas on the city's FIRM and, if appropriate, has designated other special flood hazard areas without base flood elevations on the city's FIRM, but has not identified a regulatory floodway or coastal high hazard area, the city shall: (1) Require the standards of section 60.3(b) of the current NFIP regulations (44 CFR Parts 59-78) within all A1-30 zones, AE zones, A zones, AH zones, and AO zones, on the city's FIRM; (2) Require that all new construction and substantial improvements of residential structures within zones A1-30, AE, and AH zones on the city's FIRM have the lowest floor (including basement) elevated to two feet or more above the base flood level, unless the city is granted an exception for the allowance of basements in accordance with section 60.6(b) or (c) of the current NFIP regulations (44 CFR Parts 59-78); (3) Require that all new construction and substantial improvements of nonresidential structures within zones A1-30, AE, and AH zones on the city's FIRM (i) have the lowest floor (including basement) elevated to two feet or more above the base flood level, or (ii) together with attendant utility and sanitary facilities, be designed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; (4) Require that where a nonresidential structure is intended to be made watertight below the base flood level, (i) a registered professional engineer or architect shall develop and/or review structural design, specifications, and plans for the construction, and shall certify that the design and methods of construction are in accordance with accepted standards of practice for meeting the applicable provisions of subsection (a)(3)(ii) or (a)(8)(ii) of this section, and (ii) a record of such certificates which includes the specific elevation (in relation to mean sea level) to which such structures are floodproofed shall be maintained for public inspection and furnished to the city upon request, for the determination of applicable flood insurance risk premium rates within all areas having special flood hazards identified on a FHBM or FIRM, any certificates of floodproofing, and information on the elevation (in relation to mean sea level) of the level of the lowest floor (including basement) of all new or substantially improved structures, and include whether or not such structures contain a basement, and if the structure has been floodproofed, the elevation (in relation to mean sea level) to which the structure was floodproofed; (5) Require, for all new construction and substantial improvements, that fully enclosed areas below the lowest floor that are usable solely for parking of vehicles, building access or storage in an area other than a basement and which are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs which satisfy this requirement must either be certified by a registered professional engineer or architect or meet or exceed the following minimum criteria: A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided. The bottom of all openings shall be no higher than one foot above grade. Openings may be equipp ed with screens, louvers, valves, or other coverings or devices provided they permit the automatic entry and exit of floodwaters. (6) Require that manufactured homes that are placed or substantially improved within zones A1-30, AH, and AE on the city's FIRM on sites: (i) Outside of a manufactured home park or subdivision, (ii) In a new manufactured home park of subdivision, (iii) In an expansion to an existing manufactured home park or subdivision, or (iv) In an existing manufactured home park or subdivision on which a manufactured home has incurred "substantial damage" as the result of a flood, be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated to or above the base flood elevation and is securely anchored to an adequately anchored foundation system to resist floatation collapse and lateral movement. (7) Require within any AO zone on the city's FIRM that all new construction and substantial improvements of residential structures have the lowest floor (including basement) elevated above the highest adjacent grade at least as high as the depth number specified in feet on the city's FIRM (at lease two feet if no depth number is specified); (8) Require within any AO zone on the city's FIRM that all new cons truction and substantial improvements of nonresidential improvements of nonresidential structures (i) have the lowest floor (including basement) elevated above the highest adjacent grade at least as high as the depth number specified in feet on the city's FIRM (at least two feet if no depth number is specified), or (ii) together with attendant utility and sanitary facilities be completely floodproofed to that level to meet the floodproofing standard specified in [subsection] (a)(3)(ii); (9) Require within any A99 zones on a city's FIRM the standards of section 60.3(a)(1) through (a)(4)(i) and (b)(5) through (b)(9) of the current NFIP regulations (44 CFR parts 59-78). (10) Require until a regulatory floodway is designated, that no new construction, substantial improvements, or other development (including fill) shall be permitted within zones A1-30 and AE on the city's FIRM, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within the city. (11) Require within zones AH and AO, adequate drainage paths around structures on slopes, to guide floodwaters around and away from proposed structures. (12) Require that manufactured homes to be placed or substantially improved on sites in an existing manufactured home park or subdivision within zones A1-30, AH, and AE on the city's FIRM that are not subject to the provisions of subsection (a)(6) be elevated so that either: (i) The lowest floor of the manufactured home is at or above the base flood elevation, or (ii) The manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than 36 inches in height above grade and are securely anchored to an adequately anchored foundation system to resist floatation, collapse, and lateral movement. (13) Notwithstanding any other provisions of section 38-82, the city may approve certain development in zones A1-30, AE, and AH, on the city's FIRM which increase the water surface elevation of the base flood by more than one foot, provided that the city first applies for a conditional FIRM revision, fulfills the requirements for such a revision as established under the provisions of section 65.12 of the current NFIP regulations (44 CFR parts 59-78), and receives the approval of the Federal Insurance Administrator. (14) Require that recreational vehicles placed on sites within zones A1 -30, AH, and AE on the city's FIRM either: (i) Be on the site for fewer than 180 consecutive days, (ii) Be fully licensed and ready for highway use, or (iii) Meet the permit requirements of section 60.3(b)(1) of the current NFIP regulations (44 CFR parts 59-78) and the elevation and anchoring requirements for "manufactured homes" in subsection (a)(6). (15) Unless otherwise provided in this ordinance, development in the floodplain shall result in no net loss of natural floodplain storage, and compensatory storage equal to the volume of floodplain storage displaced shall be provided for all development above the base flood level in the floodplain. (i) Compensatory storage requirements i. All required compensatory storage shall be located at a hydraulically connected site within the same drainage basin as demonstrated by the applicant on a plan prepared by an engineer licensed in the State of South Dakota. Compensatory storage shall be provided on the property that is being altered or on a parcel of common ownership that is part of a larger plan of development. ii. For developments that are required to have stormwater detention facilities, the storage volume required to meet the city's stormwater management regulations for the 100-year flood event is not counted for purposes of satisfying the compensatory storage requirement. (ii) Exemptions The following development projects are not required to meet the compensatory storage requirement unless specifically required by the Floodplain Administrator after review of the initial floodplain development permit application: i. Platted and constructed single family residences existing prior to the adoption of this ordinance. ii. Minor projects clearly having negligible impact, such as street/parking lot resurfacing/rehabilitation, minor improvements to residential structures, certain utility infrastructure and appurtenances (e.g. hydrants, poles, manholes, underground pipes), bridge/culvert rehabilitation projects, landscaping, property maintenance, stream rehabilitation, restoration of natural floodplain functions, and minor water quality features which typically pose no increased fill or flood potential and which do not inhibit the free flow of water. iii. Flood protection of buildings for floodplain volume displaced by building footprints that existed prior to the adoption of this ordinance and which is within ten feet of said building. (b) A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions. (c) When the Federal Insurance Administrator provides notice of final base flood elevations within zones A1-30 and/or AE on the city's FIRM and, if appropriate, has designated AO zones, AH zones, A99 zones, and A zones on the city's FIRM, and has provided data from which the city shall designate its regulatory floodway, the city shall: (1) Meet the requirements of subsection (a)(1) through (14); (2) Select and adopt a regulatory floodway based on the principle that the area chosen for the regulatory floodway must be designed to carry the wa ters of the base flood, without increasing the water surface elevation of that flood more than one foot at any point; (3) Prohibit encroachments, including fill, new construction, substantial improvements, and other development within the adopted regulatory floodway unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment would not result in any increase in flood levels within the city during the occurrence of the base flood discharge; (4) Notwithstanding any other provisions of section 38-82, the city may permit encroachments within the adopted regulatory floodway that would result in an increase in base flood elevations, provided the city first appl ies for a conditional FIRM and floodway revision, fulfills the requirements for such revisions as established under the provisions of section 65.12 of the current NFIP regulations (44 CFR Parts 59-78) and receives the approval of the Federal Insurance Administrator. Sec. 38-83. Floodways. Located within areas of special flood hazard, established in section 38 -38, are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of floodwaters which carry debris, potential projectiles and erosion potential, the following provisions apply: (1) Encroachments, including fill, new construction, substantial improvements, and other developments are prohibited unless certification by a registered professional engineer or architect is provided demonstrating that encroachments will not result in any increase in flood levels during the occurrence of the base flood discharge. (2) If subsection (1) of this section is satisfied, all new construction and substantial improvements must comply with all applicable flood hazard reduction provisions of this ordinance. Secs. 38-84—38-100. Reserve Any or all ordinances in conflict herewith are hereby repealed. First Reading: August 8, 2023 Second Reading: Published: CITY OF BROOKINGS, SD ATTEST: Oepke G. Niemeyer, Mayor Bonnie Foster, City Clerk [Type here] Ordinance 23-021 An Ordinance Amending Articles II of Chapter 38 of the Code of Ordinances of the City of Brookings, SD. Be It Ordained by the City of Brookings that Article II of Chapter 38 of the Code of Ordinances of the City of Brookings be amended to read as follows: ARTICLE II. FLOOD DAMAGE PREVENTION IN CITY DIVISION 1. GENERALLY Sec. 38-31. Definitions. The following words, terms and phrases, when used in this article, shall have the meanings provided in this section, except where the context clearly indicates a different meaning: Administrator means the Federal Insurance Administrator. Appeal means a request for a review of the floodplain administrator's interpretation of any provisions of this article or a request for a variance. Base flood means the flood having a one percent chance of being equaled or exceeded in any given year. Basement means any area of a building having its floor below ground level on all sides. Compensatory storage means an excavated equivalent volume of storage created to offset the loss of existing flood storage. Crawlspace means a foundation of solid walls which does not constitute useable space. Development means any manmade change to improved or unimproved real property including, but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations located within the area of special flood hazard. Existing manufactured home park or subdivision means a manufactured home park for which the construction of facilities for servicing the lot upon which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, either final site grading or the pouring of concrete pads, and the construction of streets) are completed before the effective date this ordinance was originally adopted. Expansion to existing manufactured home park or subdivision means the preparation of additional sites by the construction of facilities to service the lots upon which the manufactured homes are to be affixed (including the installation of utilities, either final site grading or pouring of concrete pads, or the construction of streets). Flood and flooding means a general and temporary condition of partial or complete inundation of normally dry land areas from: (1) The overflow of inland waters; and/or (2) The unusual and rapid accumulation or runoff of surface waters from any source. Flood insurance rate map (FIRM) means the official map upon which the Federal Emergency Management Agency has delineated both the areas of special flood hazards and the risk premium zones applicable to the city. Flood insurance study means the official report provided by the Federal Emergency Management Agency which includes flood profiles, the flood boundary-floodway map, and the water surface elevation of the base flood. Floodplain Administrator means the city manager's authorized representative. Floodway means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. Lowest floor means the lowest floor of the lowest enclosed area, including the basement, but excluding crawlspace. An unfinished or flood -resistant enclosure, usable solely for parking of vehicles, building access or storage, in an area other than a basement area, is not considered a building's lowest floor; provided that such enclosure is not built so as to render the structure in violation of the applicable nonelevation design requirements of this article. Manufactured home means a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when attached to the required utilities. The term "manufactured home" does not include a recreational vehicle. A mobile home is considered a manufactured home for purposes of this ordinance. Manufactured home park or subdivision means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale. New construction means structures for which the start of construction commenced on or after the effective date this ordinance was originally adopted. New manufactured home park or subdivision means a manufactured home, park or subdivision for which the construction of facilities for servicing the lots upon which the manufactured homes are to be affixed (including at a minimum the installation of utilities, the construction of streets and either final site grading or the pouring of concrete pads) is completed on or after the effective date this ordinance was originally adopted. Recreational vehicle means a vehicle which is: (1) Built on a single chassis; (2) Four hundred square feet or less when measured at the largest horizontal projections; (3) Designed to be self-propelled or permanently towable by a light-duty truck; and (4) Designed primarily not for use as a permanent dwelling but as a temporary living quarters for recreational, camping, travel or seasonal use. Special flood hazard area (SFHA) means that land in the floodplain subject to a one percent or greater chance of flooding in any given year. Start of construction includes substantial improvement, and means the date the building permit was issued, provided that the actual start of construction, repair, reconstruction, placement, or other improvement was within 180 days of the building permit date. The actual start means the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the state of excavation or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of street and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or which are not part of the main structure. Structure means a walled and roofed building or manufactured home that is principally located above-ground. Substantial damage means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damage condition would equal or exceed 50 percent of the market value of the structure before the damage occurred. Substantial improvement means any reconstruction, rehabilitation, addition or other improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before the start of construction of the improvement. The term "substantial improvement" includes structures which incurred substantial damage regardless of the actual repair work performed. The term "substan tial improvement" does not, however, include either: (1) Any project for improvement of a structure to correct existing violations of state or local health, sanitary or safety code specifications which have been identified by the local code enforcement official or building official and which are the minimum necessary to ensure safe living conditions; or (2) Any alteration of a historic structure, provided that the structure continues to be designated as a historic structure. Variance means a grant of relief from the requirements of this ordinance which permits construction in a manner which would otherwise be prohibited by this ordinance. Sec. 38-32. Statutory authorization. SDCL Chapter 11-4 (SDCL 11-4-1, et seq.) delegates the responsibility to local governmental units to adopt regulations designed to promote the public health, safety and general welfare of the city and its joint jurisdictional area. Sec. 38-33. Findings of fact. (a) The flood hazard areas of the city and within the joint jurisdictional area are subject to periodic inundation which results in the potential for loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety and general welfare. (b) Flood losses are caused, in part, by the cumulative effect of obstructions in are as of special flood hazard which increase flood heights and velocities, and when such obstructions are inadequately anchored, damage uses in other areas. Uses that are inadequately floodproofed, elevated or otherwise protected from flood damage also contribute to the potential for flood loss. Sec. 38-34. Statement of purpose. It is the purpose of this chapter to promote the public health, safety and general welfare, and to minimize public and private losses due to flood conditions to specific areas by provisions designed to: (1) Protect human life and health; (2) Minimize expenditures of public funds for costly flood control projects; (3) Minimize the need for rescue and relief efforts associated with flooding, and generally undertaken at the expense of the general public; (4) Minimize prolonged business interruptions; (5) Minimize damage to public facilities and utilities, such as water and gas mains, electric, telephone and sewer lines, and streets and bridges located in areas of special flood hazard; (6) Help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard to minimize future flood blight areas; (7) Ensure that potential buyers of property are notified that property is in an area of special flood hazard; and (8) Ensure that those who occupy the areas of special flood hazard assume responsibility for their actions. Sec. 38-35. Methods of reducing flood losses. In order to accomplish its purposes, this chapter includes methods and provisions for: (1) Restricting or prohibiting uses which are dangerous to life, health, safety and property due to water or erosion hazards, or which result in damaging increases in erosion or in flood heights or velocities; (2) Requiring that uses vulnerable to floods, including facilities which serve such uses, are protected against flood damage at the time of initial construction; (3) Controlling the alteration of natural floodplains, stream channels and natural protective barriers, which help accommodate or channel floodwaters; (4) Controlling filling, grading, dredging and other development which may increase flood damage; and (5) Preventing or regulating the construction of flood barriers which will unnaturally divert floodwaters or which may increase flood hazards in other areas. Sec. 38-36. Lands to which this article applies. This chapter applies to all areas of special flood hazard within the city and its joint jurisdictional area. Sec. 38-37. Compliance with article provisions. Structures and land which are constructed, located, extended or altered must comply with the regulations provided in this article. Sec. 38-38. Basis for establishing the areas of special flood hazard. The areas of special flood hazard are identified by the Federal Emergency Management Agency in a scientific and engineering report entitled, "The Flood Insurance Study for Brookings County, South Dakota and incorporated areas," dated July 16, 2008, with the accompanying flood insurance rate maps (FIRM). This study and accompanying maps are adopted by reference and declared to be a part of this chapter. The flood insurance study and FIRM are on file at the Community Development Department, City of Brookings, 520 Third Street, Brookings, South Dakota. Sec. 38-39. Abrogation and greater restrictions. This ordinance is not intended to repeal, modify or impair any existing easements, covenants or deed restrictions. However, where this ordinance and another ordinance, easement, covenant or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. Sec. 38-40. Interpretation. In the interpretation and application of this ordinance, all provisions shall be: (1) Considered as minimum requirements; (2) Liberally construed to further the purposes of this ordinance; and (3) Deemed neither to limit nor repeal any other powers granted under state statutes. Created: 2022-02-16 15:43:52 [EST] (Supp. No. 13) Page 6 of 17 Sec. 38-41. Warning and disclaimer of liability. The degree of flood protection required by this ordinance is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This ordinance does not imply that land outside the areas of special flood hazard or uses permitted within such areas will be free from flooding or flood damage. This ordinance does not create liability on the part of the city, any officer or employee thereof, or the Federal Emergency Management Agency for any flood damages which result from reliance on this ordinance or of any administrative decision lawfully made under this ordinance. Secs. 38-42—38-60. Reserved. DIVISION 2. ADMINISTRATION AND ENFORCEMENT Sec. 38-61. Development permit required; application. A development permit must be obtained before construction or development begins within any area of special flood hazard established in section 38-38 of this ordinance. Application for a development permit shall be made on forms furnished by the community development department and may include, but not be limited to, plans in duplicate drawn to scale showing the nature, location, dimensions, and elevations of the area in question; existing or proposed structures, fill, storage of materials, drainage facilities, and the location of these proposed improvements. Specifically, the following information is required: (1) Elevation in relation to mean sea level of the lowest floor, including the basement, of all structures; (2) Elevation in relation to mean sea level to which any structure has been floodproofed; (3) Certification by a registered professional engineer or architect that the floodproofing methods for any nonresidential structure comply with the floodproofing criteria provided in the applicable subsection of 38-82(2); and (4) Description of the extent to which any watercourse will be altered or relocated as a result of the proposed development. Sec. 38-62. Floodplain administrator. (a) Designated. The floodplain administrator is appointed to administer and implement this ordinance by considering any development permit application in accordance with the provisions of this ordinance. (b) Duties and responsibilities. The duties of the floodplain administrator include, but are not limited to: (1) Permit review. a. Review all development permits to determine that the permit requirements of this ordinance are satisfied. b. Review all development permits to determine that all necessary permits have been obtained from federal, state or local governmental agencies from which prior approval is required; c. Review all development permits to determine if the proposed development is located in the floodway. If the proposed development is located in the floodway, ensure that the encroachment provisions of subsection 38 -83(1) are satisfied. (2) Use of other base flood data. When base flood elevation data have not been provided in accordance with section 38-38 of this ordinance, the floodplain administrator may obtain, review and reasonably utilize any base flood elevation and floodway data available from any federal, state or other source as criteria to administer, in accordance with section 38-82, the requirements pertaining to new construction, substantial improvements, or other development in the special flood hazard area. (3) Information to be obtained and maintained. a. Obtain from the applicant and record the actual elevation, in relation to mean sea level, of the lowest floor, including the basement, of all new or substantially improved structures, and whether or not the structure contains a basement. b. For all new or substantially improved floodproofed structures: 1. Verify and record the actual elevation, in relation to mean sea level, to which the structure has been floodproofed; 2. Maintain the floodproofing certifications required in subsection 38- 61(3) of this ordinance. (4) Alteration of watercourses. a. Notify adjacent communities, the county drainage and zoning officer and the State Division of Emergency Services prior to any alteration or relocation of a watercourse and submit evidence of such notification to the Federal Emergency Management Agency. b. Require that maintenance is provided within the altered or relocated portion of the watercourse so that the flood -carrying capacity is not diminished. (5) Interpretation of FIRM boundaries. Make interpretations, where needed, as to the exact location of the boundaries of the areas of special flood hazard (for example, where there appears to be conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall have a reasonable opportunity to appeal the interpretation as provided in section 38-63 of this ordinance. Sec. 38-63. Variance procedure. (a) The board of adjustment shall hear and decide appeals and requests for variances from requirements of this ordinance. (b) The board of adjustment shall also hear and decide appeals if it is alleged there is an error in any requirement, decision or determination made by the floodplain administrator in the enforcement or administration of this ordinance . (c) Those aggrieved by a decision of the board of adjustment, or any taxpayer, may appeal such decisions to the circuit court, as provided in SDCL 11 -4-25. (d) In considering appeals, the board of adjustment shall consider all technical evaluations, all relevant factors, standards specified in other sections of this ordinance, and: (1) The danger that materials may be swept onto other lands to the injury of others; (2) The danger to life and property due to flooding or erosion damage; (3) The susceptibility of the proposed development and its contents to flood damage and the effect of such damage on the individual owners; (4) The importance of the services provided by the proposed development to the city; (5) The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage; (6) The compatibility of the proposed use with the existing and anticipated development; (7) The relationship of the proposed development to the comprehensive plan and floodplain management program for that area; (8) The safety of access to the property in times of flood for ordinary and emergency vehicles; (9) The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and (10) The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, streets and bridges. (e) Upon consideration of the factors provided in subsection (d) of this section and the purposes of this ordinance, the board of adjustment may attach conditions when granting a variance as it deems necessary to further the purposes of this ordinance. (f) The floodplain administrator shall maintain a record of all appeals, including technical information, and report any variances to the Federal Emergency Management Agency. (g) Conditions for variances are as follows: (1) Generally, a variance may be issued for new construction and substantial improvements to be erected on a lot of one-half acre or less in size, contiguous to and surrounded by lots with existing structures constructed below the base level, provided that items in subsection (d) of this section have been fully considered. For a lot size in excess of one-half acre, the technical justifications required for issuing the variance increase with larger lot sizes. (2) Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the state inventory of historic places, without regard to the procedures set forth in the remainder of this section. (3) Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result. (4) Variances may only be issued upon a determination that, considering the f lood hazard, the variance is the minimum necessary variance to afford relief. (5) Variances may only be issued upon: a. A showing of good and sufficient cause; b. A determination that failure to grant the variance would result in exceptional hardship to the applicant; and c. A determination that the granting of a variance will not result in increased flood heights or additional threats to public safety, will not result in extraordinary public expenses, will not create a nuisance, cause damage to the public as identified in subsection (d) of this section or conflict with existing ordinances. (6) Any applicant to whom a variance is granted must be given written notice that the structure will be permitted to be built with a lowest floor below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk from the reduced lowest floor elevation. Sec. 38-64 Expiration A permit shall expire if the proposed development is not commenced within one year after its issuance, or if the work authorized is suspended or abandoned for a period of 180 days after the work commences. Any permit issued prior to adoption of this ordinance shall expire one year after the adoption of this ordinance, or if the work authorized is suspended or abandoned for a period of 180 days after the work commences. Extensions must be requested in writing with justifiable cause demonstrated. The Floodplain Administrator may, except otherwise provided herein, extend the time for action by the applicant for a period not exceeding 180 days. Secs. 38-65—38-80. Reserved. DIVISION 3. FLOOD HAZARD REDUCTION Sec. 38-81. General standards. In all areas of special flood hazard, the following standards are required: (1) Anchoring. a. All new construction and substantial improvements must be anchored to prevent flotation, collapse or lateral movement of the structure and shall be capable of resisting the hydrostatic and hydrodynamic loads. b. All manufactured homes must be elevated and anchored to resist flotation, collapse or lateral movement and capable of resisting the hydrostatic and hydrodynamic loads. Methods of anchoring include, but are not limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable state and local anchoring requirements for resisting wind forces. Specific requirements are: 1. Over-the-top ties shall be provided at each of the four corners of the manufactured home with two additional ties per side at intermediate locations, with manufactured homes which are less than 50 feet long requiring one additional tie per side; 2. Frame ties shall be provided at each corner of the home with five additional ties per side at intermediate points, with manufactured homes which are less than 50 feet long requiring four additional ties per side; 3. All components of the anchoring system must be capable of carrying a force of 4,800 pounds; and 4. Any additions to the manufactured home shall be similarly anchored. c. The provisions of this subsection (1), relative to anchoring, shall not be applicable where the artificial or natural ground beneath a structure is at or above the base flood elevation. (2) Construction materials and methods. a. All new construction and substantial improvements must be constructed with materials and utility equipment resistant to flood damage. b. All new construction and substantial improvements must be constructed using methods and practices which minimize flood damage. c. All new construction and substantial improvements must be constructed with electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within their components during conditions of flooding. (3) Utilities. a. All new and replacement water supply systems must be designed to minimize or eliminate infiltration of floodwaters into the system; b. New and replacement sanitary sewer systems must be designed to minimize or eliminate the infiltration of floodwaters into the systems and minimize or eliminate the discharge from the systems into floodwaters; and c. On-site waste disposal systems must be located to avoid impairme nt to them or contamination from them during flooding. (4) Subdivision proposals. a. All subdivision proposals shall be consistent with the need to minimize flood damage; b. All subdivision proposals must have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage; c. All subdivision proposals must have adequate drainage provided to reduce exposure to flood damage; and d. Base flood elevation data must be provided for subdivision proposals and other proposed development which contain at least 50 lots or five acres, whichever is less. Sec. 38-82. Specific standards. (a) When the city has received notice of final flood elevations for one or more special flood hazard areas on the city's FIRM and, if appropriate, has designated other special flood hazard areas without base flood elevations on the city's FIRM, but has not identified a regulatory floodway or coastal high hazard area, the city shall: (1) Require the standards of section 60.3(b) of the current NFIP regulations (44 CFR Parts 59-78) within all A1-30 zones, AE zones, A zones, AH zones, and AO zones, on the city's FIRM; (2) Require that all new construction and substantial improvements of residential structures within zones A1-30, AE, and AH zones on the city's FIRM have the lowest floor (including basement) elevated to one foot two feet or more above the base flood level, unless the city is granted an exception for the allowance of basements in accordance with section 60.6(b) or (c) of the current NFIP regulations (44 CFR Parts 59-78); (3) Require that all new construction and substantial improvements of nonresidential structures within zones A1-30, AE, and AH zones on the city's FIRM (i) have the lowest floor (including basement) elevated to one foot two feet or more above the base flood level, or (ii) together with attendant utility and sanitary facilities, be designed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; (4) Require that where a nonresidential structure is intended to be made watertight below the base flood level, (i) a registered professional engineer or architect shall develop and/or review structural design, specifications, and plans for the construction, and shall certify that the design and methods of construction are in accordance with accepted standards of practice for meeting the applicable provisions of subsection (a)(3)(ii) or (a)(8)(ii) of this section, and (ii) a rec ord of such certificates which includes the specific elevation (in relation to mean sea level) to which such structures are floodproofed shall be maintained for public inspection and furnished to the city upon request, for the determination of applicable flood insurance risk premium rates within all areas having special flood hazards identified on a FHBM or FIRM, any certificates of floodproofing, and information on the elevation (in relation to mean sea level) of the level of the lowest floor (including basement) of all new or substantially improved structures, and include whether or not such structures contain a basement, and if the structure has been floodproofed, the elevation (in relation to mean sea level) to which the structure was floodproofed; (5) Require, for all new construction and substantial improvements, that fully enclosed areas below the lowest floor that are usable solely for parking of vehicles, building access or storage in an area other than a basement and which are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs which satisfy this requirement must either be certified by a registered professional engineer or architect or meet or exceed the following minimum criteria: A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided. The bottom of all openings shall be no higher tha n one foot above grade. Openings may be equipped with screens, louvers, valves, or other coverings or devices provided they permit the automatic entry and exit of floodwaters. (6) Require that manufactured homes that are placed or substantially improved within zones A1-30, AH, and AE on the city's FIRM on sites: (i) Outside of a manufactured home park or subdivision, (ii) In a new manufactured home park of subdivision, (iii) In an expansion to an existing manufactured home park or subdivision, or (iv) In an existing manufactured home park or subdivision on which a manufactured home has incurred "substantial damage" as the result of a flood, be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated to or above the base flood elevation and is securely anchored to an adequately anchored foundation system to resist floatation collapse and lateral movement. (7) Require within any AO zone on the city's FIRM that all new construction and substantial improvements of residential structures have the lowest floor (including basement) elevated above the highest adjacent grade at least as high as the depth number specified in feet on the city's FIRM (at lease two feet if no depth number is specified); (8) Require within any AO zone on the city's FIRM that all new construction and substantial improvements of nonresidential improvements of nonresidential structures (i) have the lowest floor (including basement) elevated above the highest adjacent grade at least as high as the depth number specified in feet on the city's FIRM (at least two feet if no depth number is specified), or (ii) together with attendant utility and sanitary facilities be completely floodproofed to that level to meet the floodproofing standard specified in [subsection] (a)(3)(ii); (9) Require within any A99 zones on a city's FIRM the standards of section 60.3(a)(1) through (a)(4)(i) and (b)(5) through (b)(9) of the current NFIP regulations (44 CFR parts 59-78). (10) Require until a regulatory floodway is designated, that no new construction, substantial improvements, or other development (including fill) shall be permitted within zones A1-30 and AE on the city's FIRM, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within the city. (11) Require within zones AH and AO, adequate drainage paths around structures on slopes, to guide floodwaters around and away from proposed structures. (12) Require that manufactured homes to be placed or substantially improved on sites in an existing manufactured home park or subdivision within zones A1 -30, AH, and AE on the city's FIRM that are not subject to the provisions of subsection (a)(6) be elevated so that either: (i) The lowest floor of the manufactured home is at or above the base flood elevation, or (ii) The manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than 36 inches in height above grade and are securely anchored to an adequately anchored foundation system to resist floatation, collapse, and lateral movement. (13) Notwithstanding any other provisions of section 38-82, the city may approve certain development in zones A1-30, AE, and AH, on the city's FIRM which increase the water surface elevation of the base flood by more than one foot, provided that the city first applies for a conditional FIRM revision, fulfills the requirements for such a revision as established under the provisions of section 65.12 of the current NFIP regulations (44 CFR parts 59-78), and receives the approval of the Federal Insurance Administrator. (14) Require that recreational vehicles placed on sites within zones A1 -30, AH, and AE on the city's FIRM either: (i) Be on the site for fewer than 180 consecutive days, (ii) Be fully licensed and ready for highway use, or (iii) Meet the permit requirements of section 60.3(b)(1) of the current NFIP regulations (44 CFR parts 59-78) and the elevation and anchoring requirements for "manufactured homes" in subsection (a)(6). (15) Unless otherwise provided in this ordinance, development in the floodplain shall result in no net loss of natural floodplain storage, and compensatory storage equal to the volume of floodplain storage displaced shall be provided for all development above the base flood level in the floodplain. (i) Compensatory storage requirements i. All required compensatory storage shall be located at a hydraulically connected site within the same drainage basin as demonstrated by the applicant on a plan prepared by an engineer licensed in the State of South Dakota. Compensatory storage shall be provided on the property that is being altered or on a parcel of common ownership that is part of a larger plan of development. ii. For developments that are required to have stormwater detention facilities, the storage volume required to meet the city's stormwater management regulations for the 100-year flood event is not counted for purposes of satisfying the compensatory storage requirement. (ii) Exemptions The following development projects are not required to meet the compensatory storage requirement unless specifically required by the Floodplain Administrator after review of the initial floodplain development permit application: i. Platted and constructed single family residences existing prior to the adoption of this ordinance. ii. Minor projects clearly having negligible impact, such as street/parking lot resurfacing/rehabilitation, minor improvements to residential structures, certain utility infrastructure and appurtenances (e.g. hydrants, poles, manholes, underground pipes), bridge/culvert rehabilitation projects, landscaping, property maintenance, stream rehabilitation, restoration of natural floodplain functions, and minor water quality features which typically pose no increased fill or flood potential and which do not inhibit the free flow of water. iii. Flood protection of buildings for floodplain volume displaced by building footprints that existed prior to the adoption of this ordinance and which is within ten feet of said building. (b) A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions. (c) When the Federal Insurance Administrator provides notice of final base flood elevations within zones A1-30 and/or AE on the city's FIRM and, if appropriate, has designated AO zones, AH zones, A99 zones, and A zones on the city's FIRM, and has provided data from which the city shall designate its regulatory floodway, the city shall: (1) Meet the requirements of subsection (a)(1) through (14); (2) Select and adopt a regulatory floodway based on the principle that the area chosen for the regulatory floodway must be designed to carry the waters of the base flood, without increasing the water surface elevation of that flood more than one foot at any point; (3) Prohibit encroachments, including fill, new construction, substantial improvements, and other development within the adopted regulatory floodway unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment would not result in any increase in flood levels within the city during the occurrence of the base flood discharge; (4) Notwithstanding any other provisions of section 38-82, the city may permit encroachments within the adopted regulatory floodway that would result in an increase in base flood elevations, provided the city first applies for a conditional FIRM and floodway revision, fulfills the requirements for such revisions as established under the provisions of section 65.12 of the current NFIP regulations (44 CFR Parts 59-78) and receives the approval of the Federal Insurance Administrator. Sec. 38-83. Floodways. Located within areas of special flood hazard, established in section 38 -38, are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of floodwaters which carry debris, potential projectiles and erosion potential, the following provisions apply: (1) Encroachments, including fill, new construction, substantial improvements, and other developments are prohibited unless certification by a registered professional engineer or architect is provided demonstrating that encroachments will not result in any increase in flood levels during the occurrence of the base flood discharge. Created: 2022-02-16 15:43:52 [EST] (Supp. No. 13) Page 16 of 17 (2) If subsection (1) of this section is satisfied, all new construction and substantial improvements must comply with all applicable flood hazard reduction provisions of this ordinance. Secs. 38-84—38-100. Reserve [Type here] Any or all ordinances in conflict herewith are hereby repealed. First Reading: August 8, 2023 Second Reading: Published: CITY OF BROOKINGS, SD ATTEST: Oepke G. Niemeyer, Mayor Bonnie Foster, City Clerk City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ORD 23-026,Version:1 Introduction and First Reading on Ordinance 23-026, an Ordinance Authorizing Amendment No. 7 to the 2023 Budget. Second Reading and Action: August 22, 2023. Summary: City of Brookings Staff continually monitors departmental budgets and brings amendments to the City Council as necessary to account for circumstances not anticipated in the originally adopted appropriation ordinance. This ensures compliance with state and local laws and maintains transparency regarding the City’s operational and capital needs. This budget amendment will increase the Fire Department’s capital budget for the additional amount needed to pay for the Engine 2 Replacement in full. Recommendation: Staff recommends approval. Attachments: Memo Ordinance City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Ashley Rentsch, Finance Director; Pete Bolzer, Fire Chief Council Meeting: August 8, 2023 / August 22, 2023 Subject: Ordinance 23-026: 2023 Budget Amendment No. 7 Presenter: Ashley Rentsch, Finance Director Summary: City of Brookings Staff continually monitors departmental budgets and brings amendments to the City Council as necessary to account for circumstances not anticipated in the originally adopted appropriation ordinance. This ensures compliance with state and local laws and maintains transparency regarding the City’s operational and capital needs. This budget amendment will increase the Fire Department’s capital budget for the additional amount needed to pay for the Engine 2 Replacement in full. Background: The Fire Department initially budgeted for the replacement of Engine 2 in 2022. However, due to supply chain issues, delivery was delayed until August 2023. The budget had originally included a five-year repayment plan for an interfund advance, and payments for 2022 and 2023 totaling $215,487 are currently in the 2023 Capital Improvement Plan (CIP) Budget. Strong sales tax performance in 2022 made it possible for the CIP Fund to sustain a payment in full for this without financing throu gh an interfund advance. This amendment will add $393,608 to the capital budget to pay this expenditure in full. Item Details: Increases the Fire Department Capital Expenditure budget in the CIP Fund by $393,608 to cover the full cost of replacing Engine 2 for $609,095. Dept. / Fund Budgetary Account Increase / (Decrease) Amount Description CIP / 2nd Penny Sales & Use Tax Expenditure $ 393,608 Fire Engine 2 Replacement Legal Consideration: None. Strategic Plan Consideration: This action supports fiscal responsibility by ensuring proper budget authority for current year expenditures and increasing transparency regarding capital purchases. Financial Consideration: This amendment increases expenditures by $393,608 in 2023, eliminating interfund financing payments in 2024, 2025, and 2026, which were included in the original 2023 10-year Capital Improvement Plan. Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Move the item to a Study Session 5. Discuss / take no action / table Staff recommends approval of the ordinance as presented. Supporting Documentation: Memo Ordinance Ordinance 23-026 An Ordinance Authorizing Amendment No. 7 to the 2023 Budget Be It Ordained by the City of Brookings, South Dakota: Whereas State Law (SDCL 9-21-7) and the City Charter (4.06 (a)) permit supplemental appropriations provided there are sufficient funds and revenues available to pay the appropriation when it becomes due. Now, Therefore, Be It Resolved by the City Council that the City Manager be authorized to make the following budget adjustments to the 2023 budget: Dept. / Fund Budgetary Account Account Name Increase Amount Description CIP / 2nd Penny Sales & Use Tax 213-000-5-940-08 Fire Dept. Capital $ 393,608 Engine 2 Replacement All ordinances or parts of Ordinances in conflict herewith are hereby repealed. First Reading: August 8, 2023 Second Reading: August 22, 2023 Published: August 25, 2023 CITY OF BROOKINGS, SD Oepke G. Niemeyer, Mayor ATTEST: Bonnie Foster, City Clerk City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ORD 23-025,Version:2 Second Reading and Action on Ordinance 23-025, an Ordinance Authorizing Amendment No. 6 to the 2023 Budget. Summary: City of Brookings Staff continually monitors departmental budgets and brings amendments to the City Council as necessary to account for circumstances not anticipated in the originally adopted appropriation ordinance. This ensures compliance with state and local laws and maintains transparency regarding the City’s operational and capital needs. This four-part amendment includes increases and transfers of budget authority for current Engineering projects, as well as reimbursements from other entities for portions of projects based on agreements. Recommendation: Staff recommends approval. Attachments: Memo Ordinance City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Ashley Rentsch, Finance Director; Charlie Richter, City Engineer; John Thompson, Public Works Director Council Meeting: July 25, 2023 / August 8, 2023 Subject: Ordinance 23-025: 2023 Budget Amendment No. 6 Presenter: Ashley Rentsch, Finance Director Summary: City of Brookings Staff continually monitors departmental budgets and brings amendments to the City Council as necessary to account for circumstances not anticipated in the originally adopted appropriation ordinance. This ensures compliance with state and local laws and maintains transparency regarding the City’s operational and capital needs. This four-part amendment includes increases and transfers of budget authority for current Engineering projects, as well as reimbursements from other entities for portions of projects based on agreements. Background: The Engineering Division is currently managing several infrastructure projects that require budgetary adjustments to increase project expenditures, recognize contributions from other entities, and streamline accounting for project costs. Item Details: Part 1: Increases the 22nd Avenue Project expenditure budget per the change order and increases the reimbursements revenue account budget for the portion to be contributed by 3M. Dept./Fund Account Type Increase/ (Decrease) Amount Description CIP/2nd Penny Sales Tax Expenditure $ 142,200 Additional project costs for 22nd Avenue - Change Order CIP/2nd Penny Sales Tax Revenue $ 96,473 3M Reimbursement Part 2: Increases the University Boulevard Project expenditure budget to account for the streetscape portion of the project and increases the reimbursements revenue account budget to account for the full reimbursement of these additional costs by SDSU. Dept./Fund Account Type Increase/ (Decrease) Amount Description TIF 1 Capital Project - University Blvd. Expenditure $ 500,900 Streetscape portion of University Blvd. Project TIF 1 Capital Project - University Blvd. Revenue $ 500,900 SDSU Reimbursement Part 3: Transfers cash and budget authority from the Stormwater Fund to the CIP fund for storm sewer improvements made in conjunction with the annual overlay project. Dept./Fund Account Type Increase/ (Decrease) Amount Description CIP/2nd Penny Sales Tax Expenditure $ 143,960 Budget Transfer for Harvey Dunn Storm Sewer Improvements Stormwater Fund Expenditure $ (143,960) Budget Transfer for Harvey Dunn Storm Sewer Improvements CIP/2nd Penny Sales Tax Transfer In $ 143,960 Transfer in from Stormwater Fund Stormwater Fund Transfer Out $ 143,960 Transfer out to CIP Fund Part 4: Transfers cash and budget authority from the CIP Fund to the University Blvd. Project to recognize all expenditures dedicated to this project in the same account. Dept./Fund Account Type Increase/ (Decrease) Amount Description TIF 1 Capital Project - University Blvd. Expenditure $ 440,000 Budget Transfer for University Boulevard Project CIP/2nd Penny Sales Tax Expenditure $ (440,000) Budget Transfer for University Boulevard Project TIF 1 Capital Project - University Blvd. Transfer In $ 440,000 Transfer in from CIP fund CIP/2nd Penny Sales Tax Transfer Out $ 440,000 Transfer out to University Boulevard Project Fund Legal Consideration: None. Strategic Plan Consideration: This action supports fiscal responsibility by ensuring proper budget authority for current year expenditures and increasing transparency regarding capital projects. Financial Consideration: Part One of this amendment includes a net increase to the 22nd Avenue Phase II project budget of $45,727. Parts 2, 3, and 4 have a net zero effect on the budget. Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Move the item to a Study Session 5. Discuss / take no action / table Staff recommends approval of the ordinance as presented. Supporting Documentation: Memo Ordinance Ordinance 23-025 An Ordinance Authorizing Amendment No. 6 to the 2023 Budget Be It ordained by the City of Brookings, South Dakota: Whereas State Law (SDCL 9-21-7) and the City Charter (4.06 (a)) permit supplemental appropriations provided there are sufficient funds and revenues available to pay the appropriation when it becomes due. Now, Therefore, Be It Resolved by the City Council that the City Manager be authorized to make the following budget adjustments to the 2023 budget: Dept. / Fund Budgetary Account Account Name Increase / (Decrease) Amount CIP/2nd Penny Sales Tax 213-000-5-960-01 STP Project Improvements $142,200 CIP/2nd Penny Sales Tax 213-000-4-441-09 Miscellaneous Reimbursements $96,473 TIF 1 Capital Project – University Blvd. 514-000-5-429-09 Other Project Expenses $500,900 TIF 1 Capital Project – University Blvd. 514-000-4-669-02 Miscellaneous Reimbursements $500,900 CIP/2nd Penny Sales Tax 213-000-5-960-00 Street & Sidewalk Improvements $143,960 Stormwater Fund 282-000-5-980-00 Storm Sewer Improvements $(143,960) CIP/2nd Penny Sales Tax 213-000-6-700-15 Transfer In $143,960 Stormwater Fund 282-000-7-899-05 Transfer Out $143,960 TIF 1 Capital Project – University Blvd. 514-000-5-429-09 Other Project Expenses $440,000 CIP/2nd Penny Sales Tax 213-0005-960-00 Street & Sidewalk Improvements $(440,000) TIF 1 Capital Project – University Blvd. 514-000-6-700-01 Transfer In $440,000 CIP/2nd Penny Sales Tax 213-000-7-899-05 Transfer Out $440,000 All ordinances or parts of Ordinances in conflict herewith are hereby repealed. First Reading: July 25, 2023 Second Reading: August 8, 2023 Published: August 11, 2023 CITY OF BROOKINGS, SD Oepke G. Niemeyer, Mayor ATTEST: Bonnie Foster, City Clerk City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ID 23-0334,Version:1 Public Hearing and Action on a request for an On-Off Sale Malt License for The Crown, dba Danger Von Dempsey’s, Jayme Erickson, owner. Location: 770 22nd Avenue South. Legal Description: Lot 2, Brookings Mall Addition, Suite 770. Summary: The City of Brookings has received an application for an On-Off Sale Malt License for The Crown, dba Danger Von Dempsey’s, Jayme Erickson, owner. All required documents have been submitted for this application. Background: A public hearing and action by the local governing body is required. The On-Off Sale Malt License would be effective August 2023, and then subject to an annual renewal. If approved, the application would be forwarded to the State Department of Revenue for final action and issuance of the license. Recommendation: Staff recommends approval. Attachments: Memo Legal Notice Location Map City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Bonnie Foster, City Clerk Council Meeting: August 8, 2023 Subject: New On-Off Sale Malt License: The Crown, dba Danger Von Dempsey’s; Jayme Erickson, owner Person(s) Responsible: Bonnie Foster, City Clerk Summary: The City of Brookings has received an application for an On -Off Sale Malt License for The Crown, dba Danger Von Dempsey’s, Jayme Erickson, owner. Location: 770 22nd Avenue South. All required documents have been submitted for this application. Video Lottery is not being requested at this time. At such time Video Lottery is requested, a public hearing and City Council action will be required Background: A public hearing and action by the local governing body is required. The On -Off Sale Malt License would be effective August 2023, and then subject to an annual renewal. If approved, the application would be forwarded to the State Department of Revenue for final action and issuance of the license. Item Details: The Crown, dba Danger Von Dempsey’s, is an expansion of Dempsey’s Brewery Pub & Restaurant located in Watertown. They will be located at 770 22 nd Avenue South, in the Brookings Mall. All required documents have been submitted for this application. Chapter 6, Article 2, Section 6-42 of the City Code of Ordinances pertains to the Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements and for all alcoholic beverage licenses in accordance with SDCL Chapter 35-2 (SDCL 35-2-1 et seq.) and in accordance with the following factors: 1) Type of business which applicant proposes to operate: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. 2) The manner in which the business is operated: on-sale alcoholic beverage operating agreements and alcoholic beverage licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. 3) The extent to which minors are employed in such a place of business: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold and which regularly employ minors. 4) Adequacy of the police facilities to properly police the proposed location: The city council shall inquire of the city manager whether the police department can adequately police the proposed location. 5) Other factors: The hours that business is conducted shall be considered by the city council in its review of applications for on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses. (Code 1996, § 5-20) State Law reference - Local license approval, SDCL 35-2-1.2. SDCL 35-2-1.2. Applications submitted to local governing body--Fee--Approval or disapproval. Any applicant for a new retail license, except as set forth in § 35-2-1.1, or the transfer of an existing license shall submit an application to the governing body of the municipality in which the applicant intends to operate, or if outside the corporate limits of a municipality, to the governing body of the county in which the applicant intends to operate. The applicant shall submit the required fee with the application. The governing body may approve the application for a new retail license or the transfer of an existing license if the governing body considers the applicant suitable to hold the license and the proposed location is suitable. The governing body may disapprove an application for a new retail license or the transfer of an existing license issued under subdivision 35 -4-2(4), (6), or (13) if: 1) The approval of the application permits a person, corporation, or business entity to possess more than one-third of the licenses available to be issued in the jurisdiction; and 2) The governing body determines that possession of more than one -third of licenses available is not in the public interest. Any application for the reissuance of a retail license may be approved by the municipal or county governing body without a hearing unless in the past year the licensee or one or more of the licensee's employees have been subjected to a criminal penalty for violation of the alcoholic beverage control law or the license has been suspended. Source: SDC 1939, §§ 5.0206, 5.0305; SL 1945, ch 21, § 1; SL 1951, ch 11; SDC Supp 1960, § 5.0204 (14); SL 1961, ch 14; SL 1964, ch 9; SL 1965, ch 12; SDCL §§ 35-4-32, 35-4-33, 35-6-15; SL 1971, ch 211, § 13; SL 2008, ch 37, § 140; SL 2011, ch 171, § 1; SL 2017, ch 164, § 1; SL 2018, ch 213, § 12. Legal Consideration: None. Strategic Plan Consideration: Economic Growth – established business expanding from another community into Brookings. Financial Consideration: License Fee: $300 ($150 to the City / $150 to the State of SD) Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Refer to a Study Session 5. Discuss / take no action / table Staff recommends approval. Supporting Documentation: Legal Notice Location Map NOTICE OF PUBLIC HEARING On-Off Sale Malt License The Crown, dba Danger Von Dempsey’s NOTICE IS HEREBY GIVEN that the Brookings City Council in and for the City of Brookings, South Dakota, on August 8, 2023, at 6:00 p.m. in the Brookings City & County Government Center Chambers, 520 Third Street, will meet in regular session to consider an application for the issuance of an On-Off Sale Malt License, for The Crown, dba Danger Von Dempsey’s, Jayme Erickson, owner, 770 22nd Avenue South, Brookings, South Dakota, legal description: Lot 2, Brookings Mall Addition, Suite 770. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated at Brookings, South Dakota, this 31st day of July, 2023. Bonnie Foster, City Clerk Published time(s) at an approximate cost $ Brookings County, SD Developed by Parcel ID 400750000000200 Sec/Twp/Rng -- Property Address 700 22ND AVE S BROOKINGS Alternate ID n/a Class NADC Acreage n/a Owner Address BURGER, ANDREW J REVOCABLE TRUST 4665 ALTA RICA DR LA MESA CA 91941 District 4001 Brief Tax Description BROOKINGS MALL ADDN, LOT 2 13.65 AC (Note: Not to be used on legal documents) Date created: 7/25/2023 Last Data Uploaded: 7/25/2023 1:07:05 AM 432 ft Overview Legend Brookings City Limits City Limits Township Boundary Sections Parcels City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ID 23-0036,Version:2 Public Hearing and Action on a request for an On-Off Sale Malt License, with Video Lottery, for Commonwealth Gaming & Holding Corp, dba Deuces Casino, Suite 105E, Bryant Soberg and Kirby Muilenburg, owners, 223 6th Street, Suite 105E, legal description: S114’ of W 69.3’ of Lot 20 and S114’ of Lot 21, Block 3, Henry Addition, Suite 105E. Pending occupancy permit issuance and final inspection per the Community Development Dept. Summary: The City of Brookings has received a request for an On-Off Sale Malt License, with Video Lottery, for Commonwealth Gaming & Holding Corp, dba Deuces Casino, Suite 105E, Bryant Soberg and Kirby Muilenburg, owners. All required documents have been submitted. Applications for an On-Off Sale Wine License, and an On-Off Sale Malt License with Video Lottery authorization, for Commonwealth Gaming & Holdings Corp., dba Deuces Casino, 223 6th Street, Suite 105E, were tabled at the January 24, 2023 City Council Meeting. These items were removed from the table at the July 25, 2023 City Council Meeting, and placed on the August 8 th Council Agenda. Recommendation: Staff requests City Council to make a recommendation. Attachments: Memo Proposed Building Plans Legal Notice - January 2023 and July 2023 City Attorney Memo on Video Lottery - 2018.05.02 City Attorney Opinion on AR 48:02:11:02 Video Lottery: SDCL and Administrative Rule City Council Minutes excerpts Location Map City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Bonnie Foster, City Clerk Council Meeting: August 8, 2023 Subject: On-Off Sale Malt License, with Video Lottery: Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Suite 105E Person(s) Responsible: Bonnie Foster, City Clerk Summary: Applications for an On-Off Sale Wine License, and an On-Off Sale Malt License with Video Lottery authorization, for Commonwealth Gaming & Holdings Corp., dba Deuces Casino, 223 6th Street, Suite 105E, were tabled at the January 24, 2023 City Council Meeting. These items were removed from the table at the July 25, 2023 City Council Meeting, and placed on the August 8th Council Agenda. The City of Brookings has received an application for an On-Off Sale Malt License, with Video Lottery, for Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Suite 105E, Bryant Soberg and Kirby Muilenburg, owners. Separate action will held for the Video Lottery request. Background: A public hearing and action by the local governing body is required. This license would be effective upon State Department of Revenue approval and license issuance, and subject to an annual renewal. This business is located at 223 6th Street, is proposed to hold 5 Suites, each with an On-Off Malt License, with 10 video lottery machines in each suite. Commonwealth Gaming & Holdings Corp. currently has the following alcohol and video lottery licenses at the 223 6th Street location:  Suite 105A – On-Off Sale Malt License, On-Off Sale Wine License, 10 Video Lottery Machines  Suite 105B – On-Off Sale Malt License, On-Off Sale Wine License, 10 Video Lottery Machines  Suite 105C – On-Off Sale Malt License, On-Off Sale Wine License, 10 Video Lottery Machines  Suite 105D – On-Off Sale Malt License, 10 Video Lottery Machines Applications applied for: Suite 105E – On-Off Sale Malt License, On-Off Sale Wine License, 10 Video Lottery Machines License issuance is dependent upon Occupancy Permit issuance and final inspection per the Community Development Dept. Item Details: Applications for an On-Off Sale Wine License, and an On-Off Sale Malt License with Video Lottery authorization, for Commonwealth Gaming & Holdings Corp., dba Deuces Casino, 223 6th Street, Suite 105E, were tabled at the January 24, 2023 City Council Meeting. These items were removed from the table at the July 25, 2023 City Council Meeting, and placed on the August 8th Council Agenda. Commonwealth Gaming & Holdings Corp, dba Deuces Casino, has applied for an On- Off Sale Malt License for 223 6th Street, Suite 105E. This location will be remodeled to add an additional Suite “105E” for video lottery, holding up to 10 video lottery machines. In order to satisfy State Video Lottery Regulations, there must be separate and distinct physical facilities maintained and utilized for the sale and consumption of alcoholic beverages for each separately described premises. Their plan indicates the separate spaces have been designated, and sales and consumption of alcoholic beverages are intended to occur at these 5 locations within the building. This would comply with the video lottery requirements if the City Council approves the additional On-Off Sale Malt Licenses and if the City Council also approves Video Lottery for these locations within the building. Chapter 6, Article 2, Section 6-42 of the City Code of Ordinances pertains to the Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements and for all alcoholic beverage licenses in accordance with SDCL Chapter 35 -2 (SDCL 35-2-1 et seq.) and in accordance with the following factors: 1) Type of business which applicant proposes to operate: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. 2) The manner in which the business is operated: on-sale alcoholic beverage operating agreements and alcoholic beverage licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. 3) The extent to which minors are employed in such a place of business: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold and which regularly employ minors. 4) Adequacy of the police facilities to properly police the proposed location: The city council shall inquire of the city manager whether the police department can adequately police the proposed location. 5) Other factors: The hours that business is conducted shall be considered by the city council in its review of applications for on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses. (Code 1996, § 5-20) State Law reference - Local license approval, SDCL 35-2-1.2. SDCL 35-2-1.2. Applications submitted to local governing body--Fee--Approval or disapproval. Any applicant for a new retail license, except as set forth in § 35-2-1.1, or the transfer of an existing license shall submit an application to the governing body of the municipality in which the applicant intends to operate, or if outside the corporate limits of a municipality, to the governing body of the county i n which the applicant intends to operate. The applicant shall submit the required fee with the application. The governing body may approve the application for a new retail license or the transfer of an existing license if the governing body considers the applicant suitable to hold the license and the proposed location is suitable. The governing body may disapprove an application for a new retail license or the transfer of an existing license issued under subdivision 35 -4-2(4), (6), or (13) if: 1) The approval of the application permits a person, corporation, or business entity to possess more than one-third of the licenses available to be issued in the jurisdiction; and 2) The governing body determines that possession of more than one -third of licenses available is not in the public interest. Any application for the reissuance of a retail license may be approved by the municipal or county governing body without a hearing unless in the past year the licensee or one or more of the licensee's employees have been subjected to a criminal penalty for violation of the alcoholic beverage control law or the license has been suspended. Source: SDC 1939, §§ 5.0206, 5.0305; SL 1945, ch 21, § 1; SL 1951, ch 11; SDC Supp 1960, § 5.0204 (14); SL 1961, ch 14; SL 1964, ch 9; SL 19 65, ch 12; SDCL §§ 35-4-32, 35-4-33, 35-6-15; SL 1971, ch 211, § 13; SL 2008, ch 37, § 140; SL 2011, ch 171, § 1; SL 2017, ch 164, § 1; SL 2018, ch 213, § 12. Legal Consideration: City Attorney Steve Britzman has reviewed the application. Strategic Plan Consideration: Economic Growth – the addition of an additional suite allows for expansion of an existing business. Financial Consideration: License Fee: $300 ($150 to the City / $150 to the State of SD) Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Move the item to a Study Session 5. Discuss / take no action / table Staff requests City Council to make a recommendation. Supporting Documentation: Memo Proposed Building Plans Legal Notice - January 2023 and July 2023 City Attorney Memo on Video Lottery - 2018.05.02 City Attorney Opinion on AR 48:02:11:02 Video Lottery: SDCL and Administrative Rule City Council Minutes excerpts Location Map NOTICE OF PUBLIC HEARING On-Off Sale Malt License with Video Lottery, and On-Off Sale Wine License Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Suite “105E” NOTICE IS HEREBY GIVEN that the Brookings City Council in and for the City of Brookings, South Dakota, on August 8, 2023, at 6:00 p.m. in the Brookings City & County Government Center Chambers, 520 Third Street, will meet in regular session to consider an application for the issuance of an On-Off Sale Malt License, with Video Lottery, and an On-Off Sale Wine License, for Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Bryant Soberg and Kirby Muilenburg, owners, 223 6th Street, Suite 105E, Brookings, South Dakota, legal description: S114’ of W69.3’ of Lot 20 and S114’ of Lot 21, Block 3, Henry Addition, Suite 105E. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated at Brookings, South Dakota, this 28th day of July, 2023. Bonnie Foster, City Clerk Published time(s) at an approximate cost $ NOTICE OF PUBLIC HEARING On-Off Sale Malt License with Video Lottery, and On-Off Sale Wine License Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Suite “105E” NOTICE IS HEREBY GIVEN that the Brookings City Council in and for the City of Brookings, South Dakota, on January 24, 2023, at 6:00 p.m. in the Brookings City & County Government Center Chambers, 520 Third Street, will meet in regular session to consider an application for the issuance of an On-Off Sale Malt License, with Video Lottery, and an On-Off Sale Wine License, for Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Bryant Soberg and Kirby Muilenburg, owners, 223 6th Street, Suite 105E, Brookings, South Dakota, legal description: S114’ of W69.3’ of Lot 20 and S114’ of Lot 21, Block 3, Henry Addition, Suite 105E. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated at Brookings, South Dakota, this 13th day of January, 2023. Bonnie Foster, City Clerk Published time(s) at an approximate cost $ Steve Britzman, City Attorney, opinion on AR 48:02:11:02 April 24, 2020 AR 48:02:11:02. Restrictions on multiple alcoholic beverage licenses. Persons who hold more than one license for the on-sale consumption of alcoholic beverages may have machines placed for each license issued provided the following requirements are met: 1) Separate application, qualification, and fees are submitted and approved for each premises licensed for the on-sale consumption of alcoholic beverages; 2) Separate establishment licenses are issued by the lottery for each premises licensed for the on-sale consumption of alcoholic beverages; 3) Separate and distinct physical facilities are maintained and utilized for the sale and consumption of alcoholic beverages for each establishment license approved by the lottery; 4) No more than one establishment license is issued to any person for the same legally described premises contained in the alcoholic beverage license. Source: 16 SDR 27, effective August 18, 1989. General Authority: SDCL 42-7A-21(16). Law Implemented: SDCL 42-7A-41. City Attorney Opinion Subsections 3 and 4 require separate and distinct physical facilities to be maintained and used for the sale and consumption for each establishment license approved by the lottery. This would mean each establishment must be able to serve alcoholic beverages on its own premises from its own equipment, even if they are housed in the same building with another establishment. Section 4 requires a separate establishment for each legally described premises. A legally described premises, in my opinion, means a separate legal description must pertain to each establishment licensed. A legal description can be created by a “recorded deed” which has been filed in the office of the Register of Deeds, or a plat which identifies each establishment with a separate description, such as Lot or Parcel A or Parcel B. A plat must also be recorded in the office of the Register of Deeds to create a legal description. Until a legal description is recorded, it cannot create a subdivision of an existing legal description. Steven J. Britzman Brookings City Attorney 521 Sixth Street, Suite 104 Telephone (605) 697-9058 Brookings, South Dakota 57006 Facsimile (605) 697-9060 Email: britzmanlaw@brookings.net _____________________________________________________________ Memorandum To: Mayor Keith Corbett and Council Members, Jeff Weldon, City Manager, and Shari Thornes, City Clerk From: Steven J. Britzman, City Attorney Date: May 2, 2018 Re: Municipal Regulation of Video Lottery location Pre-empted by State Law Conclusion: State law does allow a municipality to consider the following criteria for authorizing video lottery machine placement when issuing an on-sale wine or malt beverage license (no other type of alcoholic beverage license). The criteria, as fully set forth below, include the number of establishments currently licensed for video lottery, the proximity of the business to other establishments licensed for video lottery, the type of business and manner in which the applicant proposes to operate it, the location of the business in relation to other businesses, residential areas, or activities within the same general area, the extent to which minors frequent a business connected to the one proposed, and the effect the proposed business has on economic development. I believe the final determination is made by the South Dakota lottery, but at least with respect to two alcoholic beverage license types—on-sale wine and malt beverages—the city can consider these State law criteria with respect to the decision whether to authorize video lottery machine placement in the proposed establishment. No other City ordinance or Home Rule Charter provision is applicable to the decision making. Please let me know if you have any comments or questions concerning this opinion. Discussion: The South Dakota Supreme Court case of Law v. City of Sioux Falls (2011), resolved a number of questions concerning the ability of a municipality to regulate video lottery and in particular the location of video lottery. The Supreme Court ruled: It specifically gave only the executive director [of the State Lottery Commission] the power to approve or disapprove any application for a license. SDCL 42 -7A-57. In doing so, it provided that the director consider the application’s proposed location…. In only one statute is a municipality given any power with regard to video lottery. SDCL 42-7A-64 allows a municipality to consider, when issuing two types of on-sale alcoholic beverage licenses, certain factors relevant to the placement of video lottery machines. Municipalities, however, are not given any power to license video lottery establishments, or otherwise control the location of such establishments. See SDCL 42-7A-64. [¶14] Based on the character of the obligations imposed by the Legislature, we see no delegation of power or responsibilities to municipalities and no entrusting to municipalities the control video lottery. Rather, the statutes place all burdens upon the State. Thus, we conclude that South Dakota’s legislative video lottery scheme is sufficiently comprehensive to make reasonable the inference – 2 – AUGUST 9, 2023 that the Legislature left no room for supplementary regulation of video lottery by municipalities. It is immaterial that the City is governed by a home-rule charter or empowered to enact zoning regulations. SDCL 42 -7A-64 is restricted in its application to applicants for a wine retailer alcoholic beverage license and to applicants for malt beverage licenses. In these two limited circumstances, a municipality may consider, in addition to the criteria for the issuance of an on- sale wine or malt beverage license, “the following criteria for authorizing video lottery machine placement issued an on-sale wine or malt beverage license”: (1) The number of establishments currently licensed for video lottery; (2) The proximity of the business to other establishments licensed for video lottery; (3) The type of business and manner in which the applicant proposes to operate it; (4) The location of the business in relation to other businesses, residential areas, or activities within the same general area; (5) The extent to which minors frequent a business connected to the one proposed; and (6) The effect the proposed business has on economic development. The Full Text of the Statute is set forth below: 42-7A-64 Additional criteria for on-sale alcoholic beverage licensees in video lottery licensed establishments. 42-7A-64. Additional criteria for on-sale alcoholic beverage licensees in video lottery licensed establishments. A municipality or county may consider, in addition to the criteria for the issuance of an on-sale alcoholic beverage license, the following criteria for authorizing video lottery machine placement in establishments issued an on-sale alcoholic beverage license pursuant to subdivisions 35-4-2(12) and (16): (1) The number of establishments currently licensed for video lottery; (2) The proximity of the business to other establishments licensed for video lottery; (3) The type of business and manner in which the applicant proposes to operate it; (4) The location of the business in relation to other businesses, residential areas, or activities within the same general area; (5) The extent to which minors frequent a business connected to the one proposed; and (6) The effect the proposed business has on economic development. The governing board shall certify on each application filed with the Department of Revenue for a license granted under subdivisions 35-4-2(12) and (16) whether the business premises is authorized for video lottery machine placement. An existing video lottery license may not be denied renewal or transfer based upon the criteria set forth in this section. The lottery may issue a video lottery license to those establishments certified pursuant to this section. Notwithstanding the above provisions, a county or municipality may not restrict the number of alcoholic beverage licenses issued under subdivisions 35-4-2(12) and (16) and certified for video lottery to a number less than those licensed as video lottery establishments on March 1, 1994. Video Lottery State Statues and Administrative Rule SDCL 42-7A-1. Definitions. Terms used in this chapter mean: (6) "Licensed establishment," a bar or lounge owned or managed by an individual, partnership, corporation, or association licensed to sell alcoholic beverages for consumption upon the premises where sold; SDCL 42-7A-37.1. Restrictions on licensed establishment. A business licensed pursuant to subdivisions 35-4-2(12) and (16) may not be a licensed establishment for video lottery placement pursuant to subdivision 42-7A-1(6) unless it is a bar or lounge. For the purposes of this section, a bar or lounge is an enterprise primarily maintained and operated for the selling, dispensing, and consumption of alcoholic beverages on the premises and may also include the sale and service of food. A bar or lounge may be physically connected to another enterprise within the same building, which enterprise may be owned or operated by the same person. There may be interior access between a bar or lounge and a connected enterprise. However, there shall be a floor to ceiling opaque wall separation between the two enterprises. A separation wall may be constructed to provide visual and physical access for employees from areas in the building not open to the public. The bar or lounge shall have a separate entrance and exit. A separate entrance and exit is not required if entrance to the bar may only be obtained from the other distinct enterprise and the public may not enter the other enterprise by first passing through the bar or lounge. All video lottery machines shall be adequately monitored during business hours. Adequate monitoring shall be accomplished by the personal presence of an employee or by an employee using video cameras or mirrors and periodic inspections of the bar or lounge. No new license may be issued to any establishment after July 1, 1992, unless such establishment complies with this section. No license may be renewed to any establishment after July 1, 1993, unless such establishment complies with this section. SDCL 42-7A-44. Rules for placement of video lottery machines--Number limited-- Placement in bar or lounge with on-sale license. The placement of video lottery machines in licensed establishments shall be subject to the rules of the commission promulgated pursuant to chapter 1-26. No more than ten video lottery machines may be placed in any licensed establishment. The bar or lounge with an on-sale license issued pursuant to subdivision 35-4-2(12) or (16) shall be restricted to persons twenty-one years of age or older. The entrance to the area where video lottery machines are located shall display a sign that the premises are restricted to persons twenty-one years or older. Notwithstanding the restrictions in § 35-4-79, persons under the age of twenty- one may only enter the premises where video lottery machines are located provided they are accompanied by a parent, guardian, or spouse of twenty-one years or older. 42-7A-64. Additional criteria for on-sale alcoholic beverage licensees in video lottery licensed establishments. A municipality or county may consider, in addition to the criteria for the issuance of an on-sale alcoholic beverage license, the following criteria for authorizing video lottery machine placement in establishments issued an on- sale alcoholic beverage license pursuant to subdivisions 35-4-2(12) and (16): 1) The number of establishments currently licensed for video lottery; 2) The proximity of the business to other establishments licensed for video lottery; 3) The type of business and manner in which the applicant proposes to operate it; 4) The location of the business in relation to other businesses, residential areas, or activities within the same general area; 5) The extent to which minors frequent a business connected to the one proposed; and 6) The effect the proposed business has on economic development. The governing board shall certify on each application filed with the Department of Revenue for a license granted under subdivisions 35-4-2(12) and (16) whether the business premises is authorized for video lottery machine placement. An existing video lottery license may not be denied renewal or transfer based upon the criteria set forth in this section. The lottery may issue a video lottery license to those establishments certified pursuant to this section. Notwithstanding the above provisions, a county or municipality may not restrict the number of alcoholic beverage licenses issued under subdivisions 35-4-2(12) and (16) and certified for video lottery to a number less than those licensed as video lottery establishments on March 1, 1994. Administrative Rules: 48:02:11:01. Location of machines in establishment. All video lottery machines in licensed establishments must be physically located as follows: 1) In the sight and control of the owner, manager, or an employee of the licensed establishment from the location at which alcoholic beverages are dispensed; 2) In an area where alcoholic beverages are regularly dispensed and consumed in the ordinary and usual course of business; 3) In an area that ensures public access to the machines is restricted to persons legally entitled by age to be on the premises; 4) In an area which is at all times monitored by the owner, manager, or employee of the licensed establishment to prevent access or play of video lottery machines by persons under the age of 21. 48:02:11:02. Restrictions on multiple alcoholic beverage licenses. Persons who hold more than one license for the on-sale consumption of alcoholic beverages may have machines placed for each license issued provided the following requirements are met: 1) Separate application, qualification, and fees are submitted and approved for each premises licensed for the on-sale consumption of alcoholic beverages; 2) Separate establishment licenses are issued by the lottery for each premises licensed for the on-sale consumption of alcoholic beverages; 3) Separate and distinct physical facilities are maintained and utilized for the sale and consumption of alcoholic beverages for each establishment license approved by the lottery; 4) No more than one establishment license is issued to any person for the same legally described premises contained in the alcoholic beverage license. 48:02:05:05. Duties of licensed establishments. Specific duties of owners, managers, and designated employees of licensed establishments are as follows: 1) Provide a secure premise for the placement, operation, and play of video lottery machines; 2) Permit no one to tamper with or interfere with the approved operation of any video lottery machine; 3) Ensure that communication lines to the video lottery machines are at all times connected and prevent any person from tampering or interfering with the approved, continuing operation of the lines; 4) Contract only with persons authorized under this title to directly share in revenues generated from net machine income; 5) Ensure that video lottery machines are placed and remain as placed within the sight and control of the owner, manager, or designated employee while engaging in the actual dispensing of alcoholic beverages from the location where alcoholic beverages are dispensed; 6) Ensure that video lottery machines are placed and remain as placed in the specific area of the licensed establishment where alcoholic beverages are regularly dispensed and consumed in the ordinary and usual course of business; 7) Monitor video lottery machines to prevent access to or play by persons who are under the age of 21 years or who are visibly intoxicated; 8) Commit no violations of the laws of this state concerning the sale, dispensing, and consumption on premises of alcoholic beverages that results in suspension or revocation of its license; 9) Maintain at all times change and cash in the denominations accepted by the video lottery machines located in the establishment; 10) Extend no credit for video lottery machine play; 11) Pay all credits upon presentment of a valid winning ticket in accordance with SDCL 42-7A-37 and chapter 48:02:12; 12) Exercise caution and good judgment in providing cash for checks presented for video lottery machine play; 13) Report promptly all malfunctions of video lottery machines to the operator and notify the lottery of an operator's failure to provide service and repair of machines and associated equipment as required under this title; 14) Conduct advertising and promotional activities of the video lottery in accordance with decency, dignity, honesty, and good taste so that it does not reflect adversely on the lottery or the state of South Dakota; 15) Install, post, and display prominently at locations within or about the premises signs, redemption information, and other promotional material as required by the lottery. Use of the trademarked video lottery logo must be approved by the lottery; 16) Immediately notify operators of all out-of-service machines; and 17) Immediately notify the lottery of an operator's failure to respond within 24 hours after notice to the operator of an out-of-service machine. City Council Meeting Minutes excerpts – Topic: Deuces Casino Brookings City Council minutes excerpt, January 24, 2023: The Brookings City Council held a meeting on Tuesday, January 24, 2023 at 5:30 PM, at the Brookings City & County Government Center, Chambers, with the following City Council members present: Mayor Oepke Niemeyer, Council Members Joey Collins, Holly Tilton Byrne, Wayne Avery, Brianna Doran, and Bonny Specker. Absent: Council Member Nick Wendell, and City Manager Paul Briseno. Deputy City Manager Jacob Meshke, City Attorney Steve Britzman, and City Clerk Bonnie Foster were also present. Resolution 23-005 – On-Off Sale Wine License. A motion was made by Mayor Niemeyer, seconded by Council Member Specker, that Resolution 23-005, a Wine Operating Agreement for Commonwealth Gaming & Holding, Co., dba Deuces Casino (Suite 105E), be tabled. The motion carried by the following vote: Yes: 6 - Niemeyer, Collins, Tilton Byrne, Avery, Doran, and Specker; Absent: 1 – Wendell. On-Off Sale Malt License. A motion was made by Mayor Niemeyer, seconded by Council Member Specker, that the On-Off Sale Malt License request be tabled. The motion carried by the following vote: Yes: 6 - Niemeyer, Collins, Tilton Byrne, Avery, Doran, and Specker; Absent: 1 – Wendell. Video Lottery License. A motion was made by Mayor Niemeyer, seconded by Council Member Specker, that the Video Lottery License request be tabled. The motion carried by the following vote: Yes: 6 - Niemeyer, Collins, Tilton Byrne, Avery, Doran, and Specker; Absent: 1 – Wendell. Brookings City Council minutes excerpt, July 25, 2023 (unapproved): The Brookings City Council held a meeting on Tuesday, July 25, 2023 at 6:00 PM, at the Brookings City & County Government Center, Chambers, with the following City Council members present: Mayor Oepke Niemeyer, Council Members Wayne Avery, Brianna Doran, Andrew Rasmussen, Bonny Specker, and Holly Tilton Byrne. Absent: City Council Member Nick Wendell. City Manager Paul Briseno, City Attorney Steve Britzman, and City Clerk Bonnie Foster were also present. City Council Member introduction of topics for future discussion. A motion was made by Council Member Avery, seconded by Council Member Doran, to remove from the table the Commonwealth Gaming, dba Deuces Casino, applications for an On-Off Sale Malt License with Video Lottery, and an On-Off Sale Wine License, and place on the August 8, 2023 Agenda. The motion carried by the following vote: Yes: 6 - Niemeyer, Avery, Tilton Byrne, Specker, Doran, and Rasmussen; Absent: 1 - Wendell. Brookings County, SD Developed by Parcel ID 402350030002100 Sec/Twp/Rng -- Property Address 223 6TH ST BROOKINGS Alternate ID n/a Class NADC Acreage n/a Owner Address COMMONLAND II LLC 330 N MAIN AVE STE 201 SIOUX FALLS SD 57104 District 4001 Brief Tax Description HENRYS ADDITION, THE S 114' OF THE W 69.3' OF LOT 20 AND THE S 114' OF LOT 21, BLK 3 159 X 114 (Note: Not to be used on legal documents) Date created: 7/31/2023 Last Data Uploaded: 7/31/2023 1:03:50 AM 95 ft Overview Legend Brookings City Limits City Limits Township Boundary Sections Parcels Roads City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ID 23-0035,Version:2 Public Hearing and Action on a request for Video Lottery for Commonwealth Gaming & Holding Corp, dba Deuces Casino, Bryant Soberg and Kirby Muilenburg, owners, 223 6th Street, Suite 105E, legal description: S114’ of W 69.3’ of Lot 20 and S114’ of Lot 21, Block 3, Henry Addition, Suite 105E. Summary: The City of Brookings has received a request for Video Lottery for Commonwealth Gaming & Holding Corp, dba Deuces Casino, Suite 105E, Bryant Soberg and Kirby Muilenburg, owners. All required documents have been submitted. Applications for an On-Off Sale Wine License, and an On-Off Sale Malt License with Video Lottery authorization, for Commonwealth Gaming & Holdings Corp., dba Deuces Casino, 223 6th Street, Suite 105E, were tabled at the January 24, 2023 City Council Meeting. These items were removed from the table at the July 25, 2023 City Council Meeting, and placed on the August 8 th Council Agenda. Recommendation: Staff requests City Council to make a recommendation. Attachments: Memo Proposed Building Plans City Council Minutes excerpt Legal Notice - January 2023 and July 2023 Current Video Lottery List City Attorney Memo on Video Lottery - 2018.05.02 City Attorney Opinion on AR 48:02:11:02 Video Lottery: SDCL and Administrative Rule Location Map City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Bonnie Foster, City Clerk Council Meeting: August 8, 2023 Subject: Video Lottery: Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Suite 105E Person(s) Responsible: Bonnie Foster, City Clerk Summary: Applications for an On-Off Sale Wine License, and an On-Off Sale Malt License, with Video Lottery authorization, for Commonwealth Gaming & Holdings Corp., dba Deuces Casino 223 6th Street, Suite 105E, were tabled at the January 24, 2023 City Council Meeting. These items were removed from the table at the July 25, 2023 City Council Meeting, and placed on the August 8th Council Agenda. The City of Brookings has received a request fo r Video Lottery for Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Suite 105E, Bryant Soberg and Kirby Muilenburg, owners. All required documents have been submitted. Background: A public hearing and action by the local governing body is requi red. This license would be effect upon State Lottery Office approval and license issuance, and subject to annual renewal. This business is located at 223 6th Street, and is proposed to hold 5 Suites, each with an On-Off Malt License, with 10 video lottery machines in each suite. Commonwealth Gaming & Holdings Corp. currently has the following alcohol and video lottery licenses at the 223 6th Street location:  Suite 105A – On-Off Sale Malt License, On-Off Sale Wine License, 10 Video Lottery Machines  Suite 105B – On-Off Sale Malt License, On-Off Sale Wine License, 10 Video Lottery Machines  Suite 105C – On-Off Sale Malt License, On-Off Sale Wine License, 10 Video Lottery Machines  Suite 105D – On-Off Sale Malt License, 10 Video Lottery Machines Application applied for: Suite 105E – On-Off Sale Malt License, On-Off Sale Wine License, 10 Video Lottery Machines Item Details: Applications for an On-Off Sale Wine License, and an On-Off Sale Malt License, with Video Lottery authorization, for Commonwealth Gaming & Holdings Corp., dba Deuces Casino 223 6th Street, Suite 105E, were tabled at the January 24, 2023 City Council Meeting. These items were removed from the table at the July 25, 2023 City Council Meeting, and placed on the August 8th Council Agenda. Commonwealth Gaming & Holdings Corp has applied for an On -Off Malt License, with video lottery, and an On-Off Wine License, for Suite 105E located at 223 6th St. This would allow 50 video lottery machines at this location. This location will be remodeled to add an additional suite (Suite 105E) for video lottery, holding up to 10 video lottery machines. In order to satisfy State Video Lottery Regulations, there must be separate and distinct physical facilities maintained and utilized for the sale and consumption of alcoholic beverages for each separately described premises. Their plan indicates the separate spaces have been designated, and sales and consumption of alcoholic beverages are intended to occur at these 5 locations within the building. This would comply with the video lottery requirements if the City Council approves the additional On-Off Sale Malt Licenses and if the City Council also approves Video Lottery for these locations within the building. SDCL 42-7A-64. Additional criteria for on-sale alcoholic beverage licensees in video lottery licensed establishments. A municipality or county may consider, in addition to the criteria for the issuance of an on -sale alcoholic beverage license, the following criteria for authorizing video lottery machine placement in establishments issued an on-sale alcoholic beverage license pursuant to subdivisions 35-4-2(12) and (16): 1. The number of establishments currently licensed for video lottery; 2. The proximity of the business to other establishments licensed for video lottery; 3. The type of business and manner in which the applicant proposes to operate it; 4. The location of the business in relation to other businesses, residential areas, or activities within the same general area; 5. The extent to which minors frequent a business connected to the one proposed; and 6. The effect the proposed business has on economic development. The governing board shall certify on each application filed with the Department of Revenue for a license granted under subdivisions 35 -4-2(12) and (16) whether the business premises is authorized for video lottery machine placement. An existing video lottery license may not be denied renewal or transfer based upon the criteria set forth in this section. The lottery may issue a video lottery license to those establishments certified pursuant to this section. Notwithstanding the above provisions, a county or municipality may not restrict the number of alcoholic beverage licenses issued under subdivisions 35-4-2(12) and (16) and certified for video lottery to a number less than those licensed as video lottery establishments on March 1, 1994. Source: SL 1994, ch 329, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011. Legal Consideration: City Attorney Steve Britzman has reviewed the application. Strategic Plan Consideration: Economic Growth – allowing an existing business to provide video lottery options for members of the public. Financial Consideration: Video Lottery Fee: $50 / machine Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Move the item to a Study Session 5. Discuss / take no action / table Staff requests City Council to make a recommendation. Supporting Documentation: City Council Minutes excerpt Current Video Lottery List City Attorney Memo on Video Lottery – 2018.05.02 City Attorney Opinion on AR 48:02:11:02 Video Lottery: SDCL and Administrative Rule Legal Notice – January 2023 and July 2023 Proposed Building Plan Location Map 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 A B C D # Video Business Owner Lottery Machines 1 Boss's Pizzeria & Sports Bar On In 2 LLC / Darren Newborg and Dallas Wilkinson 5 2 BP of Brookings, Suite A BP of Brookings, Inc. / Lance Park and Dan Park 10 3 BP of Brookings, Suite B BP of Brookings, Inc. / Lance Park and Dan Park 10 4 Buffalo Wild Wings Bar & Grill W&P of Brookings LLC / Todd and Susan LaHaise 2 5 Carpy's Pub George Faehnrich 10 6 Casino 2000, Suite A Behrend Management / Brooks Behrend 10 7 Casino 2000, Suite B (NOT OPEN)Behrend Management / Brooks Behrend 0 8 Clothes Line Lounge (NOT OPEN)Sarantis Theodosopoulos 0 9 Corner Pantry #19 MG Oil Co. / Marlyn Erickson and Troy Erickson 10 10 Corner Pantry #24, Suite A MG Oil Co. / Marlyn Erickson and Troy Erickson 10 11 Corner Pantry #24, Suite B MG Oil Co. / Marlyn Erickson and Troy Erickson 10 12 Cubby's Sports Bar & Grill GDT Inc. / Gus Theodosopoulos 7 13 Danny's David Olson, Inc., / David Olson 10 14 The Depot Casino MG Oil Co. / Marlyn Erickson and Troy Erickson 10 15 Deuces Casino, Suite 105A Common Wealth Gaming & Holdings, Co. / Bryant Soberg and Kirby Muilenburg 10 16 Deuces Casino, Suite 105B Common Wealth Gaming & Holdings, Co. / Bryant Soberg and Kirby Muilenburg 10 17 Deuces Casino, Suite 105C Common Wealth Gaming & Holdings, Co. / Bryant Soberg and Kirby Muilenburg 10 18 Deuces Casino, Suite 105D Common Wealth Gaming & Holdings, Co. / Bryant Soberg and Kirby Muilenburg 10 19 4 Aces Casino, Suite A SVK Properties / Todd Voss 10 20 4 Aces Casino, Suite B SVK Properties / Todd Voss 10 21 4 Aces Casino, Suite C SVK Properties / Todd Voss 10 22 Jack's Entertainment Jack's Entertainment LLC / Todd Voss and Bob Winter 0 23 Jim's Tap Urquart Enterprises, Inc. / Don Urquhart 3 24 The Lanes MG Oil Co. / Marlyn Erickson and Troy Erickson 10 25 The Lanes, Suite B MG Oil Co. / Marlyn Erickson and Troy Erickson 10 26 The Lanes, Suite C MG Oil Co. / Marlyn Erickson and Troy Erickson 10 27 Main Street Pub Gonz Productions, Inc. / Garner Hansen 6 28 9 Bar Nightclub Nine Inc. / Gus Theodosopoulos 5 29 PNP Pub Schoon's Pub Inc. / Jon Schoon 10 30 Ray's Corner, Suite A Icon Investments / Todd Voss 10 31 Ray's Corner, Suite B Icon Investments / Todd Voss 10 32 Schoon's Pump N' Pak South Schoon's Properties Inc. / Jon Schoon 10 33 Skinner's Pub Greg & Shari Thornes 9 34 South Main Diner SVK Properties, LLC / Todd Voss 10 35 Sully's Irish Pub 3 Guys, LLC 7 36 Tee'd Off Golf Tee'd Off Golf, LLC / B. & S. Brecher, J. & M. Schulte, C. Thompson 4 37 The Wild Hare Wonder Inc. / Todd Voss, David Kneip, G. Kneip 10 S:\Cityhall\City Clerk - Internal\Alcohol\Video Lottery\Summary - Lists\MASTER LIST - License list - 2023 Page 1 City Council Meeting Minutes excerpts – Topic: Deuces Casino Brookings City Council minutes excerpt, January 24, 2023: The Brookings City Council held a meeting on Tuesday, January 24, 2023 at 5:30 PM, at the Brookings City & County Government Center, Chambers, with the following City Council members present: Mayor Oepke Niemeyer, Council Members Joey Collins, Holly Tilton Byrne, Wayne Avery, Brianna Doran, and Bonny Specker. Absent: Council Member Nick Wendell, and City Manager Paul Briseno. Deputy City Manager Jacob Meshke, City Attorney Steve Britzman, and City Clerk Bonnie Foster were also present. Resolution 23-005 – On-Off Sale Wine License. A motion was made by Mayor Niemeyer, seconded by Council Member Specker, that Resolution 23 -005, a Wine Operating Agreement for Commonwealth Gaming & Holding, Co., dba Deuces Casino (Suite 105E), be tabled. The motion carried by the following vote: Yes: 6 - Niemeyer, Collins, Tilton Byrne, Avery, Doran, and Specker; Absent: 1 – Wendell. On-Off Sale Malt License. A motion was made by Mayor Niemeyer, seconded by Council Member Specker, that the On-Off Sale Malt License request be tabled. The motion carried by the following vote: Yes: 6 - Niemeyer, Collins, Tilton Byrne, Avery, Doran, and Specker; Absent: 1 – Wendell. Video Lottery License. A motion was made by Mayor Niemeyer, seconded by Council Member Specker, that the Video Lottery License request be tabled. The motion carried by the following vote: Yes: 6 - Niemeyer, Collins, Tilton Byrne, Avery, Doran, and Specker; Absent: 1 – Wendell. Brookings City Council minutes excerpt, July 25, 2023 (unapproved): The Brookings City Council held a meeting on Tuesday, July 25, 2023 at 6:00 PM, at the Brookings City & County Government Center, Chambers, with the following City Council members present: Mayor Oepke Niemeyer, Council Members Wayne Avery, Brianna Doran, Andrew Rasmussen, Bonny Specker, and Holly Tilton Byrne. Absent: City Council Member Nick Wendell. City Manager Paul Briseno, City Attorney Steve Britzman, and City Clerk Bonnie Foster were also present. City Council Member introduction of topics for future discussion. A motion was made by Council Member Avery, seconded by Council Member Doran, to remove from the table the Commonwealth Gaming, dba Deuces Casino, applications for an On-Off Sale Malt License with Video Lottery, and an On-Off Sale Wine License, and place on the August 8, 2023 Agenda. The motion carried by the following vote: Yes: 6 - Niemeyer, Avery, Tilton Byrne, Specker, Doran, and Rasmussen; Absent: 1 - Wendell. Steven J. Britzman Brookings City Attorney 521 Sixth Street, Suite 104 Telephone (605) 697-9058 Brookings, South Dakota 57006 Facsimile (605) 697-9060 Email: britzmanlaw@brookings.net _____________________________________________________________ Memorandum To: Mayor Keith Corbett and Council Members, Jeff Weldon, City Manager, and Shari Thornes, City Clerk From: Steven J. Britzman, City Attorney Date: May 2, 2018 Re: Municipal Regulation of Video Lottery location Pre-empted by State Law Conclusion: State law does allow a municipality to consider the following criteria for authorizing video lottery machine placement when issuing an on-sale wine or malt beverage license (no other type of alcoholic beverage license). The criteria, as fully set forth below, include the number of establishments currently licensed for video lottery, the proximity of the business to other establishments licensed for video lottery, the type of business and manner in which the applicant proposes to operate it, the location of the business in relation to other businesses, residential areas, or activities within the same general area, the extent to which minors frequent a business connected to the one proposed, and the effect the proposed business has on economic development. I believe the final determination is made by the South Dakota lottery, but at least with respect to two alcoholic beverage license types—on-sale wine and malt beverages—the city can consider these State law criteria with respect to the decision whether to authorize video lottery machine placement in the proposed establishment. No other City ordinance or Home Rule Charter provision is applicable to the decision making. Please let me know if you have any comments or questions concerning this opinion. Discussion: The South Dakota Supreme Court case of Law v. City of Sioux Falls (2011), resolved a number of questions concerning the ability of a municipality to regulate video lottery and in particular the location of video lottery. The Supreme Court ruled: It specifically gave only the executive director [of the State Lottery Commission] the power to approve or disapprove any application for a license. SDCL 42 -7A-57. In doing so, it provided that the director consider the application’s proposed location…. In only one statute is a municipality given any power with regard to video lottery. SDCL 42-7A-64 allows a municipality to consider, when issuing two types of on-sale alcoholic beverage licenses, certain factors relevant to the placement of video lottery machines. Municipalities, however, are not given any power to license video lottery establishments, or otherwise control the location of such establishments. See SDCL 42-7A-64. [¶14] Based on the character of the obligations imposed by the Legislature, we see no delegation of power or responsibilities to municipalities and no entrusting to municipalities the control video lottery. Rather, the statutes place all burdens upon the State. Thus, we conclude that South Dakota’s legislative video lottery scheme is sufficiently comprehensive to make reasonable the inference – 2 – AUGUST 9, 2023 that the Legislature left no room for supplementary regulation of video lottery by municipalities. It is immaterial that the City is governed by a home-rule charter or empowered to enact zoning regulations. SDCL 42 -7A-64 is restricted in its application to applicants for a wine retailer alcoholic beverage license and to applicants for malt beverage licenses. In these two limited circumstances, a municipality may consider, in addition to the criteria for the issuance of an on- sale wine or malt beverage license, “the following criteria for authorizing video lottery machine placement issued an on-sale wine or malt beverage license”: (1) The number of establishments currently licensed for video lottery; (2) The proximity of the business to other establishments licensed for video lottery; (3) The type of business and manner in which the applicant proposes to operate it; (4) The location of the business in relation to other businesses, residential areas, or activities within the same general area; (5) The extent to which minors frequent a business connected to the one proposed; and (6) The effect the proposed business has on economic development. The Full Text of the Statute is set forth below: 42-7A-64 Additional criteria for on-sale alcoholic beverage licensees in video lottery licensed establishments. 42-7A-64. Additional criteria for on-sale alcoholic beverage licensees in video lottery licensed establishments. A municipality or county may consider, in addition to the criteria for the issuance of an on-sale alcoholic beverage license, the following criteria for authorizing video lottery machine placement in establishments issued an on-sale alcoholic beverage license pursuant to subdivisions 35-4-2(12) and (16): (1) The number of establishments currently licensed for video lottery; (2) The proximity of the business to other establishments licensed for video lottery; (3) The type of business and manner in which the applicant proposes to operate it; (4) The location of the business in relation to other businesses, residential areas, or activities within the same general area; (5) The extent to which minors frequent a business connected to the one proposed; and (6) The effect the proposed business has on economic development. The governing board shall certify on each application filed with the Department of Revenue for a license granted under subdivisions 35-4-2(12) and (16) whether the business premises is authorized for video lottery machine placement. An existing video lottery license may not be denied renewal or transfer based upon the criteria set forth in this section. The lottery may issue a video lottery license to those establishments certified pursuant to this section. Notwithstanding the above provisions, a county or municipality may not restrict the number of alcoholic beverage licenses issued under subdivisions 35-4-2(12) and (16) and certified for video lottery to a number less than those licensed as video lottery establishments on March 1, 1994. Steve Britzman, City Attorney, opinion on AR 48:02:11:02 April 24, 2020 AR 48:02:11:02. Restrictions on multiple alcoholic beverage licenses. Persons who hold more than one license for the on-sale consumption of alcoholic beverages may have machines placed for each license issued provided the following requirements are met: 1) Separate application, qualification, and fees are submitted and approved for each premises licensed for the on-sale consumption of alcoholic beverages; 2) Separate establishment licenses are issued by the lottery for each premises licensed for the on-sale consumption of alcoholic beverages; 3) Separate and distinct physical facilities are maintained and utilized for the sale and consumption of alcoholic beverages for each establishment license approved by the lottery; 4) No more than one establishment license is issued to any person for the same legally described premises contained in the alcoholic beverage license. Source: 16 SDR 27, effective August 18, 1989. General Authority: SDCL 42-7A-21(16). Law Implemented: SDCL 42-7A-41. City Attorney Opinion Subsections 3 and 4 require separate and distinct physical facilities to be maintained and used for the sale and consumption for each establishment license approved by the lottery. This would mean each establishment must be able to serve alcoholic beverages on its own premises from its own equipment, even if they are housed in the same building with another establishment. Section 4 requires a separate establishment for each legally described premises. A legally described premises, in my opinion, means a separate legal description must pertain to each establishment licensed. A legal description can be created by a “recorded deed” which has been filed in the office of the Register of Deeds, or a plat which identifies each establishment with a separate description, such as Lot or Parcel A or Parcel B. A plat must also be recorded in the office of the Register of Deeds to create a legal description. Until a legal description is recorded, it cannot create a subdivision of an existing legal description. Video Lottery State Statues and Administrative Rule SDCL 42-7A-1. Definitions. Terms used in this chapter mean: (6) "Licensed establishment," a bar or lounge owned or managed by an individual, partnership, corporation, or association licensed to sell alcoholic beverages for consumption upon the premises where sold; SDCL 42-7A-37.1. Restrictions on licensed establishment. A business licensed pursuant to subdivisions 35-4-2(12) and (16) may not be a licensed establishment for video lottery placement pursuant to subdivision 42-7A-1(6) unless it is a bar or lounge. For the purposes of this section, a bar or lounge is an enterprise primarily maintained and operated for the selling, dispensing, and consumption of alcoholic beverages on the premises and may also include the sale and service of food. A bar or lounge may be physically connected to another enterprise within the same building, which enterprise may be owned or operated by the same person. There may be interior access between a bar or lounge and a connected enterprise. However, there shall be a floor to ceiling opaque wall separation between the two enterprises. A separation wall may be constructed to provide visual and physical access for employees from areas in the building not open to the public. The bar or lounge shall have a separate entrance and exit. A separate entrance and exit is not required if entrance to the bar may only be obtained from the other distinct enterprise and the public may not enter the other enterprise by first passing through the bar or lounge. All video lottery machines shall be adequately monitored during business hours. Adequate monitoring shall be accomplished by the personal presence of an employee or by an employee using video cameras or mirrors and periodic inspections of the bar or lounge. No new license may be issued to any establishment after July 1, 1992, unless such establishment complies with this section. No license may be renewed to any establishment after July 1, 1993, unless such establishment complies with this section. SDCL 42-7A-44. Rules for placement of video lottery machines--Number limited-- Placement in bar or lounge with on-sale license. The placement of video lottery machines in licensed establishments shall be subject to the rules of the commission promulgated pursuant to chapter 1-26. No more than ten video lottery machines may be placed in any licensed establishment. The bar or lounge with an on-sale license issued pursuant to subdivision 35-4-2(12) or (16) shall be restricted to persons twenty-one years of age or older. The entrance to the area where video lottery machines are located shall display a sign that the premises are restricted to persons twenty-one years or older. Notwithstanding the restrictions in § 35-4-79, persons under the age of twenty- one may only enter the premises where video lottery machines are located provided they are accompanied by a parent, guardian, or spouse of twenty-one years or older. 42-7A-64. Additional criteria for on-sale alcoholic beverage licensees in video lottery licensed establishments. A municipality or county may consider, in addition to the criteria for the issuance of an on-sale alcoholic beverage license, the following criteria for authorizing video lottery machine placement in establishments issued an on- sale alcoholic beverage license pursuant to subdivisions 35-4-2(12) and (16): 1) The number of establishments currently licensed for video lottery; 2) The proximity of the business to other establishments licensed for video lottery; 3) The type of business and manner in which the applicant proposes to operate it; 4) The location of the business in relation to other businesses, residential areas, or activities within the same general area; 5) The extent to which minors frequent a business connected to the one proposed; and 6) The effect the proposed business has on economic development. The governing board shall certify on each application filed with the Department of Revenue for a license granted under subdivisions 35-4-2(12) and (16) whether the business premises is authorized for video lottery machine placement. An existing video lottery license may not be denied renewal or transfer based upon the criteria set forth in this section. The lottery may issue a video lottery license to those establishments certified pursuant to this section. Notwithstanding the above provisions, a county or municipality may not restrict the number of alcoholic beverage licenses issued under subdivisions 35-4-2(12) and (16) and certified for video lottery to a number less than those licensed as video lottery establishments on March 1, 1994. Administrative Rules: 48:02:11:01. Location of machines in establishment. All video lottery machines in licensed establishments must be physically located as follows: 1) In the sight and control of the owner, manager, or an employee of the licensed establishment from the location at which alcoholic beverages are dispensed; 2) In an area where alcoholic beverages are regularly dispensed and consumed in the ordinary and usual course of business; 3) In an area that ensures public access to the machines is restricted to persons legally entitled by age to be on the premises; 4) In an area which is at all times monitored by the owner, manager, or employee of the licensed establishment to prevent access or play of video lottery machines by persons under the age of 21. 48:02:11:02. Restrictions on multiple alcoholic beverage licenses. Persons who hold more than one license for the on-sale consumption of alcoholic beverages may have machines placed for each license issued provided the following requirements are met: 1) Separate application, qualification, and fees are submitted and approved for each premises licensed for the on-sale consumption of alcoholic beverages; 2) Separate establishment licenses are issued by the lottery for each premises licensed for the on-sale consumption of alcoholic beverages; 3) Separate and distinct physical facilities are maintained and utilized for the sale and consumption of alcoholic beverages for each establishment license approved by the lottery; 4) No more than one establishment license is issued to any person for the same legally described premises contained in the alcoholic beverage license. 48:02:05:05. Duties of licensed establishments. Specific duties of owners, managers, and designated employees of licensed establishments are as follows: 1) Provide a secure premise for the placement, operation, and play of video lottery machines; 2) Permit no one to tamper with or interfere with the approved operation of any video lottery machine; 3) Ensure that communication lines to the video lottery machines are at all times connected and prevent any person from tampering or interfering with the approved, continuing operation of the lines; 4) Contract only with persons authorized under this title to directly share in revenues generated from net machine income; 5) Ensure that video lottery machines are placed and remain as placed within the sight and control of the owner, manager, or designated employee while engaging in the actual dispensing of alcoholic beverages from the location where alcoholic beverages are dispensed; 6) Ensure that video lottery machines are placed and remain as placed in the specific area of the licensed establishment where alcoholic beverages are regularly dispensed and consumed in the ordinary and usual course of business; 7) Monitor video lottery machines to prevent access to or play by persons who are under the age of 21 years or who are visibly intoxicated; 8) Commit no violations of the laws of this state concerning the sale, dispensing, and consumption on premises of alcoholic beverages that results in suspension or revocation of its license; 9) Maintain at all times change and cash in the denominations accepted by the video lottery machines located in the establishment; 10) Extend no credit for video lottery machine play; 11) Pay all credits upon presentment of a valid winning ticket in accordance with SDCL 42-7A-37 and chapter 48:02:12; 12) Exercise caution and good judgment in providing cash for checks presented for video lottery machine play; 13) Report promptly all malfunctions of video lottery machines to the operator and notify the lottery of an operator's failure to provide service and repair of machines and associated equipment as required under this title; 14) Conduct advertising and promotional activities of the video lottery in accordance with decency, dignity, honesty, and good taste so that it does not reflect adversely on the lottery or the state of South Dakota; 15) Install, post, and display prominently at locations within or about the premises signs, redemption information, and other promotional material as required by the lottery. Use of the trademarked video lottery logo must be approved by the lottery; 16) Immediately notify operators of all out-of-service machines; and 17) Immediately notify the lottery of an operator's failure to respond within 24 hours after notice to the operator of an out-of-service machine. NOTICE OF PUBLIC HEARING On-Off Sale Malt License with Video Lottery, and On-Off Sale Wine License Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Suite “105E” NOTICE IS HEREBY GIVEN that the Brookings City Council in and for the City of Brookings, South Dakota, on January 24, 2023, at 6:00 p.m. in the Brookings City & County Government Center Chambers, 520 Third Street, will meet in regular session to consider an application for the issuance of an On-Off Sale Malt License, with Video Lottery, and an On-Off Sale Wine License, for Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Bryant Soberg and Kirby Muilenburg, owners, 223 6th Street, Suite 105E, Brookings, South Dakota, legal description: S114’ of W69.3’ of Lot 20 and S114’ of Lot 21, Block 3, Henry Addition, Suite 105E. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated at Brookings, South Dakota, this 13th day of January, 2023. Bonnie Foster, City Clerk Published time(s) at an approximate cost $ NOTICE OF PUBLIC HEARING On-Off Sale Malt License with Video Lottery, and On-Off Sale Wine License Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Suite “105E” NOTICE IS HEREBY GIVEN that the Brookings City Council in and for the City of Brookings, South Dakota, on August 8, 2023, at 6:00 p.m. in the Brookings City & County Government Center Chambers, 520 Third Street, will meet in regular session to consider an application for the issuance of an On-Off Sale Malt License, with Video Lottery, and an On-Off Sale Wine License, for Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Bryant Soberg and Kirby Muilenburg, owners, 223 6th Street, Suite 105E, Brookings, South Dakota, legal description: S114’ of W69.3’ of Lot 20 and S114’ of Lot 21, Block 3, Henry Addition, Suite 105E. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated at Brookings, South Dakota, this 28th day of July, 2023. Bonnie Foster, City Clerk Published time(s) at an approximate cost $ 223 6th Street - Deuces Casino City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:RES 23-005,Version:2 Public Hearing and Action on Resolution 23-005, a Resolution authorizing the City Manager to enter into an On-Off Sale Wine Operating Agreement for Commonwealth Gaming & Holdings, Co., dba Deuces Casino, Bryant Soberg and Kirby Muilenburg, owners, 223 6th Street, Suite 105E, Brookings, South Dakota, legal description: South 114’ of the West 69.3’ of Lot 20, and the South 114’ of Lot 21, Block 21, Block 3, Henry’s Addition, Suite 105E. Summary: Bryant Soberg and Kirby Muilenburg, owners, Commonwealth Gaming & Holdings, Co., dba Deuces Casino, 223 6th Street, Suite 105E, have applied for an On-Off Sale Wine Alcohol license. This Resolution allows the City Manager to enter into a 10-year Agreement, with a 5-year mid-term renewal. This license would be effective upon SD Department of Revenue approval and license issuance, and subject to an annual renewal. Applications for an On-Off Sale Wine License, and an On-Off Sale Malt License with Video Lottery authorization, for Commonwealth Gaming & Holdings Corp., dba Deuces Casino, 223 6th Street, Suite 105E, were tabled at the January 24, 2023 City Council Meeting. These items were removed from the table at the July 25, 2023 City Council Meeting, and placed on the August 8 th Council Agenda. Recommendation: Staff requests City Council to make a recommendation. Attachments: Memo Resolution Operating Agreement Hearing Notice - January 2023 and July 2023 City Council Minutes Excerpt Location Map City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Bonnie Foster, City Clerk Council Meeting: August 8, 2023 Subject: Resolution 23-005: Wine License - Deuces Casino Person(s) Responsible: Bonnie Foster, City Clerk Summary: The City of Brookings has received an application for an On-Off Sale Wine License from Commonwealth Gaming & Holdings, Co., dba Deuces Casino, Bryant Soberg and Kirby Muilenburg, owners, 223 6th Street, Suite 105E. Pending occupancy permit issuance and final inspection per the Community Development Dept. Background: Applications for an On-Off Sale Wine License, and an On-Off Sale Malt License with Video Lottery authorization, for Commonwealth Gaming & Holdings Corp., dba Deuces Casino, 223 6th Street, Suite 105E, were tabled at the January 24, 2023 City Council Meeting. These items were removed from the table at the July 25, 2023 City Council Meeting, and placed on the August 8th Council Agenda. A public hearing and action by the local governing body is required to approve all alcohol licenses. This Resolution allows the City Manager to enter into a 10-year Agreement, with a 5-year mid-term renewal. This license would be effective upon SD Department of Revenue approval and license issuance, and subject to an annual renewal. Commonwealth Gaming & Holdings Corp. currently has the following alcohol and video lottery licenses at the 223 6th Street location:  Suite 105A – On-Off Sale Malt License, On-Off Sale Wine License, 10 Video Lottery Machines  Suite 105B – On-Off Sale Malt License, On-Off Sale Wine License, 10 Video Lottery Machines  Suite 105C – On-Off Sale Malt License, On-Off Sale Wine License, 10 Video Lottery Machines  Suite 105D – On-Off Sale Malt License, 10 Video Lottery Machines Application applied for: Suite 105E – On-Off Sale Malt License, On-Off Sale Wine License, 10 Video Lottery Machines Item Details: Applications for an On-Off Sale Wine License, and an On-Off Sale Malt License with Video Lottery authorization, for Commonwealth Gaming & Holdings Corp., dba Deuces Casino, 223 6th Street, Suite 105E, were tabled at the January 24, 2023 City Council Meeting. These items were removed from the table at the July 25, 2023 City Council Meeting, and placed on the August 8th Council Agenda. This Resolution allows the City Manager to enter into a 10-year Wine Operating Agreement, with a 5-year mid-term renewal. This license would be effective upon SD Department of Revenue approval and license issuance, and subject to an annual renewal. This location will be remodeled to add an additional suite (Suite 105E) for video lottery, holding up to 10 video lottery machines. In order to satisfy State Video Lottery Regulations, there must be separate and distinct physical facilities maintained and utilized for the sale and consumption of alcoholic beverages for each separately described premises. Their plan indicates the separate spaces have been designated, and sales and consumption of alcoholic beverages are intended to occur at these 5 locations within the building. Chapter 6, Article 2, Section 6-42 of the City Code of Ordinances pertains to the Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements and for all alcoholic beverage licenses in accordance with SDCL Chapter 35 -2 (SDCL 35-2-1 et seq.) and in accordance with the following factors: 1) Type of business which applicant proposes to operate: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. 2) The manner in which the business is operated: on-sale alcoholic beverage operating agreements and alcoholic beverage licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. 3) The extent to which minors are employed in such a place of business: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold and which regularly employ minors. 4) Adequacy of the police facilities to properly police the proposed location: The city council shall inquire of the city manager whether the police department can adequately police the proposed location. 5) Other factors: The hours that business is conducted shall be considered by the city council in its review of applications for on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses. (Code 1996, § 5-20) State Law reference - Local license approval, SDCL 35-2-1.2. SDCL 35-2-1.2. Applications submitted to local governing body--Fee--Approval or disapproval. Any applicant for a new retail license, except as set forth in § 35-2-1.1, or the transfer of an existing license shall submit an application to the governing body of the municipality in which the applicant intends to operate, or if outside the corporate limits of a municipality, to the governing body of the county in which the applicant intends to operate. The applicant shall submit the required fee with the ap plication. The governing body may approve the application for a new retail license or the transfer of an existing license if the governing body considers the applicant suitable to hold the license and the proposed location is suitable. The governing body may disapprove an application for a new retail license or the transfer of an existing license issued under subdivision 35 -4-2(4), (6), or (13) if: 1) The approval of the application permits a person, corporation, or business entity to possess more than one-third of the licenses available to be issued in the jurisdiction; and 2) The governing body determines that possession of more than one -third of licenses available is not in the public interest. Any application for the reissuance of a retail license may be approved by the municipal or county governing body without a hearing unless in the past year the licensee or one or more of the licensee's employees have been subjected to a criminal penalty for violation of the alcoholic beverage control law or the license has been suspended. Source: SDC 1939, §§ 5.0206, 5.0305; SL 1945, ch 21, § 1; SL 1951, ch 11; SDC Supp 1960, § 5.0204 (14); SL 1961, ch 14; SL 1964, ch 9; SL 1965, ch 12; SDCL §§ 35-4-32, 35-4-33, 35-6-15; SL 1971, ch 211, § 13; SL 2008, ch 37, § 140; SL 2011, ch 171, § 1; SL 2017, ch 164, § 1; SL 2018, ch 213, § 12. Legal Consideration: City Attorney Steve Britzman has reviewed the application. Strategic Plan Consideration: Economic Growth - Adding an additional Suite E allows for business improvement and expansion opportunity. Financial Consideration: License Fee: $500 Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Move the item to a Study Session 5. Discuss / take no action / table Staff requests City Council to make a recommendation. Supporting Documentation: Memo Resolution Operating Agreement Hearing Notice - January 2023 and July 2023 City Council Minutes Excerpt Location Map Resolution 23-005 Wine Operating Agreement – new 10-year Agreement Commonwealth Gaming & Holding, Co., dba Deuces Casino (Suite 105E) Be It Resolved by the City of Brookings, South Dakota, that the City Council hereby approves an Operating Alcohol Management Agreement for Wine between the City of Brookings and Bryant Solberg and Kirby Muilenburg, owners, Commonwealth Gaming & Holdings Co., dba Deuces Casino, for the purpose of a alcohol manager to operate the On-Sale establishment or business for and on behalf of the City of Brookings at 223 6th Street, Suite 105E. Be It Further Resolved that the City Manager be authorized to execute the Agreement on behalf of the City, which shall be for a period of 10 years, with a 5-year mid-term renewal. Passed and approved this 8th day of August, 2023. CITY OF BROOKINGS, SD Oepke G. Niemeyer, Mayor ATTEST: Bonnie Foster, City Clerk On-Off Sale Wine Operating Agreement – 10-year Agreement Commonwealth Gaming & Holdings Co., dba Deuces Casino (Suite 105E) THIS AGREEMENT made and entered into by and between the City of Brookings, a municipal corporation of the State of South Dakota, he reinafter referred to as the “City” and Commonwealth Gaming & Holdings Co., dba Deuces Casino (Suite 105E), (Bryant Soberg and Kirby Muilenburg, owners) hereinafter referred to as “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 an Operating Agreement on a limited basis with the Manager for the purpose of operating an on-off sale establishment or business for and on behalf of the City pursuant to law, and WHEREAS, the Manager has offered to have facilities in which to operate said on -off 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 limited basis between the parties hereto allow the Manager to operate a retail on-off 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 -off 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. III. The on-off sale establishment shall be located upon real estate in the City of Brookings, South Dakota, described as: South 114’ of the West 69.3’ of Lot 20, and the South 114’ of Lot 21, Block 21, Block 3, Henry’s Addition (Suite 105E) IV. The Manager shall dispense only alcoholic beverages supplied by the Municipal Off- Sale Establishment. V. This Agreement shall be in full force and effect for a period of five (5) years with the Manager having the option and privilege of a five (5) year extension, subject to the approval of the governing body of the City of Brookings. VI. Either the Manager or the City may terminate this Agreement without ca use 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-off 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 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 da te, quality, 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 herein contained, the Manager agrees to pay the CITY OF BROOKINGS, Five Hundred, and no/100 Dollars ($500.00), constituting the Annual License Fee on or by 1st day of November of each year thereafter as long as this agreement shall remain in force and effect. The payment of the Annual Renewal License Fee will not extend the term of this Operating Agreement beyond the term provided therein. 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. 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 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-off 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 the 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. XV. The Manager agrees to observe all Federal and State laws and 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-off 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-off 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. XIX. 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 8th day of August, 2023. CITY OF BROOKINGS, South Dakota A Municipal Corporation By: ATTEST: Paul Briseno, City Manager Bonnie Foster, City Clerk MANAGER By: By: City Council Meeting Minutes excerpts – Topic: Deuces Casino Brookings City Council minutes excerpt, January 24, 2023: The Brookings City Council held a meeting on Tuesday, January 24, 2023 at 5:30 PM, at the Brookings City & County Government Center, Chambers, with the following City Council members present: Mayor Oepke Niemeyer, Council Members Joey Collins, Holly Tilton Byrne, Wayne Avery, Brianna Doran, and Bonny Specker. Absent: Council Member Nick Wendell, and City Manager Paul Briseno. Deputy City Manager Jacob Meshke, City Attorney Steve Britzman, and City Clerk Bonnie Foster were also present. Resolution 23-005 – On-Off Sale Wine License. A motion was made by Mayor Niemeyer, seconded by Council Member Specker, that Resolution 23 -005, a Wine Operating Agreement for Commonwealth Gaming & Holding, Co., dba Deuces Casino (Suite 105E), be tabled. The motion carried by the following vote: Yes: 6 - Niemeyer, Collins, Tilton Byrne, Avery, Doran, and Specker; Absent: 1 – Wendell. On-Off Sale Malt License. A motion was made by Mayor Niemeyer, seconded by Council Member Specker, that the On-Off Sale Malt License request be tabled. The motion carried by the following vote: Yes: 6 - Niemeyer, Collins, Tilton Byrne, Avery, Doran, and Specker; Absent: 1 – Wendell. Video Lottery License. A motion was made by Mayor Niemeyer, seconded by Council Member Specker, that the Video Lottery License request be tabled. The motion carried by the following vote: Yes: 6 - Niemeyer, Collins, Tilton Byrne, Avery, Doran, and Specker; Absent: 1 – Wendell. Brookings City Council minutes excerpt, July 25, 2023 (unapproved): The Brookings City Council held a meeting on Tuesday, July 25, 2023 at 6:00 PM, at the Brookings City & County Government Center, Chambers, with the following City Council members present: Mayor Oepke Niemeyer, Council Members Wayne Avery, Brianna Doran, Andrew Rasmussen, Bonny Specker, and Holly Tilton Byrne. Absent: City Council Member Nick Wendell. City Manager Paul Briseno, City Attorney Steve Britzman, and City Clerk Bonnie Foster were also present. City Council Member introduction of topics for future discussion. A motion was made by Council Member Avery, seconded by Council Member Doran, to remove from the table the Commonwealth Gaming, dba Deuces Casino, applications for an On-Off Sale Malt License with Video Lottery, and an On-Off Sale Wine License, and place on the August 8, 2023 Agenda. The motion carried by the following vote: Yes: 6 - Niemeyer, Avery, Tilton Byrne, Specker, Doran, and Rasmussen; Absent: 1 - Wendell. NOTICE OF PUBLIC HEARING On-Off Sale Malt License with Video Lottery, and On-Off Sale Wine License Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Suite “105E” NOTICE IS HEREBY GIVEN that the Brookings City Council in and for the City of Brookings, South Dakota, on January 24, 2023, at 6:00 p.m. in the Brookings City & County Government Center Chambers, 520 Third Street, will meet in regular session to consider an application for the issuance of an On-Off Sale Malt License, with Video Lottery, and an On-Off Sale Wine License, for Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Bryant Soberg and Kirby Muilenburg, owners, 223 6th Street, Suite 105E, Brookings, South Dakota, legal description: S114’ of W69.3’ of Lot 20 and S114’ of Lot 21, Block 3, Henry Addition, Suite 105E. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated at Brookings, South Dakota, this 13th day of January, 2023. Bonnie Foster, City Clerk Published time(s) at an approximate cost $ NOTICE OF PUBLIC HEARING On-Off Sale Malt License with Video Lottery, and On-Off Sale Wine License Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Suite “105E” NOTICE IS HEREBY GIVEN that the Brookings City Council in and for the City of Brookings, South Dakota, on August 8, 2023, at 6:00 p.m. in the Brookings City & County Government Center Chambers, 520 Third Street, will meet in regular session to consider an application for the issuance of an On-Off Sale Malt License, with Video Lottery, and an On-Off Sale Wine License, for Commonwealth Gaming & Holdings Corp, dba Deuces Casino, Bryant Soberg and Kirby Muilenburg, owners, 223 6th Street, Suite 105E, Brookings, South Dakota, legal description: S114’ of W69.3’ of Lot 20 and S114’ of Lot 21, Block 3, Henry Addition, Suite 105E. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated at Brookings, South Dakota, this 28th day of July, 2023. Bonnie Foster, City Clerk Published time(s) at an approximate cost $ City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ID 23-0335,Version:1 Public Hearing and Action on a request to transfer an On-Off Sale Malt License for Ray’s Corner, 401 Main Avenue, from Fergen Enterprise, Inc., Mike Fergen, owner, to Icon Investments, Todd Voss, owner. Legal description: Lot 1, Ray’s Corner Addition. Summary: The City of Brookings has received an application to transfer the On-Off Sale Malt License for Ray’s Corner, 401 Main Avenue, from Fergen Enterprise, Inc., Mike Fergen, owner, to Icon Investments, Todd Voss, owner. Legal description: Lot 1, Ray’s Corner Addition. All required documents have been submitted for this application. Recommendation: Staff recommends approval. Attachments: Memo Legal Notice City Code and SDCL References Location Map City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Bonnie Foster, City Clerk Council Meeting: August 8, 2023 Subject: On-Off Sale Malt License Transfer: Ray’s Corner Person(s) Responsible: Bonnie Foster, City Clerk Summary: The City of Brookings has received an application to transfer the On-Off Sale Malt License for Ray’s Corner, 401 Main Avenue, from Fergen Enterprise, Inc., Mike Fergen, owner, to Icon Investments, Todd Voss, owner. Legal description: Lot 1, Ray’s Corner Addition. Background: A public hearing and action by the local governing body is required to approve all alcohol license transfers. The On-Off Sale Malt License would be effective upon State Department of Revenue approval and license issuance, and subject to an annual renewal. This on-sale malt license does not have Video Lottery authorization. If Video Lottery is requested, a public hearing and action by the City Council will be required. Item Details: This is a request to transfer the On-Off Sale Malt License for Ray’s Corner, 401 Main Avenue, from Fergen Enterprise, Inc., Mike Fergen, owner, to Icon Investments, Todd Voss, owner. Chapter 6, Article 2, Section 6-42 of the City Code of Ordinances pertains to the Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements and for all alcoholic beverage licenses in accordance with SDCL Chapter 35 -2 (SDCL 35-2-1 et seq.) and in accordance with the following factors: 1) Type of business which applicant proposes to operate. On-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. 2) Manner in which the business is operated. On-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. 3) Extent to which minors are employed in such a place of business. On-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations or other stores where groceries or gasoline are sold and which regularly employ minors. 4) Adequacy of the police facilities to properly police the proposed location. The city council shall inquire of the city manager whether the police department can adequately police the proposed location. 5) Other factors. The hours that business is conducted shall be considered by the city council in its review of applications for on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses. (Code 1996, § 5-20) State Law reference - Local license approval, SDCL 35-2-1.2. SDCL 35-2-1.2. Applications submitted to local governing body--Fee--Approval or disapproval. Any applicant ….. the transfer of an existing license shall submit an application to the governing body of the municipality in which the applicant intends to operate, ….. The applicant shall submit the required fee with the application. The governing body may approve ….. the transfer of an existing license if the governing body considers the applicant suitable to hold the license and the proposed location is suitable. The governing body may disapprove an application for ….. the transfer of an existing license issued under subdivision 35-4-2(4), (6), or (13) if: 1) The approval of the application permits a person, corporation, or business entity to possess more than one-third of the licenses available to be issued in the jurisdiction; and 2) The governing body determines that possession of more than one -third of licenses available is not in the public interest. Complete City Code and SDCL References are in the attached document. Legal Consideration: None Strategic Plan Consideration: Economic Growth – established business changing ownership. Financial Consideration: License Transfer Fee: $150 ($75 to the City / $75 to the State of South Dakota). Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Refer to a Study Session 5. Discuss / take no action / table Staff recommends approval. Supporting Documentation: Legal Notice City Code and SDCL References Location Map NOTICE OF PUBLIC HEARING Transfer of an On-Sale Liquor Operating Agreement and On-Off Sale Malt Licenses Icon Investments, dba Ray’s Corner NOTICE IS HEREBY GIVEN that the Brookings City Council in and for the City of Brookings, South Dakota, on August 8, 2023, at 6:00 p.m. in the Brookings City & County Government Center Chambers, 520 Third Street, will meet in regular session to consider an application to transfer the On-Sale Liquor Operating Agreement with Video Lottery, an On-Off Sale Malt License, and an On-Off Sale Malt License with Video Lottery, for Fergen Enterprise, Inc., dba Ray’s Corner, Mike Fergen, owner, to Icon Investments, dba Ray’s Corner, Todd Voss, owner, 401 Main Avenue, Brookings, South Dakota, legal description: legal description: Ray’s Corner Addition, Lot 1, and Ray’s Corner Addition, Lot 1, Suite B. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated at Brookings, South Dakota, this 31st day of July, 2023. Bonnie Foster, City Clerk Published time(s) at an approximate cost $ Reviewed / updated 7/2023 Brookings City Code and SD Codified Law References: City Code of Ordinances: Chapter 6, Article 2, Section 6-42. Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements and for all alcoholic beverage licenses in accordance with SDCL Chapter 35-2 (SDCL 35-2-1 et seq.) and in accordance with the following factors: 1) Type of business which applicant proposes to operate: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. 2) The manner in which the business is operated: on-sale alcoholic beverage operating agreements and alcoholic beverage licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. 3) The extent to which minors are employed in such a place of business: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold and which regularly employ minors. 4) Adequacy of the police facilities to properly police the proposed location: The city council shall inquire of the city manager whether the police department can adequately police the proposed location. 5) Other factors: The hours that business is conducted shall be considered by the city council in its review of applications for on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses. (Code 1996, § 5-20) State Law reference - Local license approval, SDCL 35-2-1.2. SDCL 35-2-1.2. Applications submitted to local governing body--Fee--Approval or disapproval. Any applicant for a new retail license, except as set forth in § 35-2-1.1, or the transfer of an existing license shall submit a n application to the governing body of the municipality in which the applicant intends to operate, or if outside the corporate limits of a municipality, to the governing body of the county in which the applicant intends to operate. The applicant shall subm it the required fee with the application. The governing body may approve the application for a new retail license or the transfer of an existing license if the governing body considers the applicant suitable to hold the license and the proposed location is suitable. The governing body may disapprove an application for a new retail license or the transfer of an existing license issued under subdivision 35 -4-2(4), (6), or (13) if: 1) The approval of the application permits a person, corporation, or business entity to possess more than one-third of the licenses available to be issued in the jurisdiction; and 2) The governing body determines that possession of more than one -third of licenses available is not in the public interest. Reviewed / updated 7/2023 Any application for the reissuance of a retail license may be approved by the municipal or county governing body without a hearing unless in the past year the licensee or one or more of the licensee's employees have been subjected to a criminal penalty for violation of the alcoholic beverage control law or the license has been suspended. Source: SDC 1939, §§ 5.0206, 5.0305; SL 1945, ch 21, § 1; SL 1951, ch 11; SDC Supp 1960, § 5.0204 (14); SL 1961, ch 14; SL 1964, ch 9; SL 1965, ch 12; SDCL §§ 35-4-32, 35-4-33, 35-6-15; SL 1971, ch 211, § 13; SL 2008, ch 37, § 140; SL 2011, ch 171, § 1; SL 2017, ch 164, § 1; SL 2018, ch 213, § 12. SDCL 35-2-6.2 Character requirements for licenses. Any licensee under this title shall be a person of good moral character, never convicted of a felony, and, if a corporation, the managing officers of the corporation shall meet the same qualifications.” Source: SDC 1939, §§ 5.0204 (10) (c), 5.0303 (2); SDCL §§ 35-4-26, 35-6-4; SL 1971, ch 211, § 25; SL 2018, ch 213, § 22. SDCL 42-7A-64. Additional criteria for on-sale alcoholic beverage licensees in video lottery licensed establishments. A municipality or county may consider, in addition to the criteria for the issuance of an on -sale alcoholic beverage license, the following criteria for authorizing video lottery machine placement in establishments issued an on-sale alcoholic beverage license pursuant to subdivisions 35-4-2(12) and (16): 1) The number of establishments currently licensed for video lottery; 2) The proximity of the business to other establishments licensed for video lottery; 3) The type of business and manner in which the applicant proposes to operate it; 4) The location of the business in relation to other businesses, residential areas, or activities within the same general area; 5) The extent to which minors frequent a business connected to the one proposed; and 6) The effect the proposed business has on economic development. The governing board shall certify on each application filed with the Department of Revenue for a license granted under subdivisions 35-4-2(12) and (16) whether the business premises is authorized for video lottery machine placement. An existing video lottery license may not be denied renewal or transfer based upon the criteria set forth in this section. The lottery may issue a video lottery license to those establishments certified pursuant to this section. Notwithstanding the above provisions, a county or municipality may not restrict the number of alcoholic beverage licenses issued under subdivisions 35-4-2(12) and (16) and certified for video lottery to a number less than those licensed as video lottery establishments on March 1, 1994. Source: SL 1994, ch 329, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011. Brookings County, SD Developed by Parcel ID 404920000000100 Sec/Twp/Rng -- Property Address 403 MAIN AVE BROOKINGS Alternate ID n/a Class NADC Acreage n/a Owner Address FERGEN, MICHAEL S % FERGEN RENTALS 401 MAIN AVE BROOKINGS SD 57006 District 4001 Brief Tax Description RAYS CORNER ADDN LOT 1A 7,217 SF (Note: Not to be used on legal documents) Date created: 7/25/2023 Last Data Uploaded: 7/25/2023 1:07:05 AM 190 ft Overview Legend Brookings City Limits City Limits Township Boundary Sections Parcels Roads City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ID 23-0336,Version:1 Public Hearing and Action on a request to transfer an On-Off Sale Malt License, with video lottery authorization, for Ray’s Corner, 401 Main Avenue, Suite B, from Fergen Enterprise, Inc., Mike Fergen, owner, to Icon Investments, Todd Voss, owner. Legal description: Lot 1, Suite B, Ray’s Corner Addition. Summary: The City of Brookings has received an application to transfer the On-Off Sale Malt License, with video lottery authorization, for Ray’s Corner, 401 Main Avenue, from Fergen Enterprise, Inc., Mike Fergen, owner, to Icon Investments, Todd Voss, owner. Legal description: Lot 1, Suite B, Ray’s Corner Addition. All required documents have been submitted for this application. Recommendation: Staff recommends approval. Attachments: Memo Legal Notice City Code and SDCL References Location Map City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Bonnie Foster, City Clerk Council Meeting: August 8, 2023 Subject: On-Off Sale Malt License Transfer, with video lottery authorization: Ray’s Corner, Suite B Person(s) Responsible: Bonnie Foster, City Clerk Summary: The City of Brookings has received an application to transfer the On-Off Sale Malt License, with video lottery authorization, for Ray’s Corner, 401 Main Avenue, Suite B, from Fergen Enterprise, Inc., Mike Fergen, owner, to Icon Investments, Todd V oss, owner. Legal description: Lot 1, Suite B, Ray’s Corner Addition. Background: A public hearing and action by the local governing body is required to approve all alcohol licenses. The On-Off Sale Malt License, with video lottery authorization, would be effective upon State Department of Revenue approval and license issuance, and subject to an annual renewal. Item Details: This is the request to transfer the On-Off Sale Malt License, with video lottery authorization, for Ray’s Corner, 401 Main Avenue, Suite B, from Fergen Enterprise, Inc., Mike Fergen, owner, to Icon Investments, Todd Voss, owner. Chapter 6, Article 2, Section 6-42 of the City Code of Ordinances pertains to the Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements and for all alcoholic beverage licenses in accordance with SDCL Chapter 35 -2 (SDCL 35-2-1 et seq.) and in accordance with the following factors: 1) Type of business which applicant proposes to operate; 2) The manner in which the business is operated; 3) The extent to which minors are employed in such a place of business ; 4) Adequacy of the police facilities to properly police the proposed location; 5) Other factors: The hours that business is conducted. (Code 1996, § 5-20) State Law reference - Local license approval, SDCL 35-2-1.2. SDCL 35-2-1.2. Applications submitted to local governing body--Fee--Approval or disapproval. Any applicant ….. the transfer of an existing license shall submit an application to the governing body of the municipality in which the applicant intends to operate, ….. The applicant shall submit the required fee with the application. The governing body may approve ….. the transfer of an existing license if the governing body considers the applicant suitable to hold the license and the proposed location is suitable. The governing body may disapprove an application for ….. the transfer of an existing license issued under subdivision 35-4-2(4), (6), or (13) if: 1) The approval of the application permits a person, corporation, or business entity to possess more than one-third of the licenses available to be issued in the jurisdiction; and 2) The governing body determines that possession of more than one-third of licenses available is not in the public interest. Complete City Code and SDCL References are in the attached document. Legal Consideration: None. Strategic Plan Consideration: Economic Growth – existing business changing ownership. Financial Consideration: License Transfer Fee: $150 ($75 to the City / $75 to the State of South Dakota.) Video Lottery Fee: $50 / machine Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Refer to a Study Session 5. Discuss / take no action / table Staff recommends approval. Supporting Documentation: Legal Notice City Code and SDCL References Location Map NOTICE OF PUBLIC HEARING Transfer of an On-Sale Liquor Operating Agreement and On-Off Sale Malt Licenses Icon Investments, dba Ray’s Corner NOTICE IS HEREBY GIVEN that the Brookings City Council in and for the City of Brookings, South Dakota, on August 8, 2023, at 6:00 p.m. in the Brookings City & County Government Center Chambers, 520 Third Street, will meet in regular session to consider an application to transfer the On-Sale Liquor Operating Agreement with Video Lottery, an On-Off Sale Malt License, and an On-Off Sale Malt License with Video Lottery, for Fergen Enterprise, Inc., dba Ray’s Corner, Mike Fergen, owner, to Icon Investments, dba Ray’s Corner, Todd Voss, owner, 401 Main Avenue, Brookings, South Dakota, legal description: legal description: Ray’s Corner Addition, Lot 1, and Ray’s Corner Addition, Lot 1, Suite B. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated at Brookings, South Dakota, this 31st day of July, 2023. Bonnie Foster, City Clerk Published time(s) at an approximate cost $ Reviewed / updated 7/2023 Brookings City Code and SD Codified Law References: City Code of Ordinances: Chapter 6, Article 2, Section 6-42. Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements and for all alcoholic beverage licenses in accordance with SDCL Chapter 35-2 (SDCL 35-2-1 et seq.) and in accordance with the following factors: 1) Type of business which applicant proposes to operate: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. 2) The manner in which the business is operated: on-sale alcoholic beverage operating agreements and alcoholic beverage licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. 3) The extent to which minors are employed in such a place of business: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold and which regularly employ minors. 4) Adequacy of the police facilities to properly police the proposed location: The city council shall inquire of the city manager whether the police department can adequately police the proposed location. 5) Other factors: The hours that business is conducted shall be considered by the city council in its review of applications for on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses. (Code 1996, § 5-20) State Law reference - Local license approval, SDCL 35-2-1.2. SDCL 35-2-1.2. Applications submitted to local governing body--Fee--Approval or disapproval. Any applicant for a new retail license, except as set forth in § 35-2-1.1, or the transfer of an existing license shall submit a n application to the governing body of the municipality in which the applicant intends to operate, or if outside the corporate limits of a municipality, to the governing body of the county in which the applicant intends to operate. The applicant shall subm it the required fee with the application. The governing body may approve the application for a new retail license or the transfer of an existing license if the governing body considers the applicant suitable to hold the license and the proposed location is suitable. The governing body may disapprove an application for a new retail license or the transfer of an existing license issued under subdivision 35 -4-2(4), (6), or (13) if: 1) The approval of the application permits a person, corporation, or business entity to possess more than one-third of the licenses available to be issued in the jurisdiction; and 2) The governing body determines that possession of more than one -third of licenses available is not in the public interest. Reviewed / updated 7/2023 Any application for the reissuance of a retail license may be approved by the municipal or county governing body without a hearing unless in the past year the licensee or one or more of the licensee's employees have been subjected to a criminal penalty for violation of the alcoholic beverage control law or the license has been suspended. Source: SDC 1939, §§ 5.0206, 5.0305; SL 1945, ch 21, § 1; SL 1951, ch 11; SDC Supp 1960, § 5.0204 (14); SL 1961, ch 14; SL 1964, ch 9; SL 1965, ch 12; SDCL §§ 35-4-32, 35-4-33, 35-6-15; SL 1971, ch 211, § 13; SL 2008, ch 37, § 140; SL 2011, ch 171, § 1; SL 2017, ch 164, § 1; SL 2018, ch 213, § 12. SDCL 35-2-6.2 Character requirements for licenses. Any licensee under this title shall be a person of good moral character, never convicted of a felony, and, if a corporation, the managing officers of the corporation shall meet the same qualifications.” Source: SDC 1939, §§ 5.0204 (10) (c), 5.0303 (2); SDCL §§ 35-4-26, 35-6-4; SL 1971, ch 211, § 25; SL 2018, ch 213, § 22. SDCL 42-7A-64. Additional criteria for on-sale alcoholic beverage licensees in video lottery licensed establishments. A municipality or county may consider, in addition to the criteria for the issuance of an on -sale alcoholic beverage license, the following criteria for authorizing video lottery machine placement in establishments issued an on-sale alcoholic beverage license pursuant to subdivisions 35-4-2(12) and (16): 1) The number of establishments currently licensed for video lottery; 2) The proximity of the business to other establishments licensed for video lottery; 3) The type of business and manner in which the applicant proposes to operate it; 4) The location of the business in relation to other businesses, residential areas, or activities within the same general area; 5) The extent to which minors frequent a business connected to the one proposed; and 6) The effect the proposed business has on economic development. The governing board shall certify on each application filed with the Department of Revenue for a license granted under subdivisions 35-4-2(12) and (16) whether the business premises is authorized for video lottery machine placement. An existing video lottery license may not be denied renewal or transfer based upon the criteria set forth in this section. The lottery may issue a video lottery license to those establishments certified pursuant to this section. Notwithstanding the above provisions, a county or municipality may not restrict the number of alcoholic beverage licenses issued under subdivisions 35-4-2(12) and (16) and certified for video lottery to a number less than those licensed as video lottery establishments on March 1, 1994. Source: SL 1994, ch 329, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011. Brookings County, SD Developed by Parcel ID 404920000000100 Sec/Twp/Rng -- Property Address 403 MAIN AVE BROOKINGS Alternate ID n/a Class NADC Acreage n/a Owner Address FERGEN, MICHAEL S % FERGEN RENTALS 401 MAIN AVE BROOKINGS SD 57006 District 4001 Brief Tax Description RAYS CORNER ADDN LOT 1A 7,217 SF (Note: Not to be used on legal documents) Date created: 7/25/2023 Last Data Uploaded: 7/25/2023 1:07:05 AM 190 ft Overview Legend Brookings City Limits City Limits Township Boundary Sections Parcels Roads City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:RES 23-066,Version:1 Public Hearing and Action on Resolution 23-066, a Resolution authorizing the City Manager to enter into an On-Sale Liquor Operating Agreement with Icon Investments, Todd Voss, owner, for Ray’s Corner, 401 Main Avenue. Legal description: Lot 1, Ray’s Corner Addition. Summary: The City of Brookings has received an application to transfer an On-Sale Liquor Operating Agreement from Fergen Enterprise, Inc., Mike Fergen, owner, to Icon Investments, Todd Voss, owner, for Ray’s Corner 401 Main Avenue (legal description: Lot 1, Ray’s Corner Addition). All required documents have been submitted. This Resolution allows the City Manager to enter into the first five years of a 10-year Alcohol Management Agreement, effective through 2028. This license would be effective upon SD State Department of Revenue approval and license issuance, and subject to annual renewal. Recommendation: Staff recommends approval. Attachments: Memo Resolution Operating Agreement Notice of Public Hearing City Code and SDCL References Location Map City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Bonnie Foster, City Clerk Council Meeting: August 8, 2023 Subject: Resolution 23-066: On-Sale Liquor Operating Agreement Person(s) Presenting: Bonnie Foster, City Clerk Summary: The City of Brookings has received an application to transfer an On-Sale Liquor Operating Agreement for Ray’s Corner, 401 Main Avenue, from Fergen Enterprise, Inc., Mike Fergen, owner, to Todd Voss, owner, Icon Investments. Legal description: Lot 1, Ray’s Corner Addition. All required documents have been submitted for this application. Background: A public hearing and action by the local governing body is required. This Resolution allows the City Manager to enter into the first five years of a 10-year Alcohol Management Agreement, effective through 2028. This license would be effective upon SD State Department of Revenue approval and license issuance, and subject to annual renewal. An existing Video Lottery authorization is associated with the On-Sale Liquor License. SDCL 42-7A-64 provides criteria for on-sale alcoholic beverage licensees in video lottery licensed establishments. “…An existing video lottery license may not be denied renewal or transfer based upon the criteria set forth in this section…” No additional action on the Video Lottery License is needed. Item Details: This is a transfer of an existing On-Sale Liquor Operating Agreement from Fergen Enterprise, Inc., Mike Fergen, owner, to Todd Voss, owner, Icon Investments, for 401 Main Aveneue. A new Alcohol Management Agreement would be entered into with the City and Icon Investments, Todd Voss, owner. City Code Chapter 6, Article 2, Section 6-42 pertaining to Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements, including transfers, and for all alcoholic beverage licenses in accordance with SDCL 35-2 and in accordance with the following factors: 1) Type of business which applicant proposes to operate: on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. 2) The manner in which the business is operated: on-sale alcoholic beverage operating agreements and alcoholic beverage licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. 3) The extent to which minors are employed in such a place of business : on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold and which regularly employ minors. 4) Adequacy of the police facilities to properly police the proposed location: The city council shall inquire of the city manager whether the police department can adequately police the proposed location. 5) Other factors: including the hours that business is conducted shall be considered by the city council in its review of applications for on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses. Legal Consideration: None Strategic Plan Consideration: None Financial Consideration: License Transfer Fee: $150 Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Move to a Study Session 5. Discuss / take no action / table Staff recommends approval. Supporting Documentation: Resolution Operating Agreement Notice of Public Hearing City Code and SDCL References Location Map Resolution 23-066 On-Sale Liquor Operating Agreement – 10-year Agreement Icon Investments, dba Ray’s Corner Now, Therefore, Be It Resolved by the City of Brookings, South Dakota, that the City Council hereby approves an On-Sale Operating Alcohol Management Agreement for Liquor between the City of Brookings and Todd Voss, owner, Icon Investments, dba Ray’s Corner, for the purpose of an alcohol manager to operate the on-sale establishment or business for and on behalf of the City of Brookings at 401 Main Avenue. Legal description: Lot 1, Ray’s Corner Addition. Now, Therefore, Be It Further Resolved that the City Manager be authorized to execute the Agreement on behalf of the City, which shall be for a period of 10 years, with a 5- year mid-term renewal. Passed and approved this 8th day of August, 2023. CITY OF BROOKINGS, SD Oepke G. Niemeyer, Mayor ATTEST: Bonnie Foster, City Clerk ON-SALE LIQUOR OPERATING AGREEMENT – 10-year Agreement Icon Investments, dba Ray’s Corner 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 Todd Voss, owner, Icon Investments, dba Ray’s Corner, hereinafter referred to as “Manager.” The City and Manager are referred to as the “parties” herein. 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 an 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, and WHEREAS, the Manager has offered to have facilities in which to operate said on -sale establishment solely upon the premises hereinafter described. NOW, THEREFORE IT IS MUTUALLY AGREED AS FOLLOWS: 1. This Agreement is made and entered into on a limited basis between the parties 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 and in accordance with all State laws and City Ordinances now in effect and as may be enacted in the future. 2. 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. 3. The on-sale establishment shall be located upon real property in the City of Brookings, South Dakota, described as: Lot 1, Ray’s Corner Addition, City of Brookings, Brookings County, South Dakota 4. The Manager shall dispense only alcoholic beverages supplied by the Municipal off -sale establishment. 5. This Agreement shall be in full force and effect for a period of five (5) years with the Manager having the option and privilege of one five (5) year extension, subject to the approval of the governing body of the City of Brookings. 6. 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. 7. 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. 8. The Manager shall pay in a timely manner 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 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 Ci ty 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. 9. 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 pre-numbered invoices prepared in triplicate showing the date, quality, 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. 10. In consideration of the covenants 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 1st day of November of each year thereafter as long as this agreement shall remain in force and effect. The payment of the Annual Renewal License Fee will not extend the term of this Operating Agreement beyond the term provided therein. 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. 11. 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. 12. The Manager shall have the right to return, at any time, alcoholic beverages received from the City which are eligible to be returned, 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. 13. 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. 14. 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 the 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; and G. Any and all miscellaneous expenses, including taxes. 15. The Manager agrees to observe all Federal and State laws and ordinances of the City of Brookings. 16. 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. 17. The City has 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. 18. 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. 19. 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 8th day of August, 2023. CITY OF BROOKINGS, South Dakota A Municipal Corporation By: Paul Briseno, City Manager ATTEST: Bonnie Foster, City Clerk MANAGER By: Business Owner Representative NOTICE OF PUBLIC HEARING Transfer of an On-Sale Liquor Operating Agreement and On-Off Sale Malt Licenses Icon Investments, dba Ray’s Corner NOTICE IS HEREBY GIVEN that the Brookings City Council in and for the City of Brookings, South Dakota, on August 8, 2023, at 6:00 p.m. in the Brookings City & County Government Center Chambers, 520 Third Street, will meet in regular session to consider an application to transfer the On-Sale Liquor Operating Agreement with Video Lottery, an On-Off Sale Malt License, and an On-Off Sale Malt License with Video Lottery, for Fergen Enterprise, Inc., dba Ray’s Corner, Mike Fergen, owner, to Icon Investments, dba Ray’s Corner, Todd Voss, owner, 401 Main Avenue, Brookings, South Dakota, legal description: legal description: Ray’s Corner Addition, Lot 1, and Ray’s Corner Addition, Lot 1, Suite B. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated at Brookings, South Dakota, this 31st day of July, 2023. Bonnie Foster, City Clerk Published time(s) at an approximate cost $ Reviewed / updated 7/2023 Brookings City Code and SD Codified Law References: City Code of Ordinance Chapter 6, Article 2, Section 6-42. Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements and for all alcoholic beverage licenses in accordance with SDCL Chapter 35-2 (SDCL 35-2-1 et seq.) and in accordance with the following factors: 1) Type of business which applicant proposes to operate: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. 2) The manner in which the business is operated: on-sale alcoholic beverage operating agreements and alcoholic beverage licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. 3) The extent to which minors are employed in such a place of business: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold and which regularly employ minors. 4) Adequacy of the police facilities to properly police the proposed location: The city council shall inquire of the city manager whether the police department can adequately police the proposed location. 5) Other factors: The hours that business is conducted shall be considered by the city council in its review of applications for on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses. (Code 1996, § 5-20) State Law reference - Local license approval, SDCL 35-2-1.2. SD Codified Law References: SDCL 35-2-1.2. Applications submitted to local governing body--Fee--Approval or disapproval. Any applicant for a new retail license, except as set forth in § 35-2-1.1, or the transfer of an existing license shall submit an application to the governing body of the municipality in which the applicant intends to operate, or if outside the corporate limits of a municipality, to the governing body of the county in which the applicant intends to operate. The applicant shall submit the required fee with the application. The governing body may approve the application for a new retail license or the transfer of an existing license if the governing body considers the applicant suitable to hold the license and the proposed location is suitable. The governing body may disapprove an application for a new retail license or the transfer of an existing license issued under subdivision 35 -4-2(4), (6), or (13) if: 1) The approval of the application permits a person, corporation, or business entity to possess more than one-third of the licenses available to be issued in the jurisdiction; and Reviewed / updated 7/2023 2) The governing body determines that possession of more than one -third of licenses available is not in the public interest. Any application for the reissuance of a retail license may be approved by the municipal or county governing body without a hearing unless in the past year the licensee or one or more of the licensee's employees have been subjected to a criminal penalty for violation of the alcoholic beverage control law or the license has been suspended. Source: SDC 1939, §§ 5.0206, 5.0305; SL 1945, ch 21, § 1; SL 1951, ch 11; SDC Supp 1960, § 5.0204 (14); SL 1961, ch 14; SL 1964, ch 9; SL 1965, ch 12; SDCL §§ 35-4-32, 35-4-33, 35-6-15; SL 1971, ch 211, § 13; SL 2008, ch 37, § 140; SL 2011, ch 171, § 1; SL 2017, ch 164, § 1; SL 2018, ch 213, § 12. SDCL 35-2-6.2 Character requirements for licenses. Any licensee under this title shall be a person of good moral character, never convicted of a felony, and, if a corporation, the managing officers of the corporation shall meet the same qualifications.” Source: SDC 1939, §§ 5.0204 (10) (c), 5.0303 (2); SDCL §§ 35-4-26, 35-6-4; SL 1971, ch 211, § 25; SL 2018, ch 213, § 22. SDCL 42-7A-64. Additional criteria for on-sale alcoholic beverage licensees in video lottery licensed establishments. A municipality or county may consider, in addition to the criteria for the issuance of an on -sale alcoholic beverage license, the following criteria for authorizing video lottery machine placement in establishments issued an on-sale alcoholic beverage license pursuant to subdivisions 35-4-2(12) and (16): 1) The number of establishments currently licensed for video lottery; 2) The proximity of the business to other establishments licensed for video lottery; 3) The type of business and manner in which the applicant proposes to operate it; 4) The location of the business in relation to other businesses, residential areas, or activities within the same general area; 5) The extent to which minors frequent a business connected to the one proposed; and 6) The effect the proposed business has on economic development. The governing board shall certify on each application filed with the Department of Revenue for a license granted under subdivisions 35-4-2(12) and (16) whether the business premises is authorized for video lottery machine placement. An existing video lottery license may not be denied renewal or transfer based upon the criteria set forth in this section. The lottery may issue a video lottery license to those establishments certified pursuant to this section. Notwithstanding the above provisions, a county or municipality may not restrict the number of alcoholic beverage licenses issued under subdivisions 35-4-2(12) and (16) and certified for video lottery to a number less than those licensed as video lottery establishments on March 1, 1994. Source: SL 1994, ch 329, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011. Brookings County, SD Developed by Parcel ID 404920000000100 Sec/Twp/Rng -- Property Address 403 MAIN AVE BROOKINGS Alternate ID n/a Class NADC Acreage n/a Owner Address FERGEN, MICHAEL S % FERGEN RENTALS 401 MAIN AVE BROOKINGS SD 57006 District 4001 Brief Tax Description RAYS CORNER ADDN LOT 1A 7,217 SF (Note: Not to be used on legal documents) Date created: 7/25/2023 Last Data Uploaded: 7/25/2023 1:07:05 AM 190 ft Overview Legend Brookings City Limits City Limits Township Boundary Sections Parcels Roads City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ID 23-0340,Version:1 Public Hearing and Action on a request to transfer an On-Off Sale Malt License, with video lottery authorization, for 2515 6th Street, from 25th Avenue LLC, dba The Lodge, Dennis Beilfeldt, owner, to On In 2 LLC, dba Boss’ Pizzeria & Sports Bar, Dallas Wilkinson and Darren Newborg, owners. Legal description: Block 12, Telkamp Addition. Summary: The City of Brookings has received an application to transfer the On-Off Sale Malt License, with video lottery authorization, for 2515 6th Street, from 25th Avenue LLC, dba The Lodge, Dennis Beilfeldt, owner, to On In 2 LLC, dba Boss’ Pizzeria & Sports Bar, Dallas Wilkinson and Darren Newborg, owners. Legal description: Block 12, Telkamp Addition. All required documents have been submitted for this application. Recommendation: Staff recommends approval. Attachments: Memo Legal Notice City Code and SDCL References Location Map City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Bonnie Foster, City Clerk Council Meeting: August 8, 2023 Subject: On-Off Sale Malt License Transfer, with video lottery authorization: 2515 6th Street Person(s) Responsible: Bonnie Foster, City Clerk Summary: The City of Brookings has received an application to transfer the On-Off Sale Malt License, with Video Lottery authorization, from 25th Avenue LLC, dba The Lodge, Dennis Bielfeldt, owner, to On In 2 LLC, dba Boss’ Pizzeria & Sports Bar, Dallas Wilkinson and Darren Newborg, owners. Legal description: Block 12, Telkamp Addition. Background: A public hearing and action by the local governing body is required. The On-Off Sale Malt License would be effective upon State Department of Revenue approval and license issuance, and subject to an annual renewal. Item Details: This is an application to transfer the On-Off Sale Malt License, with video lottery authorization, from 25th Ave. LLC, dba The Lodge, Dennis Bielfeldt, owner, to On In 2 LLC, Dallas Wilkinson and Darren Newborg, owners. This restaurant has been in operation since January 2023, and this transfer will allow On In 2 LLC to hold the alcohol license for 2515 6th Street. Chapter 6, Article 2, Section 6-42 of the City Code of Ordinances pertains to the Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements and for all alcoholic beverage licenses in accordance with SDCL Chapter 35 -2 (SDCL 35-2-1 et seq.) and in accordance with the following factors: 1) Type of business which applicant proposes to operate; 2) The manner in which the business is operated; 3) The extent to which minors are employed in such a place of business ; 4) Adequacy of the police facilities to properly police the proposed location; 5) Other factors: The hours that business is conducted. (Code 1996, § 5-20) State Law reference - Local license approval, SDCL 35-2-1.2. SDCL 35-2-1.2. Applications submitted to local governing body--Fee--Approval or disapproval. Any applicant ….. the transfer of an existing license shall submit an application to the governing body of the municipality in which the applicant intends to operate, ….. The applicant shall submit the required fee with the application. The governing body may approve ….. the transfer of an existing license if the governing body considers the applicant suitable to hold the license and the proposed location is suitable. The governing body may disapprove an application for ….. the transfer of an existing license issued under subdivision 35-4-2(4), (6), or (13) if: 1) The approval of the application permits a person, corporation, or business entity to possess more than one-third of the licenses available to be issued in the jurisdiction; and 2) The governing body determines that possession of more than one -third of licenses available is not in the public interest. Complete City Code and SDCL References are in the attached document. Legal Consideration: City Attorney Steve Britzman has reviewed this alcohol license transfer. Strategic Plan Consideration: Economic Growth – existing business transfer. Financial Consideration: License Transfer Fee: $150 ($75 City of Brookings / $75 State of South Dakota. Video Lottery Fee: $50/ machine. Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Refer to a Study Session 5. Discuss / take no action / table Staff recommends approval. Supporting Documentation: Legal Notice City Code and SDCL References Location Map NOTICE OF PUBLIC HEARING Transfer of an Full-Service Restaurant Liquor Operating Agreement and On-Off Sale Malt Licenses On In 2, LLC, dba Boss’ Pizzeria & Sports Bar NOTICE IS HEREBY GIVEN that the Brookings City Council in and for the City of Brookings, South Dakota, on August 8, 2023, at 6:00 p.m. in the Brookings City & County Government Center Chambers, 520 Third Street, will meet in regular session to consider an application to transfer the Full-Service Restaurant Liquor Operating Agreement, and On-Off Sale Malt License with Video Lottery, from 25th Ave. LLC, dba The Lodge, Dennis Bielfeldt, owner, to On In 2, LLC, dba Boss’ Pizzeria & Sports Bar, Dallas Wilkinson and Darren Newborg, owners, 2515 6 th Street, Brookings, South Dakota, legal description: Block 12, Telkamp Addition. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated at Brookings, South Dakota, this 31st day of July, 2023. Bonnie Foster, City Clerk Published time(s) at an approximate cost $ Reviewed / updated 7/2023 Brookings City Code and SD Codified Law References: City Code of Ordinance Chapter 6, Article 2, Section 6-42. Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements and for all alcoholic beverage licenses in accordance with SDCL Chapter 35-2 (SDCL 35-2-1 et seq.) and in accordance with the following factors: 1) Type of business which applicant proposes to operate: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. 2) The manner in which the business is operated: on-sale alcoholic beverage operating agreements and alcoholic beverage licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. 3) The extent to which minors are employed in such a place of business: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold and which regularly employ minors. 4) Adequacy of the police facilities to properly police the proposed location: The city council shall inquire of the city manager whether the police department can adequately police the proposed location. 5) Other factors: The hours that business is conducted shall be considered by the city council in its review of applications for on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses. (Code 1996, § 5-20) State Law reference - Local license approval, SDCL 35-2-1.2. SD Codified Law References: SDCL 35-2-1.2. Applications submitted to local governing body--Fee--Approval or disapproval. Any applicant for a new retail license, except as set forth in § 35-2-1.1, or the transfer of an existing license shall submit an application to the governing body of the municipality in which the applicant intends to operate, or if outside the corporate limits of a municipality, to the governing body of the county in which the applicant intends to operate. The applicant shall submit the required fee with the application. The governing body may approve the application for a new retail license or the transfer of an existing license if the governing body considers the applicant suitable to hold the license and the proposed location is suitable. The governing body may disapprove an application for a new retail license or the transfer of an existing license issued under subdivision 35 -4-2(4), (6), or (13) if: 1) The approval of the application permits a person, corporation, or business entity to possess more than one-third of the licenses available to be issued in the jurisdiction; and Reviewed / updated 7/2023 2) The governing body determines that possession of more than one -third of licenses available is not in the public interest. Any application for the reissuance of a retail license may be approved by the municipal or county governing body without a hearing unless in the past year the licensee or one or more of the licensee's employees have been subjected to a criminal penalty for violation of the alcoholic beverage control law or the license has been suspended. Source: SDC 1939, §§ 5.0206, 5.0305; SL 1945, ch 21, § 1; SL 1951, ch 11; SDC Supp 1960, § 5.0204 (14); SL 1961, ch 14; SL 1964, ch 9; SL 1965, ch 12; SDCL §§ 35-4-32, 35-4-33, 35-6-15; SL 1971, ch 211, § 13; SL 2008, ch 37, § 140; SL 2011, ch 171, § 1; SL 2017, ch 164, § 1; SL 2018, ch 213, § 12. SDCL 35-2-6.2 Character requirements for licenses. Any licensee under this title shall be a person of good moral character, never convicted of a felony, and, if a corporation, the managing officers of the corporation shall meet the same qualifications.” Source: SDC 1939, §§ 5.0204 (10) (c), 5.0303 (2); SDCL §§ 35-4-26, 35-6-4; SL 1971, ch 211, § 25; SL 2018, ch 213, § 22. SDCL 42-7A-64. Additional criteria for on-sale alcoholic beverage licensees in video lottery licensed establishments. A municipality or county may consider, in addition to the criteria for the issuance of an on -sale alcoholic beverage license, the following criteria for authorizing video lottery machine placement in establishments issued an on-sale alcoholic beverage license pursuant to subdivisions 35-4-2(12) and (16): 1) The number of establishments currently licensed for video lottery; 2) The proximity of the business to other establishments licensed for video lottery; 3) The type of business and manner in which the applicant proposes to operate it; 4) The location of the business in relation to other businesses, residential areas, or activities within the same general area; 5) The extent to which minors frequent a business connected to the one proposed; and 6) The effect the proposed business has on economic development. The governing board shall certify on each application filed with the Department of Revenue for a license granted under subdivisions 35-4-2(12) and (16) whether the business premises is authorized for video lottery machine placement. An existing video lottery license may not be denied renewal or transfer based upon the criteria set forth in this section. The lottery may issue a video lottery license to those establishments certified pursuant to this section. Notwithstanding the above provisions, a county or municipality may not restrict the number of alcoholic beverage licenses issued under subdivisions 35-4-2(12) and (16) and certified for video lottery to a number less than those licensed as video lottery establishments on March 1, 1994. Source: SL 1994, ch 329, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011. Brookings County, SD Developed by Parcel ID 405950120000000 Sec/Twp/Rng -- Property Address 2515 6TH ST BROOKINGS Alternate ID n/a Class NADC Acreage n/a Owner Address 25TH AVE LLC 910 4TH ST BROOKINGS SD 57006 District 4001 Brief Tax Description TELKAMP ADDITION, BLK 12 4.89 AC (Note: Not to be used on legal documents) Date created: 7/28/2023 Last Data Uploaded: 7/28/2023 1:30:50 AM 380 ft Overview Legend Brookings City Limits City Limits Township Boundary Sections Parcels Roads City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:RES 23-071,Version:1 Public Hearing and Action on Resolution 23-071, a Resolution authorizing the City Manager to enter into an Full Service On-Sale Restaurant Liquor Operating Agreement for 2515 6 th Street, On In 2 LLC, dba Boss’ Pizzeria & Sports Bar, Dallas Wilkinson and Darren Newborg, owners. Legal description: Block 12, Telkamp Addition. Summary: The City of Brookings has received an application to transfer the Full Service On-Sale Restaurant Liquor Operating Agreement for 2515 6th Street, from 25th Avenue LLC, dba The Lodge, Dennis Bielfeldt, owner, to On In 2 LLC, dba Boss’ Pizzeria & Sports Bar, Dallas Wilkinson and Darren Newborg, owners. Legal description: Block 12, Telkamp Addition. This Resolution allows the City Manager to enter into the first five years of the 10-year Alcohol Management Agreement, effective through 2028. This license would be effective immediately and subject to an annual renewal. If approved, the application will be forwarded to the State Department of Revenue for final action and issuance of the license. Recommendation: Staff recommends approval. Attachments: Memo Resolution Legal Notice Operating Agreement Acceptance Agreement Location Map City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Bonnie Foster, City Clerk Council Meeting: August 8, 2023 Subject: Resolution 23-071: Full Service On-Sale Restaurant Liquor License Operating Agreement – Boss’ Pizzeria & Sports Bar Person(s) Responsible: Bonnie Foster, City Clerk Summary: The City of Brookings has received an application to transfer the Full Service On-Sale Restaurant Liquor Operating Agreement for 2515 6th Street, from 25th Avenue LLC, dba The Lodge, Dennis Bielfeldt, owner, to On In 2 LLC, dba Boss’ Pizzeria & Sports Bar, Dallas Wilkinson and Darren Newborg, owners. Legal description: Block 12, Telkamp Addition. Background: A public hearing and action by the local governing body is required. This Resolution allows the City Manager to enter into the first five years of the 10-year Alcohol Management Agreement effective through 2028. This license would be effective upon State Department of Revenue approval and license issuance, and subject to an annual renewal. Item Details: This is a transfer of an existing Full Service On-Sale Restaurant Liquor License from 25th Avenue LLC, dba The Lodge, Dennis Bielfeldt, owner, to On In 2 LLC, dba Boss’ Pizzeria & Sports Bar, Dallas Wilkinson and Darren Newborg, owners, for 2515 6th Street. A new Alcohol Management Agreement would be entered into with the City and On In 2 LLC. On In 2 LLC, dba Boss’s Pizzeria, needs to be the holder of the Operating Agreement, as per SD Department of Revenue communications, rather than the hotel. Chapter 6, Article 2, Section 6-42 of the City Code of Ordinances pertains to the Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements and for all alcoholic beverage licenses in accordance with SDCL Chapter 35-2 (SDCL 35-2-1 et seq.) and in accordance with the following factors: 1) Type of business which applicant proposes to operate: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. 2) The manner in which the business is operated: on-sale alcoholic beverage operating agreements and alcoholic beverage licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. 3) The extent to which minors are employed in such a p lace of business: on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold and which regularly employ minors. 4) Adequacy of the police facilities to properly police the proposed location: The city council shall inquire of the city manager whether the police department can adequately police the proposed location. 5) Other factors: The hours that business is conducted shall be considered by the city council in its review of applications for on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses. (Code 1996, § 5-20) State Law reference - Local license approval, SDCL 35-2-1.2. SDCL 35-2-1.2. Applications submitted to local governing body--Fee--Approval or disapproval. Any applicant for a new retail license, except as set forth in § 35-2-1.1, or the transfer of an existing license shall submit an application to the governing body of the municipality in which the applicant intends to operate, or if outside the corporate limits of a municipality, to the governing body of the county in which the applicant intends to operate. The applicant shall submit the required fee with the application. The governing body may approve the application for a new retail license or the transfer of an existing license if the governing body considers the applicant suitable to hold the license and the proposed location is suitable. The governing body may disapprove an application for a new retail license or the transfer of an existing license issued under subdivision 35 -4-2(4), (6), or (13) if: 1) The approval of the application permits a person, corporation, or business entity to possess more than one-third of the licenses available to be issued in the jurisdiction; and 2) The governing body determines that possession of more than one -third of licenses available is not in the public interest. Any application for the reissuance of a retail license may be approved by the municipal or county governing body without a hearing unless in the past year the licensee or one or more of the licensee's employees have been subjected to a criminal penalty for violation of the alcoholic beverage control law or the license has been suspended. Source: SDC 1939, §§ 5.0206, 5.0305; SL 1945, ch 21, § 1; SL 1951, ch 11; SDC Supp 1960, § 5.0204 (14); SL 1961, ch 14; SL 1964, ch 9; SL 1965, ch 12; SDCL §§ 35-4-32, 35-4-33, 35-6-15; SL 1971, ch 211, § 13; SL 2008, ch 37, § 140; SL 2011, ch 171, § 1; SL 2017, ch 164, § 1; SL 2018, ch 213, § 12. Legal Consideration: The City Attorney has reviewed the transfer and application language and assisted in the development of the Acceptance Agreement to protect the City’s interest. Strategic Plan Consideration: Economic Growth – existing business changing ownership. Financial Consideration: License Transfer Fee: $150. Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Move the item to a Study Session 5. Discuss / take no action / table Staff recommends approval. Supporting Documentation: Resolution Legal Notice Operating Agreement Acceptance Agreement Location Map Resolution 23-071 Full Service On-Sale Restaurant Liquor Operating Agreement – 10-year Agreement On In 2 LLC, dba Boss’ Pizzeria & Sports Bar Be It Resolved by the City of Brookings, South Dakota, that the City Council hereby approves an Operating Alcohol Management Agreement for Full-Service On-Sale Restaurant Liquor between the City of Brookings and Dallas Wilkinson and Darren Newborg, owners, On In 2 LLC, dba Boss’ Pizzeria & Sports Bar, for the purpose of a alcohol manager to operate the On-Sale Establishment or business for and on behalf of the City of Brookings at 2515 6th Street. Be It Further Resolved that the City Manager be authorized to execute the Agreement on behalf of the City, which shall be for a period of 10 years, with a 5-year mid-term renewal. Passed and approved this 8th day of August, 2023. CITY OF BROOKINGS, SD Oepke G. Niemeyer, Mayor ATTEST: Bonnie Foster, City Clerk Full Service On-Sale Restaurant Liquor Operating Agreement – new 10-year Agreement On In 2 LLC, dba Boss’ Pizzeria & Sports Bar 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 Dallas Wilkinson and Darren Newborg, owners, On In 2 LLC, dba Boss’ Pizzeria & Sports Bar, hereinafter referred to as “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 an Operating Agreement on a limited basis with the Manager for the purpose of operating an on-off sale establishment or business for and on behalf of the City pursuant to law, and WHEREAS, the Manager has offered to have facilities in which to operate said on-off 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 limited basis between the parties hereto allow the Manager to operate a retail on-off 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 -off 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. III. The on-off sale establishment shall be located upon real estate in the City of Brookings, South Dakota, described as: Block 12, Telkamp Addition. IV. The Manager shall dispense only alcoholic beverages supplied by the Municipal Off- Sale Establishment. V. This Agreement shall be in full force and effect for a period of five (5) years with the Manager having the option and privilege of a five (5) year extension, subject to the approval of the governing body of the City of Brookings. 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-off 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 t he 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 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 Man ager 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, quality, 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 herein contained, the Manager agrees to pay the CITY OF BROOKINGS, Five Hundred, and no/100 Dollars ($500.00), constituting the Annual License Fee on or by 1st day of November of each year thereafter as long as this agreement shall remain in force and effect. The payment of the Annual Renewal License Fee will not extend the term of this Operating Agreement beyond the term provided therein. 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. 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 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-off 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 the Manager agains t 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. XV. The Manager agrees to observe all Federal and State laws and ordinances of the Ci ty 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-off 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-off 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. XIX. 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 8th day of August, 2023. CITY OF BROOKINGS, South Dakota A Municipal Corporation By: ATTEST: Paul Briseno, City Manager Bonnie Foster, City Clerk MANAGER By: By: ACCEPTANCE/AGREEMENT TO ASSIGN OPERATING AGREEMENTS The undersigned, on behalf of the City of Brookings, hereby consents to the assignment of any and all alcohol Operating Agreements for the bar and restaurant located at 2515 6th Street, Brookings, SD, to ON IN 2, LLC, dba., BOSS' PIZZERIA. The undersigned, on behalf of the City of Brookings, agrees with the provisions of Article 22 above, specifically including the right of Landlord or its assignee to be entitled to updated Operating Agreements upon the expiration or earlier termination of the foregoing lease, provided compliance with the terms of the Operating Agreement with Tenant are satisfactorily performed or Landlord satisfactorily resolves any performance or payment issues under the Tenant’s Operating Agreement. Dated: CITY OF BROOKINGS, SD BY: ITS: NOTICE OF PUBLIC HEARING Transfer of an Full-Service Restaurant Liquor Operating Agreement and On-Off Sale Malt Licenses On In 2, LLC, dba Boss’ Pizzeria & Sports Bar NOTICE IS HEREBY GIVEN that the Brookings City Council in and for the City of Brookings, South Dakota, on August 8, 2023, at 6:00 p.m. in the Brookings City & County Government Center Chambers, 520 Third Street, will meet in regular session to consider an application to transfer the Full-Service Restaurant Liquor Operating Agreement, and On-Off Sale Malt License with Video Lottery, from 25th Ave. LLC, dba The Lodge, Dennis Bielfeldt, owner, to On In 2, LLC, dba Boss’ Pizzeria & Sports Bar, Dallas Wilkinson and Darren Newborg, owners, 2515 6 th Street, Brookings, South Dakota, legal description: Block 12, Telkamp Addition. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated at Brookings, South Dakota, this 31st day of July, 2023. Bonnie Foster, City Clerk Published time(s) at an approximate cost $ Brookings County, SD Developed by Parcel ID 405950120000000 Sec/Twp/Rng -- Property Address 2515 6TH ST BROOKINGS Alternate ID n/a Class NADC Acreage n/a Owner Address 25TH AVE LLC 910 4TH ST BROOKINGS SD 57006 District 4001 Brief Tax Description TELKAMP ADDITION, BLK 12 4.89 AC (Note: Not to be used on legal documents) Date created: 7/28/2023 Last Data Uploaded: 7/28/2023 1:30:50 AM 380 ft Overview Legend Brookings City Limits City Limits Township Boundary Sections Parcels Roads City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ID 23-0346,Version:1 Public Hearing and Action on a request to transfer an On-Off Sale Malt License for George’s Pizza, 311 Main Avenue, from George’s Pizza, Inc., Panagiota Theodosopoulos, owner, to MzP3 Enterprises LLC, Justin Price and Janice Minder, owner. Legal description: Lot 6, Block 3, Original Plat Addition. Summary: The City of Brookings has received an application to transfer the On-Off Sale Malt License for George’s Pizza, 311 Main Avenue, from George’s Pizza, Inc., Panagiota Theodosopoulos, owner, to MzP3 Enterprises LLC, Justin Price and Janice Minder, owner. Legal description: Lot 6, Block 3, Original Plat Addition. All required documents have been submitted for this application. Recommendation: Staff recommends approval. Attachments: Memo Legal Notice City Code and SDCL References Location Map City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Bonnie Foster, City Clerk Council Meeting: August 8, 2023 Subject: On-Off Sale Malt License Transfer: George’s Pizza Person(s) Responsible: Bonnie Foster, City Clerk Summary: The City of Brookings has received an application to transfer the On -Off Sale Malt License for George’s Pizza, 311 Main Avenue, from George’s Pizza, Inc., Panagiota Theodosopoulos, owner, to MzP3 Enterprises LLC, Justin Price and Janice Minder, owner. Legal description: Lot 6, Block 3, Original Plat Addition. All required documents have been submitted for this application. Background: A public hearing and action by the local governing body is required to approve all alcohol license transfers. The On-Off Sale Malt License would be effective upon State Department of Revenue approval and license issuance, and subject to an annual review. This on-sale malt license does not have Video Lottery authorization. If Video Lottery is requested, a public hearing and action by the City Council will be required. Item Details: Transfer of the On-Off Sale Malt License for George’s Pizza, 311 Main Avenue, from George’s Pizza, Inc., Panagiota Theodosopoulos, owner, to MzP3 Enterprises LLC, Justin Price and Janice Minder, owner. Legal description: Lot 6, Block 3, Original Plat Addition. Chapter 6, Article 2, Section 6-42 of the City Code of Ordinances pertains to the Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements and for all alcoholic beverage licenses in accordance with SDCL Chapter 35 -2 (SDCL 35-2-1 et seq.) and in accordance with the following factors: 1) Type of business which applicant proposes to operate. On-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. 2) Manner in which the business is operated. On-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. 3) Extent to which minors are employed in such a place of business. On-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stat ions or other stores where groceries or gasoline are sold and which regularly employ minors. 4) Adequacy of the police facilities to properly police the proposed location. The city council shall inquire of the city manager whether the police department can adequately police the proposed location. 5) Other factors. The hours that business is conducted shall be considered by the city council in its review of applications for on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses. (Code 1996, § 5-20) State Law reference - Local license approval, SDCL 35-2-1.2. SDCL 35-2-1.2. Applications submitted to local governing body--Fee--Approval or disapproval. Any applicant ….. the transfer of an existing license shall submit an application to the governing body of the municipality in which the applicant intends to operate, ….. The applicant shall submit the required fee with the application. The governing body may approve ….. the transfer of an existing license if the governing body considers the applicant suitable to hold the license and the proposed location is suitable. The governing body may disapprove an application for ….. the transfer of an existing license issued under subdivision 35-4-2(4), (6), or (13) if: 1) The approval of the application permits a person, corporation, or business entity to possess more than one-third of the licenses available to be issued in the jurisdiction; and 2) The governing body determines that possession of more than one-third of licenses available is not in the public interest. Complete City Code and SDCL References are in the attached document. Legal Consideration: None. Strategic Plan Consideration: Economic Growth – existing business transfer of ownership. Financial Consideration: License Transfer Fee: $150 ($75 to the City / $75 to the State of South Dakota). Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Refer to a Study Session 5. Discuss / take no action / table Staff recommends approval. Supporting Documentation: Legal Notice City Code and SDCL References Location Map NOTICE OF PUBLIC HEARING Transfer of On-Off Sale Malt License, and new On-Off Sale Wine License MzP3 Enterprise LLC, dba George’s Pizza NOTICE IS HEREBY GIVEN that the Brookings City Council in and for the City of Brookings, South Dakota, on August 8, 2023, at 6:00 p.m. in the Brookings City & County Government Center Chambers, 520 Third Street, will meet in regular session to consider an application to transfer the On-Off Sale Malt License from George’s Pizza Inc., Panagiota Theodosopoulos, owner, to MxP3 Enterprise LLC, Justin Price and Janice Minder, owners, and issuance of a new On-Off Sale Wine Operating Agreement for MxP3 Enterprise LLC, Justin Price and Janice Minder, owners, dba George’s Pizza, 311 Main Avenue, Brookings, South Dakota, legal description: Lot 6, Block 3, Original Plat Addition. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated at Brookings, South Dakota, this 31st day of July, 2023. Bonnie Foster, City Clerk Published time(s) at an approximate cost $ Reviewed / updated 7/2023 Brookings City Code and SD Codified Law References: City Code of Ordinance Chapter 6, Article 2, Section 6-42. Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements and for all alcoholic beverage licenses in accordance with SDCL Chapter 35-2 (SDCL 35-2-1 et seq.) and in accordance with the following factors: 1) Type of business which applicant proposes to operate: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. 2) The manner in which the business is operated: on-sale alcoholic beverage operating agreements and alcoholic beverage licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. 3) The extent to which minors are employed in such a place of business: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold and which regularly employ minors. 4) Adequacy of the police facilities to properly police the proposed location: The city council shall inquire of the city manager whether the police department can adequately police the proposed location. 5) Other factors: The hours that business is conducted shall be considered by the city council in its review of applications for on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses. (Code 1996, § 5-20) State Law reference - Local license approval, SDCL 35-2-1.2. SD Codified Law References: SDCL 35-2-1.2. Applications submitted to local governing body--Fee--Approval or disapproval. Any applicant for a new retail license, except as set forth in § 35-2-1.1, or the transfer of an existing license shall submit an application to the governing body of the municipality in which the applicant intends to operate, or if outside the corporate limits of a municipality, to the governing body of the county in which the applicant intends to operate. The applicant shall submit the required fee with the application. The governing body may approve the application for a new retail license or the transfer of an existing license if the governing body considers the applicant suitable to hold the license and the proposed location is suitable. The governing body may disapprove an application for a new retail license or the transfer of an existing license issued under subdivision 35 -4-2(4), (6), or (13) if: 1) The approval of the application permits a person, corporation, or business entity to possess more than one-third of the licenses available to be issued in the jurisdiction; and Reviewed / updated 7/2023 2) The governing body determines that possession of more than one -third of licenses available is not in the public interest. Any application for the reissuance of a retail license may be approved by the municipal or county governing body without a hearing unless in the past year the licensee or one or more of the licensee's employees have been subjected to a criminal penalty for violation of the alcoholic beverage control law or the license has been suspended. Source: SDC 1939, §§ 5.0206, 5.0305; SL 1945, ch 21, § 1; SL 1951, ch 11; SDC Supp 1960, § 5.0204 (14); SL 1961, ch 14; SL 1964, ch 9; SL 1965, ch 12; SDCL §§ 35-4-32, 35-4-33, 35-6-15; SL 1971, ch 211, § 13; SL 2008, ch 37, § 140; SL 2011, ch 171, § 1; SL 2017, ch 164, § 1; SL 2018, ch 213, § 12. SDCL 35-2-6.2 Character requirements for licenses. Any licensee under this title shall be a person of good moral character, never convicted of a felony, and, if a corporation, the managing officers of the corporation shall meet the same qualifications.” Source: SDC 1939, §§ 5.0204 (10) (c), 5.0303 (2); SDCL §§ 35-4-26, 35-6-4; SL 1971, ch 211, § 25; SL 2018, ch 213, § 22. SDCL 42-7A-64. Additional criteria for on-sale alcoholic beverage licensees in video lottery licensed establishments. A municipality or county may consider, in addition to the criteria for the issuance of an on -sale alcoholic beverage license, the following criteria for authorizing video lottery machine placement in establishments issued an on-sale alcoholic beverage license pursuant to subdivisions 35-4-2(12) and (16): 1) The number of establishments currently licensed for video lottery; 2) The proximity of the business to other establishments licensed for video lottery; 3) The type of business and manner in which the applicant proposes to operate it; 4) The location of the business in relation to other businesses, residential areas, or activities within the same general area; 5) The extent to which minors frequent a business connected to the one proposed; and 6) The effect the proposed business has on economic development. The governing board shall certify on each application filed with the Department of Revenue for a license granted under subdivisions 35-4-2(12) and (16) whether the business premises is authorized for video lottery machine placement. An existing video lottery license may not be denied renewal or transfer based upon the criteria set forth in this section. The lottery may issue a video lottery license to those establishments certified pursuant to this section. Notwithstanding the above provisions, a county or municipality may not restrict the number of alcoholic beverage licenses issued under subdivisions 35-4-2(12) and (16) and certified for video lottery to a number less than those licensed as video lottery establishments on March 1, 1994. Source: SL 1994, ch 329, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011. Brookings County, SD Developed by Parcel ID 404050030000600 Sec/Twp/Rng -- Property Address 311 MAIN AVE BROOKINGS Alternate ID n/a Class NADC Acreage n/a Owner Address THEODOSOPOULOS, PANGIOTA 311 MAIN AVE BROOKINGS SD 57006 District 4001 Brief Tax Description ORIGINAL PLAT ADDN, LOT 6, BLK 3 25 X 165 (Note: Not to be used on legal documents) Date created: 7/28/2023 Last Data Uploaded: 7/28/2023 1:30:50 AM 95 ft Overview Legend Brookings City Limits City Limits Township Boundary Sections Parcels Roads City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:RES 23-070,Version:1 Public Hearing and Action on Resolution 23-070, a Resolution authorizing the City Manager to enter into an On-Off Sale Wine Operating Agreement for MzP3 Enterprise LLC, dba George’s Pizza, Justin Price and Janice Minder, owners, 311 Main Avenue, Brookings, South Dakota, legal description: Lot 6, Block 3, Original Plat Addition. Summary: Justin Price and Janice Minder, owners, MzP3 Enterprise LLC, dba George’s Pizza, 311 Main Avenue, have applied for an On-Off Sale Wine Alcohol license. This Resolution allows the City Manager to enter into the first five years of a 10-year ON-Sale Alcohol Management Agreement for Wine, effective through 2028. This license would be effective upon State Department of Revenue approval and license issuance, and subject to an annual renewal. Recommendation: Staff recommends approval. Attachments: Memo Resolution Legal Notice Operating Agreement Map City of Brookings Printed on 8/3/2023Page 1 of 1 powered by Legistar™ City Council Agenda Memo From: Bonnie Foster, City Clerk Council Meeting: August 8, 2023 Subject: Resolution 23-070: Wine License – George’s Pizza Person(s) Responsible: Bonnie Foster, City Clerk Summary: The City of Brookings has received an application for an On-Off Sale Wine License from MzP3 Enterprise LLC, dba George’s Pizza, Justin Price and Janice Minder, owners, 311 Main Avenue. Background: A public hearing and action by the local governing body is required to approve all alcohol licenses. This Resolution allows the City Manager to enter into the first five years of a 10-year ON-Sale Alcohol Management Agreement for Wine, effective through 2028. This license would be effective upon State Department of Revenue approval and license issuance, and subject to an annual renewal. Item Details: MzP3 Enterprise LLC, dba George’s Pizza, Justin Price and Janice Minder, owners, have applied for an On-Off Wine License for 311 Main Avenue. Chapter 6, Article 2, Section 6-42 of the City Code of Ordinances pertains to the Application Review Procedure. The city council shall review all applications submitted to the city for available on-sale alcoholic beverage agreements and for all alcoholic beverage licenses in accordance with SDCL Chapter 35 -2 (SDCL 35-2-1 et seq.) and in accordance with the following factors: 1) Type of business which applicant proposes to operate: on -sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold unless it can be established that minors do not regularly frequent the establishment. 2) The manner in which the business is operated: on-sale alcoholic beverage operating agreements and alcoholic beverage licenses may not be issued to establishments which are operated in a manner which results in minors regularly frequenting the establishment. 3) The extent to which minors are employed in such a place of business: on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses may not be issued to convenience grocery stores, gas stations, or other stores where groceries or gasoline are sold and which regularly employ minors. 4) Adequacy of the police facilities to properly police the proposed location: The city council shall inquire of the city manager whether the police department can adequately police the proposed location. 5) Other factors: The hours that business is conducted shall be considered by the city council in its review of applications for on-sale alcoholic beverage operating agreements and on-sale alcoholic beverage licenses. (Code 1996, § 5-20) State Law reference - Local license approval, SDCL 35-2-1.2. SDCL 35-2-1.2. Applications submitted to local governing body--Fee--Approval or disapproval. Any applicant for a new retail license, except as set forth in § 35-2-1.1, or the transfer of an existing license shall submit an application to the governing body of the municipality in which the applicant intends to operate, or if outside the corporate limits of a municipality, to the governing body of the county in which the applicant intends to operate. The applicant shall submit the required fee with the application. The governing body may approve the application for a new retail license or the transfer of an existing license if the governing body considers the applicant suitable to hold the license and the proposed location is suitable. The governing body may disapprove an application for a new retail license or the transfer of an existing license issued under subdivision 35 -4-2(4), (6), or (13) if: 1) The approval of the application permits a person, corporation, or business entity to possess more than one-third of the licenses available to be issued in the jurisdiction; and 2) The governing body determines that possession of more than one -third of licenses available is not in the public interest. Any application for the reissuance of a retail license may be approved by the municipal or county governing body without a hearing unless in the past year the licensee or one or more of the licensee's employees have been subjected to a criminal penalty for violation of the alcoholic beverage control law or the license has been suspended. Source: SDC 1939, §§ 5.0206, 5.0305; SL 1945, ch 21, § 1; SL 1951, ch 11; SDC Supp 1960, § 5.0204 (14); SL 1961, ch 14; SL 1964, ch 9; SL 1965, ch 12; SDCL §§ 35-4-32, 35-4-33, 35-6-15; SL 1971, ch 211, § 13; SL 2008, ch 37, § 140; SL 2011, ch 171, § 1; SL 2017, ch 164, § 1; SL 2018, ch 213, § 12. Legal Consideration: None. Strategic Plan Consideration: Economic Growth – existing business changing ownership. Financial Consideration: License Fee: $500 Options and Recommendation: The City Council has the following options: 1. Approve as presented 2. Amend 3. Deny 4. Move the item to a Study Session 5. Discuss / take no action / table Staff recommends approval. Supporting Documentation: Resolution Legal Notice Operating Agreement Map Resolution 23-070 On-Sale Wine Operating Agreement – new 10-year Agreement MzP3 Enterprise LLC, dba George’s Pizza Be It Resolved by the City of Brookings, South Dakota, that the City Council hereby approves an Operating Alcohol Management Agreement for Wine between the City of Brookings and Justin Price and Janice Minder, owners, MzP3 Enterprise LLC, dba George’s Pizza, for the purpose of a alcohol manager to operate the On-Sale establishment or business for and on behalf of the City of Brookings at 311 Main Avenue. Be It Further Resolved that the City Manager be authorized to execute the Agreement on behalf of the City, which shall be for a period of 10 years, with a 5-year mid-term renewal. Passed and approved this 8th day of August, 2023. CITY OF BROOKINGS, SD Oepke G. Niemeyer, Mayor ATTEST: Bonnie Foster, City Clerk On-Off Sale Wine Operating Agreement – 10-year Agreement MzP3 Enterprise LLC, dba George’s Pizza 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 MzP3 Enterprise LLC, dba George’s Pizza, Justin Price and Janice Minder, owners, hereinafter referred to as “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 an Operating Agreement on a limited basis with the Manager for the purpose of operating an on-off sale establishment or business for and on behalf of the City pursuant to law, and WHEREAS, the Manager has offered to have facilities in which to operate said on-off 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 limited basis between the parties hereto allow the Manager to operate a retail on-off 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 -off 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. III. The on-off sale establishment shall be located upon real estate in the City of Brookings, South Dakota, described as: Lot 6, Block 3, Original Plat Addition. IV. The Manager shall dispense only alcoholic beverages supplied by the Municipal Off- Sale Establishment. V. This Agreement shall be in full force and effect for a period of five (5) years with the Manager having the option and privilege of a five (5) year extension, subject to the approval of the governing body of the City of Brookings. 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-off 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 t he premises as above described. VIII. The Manager shall pay to the City for all alcoholic beverages sold by the City t o 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 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, quality, 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 kep t 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 herein contained, the Manager agrees to pay the CITY OF BROOKINGS, Five Hundred, and no/100 Dollars ($500.00), constituting the Annual License Fee on or by 1st day of November of each year thereafter as long as this agreement shall remain in force and effect. The payment of the Annual Renewa l License Fee will not extend the term of this Operating Agreement beyond the term provided therein. 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 . 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 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-off 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 the Manager agains t 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. XV. The Manager agrees to observe all Federal and State laws and 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-off 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-off sale establishment. XVIII. It is further specifically understood and agreed that the waiver of the rights of the Ci ty 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. XIX. 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 8th day of August, 2023. CITY OF BROOKINGS, South Dakota A Municipal Corporation By: ATTEST: Paul Briseno, City Manager Bonnie Foster, City Clerk MANAGER By: By: NOTICE OF PUBLIC HEARING Transfer of On-Off Sale Malt License, and new On-Off Sale Wine License MzP3 Enterprise LLC, dba George’s Pizza NOTICE IS HEREBY GIVEN that the Brookings City Council in and for the City of Brookings, South Dakota, on August 8, 2023, at 6:00 p.m. in the Brookings City & County Government Center Chambers, 520 Third Street, will meet in regular session to consider an application to transfer the On-Off Sale Malt License from George’s Pizza Inc., Panagiota Theodosopoulos, owner, to MxP3 Enterprise LLC, Justin Price and Janice Minder, owners, and issuance of a new On-Off Sale Wine Operating Agreement for MxP3 Enterprise LLC, Justin Price and Janice Minder, owners, dba George’s Pizza, 311 Main Avenue, Brookings, South Dakota, legal description: Lot 6, Block 3, Original Plat Addition. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated at Brookings, South Dakota, this 31st day of July, 2023. Bonnie Foster, City Clerk Published time(s) at an approximate cost $ Brookings County, SD Developed by Parcel ID 404050030000600 Sec/Twp/Rng -- Property Address 311 MAIN AVE BROOKINGS Alternate ID n/a Class NADC Acreage n/a Owner Address THEODOSOPOULOS, PANGIOTA 311 MAIN AVE BROOKINGS SD 57006 District 4001 Brief Tax Description ORIGINAL PLAT ADDN, LOT 6, BLK 3 25 X 165 (Note: Not to be used on legal documents) Date created: 7/28/2023 Last Data Uploaded: 7/28/2023 1:30:50 AM 95 ft Overview Legend Brookings City Limits City Limits Township Boundary Sections Parcels Roads City of Brookings Staff Report Brookings City & County Government Center, 520 Third Street Brookings, SD 57006 (605) 692-6281 phone (605) 692-6907 fax File #:ID 23-0348,Version:1 Executive Session, pursuant to SDCL 1-25-2.3, for consulting with legal counsel or reviewing communications from legal counsel about proposed or pending litigation or contractual matters. SDCL 1-25-2. Executive or closed meetings--Purposes--Authorization--Violation as misdemeanor. Executive or closed meetings may be held for the sole purposes of: 1)Discussing the qualifications, competence, performance, character or fitness of any public officer or employee or prospective public officer or employee. The term, employee, does not include any independent contractor; 2)Discussing the expulsion, suspension, discipline, assignment of or the educational program of a student or the eligibility of a student to participate in interscholastic activities provided by the South Dakota High School Activities Association; 3)Consulting with legal counsel or reviewing communications from legal counsel about proposed or pending litigation or contractual matters; 4)Preparing for contract negotiations or negotiating with employees or employee representatives; 5)Discussing marketing or pricing strategies by a board or commission of a business owned by the state or any of its political subdivisions, when public discussion may be harmful to the competitive position of the business; or 6)Discussing information pertaining to the protection of public or private property and any person on or within public or private property specific to: a.Any vulnerability assessment or response plan intended to prevent or mitigate criminal acts; b.Emergency management or response; c.Public safety information that would create a substantial likelihood of endangering public safety or property, if disclosed; d.Cyber security plans, computer, communications network schema, passwords, or user identification names; e.Guard schedules; f.Lock combinations; g.Any blueprint, building plan, or infrastructure record regarding any building or facility that would expose or create vulnerability through disclosure of the location, configuration, or security of critical systems of the building or facility; and h.Any emergency or disaster response plans or protocols, safety or security audits or reviews, or lists of emergency or disaster response personnel or material; any location or listing of weapons or ammunition; nuclear, chemical, or biological agents; or other military or law enforcement equipment or personnel. However, any official action concerning the matters pursuant to this section shall be made at an open official meeting. An executive or closed meeting must be held only upon a majority vote of the members of the public body present and voting, and discussion during the closed meeting is restricted to the purpose specified in the closure motion. Nothing in § 1-25-1 or this section prevents an executive or closed meeting if the federal or state Constitution or the federal or state statutes City of Brookings Printed on 8/3/2023Page 1 of 2 powered by Legistar™ File #:ID 23-0348,Version:1 require or permit it. A violation of this section is a Class 2 misdemeanor. Source: SL 1965, ch 269; SL 1980, ch 24, § 10; SL 1987, ch 22, § 1; SL 2014, ch 90, § 2; SL 2019, ch 2, § 1; SL 2022, ch 4, § 2. City of Brookings Printed on 8/3/2023Page 2 of 2 powered by Legistar™