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Home My WebLink About2024_08_27 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 27, 2024 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. Action to approve City Council meeting minutes.ID 24-04155.A. Page 1 City of Brookings August 27, 2024City Council Meeting Agenda - Final 8/13/2024 CC MinutesAttachments: Action on Temporary Alcohol / Special Event Licenses for existing alcohol license holders with events held on publicly owned property. ID 24-04175.B. Memo SDCL 35-4-124 Attachments: Action on Resolution 24-083, a Resolution Awarding Bids on the 2024-2025 Contractor Snow Removal Equipment Contracts. RES 24-0835.C. Memo Resolution Attachments: Action on Resolution 24-084, a Resolution declaring surplus property for the City of Brookings. RES 24-0845.D. ResolutionAttachments: 6. Presentations/Reports: Introduction of new City of Brookings employee.ID 24-04286.A. Report: SDSU Student Association.ID 24-03436.B. Presentation on Brookings Pre-Disaster Mitigation PlanID 24-04266.C. Memo Hazard Identification Worksheet Hazard Vulnerability Worksheet Critical Structure-Infrastructure List Hazard Vulnerability - Critical Infrastructure Map Mitigation Activity Sites Map Mitigation Project Worksheet Attachments: 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. Second Reading and Action on Ordinance 24-029, an Ordinance Certifying the 2025 City of Brookings Property Tax Levy to the Brookings County Finance Officer. ORD 24-0298.A. Memo Ordinance Attachments: Page 2 City of Brookings August 27, 2024City Council Meeting Agenda - Final Second Reading and Action on Ordinance 24-028, an Ordinance Granting a Franchise to Mediacom Minnesota LLC to Construct, Operate, and Maintain a Cable Television System in the City of Brookings, SD, Setting Forth Conditions Accompanying the Grant of the Franchise; Providing for Regulation and Use of the System; and Prescribing Penalties for the Violation of its Provisions. ORD 24-0288.B. Memo Ordinance - clean Ordinance - marked Attachments: Public Hearing and Action on Ordinance 24-031, an Ordinance establishing Reasonable Accommodations Pursuant to the Federal Fair Housing Amendments Act of 1988. ORD 24-0318.C. Memo Ordinance Legal Notice Attachments: Public Hearing and Action on Ordinance 24-030, an Ordinance to permit by Conditional Use a Major Home Occupation Hair Salon on Lot 1 in Block 3 of Moriarty Edgebrook Addition, also known as 1635 17th Avenue South. ORD 24-0308.D. Memo Ordinance Notice - City Council Notice - Planning Commission Planning Commission Minutes Location Map Conditional Use Permit Application Major Home Occupation Checklist Attachments: 9. Public Hearings and Second Readings: Second Reading and Action on Ordinance 24-025, an Ordinance Authorizing Budget Amendment No. 8 to the 2024 Budget. ORD 24-0259.A. Memo Ordinance Attachments: Action: Motion, Request Public Comment, Roll Call Legislative History 8/13/24 City Council read into the record Public Hearing and Action on Ordinance 24-026, an Ordinance Amending Chapter 82 of the Code of Ordinances of the City of Brookings and Pertaining to the Covering of Vehicle Loads in the City of Brookings. ORD 24-0269.B. Page 3 City of Brookings August 27, 2024City Council Meeting Agenda - Final Memo Ordinance - clean Ordinance - marked Attachments: Action: Motion, Open & Close Public Hearing, Roll Call Legislative History 8/13/24 City Council read into the record Public Hearing and Action on Ordinance 24-027, an Ordinance Amending Articles I & II of Chapter 72 - Storm Drainage, of the Code of Ordinances of the City of Brookings, South Dakota. ORD 24-0279.C. Memo Ordinance - clean Ordinance - marked Legal Notice Attachments: Action: Motion, Open & Close Public Hearing, Roll Call Legislative History 8/13/24 City Council read into the record Public Hearing and Action on a Commercial Corridor Design Review Overlay District Site Plan for Lot 1 in Block 1 of Reserve Fourth Addition. ID 24-04149.D. Memo Hearing Notice - City Council Hearing Notice - Planning Commission Planning Commission Minutes Location Map Site Plan Landscape Plan Elevations Renderings Adjacent Photos Attachments: Action: Motion, Open & Close Public Hearing, Roll Call Public Hearing and Action on Resolution 24-081, a Resolution to amend the 2040 Comprehensive Plan’s Future Land Use Map. RES 24-0819.E. Memo Resolution Hearing Notice - City Council Hearing Notice - Planning Commission Planning Commission Minutes Future Land Use Map Exhibits Attachments: Action: Motion, Open & Close Public Hearing, Roll Call Page 4 City of Brookings August 27, 2024City Council Meeting Agenda - Final 10. Other Business: Action on Resolution 24-079, a Resolution Transferring City Manager Contingency Funds to City Departments. RES 24-07910.A. Memo Resolution Attachments: Action: Motion, Request Public Comment, Roll Call Action on Resolution 24-078, a Resolution Declaring Boundaries and Recommending Creation of Tax Increment Financing District #16, City of Brookings. RES 24-07810.B. Memo Resolution Notice - City Council Notice - Planning Commission Minutes - Planning Commission Map Attachments: Action: Motion, Request Public Comment, Roll Call Action on Resolution 24-080, a Resolution Adopting the Tax Increment District #16 Project Plan. RES 24-08010.C. Memo Resolution Project Plan Attachments: Action: Motion, Request Public Comment, Roll Call City of Brookings Progress Report.ID 24-042911. Progress ReportAttachments: 12. 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. 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 Page 5 City of Brookings August 27, 2024City Council Meeting Agenda - Final 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), or 2) participate remotely. 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 Rebroadcast Schedule: Wednesday 1:00 pm / Thursday 7:00 pm / Friday 9:00 pm / Saturday 1:00 pm (Swiftel Channel 20 / MediaCom Channel 9) 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 6 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 24-0415,Version:1 Action to approve City Council meeting minutes. Attachments: 08/13/2024 City Council Minutes City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ BROOKINGS CITY COUNCIL August 13, 2024 (unapproved) The Brookings City Council held a joint meeting with the County Commission on Tuesday, August 13, 2024 at 5:30 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, Holly Tilton Byrne, and Nick Wendell. County Commission Members present: Mike Bartley, Shawn Hostler, Larry Jensen, Ryan Krogman, and Kelly VanderWal. City Manager Paul Briseno, City Attorney Steve Britzman and City Clerk Bonnie Foster were also present. Agenda. A motion was made by Council Member Specker, seconded by Council Member Tilton Byrne, that the agenda be approved. The motion carried by the following vote: Yes: 7 - Avery, Doran, Niemeyer, Rasmussen, Specker, Tilton Byrne, and Wendell. A motion was made by County Commissioner Hostler, seconded by County Commissioner Krogman, that the agenda be approved. The motion carried by the following vote: Yes: 5 - Bartley, Hostler, Jensen, Krogman, and VanderWal. Ordinance 24-022. A public hearing was held on City of Brookings Ordinance 24-022 and Brookings County Commission Ordinance 2024-06, an Ordinance to Rezone Outlot J in the North West Quarter of the South East Quarter of Section 11, Township 109, Range 50 West from a Joint Jurisdiction Residence R-3A District to a Joint Jurisdiction Business B-3 Heavy District (located at 3901 Main Avenue South, Brookings, SD). A motion was made by Council Member Tilton Byrne, seconded by Council Member Specker, that Ordinance 24-022 be approved. The motion carried by the following vote: Yes: 7 - Avery, Doran, Niemeyer, Rasmussen, Specker, Tilton Byrne, and Wendell. A motion was made by County Commissioner Kelly VanderWal, seconded by County Commissioner Hostler, that Ordinance 2024-06, be approved. The motion carried by the following vote: Yes: 5 - Bartley, Hostler, Jensen, Krogman, and VanderWal. Adjourn the Joint Meeting. A motion was made by Council Member Tilton Byrne, seconded by Council Member Wendell, that this portion of the Jo int Meeting be adjourned at 5:36 p.m. The motion carried by a unanimous vote. A motion was made by County Commissioner Krogman, seconded by County Commissioner VanderWal, that this portion of the Joint Meeting be adjourned at 5:36 p.m. The motion carried by a unanimous vote. (A brief recess began at 5:36 p.m. to end the joint portion of the meeting, dismissing the County Commission. The City Council reconvened at 6:00 p.m.) Consent Agenda. A motion was made by Council Member Tilton Byrne, seconded by Council Member Wendell, that the consent agenda be approved. The motion carried by the following vote: Yes: 7 - Avery, Doran, Niemeyer, Rasmussen, Specker, Tilton Byrne, and Wendell. A. Action to approve the July 23, 2024 City Council Minutes. B. Action on appointments to the Public Arts Commission: Lisbeth Solum (term expires 1/1/2025), member-at-large; and Meridith Weiland, (term expires 1/1/2025), member-at-large. C. Action on an appointment to the Planning Commission: Doug Metcalf (term expires 12/31/2024). D. Action on the 2025 City Council Meeting Calendar. E. Action on Resolution 24-074, a Resolution Awarding the Bid for a 4,000 Gallon Water Truck. RESOLUTION 24-074 - RESOLUTION AWARDING BID FOR A 4,000 GALLON WATER TRUCK WHEREAS, the City of Brookings opened bids for a 4,000 Gallon Water Truck on Tuesday, August 6, 2024 at 1:30 pm at the Brookings City and County Government Center; and WHEREAS, the City of Brookings received the following bids for a 4,000 Gallon Water Truck: Custom Truck One Source - $174,412; and Garsite Progress LLC - $203,920. NOW, THEREFORE, BE IT RESOLVED, that a contract be awarded to Custom Truck One Source for the bid price of $174,412. F. Action on Resolution 24-071, a Resolution Authorizing Change Order #2 for the Pickleball Courts Project. RESOLUTION 24-071 - RESOLUTION AUTHORIZING CHANGE ORDER #2 FOR THE PICKLEBALL COURTS PROJECT WHEREAS, the City of Brookings is requesting to upgrade the post-tensioned concrete for the Pickleball Courts at Hillcrest Park; and WHEREAS, the City of Brookings is requesting to upgrade the type of cable tensioning system for the Pickleball Courts at Hillcrest Park; and NOW, THEREFORE, BE IT RESOLVED, that the City of Brookings hereby authorizes the approval of Change Order #2 which upgrades the post-tensioned concrete and cable tensioning system for the Pickleball Courts Project. G. Action on Temporary Alcohol / Special Event Licenses for existing alcohol license holders with events held on publicly owned property: SDSU TL24-057, SDSU TL24-058, SDSU TL24-059, SDSU TL24-060, and SDSU TL25-001. Proclamation. Mayor Niemeyer presented a Proclamation to Jeannie Bauske, Brookings Multicultural Center Events Coordinator, recognizing Wednesday, August 21, 2024 as "A Day to Celebrate the Cultures of Our Community." MAYORAL PROCLAMATION 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 3rd 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 21, 2024 as “A Day to Celebrate the Cultures of Our Community.” Report: Ex-Officio Reports. A Brookings Municipal Utility Board report was given by Council Member Avery. A Brookings Health Systems Board of Trustees report was not given. Master Drainage Plan. A motion was made by Council Member Tilton Byrne, seconded by Council Member Specker, that the Master Drainage Plan be accepted. The motion carried by the following vote: Yes: 7 - Avery, Doran, Niemeyer, Rasmussen, Specker, Tilton Byrne, and Wendell. Resolution 24-077. A motion was made by Council Member Tilton Byrne, seconded by Council Member Doran, that Resolution 24-077, a Resolution Awarding Bids on Project 2024-05STI Structure No. 06-160-152 Replacement, be approved. The motion carried by the following vote: Yes: 7 - Avery, Doran, Niemeyer, Rasmussen, Specker, Tilton Byrne, and Wendell. RESOLUTION 24-077 - RESOLUTION ACCEPTING BIDS ON PROJECT 2024-05STI STRUCTURE NO. 06-160-152 REPLACEMENT WHEREAS, the City of Brookings opened bids for Project 2024-05STI Structure No. 06-160-152 Replacement on Tuesday, August 6, 2024 at 1:30 pm at the Brookings City & County Government Center; and WHEREAS, the City of Brookings received the following low bid for the 2024-05STI Structure No. 06-160-152 Replacement Project from Austreim Excavating, LLC, in the amount of $166,489.94; and WHEREAS, the low bid was approximately 22% lower than the Engineer’s Estimate. NOW, THEREFORE, BE IT RESOLVED as follows: 1. That the low bid of $166,489.94 for Austreim Excavating, LLC. be accepted. 2. The City Manager is authorized to sign the contract documents for this project. FIRST READING – Ordinance 24-025. Introduction and First Reading was held on Ordinance 24-025, an Ordinance Authorizing Budget Amendment No. 8 to the 2024 Budget. Second Reading and Action to be held: August 27, 2024. FIRST READING – Ordinance 24-026. Introduction and First Reading was held on Ordinance 24-026, an Ordinance Amending Chapter 82 of the Code of Ordinances of the City of Brookings and Pertaining to the Covering of Vehicle Loads in the City of Brookings. Public Hearing and Action to be held: August 27, 2024. FIRST READING – Ordinance 24-027. Introduction and First Reading was held on Ordinance 24-027, an Ordinance Amending Articles I & II of Chapter 72 - Storm Drainage, of the Code of Ordinances of the City of Brookings, South Dakota. Public Comment: Jacob Mills. Public Hearing and Action to be held: August 27, 2024. Ordinance 24-023. A public hearing was held on Ordinance 24-023, an Ordinance to Rezone the East 151 feet of Block 1 in Northern Plains Addition from a Business B -2A Office District to a Residence R-2 Two-Family District. A motion was made by Council Member Tilton Byrne, seconded by Council Member Specker, that Ordinance 24-023 be approved. Public Comment: Kyle Rausch, Allan Sandor, Linda Watson, Ron Stee, Jeff Arneson, Justin Bucher, Heather Neff, Jordan Arneson, Rachel Flaskey, Ava Flaskey, Jason Flaskey, Jeff Streuwe, Joe Thorne, and Vince Eberhart. The motion carried by the following vote: Yes: 7 - Avery, Doran, Niemeyer, Rasmussen, Specker, Tilton Byrne, and Wendell. Ordinance 24-024. A motion was made by Council Member Tilton Byrne, seconded by Council Member Wendell, that Ordinance 24-024, an Ordinance to permit by Conditional Use Permit townhouses on Blocks 3A and 4 in Northern Plains Addition, City of Brookings, Brookings County, South Dakota, be approved. Public Comment: Public Comment: Kyle Rausch, Heather Neff, Rachel Flaskey, Ron Stee, Jordan Arneson, Allan Sandor, Ava Flaskey, Linda Watson, Julia Eberhart, Vince Eberhart, and Jason Flaskey. A motion was made by Council Member Avery, seconded by Council Member Wendell, that Ordinance 24-024 be tabled. The motion carried by the following vote: Yes: 7 - Avery, Doran, Niemeyer, Rasmussen, Specker, Tilton Byrne, and Wendell. Revised Preliminary Plat. A motion was made by Council Member Specker, seconded by Council Member Tilton Byrne, that a Revised Preliminary Plat for Blocks 1A, 3A and 4; in Northern Plains Addition, be approved. Public Comment: Kyle Rausch. The motion carried by the following vote: Yes: 7 - Avery, Doran, Niemeyer, Rasmussen, Specker, Tilton Byrne, and Wendell. Resolution 24-072. A motion was made by Council Member Tilton Byrne, seconded by Council Member Avery, that Resolution 24-072, a Resolution Approving Revised Policies of the City of Brookings, be approved. The motion carried by the following vote: Yes: 7 - Avery, Doran, Niemeyer, Rasmussen, Specker, Tilton Byrne, and Wendell. RESOLUTION 24-072 - A RESOLUTION APPROVING REVISED POLICIES OF THE CITY OF BROOKINGS WHEREAS, City Council policies are compiled in the Governance and Ends Policy, which includes a number of policies adopted by the City Council over the past 20 years; and WHEREAS, it is important Council Policies are reviewed regularly so Council policies are consistent with the current Council’s priorities and the City of Brookings of today; and WHEREAS, over the past year, Council Members Holly Tilton Byrne and Wayne Avery participated in the process of reviewing and preparing proposed revisions of current City of Brookings policies. These Council members were assisted by the City Manager, City Clerk, and City Attorney; and WHEREAS, the attached City Policies have been reviewed and proposed revisions have been prepared. Policies include the following: Type Number Name City Council 100 Council Vision, Mission, Values City Council 298 Design Building Procurement City Council 299 ADA Policies City Council 301 Building Permit Fee Waiver City Council 304 Procurement of Professional Services City Council 305 Arterial & Collector Streets City Council 306 Tax Increment Financing City Council 308 Liquor License Agreement & Criteria City Council 309 Sales Tax Incentive Grant City Council 310 Sale of Real Property City Council 311 Volunteer Board Appointment City Council 312 Reporting by Economic Entities City Council 313 Council Reconsideration Action City Council 314 Council Professional Development City Council 315 Larson Ice Center Use City Council 316 Construction Manager at Risk City Council 317 Access Channel City Council 318 Change Orders City Council 319 Bills & Claims City Council 320 Investment Policy City Council 321 Triple Bottom Line NOW, THEREFORE, BE IT RESOLVED that the City Policies attached hereto and referenced in this Resolution are hereby approved. City Council Member Introduction of Topics for Future Discussion. A motion was made Council Member Wendell, seconded by Mayor Niemeyer, to recommend opponents and proponents of Initiated Measure 28 be present at the September 17th Study Session. The motion carried by the following vote: Yes: 7 - Avery, Doran, Niemeyer, Rasmussen, Specker, Tilton Byrne, and Wendell. Executive Session. A motion was made by Council Member Tilton Byrne, seconded by Council Member Specker, to enter into Executive Session at 8:07 p.m., pursuant to SDCL 1-25-2.3, for the purpose of 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 Specker, seconded by Council Member Wendell, to exit Executive Session at 8:49 p.m. The motion carried by a unanimous vote. Adjourn. A motion was made by Council Member Tilton Byrne, seconded by Council Member Wendell, that this meeting be adjourned at 8:49 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 Volunteer List – as per Resolution 16-025 (Addendum to the August 13, 2024 City Council Minutes.) Brookings City Library Volunteers – Updated May 2024: Cheryl Riley, Sarah Schultz, Diane Smart – New – effective 05/20/24; Brookings City Fire Department Volunteers: Major Anderson, Preston Anderson, John Austin, Kevin Banken, Alex Berkness, Pete Bolzer, Derek Brown, Dan Bruna, Nick Casstevens, Tom Coughlin, Mandi Cramer, Roger DeBates, Scott Hallan, Bill Hardin, Troy Herrig, Justin Heyer, Kevin Hilmoe, Dalton Holm, Dave Koch, Jim Kriese, Brett Lawrence, Brandon Long, Jaque Mann, Joshua Mann, Logan Melberg, Aiden Metcalfe, Gatlin Miller, Nick Oines, Steven Re nsink, Connor Ringling, Jared Runge, Tim Rynearson, Rob Schuneman, Jeremy Scott, Jesse Seas, Joseph Sheeley, Lucas Speakman, Shannon Stuefen, Curt Teal, Anthony Teesdale, Joshua Van Diepen, Nathan Vandersnick, Adam Vaux, Nicholas Voichahoske – new – effective 8/19/2024. Brookings City Park & Recreation Volunteers: Matthew Albritton, Samuel Clement, Travis Erickson, Matthew Filed, Nathan Hilbrands, Dillon Howe, Matthew Hupf, Brandon Karels, Bo McCloud, Chad Nicola, Seth Sayler, Joseph Schumacher, Christina Silva, Andrew Wright, Nicole Yseth. 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 24-0417,Version:1 Action on Temporary Alcohol / Special Event Licenses for existing alcohol license holders. Summary and Recommended Action: Staff recommends approval of a Special Event Alcoholic Beverage License request for an existing alcohol license holders. Attachments: Memo SDCL 35-4-124 City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: Bonnie Foster, City Clerk Council Meeting: August 27, 2024 Subject: Special Event / Temporary Alcoholic Beverage License Requests Presenter: Bonnie Foster, City Clerk Summary: Staff recommends approval of Special Event Alcoholic Beverage License requests for existing on-sale alcoholic beverage license holders. Item Details: South Dakota Codified Law (SDCL 35-4-124) states special event / temporary alcoholic beverage licenses require action by the governing body for all Temporary Alcoholic Beverage License Applications. No public hearing is required for the issuance of a license pursuant to this section if the person applying for the license holds an on -sale alcoholic beverage license or a retail malt beverage license in the municipality or county, or holds an operating agreement for a municipal on -sale alcoholic beverage license. Staff requests approval for the following special event / temporary alcoholic beverage licenses from Sodexo Catering (License Holder RB-28249 and RW -28251):  Oscar Larson Performing Arts Center: SDSU TL24-061  First Bank & Trust Arenda: SDSU TL24-062  University Student Union: SDSU TL24-064, SDSU TL24-065  Dana J. Dykhouse Stadium, Coughlin Alumni Lounge: SDSU TL24-063  SDSU Alumni Center: SDSU TL24-066, SDSU TL24-067, SDSU TL24-068, and SDSU TL24-069 Staff requests approval for the following special event / temporary alcoholic beverage licenses from Buffalo Wild Wings, W&P of Brookings, LLC (License Holder RL-20228):  Parking Lot of BWW property, 1801 6th St: TL24-024 Legal Consideration: None Strategic Plan Consideration: Fiscal Responsibility – Action to approve special event / temporary alcoholic beverage licenses keeps the process transparent in the amount of revenue generated and the number of licenses issued annually. Financial Consideration: Special Event / Temporary Alcoholic Beverage License Fee: $50 / event date NOTE: event date can be up to 15 days in length. Supporting Documentation: State Law 35-4-124 35-4-124. Special alcoholic beverage licenses--Special events. Any municipality or county may issue: 1) A special malt beverage retailers license in conjunction with a special event within the municipality or county to any civic, charitable, educational, fraternal, or veterans organization or any licensee licensed pursuant to § 35-4-111 or subdivision 35-4-2(4), (6), or (16) in addition to any other licenses held by the special events license applicant; 2) A special on-sale wine retailers license in conjunction with a special event within the municipality or county to any civic, charitable, educational, fraternal, or veterans organization or any licensee licensed pursuant to § 35-4-111 or subdivision 35-4-2(4), (6), or (12) or any farm winery licensee in addition to any other licenses held by the special events license applicant; 3) A special on-sale license in conjunction with a special event within the municipality or county to any civic, charitable, educational, fraternal, or veterans organization or any licensee licensed pursuant to § 35-4-111 or subdivision 35-4- 2(4) or (6) in addition to any other licenses held by the special events license applicant; 4) A special off-sale package wine dealers license in conjunction with a specia l event within the municipality or county to any civic, charitable, educational, fraternal, or veterans organization or any licensee licensed pursuant to subdivision 35-4-2(3), (5), or (12) or any farm winery licensee in addition to any other licenses held by the special events license applicant. A special off -sale package wine dealers licensee may only sell wine manufactured by a farm winery licensee; 5) A special off-sale package wine dealers license in conjunction with a special event, conducted pursuant to § 35-4-124.1, within the municipality or county to any civic, charitable, educational, fraternal, or veterans organization; 6) A special off-sale package malt beverage dealers license in conjunction with a special event, conducted pursuant to § 35-4-124.1, within the municipality or county to any civic, charitable, educational, fraternal, or veterans organization; or 7) A special off-sale package dealers license in conjunction with a special event, conducted pursuant to § 35-4-124.1, within the municipality or county to any civic, charitable, educational, fraternal, or veterans organization. The municipality or county may issue a license under this section for a time not to exceed fifteen consecutive days. No public hearing is required for the issuance of a license pursuant to this section if the person applying for the license holds an on-sale alcoholic beverage license or a retail malt beverage license in the municipality or county, or holds an operating agreement for a municipal on -sale alcoholic beverage license. The local governing body shall establish rules to regulate and restrict the operation of the special license, including rules limiting the number of licenses that may be issued to any person within any calendar year. Source: SL 2010, ch 185, § 1; SL 2011, ch 175, § 1; SL 2015, ch 195, § 1, eff. Mar. 13, 2015; SL 2018, ch 213, § 106; SL 2019, ch 162, § 2; SL 2020, ch 156, § 1; SL 2024, ch 149, § 1. 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 24-083,Version:1 Action on Resolution 24-083, a Resolution Awarding Bids on the 2024-2025 Contractor Snow Removal Equipment Contracts. Summary and Recommended Action: Staff recommends approval of the proposed resolution to award the 2024-2025 Contractor Snow Removal Equipment Contracts, which provides the best value for the City as determined by cost per cubic yard. Attachments: Memo Resolution City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: Jeremy Linstad, Street Manager Council Meeting: August 27, 2024 Subject: Resolution 24-083: Bid Award - 2024-2025 Contractor Snow Removal Equipment Contracts Presenter: Jeremy Linstad, Street Manager Summary and Recommended Action: Staff recommends approval of the proposed the resolution which will award the 2024- 2025 Contractor Snow Removal Equipment Contracts. Item Details: The City of Brookings, Public Works Department - Street Division maintains over 300 lane miles of streets and alleys. The City uses contractors to assist in the snow removal efforts. This assistance augments City equipment and staff, traditionally in residential neighborhoods. Based on the snow event, contractors are called out on an as-needed basis and are ranked on the best value per equipment. The City opened bids on Tuesday, August 13, 2024 at 1:30 p.m. at the City & County Government Center. The following bids were received: Five (5) Motor Graders with Wing: Five (5) bids received. 1. Bowes Construction, Inc. CAT140M $255.00/hour 2. Bowes Construction, Inc. CAT140M $255.00/hour 3. Austreim Excavating, LLC JD 772CH $245.00/hour 4. Austreim Excavating, LLC JD 770G $245.00/hour 5. Bowes Construction, Inc. CAT140M $240.00/hour (no wing) One (1) 3 to 6 Yard Loader: Four (4) bids received. 1. Bowes Construction, Inc CAT966M 5CY $220.00/hour 2. Winter Contracting, LLC 644K 4.5CY $217.00/hour 3. Winter Contracting, LLC 624K 3.5CY $169.00/hour 4. Bowes Construction, Inc CAT950M 4CY $195.00/hour Four (4) Loaders with Reversible Blades: Four (4) bids received. 1. Bowes Construction, Inc. CAT938K $230.00/hour 2. Austreim Excavating, LLC JD544K $255.00/hour 3. Austreim Excavating, LLC JD544K II $255.00/hour 4. Austreim Excavating, LLC 624K $255.00/hour Four (4) End-Dump Trucks: Ten (10) bids received. 1. Winter Contracting LLC #14 23.00CY $149.00/hour 2. Prussman Contracting Inc. #19 22.80CY $145.00/hour 3. Prussman Contracting Inc. #20 22.80CY $145.00/hour 4. Prussman Contracting Inc. #22 22.20CY $145.00/hour 5. Prussman Contracting Inc. #21 20.60CY $145.00/hour 6. Prussman Contracting Inc. #23 19.50CY $145.00/hour 7. Bowes Construction, Inc. T1 12.00CY $145.00/hour 8. Bowes Construction, Inc. T28 12.00CY $145.00/hour 9. Bowes Construction, Inc. T29 12.00CY $145.00/hour 10. Bowes Construction, Inc. T30 12.00CY $145.00/hour Six (6) Side-Dump Trucks: Twelve (12) bids received. 1. Winter Contracting LLC #10 34CY $179.00/hour 2. Winter Contracting LLC #12 34CY $179.00/hour 3. Winter Contracting LLC #14 34CY $179.00/hour 4. Olsen Custom Farms, LLC 116 25CY $165.00/hour 5. Olsen Custom Farms, LLC 44 25CY $165.00/hour 6. Olsen Custom Farms, LLC 65 25CY $165.00/hour 7. Olsen Custom Farms, LLC 61 25CY $165.00/hour 8. Bowes Construction, Inc. T10 17CY $170.00/hour 9. Bowes Construction, Inc. T11 17CY $170.00/hour 10. Bowes Construction, Inc. T5 17CY $170.00/hour 11. Bowes Construction, Inc. T12 17CY $170.00/hour 12. Bowes Construction, Inc. T25 17CY $170.00/hour Bids increased per contractor between 0-11% as compared to 2023-2024. Staff will utilize contractors, as needed, to assist in snow removal operations . Contractors will be contacted in order of best value, as determined by cost per cubic yard or hourly cost. Legal Consideration: None. Strategic Plan Consideration:  Fiscal Responsibility – The City of Brookings will responsibly manage resources through transparency, efficiency, equity, and exceptional customer service.  Safe, Inclusive, Connected Community – The City of Brookings will create an environment for inclusive programs, gathering places, and events where the community can safely live, work and come together to participate in opportunities for learning, recreation and enjoyment.  Service and Innovation Excellence – The City of Brookings will provide an accessible environment committed to ongoing innovation and outstanding service through listening and engagement.  Economic Growth – The City of Brookings will support effective diversified community investment and equitable opportunities for prosperity. Financial Consideration: The 2024 adopted budget, fund 431 – Streets, includes $130,000 in appropriations for contracted snow removal operations. The expense for snow removal services for the 2022-2023 season was approximately $127,000. Supporting Documentation: Memo Resolution RESOLUTION 24-083 RESOLUTION AWARDING BID FOR 2024-2025 CONTRACTOR SNOW REMOVAL EQUIPMENT CONTRACTS WHEREAS, the City of Brookings opened bids for Snow Removal Equipment on Tuesday, August 13, 2024 at 1:30 pm at the Brookings City and County Government Center; and WHEREAS, the City of Brookings received the following bids for Snow Removal Equipment: Five (5) Motor Graders with Wing: Five (5) bids received. 1. Bowes Construction, Inc. CAT140M $255.00/hour 2. Bowes Construction, Inc. CAT140M $255.00/hour 3. Austreim Excavating, LLC JD 772CH $245.00/hour 4. Austreim Excavating, LLC JD 770G $245.00/hour 5. Bowes Construction, Inc. CAT140M $240.00/hour (no wing) One (1) 3 to 6 Yard Loader: Four (4) bids received. 1. Bowes Construction, Inc CAT966M 5CY $220.00/hour 2. Winter Contracting, LLC 644K 4.5CY $217.00/hour 3. Winter Contracting, LLC 624K 3.5CY $169.00/hour 4. Bowes Construction, Inc CAT950M 4CY $195.00/hour Four (4) Loaders with Reversible Blades: Four (4) bids received. 1. Bowes Construction, Inc. CAT938K $230.00/hour 2. Austreim Excavating, LLC JD544K $255.00/hour 3. Austreim Excavating, LLC JD544K II $255.00/hour 4. Austreim Excavating, LLC 624K $255.00/hour Four (4) End-Dump Trucks: Ten (10) bids received. 1. Winter Contracting LLC #14 23.00CY $149.00/hour 2. Prussman Contracting Inc. #19 22.80CY $145.00/hour 3. Prussman Contracting Inc. #20 22.80CY $145.00/hour 4. Prussman Contracting Inc. #22 22.20CY $145.00/hour 5. Prussman Contracting Inc. #21 20.60CY $145.00/hour 6. Prussman Contracting Inc. #23 19.50CY $145.00/hour 7. Bowes Construction, Inc. T1 12.00CY $145.00/hour 8. Bowes Construction, Inc. T28 12.00CY $145.00/hour 9. Bowes Construction, Inc. T29 12.00CY $145.00/hour 10. Bowes Construction, Inc. T30 12.00CY $145.00/hour Six (6) Side-Dump Trucks: Twelve (12) bids received. 1. Winter Contracting LLC #10 34CY $179.00/hour 2. Winter Contracting LLC #12 34CY $179.00/hour 3. Winter Contracting LLC #14 34CY $179.00/hour 4. Olsen Custom Farms, LLC 116 25CY $165.00/hour 5. Olsen Custom Farms, LLC 44 25CY $165.00/hour 6. Olsen Custom Farms, LLC 65 25CY $165.00/hour 7. Olsen Custom Farms, LLC 61 25CY $165.00/hour 8. Bowes Construction, Inc. T10 17CY $170.00/hour 9. Bowes Construction, Inc. T11 17CY $170.00/hour 10. Bowes Construction, Inc. T5 17CY $170.00/hour 11. Bowes Construction, Inc. T12 17CY $170.00/hour 12. Bowes Construction, Inc. T25 17CY $170.00/hour NOW , THEREFORE, BE IT RESOLVED, that all bids be accepted. Passed and Approved this 27th day of August, 2024. 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 24-084,Version:1 Action on Resolution 24-084, a Resolution declaring surplus property for the City of Brookings. Summary and Recommended Action: The City of Brookings is the owner of the described equipment stated within the attached Resolution. This property is being declared surplus property according to SDCL Chapter 6-13. Council action is required to declare these items surplus. Staff recommends approval. Attachments: Resolution City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ RESOLUTION 24-084 DECLARING SURPLUS PROPERTY WHEREAS, the City of Brookings is the owner of the following described equipment formerly used at the City of Brookings: Police Dept.: bicycles: Genesis GX7, Silver & Red, Serial #GS120601, Tag #3804; MGX Denali, Red & Black, Serial #L121301011, Tag #3076; Mongoose Rebel, Black & Silver, Serial #R1016WMDS, Tag #3078; Mongoose Shimmano, Red & Black, Serial #SNFSD08D099, Tab #3090; Hiawatha, Maroon & Brown, Tag #3085; Huffy Rock Creek, Blue & White, Serial #SNHBT23E, Tag #3114; Schwinn Ranger, Blue & Purple, Serial #374009570-0, Tag #3050; Huffy Rockcreek, Black & White, Serial #SNHBT23E13, Tag #3075; Hyper Urban, Gray & Black, Serial #TJ18E)11197, Tag #3071; and Roller, Black, Tag #3016. 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. Passed and Approved this 27th day of August, 2024. 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 #:ID 24-0428,Version:1 Introduction of new City of Brookings employee. The following City of Brookings employee will be introduced to the City Council and public: ·Amber Hanson, Deputy City Clerk Amber is excited to start this journey with the City Clerk’s office and be a valuable team member to the City of Brookings. Biography Amber grew up in the Volga area and currently lives in Bruce with her husband and children. She was most recently the Finance Officer for the City of Bruce and her knowledge from that role will be of great value to the City of Brookings as the Deputy City Clerk. In her spare time Amber enjoys spending time with her family, photography, or being outdoors. City of Brookings Printed on 8/29/2024Page 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 24-0343,Version:1 Report: SDSU Student Association. Summary: SDSU SA Government Affairs Chair, Claire Koenecke, will provide an update on SDSU happenings to the City Council and members of the public. Claire is currently a sophomore at SDSU and plans to graduate in May of 2026. She is double majoring in English and Political Science. As of right now, she plans on going into the education field upon graduation. Claire hopes to attend graduate school in the future with the goal of working in educational administration one day. As a Pierre native, she has been around politics her whole life and has been fortunate to observe politics at both a State and Local level from a young age. She served as a Legislative Page in the Senate in 2021 and in the House of Representatives in 2022. Claire thoroughly enjoyed her time spent as a Page and credits much of her interest in politics to the experiences she gained at the Capitol. At SDSU, Claire has served as a Senator At-large for both her freshman and sophomore years and is looking forward to serving as the Government Affairs Chair for this next term. Outside of her studies and Students' Association, Claire is also actively involved in the Honors College, LeadState, Taylor Swift Society, and she currently serves as the Parade Assistant Pooba for the Hobo Day Committee. The Students' Association is comprised of all General Activity Fee-paying students at South Dakota State University. The Students' Association Senate is the official student government organization at SDSU, consisting of 26 senators representing each of the academic colleges and the student body president and vice president. The Students' Association Senate serves as a representative body to bring the voice of SDSU students to university administration, faculty, staff, state legislators and the South Dakota Board of Regents of Higher Education. The Students' Association also allocates student fee funds to support various campus entities, facilities and many student organizations. SDSU SA Website:<https://www.sdstate.edu/students-association> City of Brookings Printed on 8/29/2024Page 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 24-0426,Version:1 Presentation on Brookings Pre-Disaster Mitigation Plan Summary and Recommended Action: First District is assisting Brookings County in the update of the county’s Pre-Disaster Mitigation (PDM) Plan. First District staff will review and update the worksheets for the Brookings community. Attachments: Memo Hazard Identification Worksheet Hazard Vulnerability Worksheet Critical Structure - Infrastructure List Hazard Vulnerability - Critical Infrastructure Map Mitigation Activity Sites Map Mitigation Project Worksheet City of Brookings Printed on 8/26/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: Luke Muller, First District Association of Local Governments Council Meeting: August 27, 2024 Subject: Pre-Disaster Mitigation Plan Presenter: Luke Muller, First District Association of Local Governments Summary and Recommended Action: First District is assisting Brookings County in the update of the county’s Pre-Disaster Mitigation (PDM) Plan. First District staff will review and update the worksheets for the Brookings community. Item Details: First District is assisting Brookings County in the update of the county’s Pre-Disaster Mitigation (PDM) Plan. Brookings County is required to update its PDM Plan every five years in order to maintain eligibility for federal funding for disaster mitigation projects and other federal funding/programs. The last plan was approved by FEMA in 2019. For the purposes of this plan, municipalities are considered participating units of government. One of the components of the PDM Plan involves identifying critical infrastructure to be protected from potential hazards. Legal Consideration: None. Strategic Plan Consideration:  Safe, Inclusive, Connected Community – The City of Brookings will create an environment for inclusive programs, gathering places, and events where the community can safely live, work and come together to participate in opportunities for learning, recreation and enjoyment.  Sustainability – The City of Brookings will meet environmental, community and economic desires and needs without compromising future generations’ quality of life by strategically planning, implementing and maintaining infrastructure and facilities. Financial Consideration: None Supporting Documentation: Hazard Identification Worksheet Hazard Vulnerability Worksheet Critical Structure - Infrastructure List Hazard Vulnerability - Critical Infrastructure Map Mitigation Activity Sites Map Mitigation Project Worksheet 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 24-029,Version:2 Second Reading and Action on Ordinance 24-029, an Ordinance Certifying the 2025 City of Brookings Property Tax Levy to the Brookings County Finance Officer. Summary and Recommended Action: Staff recommends approval of this ordinance to certify the 2025 Property Tax Levy request in the amount of $4,198,703 to the Brookings County Finance Officer per SDCL 9-21-20. Attachments: Memo Ordinance City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: Ashley Rentsch, Finance Director Council Meeting: August 27, 2024 Subject: Ordinance 24-029: Certifying the 2025 Property Tax Levy Presenter: Ashley Rentsch, Finance Director Summary and Recommended Action: Staff recommends approval of this ordinance to certify the 2025 Property Tax Levy request in the amount of $4,198,703 to the Brookings County Finance Officer per SDCL 9-21-20. Item Details: SDCL 9-21-20 requires that municipalities certify tax levies included in the annual appropriation ordinance to the County Finance Officer, and SDCL 10-13-35.4 limits the maximum revenue amount payable to the amount certified the previous year plus a percentage increase based on new construction growth and the consume r price index. The calculation for the 2025 property tax levy was calculated as follows: Previous year certified amount: $3,993,729 Growth Factor (2.1324 %): 85,162 Consumer Price Index Factor (3.0%): 119,812 Total Tax Levy: $4,198,703 Legal Consideration: Property tax levy is being certified in accordance with State law. Strategic Plan Consideration:  Fiscal Responsibility – The City of Brookings will responsibly manage resources through transparency, efficiency, equity, and exceptional customer service.  Sustainability – The City of Brookings will meet environmental, community and economic desires and needs without compromising future generations’ quality of life by strategically planning, implementing and maintaining infrastructure and facilities. Financial Consideration: The City will increase property tax revenues by the growth and consumer price index factors to support General Fund objectives. Supporting Documentation: Ordinance ORDINANCE 24-029 AN ORDINANCE CERTIFYING THE 2025 CITY OF BROOKINGS PROPERTY TAX LEVY TO THE BROOKINGS COUNTY FINANCE OFFICER. BE IT ORDAINED by the governing body of the City of Brookings, South Dakota that the City Manager is hereby directed to certify the following amount of Property Tax Levy to the County Finance Officer of Brookings County, South Dakota, in the manner provided by law. General Fund $4,198,703 FIRST READING: August 27, 2024 SECOND READING: September 10, 2024 PUBLISHED: 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 24-028,Version:2 Second Reading and Action on Ordinance 24-028, an Ordinance Granting a Franchise to Mediacom Minnesota LLC to Construct, Operate, and Maintain a Cable Television System in the City of Brookings, SD, Setting Forth Conditions Accompanying the Grant of the Franchise; Providing for Regulation and Use of the System; and Prescribing Penalties for the Violation of its Provisions. Summary and Recommended Action: Staff recommends approval of a 10-year Cable Television Franchise Ordinance with Mediacom Minnesota LLC (“Mediacom”). Attachments: Memo Ordinance - clean Ordinance - marked City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: Steve Britzman, City Attorney Council Meeting: August 27, 2024 Subject: Ordinance 24-028: Granting a Cable Television Franchise Renewal to Mediacom Minnesota LLC Presenter: Steve Britzman, City Attorney Summary and Recommended Action: Staff recommends approval to approve a 10-year Cable Television Franchise Ordinance with Mediacom Minnesota LLC (“Mediacom”). Item Details: Ordinance No. 24-028 is a Ten-year Franchise Ordinance granting the non-exclusive right to operate a cable television system in Brookings. Mediacom has been a cable television provider in Brookings for decades. The current Cable Television Franchise with Mediacom is expiring and renewal is necessary. The proposed term of the proposed Mediacom Cable Television Ordinance is 10 years, and provides for a franchise fee of 5%. This Franchise Agreement provides important terms and conditions to protect both the City and Mediacom in the provision of cable television services within Brookings. Legal Consideration: The City Attorney has prepared / reviewed the proposed Ordinance. Strategic Plan Consideration:  Safe, Inclusive & Connected Community. The provision of cable television services provides entertainment, community and public safety information throughout Mediacom’s service territory.  Fiscal Responsibility. The 5% Cable Franchise Fee provides funding for the City’s facilities and infrastructure. Financial Considerations: The proposed Franchise Ordinance provides for a 5% franchise fee based upon cable services revenues, which is the maximum fee permitted by Federal Law. Supporting Documentation: Ordinance – Clean Ordinance – Marked 2 ORDINANCE 24-028 AN ORDINANCE GRANTING A FRANCHISE TO MEDIACOM MINNESOTA LLC TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE CITY OF BROOKINGS, SOUTH DAKOTA, SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF ITS PROVISIONS. The City Council of the City of Brookings ordains: STATEMENT OF INTENT AND PURPOSE The City intends, by the adoption of this Franchise, to bring about the development of a Cable Television System, and the continued operation of it. Such a development shall contribute significantly to the communication needs and desires of many. FINDINGS In the review of the application of Mediacom Minnesota LLC ("Grantee"), and as a result of a public hearing, the City Council makes the following findings: 1. The Grantee's technical ability, financial condition, legal obligations, and character were considered and approved in a full public proceeding after due notice and a reasonable opportunity to be heard; 2. Grantee's plans for constructing, upgrading, and operating the System were considered and found acceptable in a full public proceeding after due notice and a reasonable opportunity to be heard; 3. The Franchise granted to Grantee by the City complies with the existing applicable state and federal laws and regulations. SECTION 1. SHORT TITLE AND DEFINITIONS Short Title. This Franchise Ordinance shall be known and cited as the Mediacom Minnesota LLC Cable Television Franchise Ordinance or as the Franchise Agreement. Definitions. For the purposes of this Franchise, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. The word "may" is directory and discretionary and not mandatory. "Basic Cable Service" means any Cable Service tier that includes the lawful 3 retransmission of local television broadcast signals and any Public, Educational, and Governmental Access programming required by this Ordinance or a Franchise Agreement to be carried on the basic tier. Basic Cable Service as defined herein shall be consistent with 47 U.S.C. § 543(b)(7) (1997), as may from time to time be amended. "Cable Act" means the Cable Communications Policy Act of 1984, Pub. L. No. 98 -549, (codified at 47 U.S.C. §§ 521-611 (1982 & Supp. V. 1987) as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, and the Telecommunications Act of 1996, Pub. L. No. 104-104 (1996) as may, from time to time, be amended. "Cable Service" or "Service" means: A. The transmission to Subscribers of video programming or Other Programming Service; and B. Subscriber interaction, if any, that is required for the selection or use of such video programming or Other Programming Service; "Cable Television System" or "Cable System" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service to multiple Subscribers within the Franchise Area, but such term does not include: A. A facility that serves only to retransmit via broadcast the television signals of one or more television broadcast stations; B. A facility that serves Subscribers without using any public Right-of-Way; C. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as it may be amended, except that such facility shall be considered a Cable System to the extent such facility, whether on a common carrier basis or otherwise, is used in the transmission of video programming directly to Subscribers unless the extent of such use is solely to provide interactive on- demand services; D. An Open Video System that complies with§ 653 of the Telecommunications Act; and E. Any facilities of any electric utility used solely for operating its electric utility System. "Capital Costs" means costs associated with assets, including but not limited to equipment and facilities, that will provide Service for more than one year, whether incurred during initial construction or throughout the life of a System. "Channel" means a portion of the frequency spectrum that is used in a Cable System and which is capable of delivering a television Channel as defined by the Federal Communications Commission. 4 "City" means the City of Brookings, South Dakota. The City is sometimes also referred to as "Grantor" in this Franchise Ordinance. "Community Access Corporation" or "CAC" means a non-profit Access Corporation serving the City, its assignees or delegees, whose duties shall include the management, and programming of the PEG Access Channels. "Complaint" means any written, faxed or electronic inquiry, allegation, or assertion made by a Person regarding Service. While "Complaint" does not include oral complaints, Grantee shall use reasonable efforts to log oral complaints it receives and shall not be obligated to provide verbatim reports or transcripts of oral complaints provided the nature of the complaint is adequately provided to the City if requested by City. "Converter" means an electronic device that converts signals to a frequency not susceptible to interference within the television receiver of a Subscriber and, through the use of an appropriate Channel selector, permits a Subscriber to view all authorized Subscriber signals delivered at designated converter dial locations. "Council" means the City Council of Brookings, South Dakota. "Drop" means the cable or cables that connect the users of the System to the distribution System. "Educational Access Facilities" means: A. Channel capacity designated for non-commercial educational access programming use; and B. Facilities and equipment for the use of such capacity. "Effective Date" means the date a Franchise becomes effective in accordance with the Franchise and the rules and procedures of the City. "FCC" means the Federal Communications Commission and any legally appointed, designated or elected agent or successor. "Franchise" means the rights and obligations extended by the City to a Person to own, lease, construct, maintain, or operate a Cable System in the Right-of-Way within the Franchise Area for the purpose of providing Cable Services. Any such authorization, in whatever form granted, shall not mean or include: (i) any other permit or authorization required for the privilege of transacting and carrying on a business within the City required by the ordinances and laws of the City; (ii) any permit, agreement, or authorization required in connection with operations in the Right-of- Way including, without limitation, permits and agreements for placing devices on or in poles, conduits, or other structures, whether owned by the City or a private entity, or for excavating or performing other work in or along the Right -of-Way. 5 "Franchise Agreement" means a Franchise granted pursuant to this Ordinance. "Franchise Area" means the telecommunications territory as currently on file with the South Dakota Public Utilities Commission, and as such territory is modified subsequent to the adoption of this Franchise Agreement. "Franchise Fee" means any tax, fee, or assessment of any kind imposed by the City or other governmental entity on a Grantee or Cable Subscriber, or both, solely because of its status as such. The term "Franchise Fee" does not include: (i) any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment that is unduly discriminatory against cable operators or cable Subscribers); (ii) Capital Costs that are required by a Franchise Agreement to be incurred by a Grantee for PEG Access Facilities; (iii) requirements or charges incidental to the awarding or enforcing of a Franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or (iv) any fee imposed under Title 17 of the United States Code. "Government Access Facilities" means: A. Channel capacity designated for non-commercial governmental access programming use; and B. Facilities and equipment for the use of such channel capacity. "Grantee" means Mediacom Minnesota LLC, its agents and employees, lawful successors, transferees or assignees. "Grantor" means the City and its successors or delegates. "Gross Revenues" means any revenue derived directly or indirectly by a Grantee from the operation of its Cable System to provide Cable Service, within the Franchise Area, other than Internet Access Service or telecommunications services, each as defined under federal law, or other services for which the Grantee is subject to a separate franchise ordinance. Gross Revenues shall include "pay" cable service fees charged to customers within the Franchise area. The term "Gross Revenues" does not include taxes on Services furnished by Grantee and imposed by any municipality, state, or other governmental unit and collected by Grantee for such governmental unit. (e.g. tax on the Franchise Fee) In addition, the FCC User Fee is not included in Gross Revenue. Fees for Internet Access Service shall not be included in Gross Revenues unless in accordance with applicable law such service may be subject to local franchise fees. It is understood and agreed that the Grantee operates other telecommunications services within the City of Brookings. Gross revenues, as defined in this paragraph, pertain to only revenue derived by the Grantee from the operation of its cable system and not from any other telecommunications service or Internet Access Service 6 Grantee offers in the City of Brookings. Specifically, Gross Revenues include all recurring video revenues including revenue from packaged video offerings both residential and commercial, the video portion of bundled services that include other telecommunication services, , premium video services, music packages, specialized equipment used in multiple dwelling units, and fees charged to video customers who do not have additional telecommunications services with Mediacom Minnesota LLC. “Internet Access Service” unless determined otherwise under applicable law, means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers, unless applicable Federal law determines that proprietary content provided over the Internet is a cable service. See 47 U.S.C. §231(e)(4). "Lockout Device" means a mechanical or electrical accessory to a Subscriber's terminal that inhibits the 3video or audio portions of a certain program or certain Channel(s) provided by way of a Cable System. "Normal Business Hours" means, unless otherwise defined in a Franchise Agreement, those hours during which the Grantee's business is open in Brookings to serve its telecommunications customers. "Normal Operating Conditions" means any and all service and operational situations or conditions that are ordinarily within the control of a Grantee, including but not limited to, special promotions; pay-per-view events; rate increases; regular peak or seasonal demand periods; and maintenance, repair or upgrade of the Cable System, and any associated computer or software systems. Those conditions that are not within the control of a Grantee including but not limited to, natural disasters; civil disturbances; power outages; telephone network outages; and severe or unusual weather conditions. "Other Programming Service" means information that a Grantee makes available to all Subscribers generally. "Person" means any corporation, partnership, proprietorship, individual, organization, governmental entity or any natural person. "Public Access Facilities" means: A. Channel capacity designated for non-commercial public access programming use; and B. Facilities and equipment necessary for the use of such channel capacity. "Resident" means any Person residing in the City. "Service Interruption" means the loss of picture, sound, or data on one or more cable Channels on the System, or the degradation of the picture and/or sound quality on 7 such Channels to the extent that the subscriber is unable to use the signals. "Standard Installation" means any Service installation that can be completed using a Drop of one hundred twenty-five (125) feet or less, unless otherwise agreed to in the Franchise Agreement. "Street" means the surface of, and the space above and below, any public street, road or highway, sidewalk, easement or right-of-way now or hereafter held by City. "Subscriber" means any Person that lawfully elects to subscribe to Cable Service provided by a Grantee by means of, or in connection with, the Cable System. "System" means a Grantee's Cable System operated pursuant to a Franchise Agreement within the Franchise Area. SECTION 2. GRANT OF AUTHORITY AND GENERAL PROVISIONS 1. Grant. A Cable Television Franchise is hereby granted to Mediacom Minnesota LLC, subject to the terms and conditions of this Franchise Agreement (hereinafter also referred to as the "Agreement"). The Agreement provides Grantee with the authority, right and privilege, to construct, reconstruct, operate and maintain a Cable Television System and to provide cable service and any other cable services permitted by this Franchise or applicable law within the Streets in the City as it is now or may in the future be constituted. This Franchise does not prohibit or grant any franchise rights concerning the provision of Internet Access Services or "telecommunications services" which is defined as: "the offering of telecommunications" for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used." 2. Effective Date of This Franchise. This Franchise shall be effective on the date that both parties have executed this Franchise Agreement, provided that said date is no later than sixty (60) days after the date that the City Council, by resolution, approves this Franchise Agreement. The Franchise is further contingent upon the filing by Grantee with the City Clerk, of the executed Franchise Agreement and the required insurance certificates, except that if the filing of any such insurance certificate does not occur within sixty (60) days after the effective date of the resolution approving this Franchise Agreement and any extension of time hereunder, the Grantor may declare this Franchise Agreement null and void. 3. Franchise Required. It shall be unlawful for any Person to construct, operate or maintain a Cable Television System in City unless such Person or the Person for whom such action is being taken shall have first obtained and shall currently hold a valid Franchise Agreement. It shall also be unlawful for any Person to provide Cable Service in City unless such Person shall have first obtained and shall currently hold a valid Franchise Agreement. 8 4. Governing Requirements. Grantee shall comply, with all lawful requirements of this Franchise Agreement and applicable State and Federal law. 5. Grant of Nonexclusive Franchise. (a) The Grantee shall have the right and privilege to construct, erect, operate, and maintain, in, upon, along, across, above, over and under any public street, road or highway, sidewalk, easement or right-of-way now laid out or dedicated and all extensions thereof, and additions thereto in City, poles, wires, cables, underground conduits, manholes, and other television conductors and fixtures necessary for the maintenance and operation in City of a Cable Television System as herein defined. (b) This Franchise shall not be construed as any limitation upon the right of Grantor, through its proper offices, and in accordance with applicable law, to grant to other qualified Persons or corporations rights, privileges or authority similar to the rights, privileges and authority herein set forth, in the same or other Streets the Grantee is entitled to occupy by this Franchise Agreement, permit or otherwise; provided, however, that such additional grants shall not operate to materially modify, revoke or terminate any rights granted to Grantee herein. 6. Franchise Term. This Franchise shall be in effect for a period of ten (10) years from the effective date, unless renewed, revoked, terminated , shortened or extended as herein provided. 7. Previous Franchises. Intentionally deleted. 8. Rules of Grantee. Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable said Grantee to exercise its rights and perform its obligations under this Franchise. 9. Franchise Area. This Franchise is granted for the area defined in Grantee's Geographical Coverage area (defined in Franchise Area and in Section 10. below), as it exists from time to time. 10. Geographical Coverage. (a) Grantee shall design, construct and maintain the Cable Television System to have the capability to pass every dwelling unit within the Grantee's telecommunications territory as currently on file with the South Dakota Public Utilities Commission, and subject to any line extension requirements of the Franchise Agreement 9 (b) After service has been established by activating trunk and/or distribution cables for any part of the City, Grantee shall provide Cable Service to any requesting Subscriber provided the Service Installation can be completed using a Drop of One Hundred Twenty-five Feet (125') or less and provided the requesting Subscriber resides within the City, within thirty (30) days from the date of request, provided that the Grantee is able to secure all rights-of-way necessary to extend service to such Subscriber within such thirty (30) day period on reasonable terms and conditions. 11. Written Notice. All notices, reports, or demands required to be given in writing under this Franchise shall be deemed to be given when delivered personally to any officer of Grantee or to the City Manager of the City of Brookings, or forty-eight (48) hours after it is deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the party to who m notice is being given, as follows: If to City: City of Brookings Attn: City Manager 520 3rd St., Suite 230 Brookings, South Dakota 57006 If to Grantee: Mediacom Minnesota LLC Government Relations Director 1504 2nd Street SE Waseca, MN 56093 With a copy to: Mediacom Communications Legal Department One Mediacom Way Mediacom Park, NY 10918 Such addresses may be changed by either party upon notice to the other party given as provided in this Section. 12. Public, Educational or Government Access Facilities. (a) Grantee shall make available to each of its subscribers who receive some or all of the Cable Services offered on the System, reception of at least two (2) access channels, which shall be used for noncommercial purposes as follows: 1. Educational access; 2. Government access; The channels designated for access shall be provided by Grantee as a part of 10 the basic cable service. The access channels shall be made available by Grantee for use by the City and its citizens in accordance with the rule s and procedures established by the City or any lawfully designated person, group, organization or agency authorized by the City for that purpose. (b) In addition, Grantee shall dedicate a third additional channel for public, educational or governmental access upon the City's request if any access channel is in continuous use from 8:00 a.m. to 11:00 p.m. for three (3) consecutive months provided, however: (1) The use of repeat programming in excess of ten percent of the amount of original programming on that channel, as well as text or character-generated programming shall not be considered a continuous use. (2) The access channels shall be considered separately. Continuous use of one channel to capacity as defined in this section is sufficient to initiate a request for an additional channel. (3) In no event shall Grantee be required to provide in excess of four (4) access channels total. (4) To the extent that any access channel is not being used for the provision of non- commercial, public, educational or governmental acc ess purposes, Grantee shall be permitted to use such channel(s) for the provision of other services. Grantee's permitted use of any access channel made pursuant to this section shall cease within ninety (90) days of Grantee's receipt of notice from City t hat such channel will again be used for public, educational or governmental access. (c) Notwithstanding the above, Grantee may accommodate a request from the City for additional access capacity made pursuant to this Section by combining more than one access use on a channel provided that: (1) It is technically and economically feasible for Grantee to do so; (2) The scheduling needs of all users of the channel can be reasonably accommodated; and (3) The access entity, which requires use of the alternate channel, must be able to access the alternate channel from the site where it normally originates playback of its programs and may not be required to transport tapes to a remote site for playback. (d) Origination Points Grantee shall provide free cable transmission facilities at City Hall only in the 11 event City Hall is within the Franchise area of the Grantee, provided the cost of providing such cable transmission facilities does not exceed the sum of Ten Thousand Dollars ($10,000.00), and any costs of providing such cable transmission facilities is divided between the City and any Cable Television Franchise holders based on their respective number of subscribers. Grantee shall also contribute to the cost of modulation equipment to introduce programming onto transmission facilities with other Franchise holders based on Grantees share of the respective subscriber numbers of all Franchise holders. Grantee shall be permitted to pass this cost to Subscribers to the extent permitted by Federal and State law. However, costs of providing said facilities shall not be a credit against payment of the Franchise fee imposed under this Franchise Agreement. (e) Equipment and Facilities for Public, Educational or Government Access Facilities Grantee's Responsibility for Equipment. Grantee is responsible for all headend equipment, including repair and maintenance, essential to playback of programming of signals generated by City or its Access producing designees. City's Responsibility for Access. The City shall be responsible for the operat ion of Government Access Facilities and equipment. In this regard City may delegate from time to time its responsibilities to others who then shall assume the responsibility of City in accordance with the City's delegation. The City will develop reasonable rules regarding use of Access Facilities and equipment and determine the needs of the City for public, educational and governmental access services. In this regard, the City shall regularly coordinate with Grantee for the purpose of developing and mainta ining reasonable Access Facilities. The City, or persons to whom it delegates responsibility for access, shall have the responsibility to provide funding for operating expenses associated with public, educational and governmental access. 13. Drops to Public Buildings. Subject to applicable law, Grantee shall provide Standard Installation of one (1) cable Drop, one (1) cable outlet, and monthly Basic Cable Service without charge to the public buildings, including City, County and Public School buildings which are located within Grantee's Franchise Area. Drops and/or outlets in any locations within Grantee's Franchise Area will be provided by Grantee at the cost of Grantee's time and material. Alternatively, at the institution's request, said institution may add outlets at its own expense, as long as such installation meets Grantee's standards and provided that any fees for Cable Services are paid. Nothing herein shall be construed as requiring Grantee to extend the System to serve additional institutions as may be designated by City. 12 14. Periodic Evaluation and Review. Grantor and Grantee acknowledge and agree that the field of cable television is a rapidly changing one that may see many regulatory, technical, financial, marketing and legal changes during the term of this Franchise Agreement. Therefore, to provide for the maximum degree of flexibility in this Franchise Agreement, and to help achieve a continued advanced Cable System, the following evaluation and review provisions will apply: (a) The City may request evaluation and review sessions at any time during the term of this Agreement and Grantee shall cooperate in such review and evaluation; provided, however, that there shall not be more than one (1) evaluation and review session every three years. (b) Topics that may be discussed at any evaluation and review session include, but are not limited to, rates, channel capacity, the System performance, programming, PEG access, municipal uses of cable, Subscriber complaints, judicial rulings, FCC rulings and any other topics that the City or Grantee may deem relevant. (c) During an evaluation and review session Grantee shall fully cooperate with the City and shall provide without cost such reasonable information and documents as the City may request to perform the evaluation and review. The Grantee shall not be compelled to produce information which is deemed to be proprietary and confidential. (d) If at any time during the evaluation and review, the City reasonably believes that there is evidence of inadequate technical perf ormance of the Cable System, the City may require Grantee, at Grantee's expense, to perform appropriate tests and analyses directed toward such suspected technical inadequacies. In making such requests, the City shall describe and identify in writing as specifically as possible the nature of the problem, the reason the City has requested special testing and the type of test that the City believes to be appropriate. Grantee shall cooperate fully with the City in performing such tests and shall report to the City the results of the tests, which shall include at least: (1) The System component tested; (2) the equipment used and procedures employed in testing; (3) the results of the test(s) and, if necessary, the method by which the System performance problem was resolved; and (4) any other information pertinent to said tests and analyses; (e) As a result of an evaluation and review session, the City or Grantee may determine that a change in the System or in the terms of the Franchise Agreement may be appropriate. In that event, either the City or the Grantee 13 may propose modifications to the System or the Franchise. Grantee and the City shall review the terms of the proposed change and any proposed amendment to this Franchise Agreement and seek to reach agreement on such change or amendment provided the change or amendment is not inconsistent with applicable law or regulations and the change or amendment technically feasible, economically reasonable and will not result in a material alteration of the rights and duties of the parties under the Franchise Agreement. SECTION 3. CONSTRUCTION STANDARDS 1. Construction Codes and Permits. (a) Grantee shall obtain all necessary permits from City before commencing any construction upgrade or extension of the System, including the opening or disturbance of any Street, or private or public property within City. (b) The City shall have the right to inspect all construction or installation work performed pursuant to the provisions of the Franchise and to make such tests at its own expense as it shall find necessary to ensure compliance with the terms of the Franchise and applicable provisions of local, state and federal law and to protect the public health, safety and welfare of Grantor's citizens. Grantee shall have the right to be present at such inspections. 2. Repair of Streets and Property. Any and all Streets or public property or private property, which are disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance or reconstruction of the System sha ll be promptly and fully restored by Grantee, at its expense, to a condition as good as that prevailing prior to Grantee's work. 3. Building Movers. The Grantee shall, on request of any Person holding a moving permit issued by City, temporarily move its wire s or fixtures to permit the moving of buildings with the expense of such temporary removal to be paid by the Person requesting the same, and the Grantee shall be given not less than five (5) business days advance notice to arrange for such temporary change s. The Grantee shall have the right to require advance payment for the costs of moving its facilities. 4. Tree Trimming. The Grantee shall consult with the City Forester for approval to trim any trees upon and overhanging the Streets, alleys, sidewalks, or p ublic easements of City so as to prevent the branches of such trees from coming in contact with the wires and cables of the Grantee. 5. No Waiver. Nothing contained in this Franchise shall relieve any Person, as defined in this Agreement, from liability arising out of the failure to exercise 14 reasonable care to avoid injuring Grantee's facilities. 6. Undergrounding of Cable. (a) In all areas of City where all other utility lines are placed underground, Grantee shall construct and install its cables, wires and other facilities underground. (b) In any area of City where one or more public utilities are aerial, Grantee may construct and install its cables, wires and other facilities from the same pole with the consent of the owner of the pole. 7. Safety Requirements. The Grantee shall at all times employ ordinary and reasonable care and shall install and maintain in use nothing less than commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. 8. Drop Burial. Temporary drops will be buried within sixty (60) days of installation. Such sixty (60) day period shall not apply if the installation is made during the winter months, which shall be defined as November 15 to April 1. The installation period shall be extended throughout the winter months until weather conditions permit the Grantee to complete such drop buries. In the event the Grantee fails to bury said drops within sixty (60) days if outside the winter months or if the installation is made during the winter months, within sixty days after the winter months, the City shall notify the Grantee of violation of this section in accordance with the enforcement provisions in this Franchise Agreement. All subscriber drops that are located underground shall comply with National Electrical Code (NEC) standards and shall be buried to minimum depth of six (6) inches. SECTION 4. OPERATIONS PROVISIONS 1. System Design and Channel Capacity. (a) Grantee shall develop, construct and operate a System capable of providing a minimum of 60 channels of video programming during the term of this Franchise Agreement. (b) All final programming decisions remain the discretion of Grantee; provided that Grantee notifies City and Subscribers in writing thirty (30) days prior to any channel additions, deletions, or realignments, and further subject to Grantee's signal carriage obligations hereunder and pursuant to 47 U.S.C. § 531-536, and further subject to City's rights pursuant to 47 U.S.C. § 545. 15 2. Special Testing. (a) City may require special testing of a location or locations within the System if there is a particular matter of controversy or unresolved complaints pertaining to such locations(s). Demand for such special tests may be made on the basis of complaints received or other evidence indicating an unresolved controversy or noncompliance. Such tests shall be limited to the particular matter in controversy or unresolved complaints. The City shall endeavor to so arrange its request for such special testing so as to minimize hardship or inconvenience to Grantee or to the Subscribers caused by such testing. (b) Before ordering such tests, Grantee shall be afforded thirty (30) days to correct problems or complaints upon which tests were ordered. The City shall meet with Grantee prior to requiring special tests to discuss the need for such and, if possible, visually inspect those locations which are the focus of concern. If, after such meetings and inspections, City wishes to commence special tests and the thirty (30) days have elapsed without correction of the matter in controversy or unresolved complaints, the tests shall be conducted by a qualified engineer selected by City and Grantee. In the event that special testing is required by City to determine the source of technical difficulties, the cost of said testing shall be borne equally by the Grantee and the City. 3. Parental Control Lock. Grantee shall provide, for sale or lease, to Subscribers, upon request, a parental control locking device or digital code that permits inhibiting the video and audio portions of any channels offered by Grantee. 4. Emergency Alert Capability. Within thirty-six (36) months of the effective date of this Agreement, Grantee shall provide an Emergency Alert System (EAS) in accordance with FCC Rules and Regulations and applicable law. SECTION 5. SERVICES AND PROGRAMMING PROVISIONS. 1. Programming. (a) Broad programming categories. Grantee shall provide or enable the provision of at least the following initial broad categories of programming: (1) Educational programming; (2) News & information; (3) Sports; 16 (4) General entertainment (including movies); (5) Children/family-oriented; (6) Arts; culture and performing arts; (7) Science/documentary; (8) Weather information; (9) Public affairs; (b) Deletion or reduction of programming categories. (1) Grantee shall not delete or so limit as to effectively delete any broad category of Programming identified in this Section and within its control without the consent of the City or as otherwise authorized by law. (2) In the event of a modification proceeding under Federal law, the mix and quality of services provided by the Grantee on the effective date of this Franchise shall be deemed the mix and quality of services required under this Franchise throughout its term. 2. Leased Commercial Access. If Grantee offers leased commercial access, it shall do so in accordance with applicable Federal law. 3. Subscriber Inquiries. Grantee shall have a publicly listed toll-free telephone number and be operated so as to receive Subscriber complaints and requests on a twenty-four (24) hour-a-day, seven (7) days-a-week basis. 4. Refund Policy. In the event a Subscriber established or terminates service and receives less than a full month's service, Grantee shall prorate the monthly rate on the basis of the number of days in the period for which service was rendered to the number of days in the billing period. 5. General Technical Standards and Customer Service Practices. A. This Ordinance incorporates technical standards and establishes customer Service practices that a Grantee must satisfy. B. In accordance with applicable law, Grantee shall maintain such equipment and keep such records as are reasonably required to enable the City to determine whether the Grantee is in compliance with all standards required by these regulations and other applicable laws. 17 Technical Standards. The technical standards used in the operation of a System shall comply, at minimum, with the technical standards promulgated by the FCC relating to Cable Systems pursuant to the FCC's rules and regulations and found in Title 4 7, Sections 76.601 to 76.617, as may be amended or modified from time to time, which regulations are expressly incorporated herein by reference. Test and Compliance Procedure. Tests for a System shall be performed in accordance with the FCC's rules and regulations. Representatives of the City may witness the tests and written test reports shall be made available to the City upon reasonable prior written request. If more than ten percent (10%) of Grantee's locations in the City tested fail to meet the performance standards, Grantee shall be required to indicate what corrective measures have been taken and the entire test shall be repeated if requested by the City. Emergency Requirements. Grantee must provide emergency alert override capabilities in a manner consistent with the FCC's Emergency Alert System ("EAS") rules and consistent with any State and/or regional Emergency Alert System plans adopted in response to the FCC's EAS rules that are applicable to the Franchise Area. Programming Decisions. In accordance with applicable law, Grantee shall provide programming from each of the broad programming categories listed in accordance with the Franchise Agreement. All programming decisions remain within the sole discretion of each Grantee provided that Grantee complies with federal law regarding notice to Grantor and Subscribers prior to any Channel additions, deletions, or realignments, and further subject to the Grantee's signal carriage obligations pursuant to 47 U.S.C. §§ 531 -536, as may be amended and subject to the City's rights pursuant to 47 U.S.C. § 545, as may be amended. Cable System Hours and Telephone Availability. A. Grantee shall maintain a publicly listed toll-free or collect call telephone access line that is available to Subscribers twenty-four (24) hours a day, seven (7) days a week. The local or toll-free numbers shall be listed, with appropriate explanations, in all widely utilized local phone directories. B. Grantee shall have trained representatives available to respond to Subscriber telephone inquiries during Normal Business Hours. The term "trained representatives" shall mean employees of the Grantee who have the authority and capability while speaking with a Subscriber to, among other things, answer billing questions, and schedule Service and installation calls. C. All employees of the Grantee shall identify themselves when answering an incoming call or inquiry, or while working in the field. Supervisory personnel must use reasonable efforts to respond to Subscriber requests to 18 speak with a "manager or supervisor" within one business day of the request under Normal Operating Conditions, during Normal Business Hours and supervisory personnel will respond no later than the next business day. D. After Normal Business Hours, the telephone access line may be answered by a Service or an automated response System, including an answering machine. Inquiries received after Normal Business Hours must be responded to by a trained representative on the next business day. E. Under Normal Operating Conditions, telephone answer time by a customer Service representative or automated response unit, including wait time, should not exceed thirty (30) seconds. If a call must be transferred, transfer time should not exceed thirty (30) seconds. F. Under Normal Operating Conditions, Subscribers should not receive a busy signal more than three percent (3%) of the time. Standards provided in the immediately preceding Section F. and this Section are intended to be reasonable, and while not mandatory, represent reasonable service quality standards. G. The period of three (3) hours following major outages (more than 25% of the Grantee's Subscribers) or periods of natural disasters are not included in the response requirements above, provided that Grantee has used reason able best efforts to provide voice-mail information about the outage on phone answering equipment and the System bulletin board (assuming outage is not City-wide) and the Grantee provides documentation to City as soon as reasonably possible following the o utage, including beginning and ending times, area of outage, location and cause of problem. H. Grantee shall respond to all Subscriber or user inquiries or complaints within ten (10) days of the inquiry or complaint, unless the resolution of the Subscriber or user inquiries or complaints is not reasonably available within that time frame, in which case Grantee shall respond as soon as reasonably possible. The requirement that Grantee respond to all Subscriber or user inquiries or complaints within ten (10) days of the inquiry or complaint as provided above shall apply except to the extent a more stringent standard is set forth for specific types of activities, inquiries or complaints in this Franchise Ordinance/Agreement. Installations, Outages, and Service Calls. Under Normal Operating Conditions, each of the following standards must be met no less than ninety-five percent (95%) of the time as measured on a quarterly basis: A. Maintenance Service capability enabling the prompt location and correction of substantial System malfunctions or outages shall be available twenty-four (24) hours a day, seven (7) days a week. B. To the extent practical, at the time an appointment is scheduled, the Grantee shall inform the Subscriber of Service procedures, required payments, 19 possible delays, and phone or field verification procedures which are related to the appointment and/or possible rescheduling/cancellation. C. The appointment window alternatives for Standard Installations and Service calls will be within a maximum four (4) hour time block during Normal Business Hours. Grantees may schedule Service calls and other installation act ivities outside of Normal Business Hours for the express convenience of a Subscriber, if so requested. D. No Grantee may cancel an appointment with a Subscriber after the close of business on the business day prior to the scheduled appointment. E. If a Grantee's representative is running late for an appointment with a Subscriber and will not be able to keep the appointment as scheduled, all reasonable efforts will be made to contact the Subscriber. The appointment must be rescheduled, as necessary, at a time that is convenient for the Subscriber. F. The Grantee may phone the Subscriber within the appointment window to verify that the appointment is still needed. If the subscriber telephone is answered by a machine or Service, the Grantee may leave a message which includes a number the Subscriber may use to call back to confirm or reschedule the appointment. G. Appointments may not be canceled or rescheduled until field personnel of the Grantee make reasonable efforts to verify that the Subscriber or other authorized adult is not at the address for the appointment. H. Upon arrival at the Subscriber's address, if the Grantee verifies that a Subscriber is not at the address during the scheduled appointment window, the Grantee shall leave a door tag or similar notice with the name of the person leaving the notice, the time the person determined that the Subscriber was not at home; and a telephone number the Subscriber may call back to confirm or reschedule an appointment. I. Any vehicle used for the installation, construction, maintenance, or repair of a Cable System shall bear the identification of the Grantee in a conspicuous place and manner. J. Reconnections due to erroneous disconnection based on billing or technical errors must be completed at no charge within twenty-four (24) hours of notification by the affected Subscriber. K. Reconnections after a disconnection attributed to non-payment of bills must be completed within seven (7) business days of Grantee's receipt of back payment. 20 L. The Subscriber may be billed for installations or reconnections as soon as each such service is installed. M. Runs in building interiors shall be as unobtrusive as reasonably possible and outlets shall be located for the convenience of the Subscriber. The Grantee shall use due care in the process of installation and shall repair any damage to the Subscriber's property caused by installation work. Such restoration shall be undertaken as soon as possible after the damage is incurred, shall be subject to reasonable Subscriber approval of the corrective action, and Grantee shall use its best efforts to complete the corrective action within no more than thirty (30) days after the damage is incurred. Should such restoration not be corrected within thirty (30) days, the Grantee shall notify the Subscriber as to the cause for the delay and the date when such action shall be completed. N. Failure of the Grantee to maintain adequate budget, sufficient staff or properly trained staff shall not constitute justification for failure to comply with these provisions. Repairs and Interruptions. A. Every Grantee will begin working on Service Interruptions and outages within a reasonable timeframe but in no event later than twenty-four (24) hours after the Service Interruption becomes known. (1) Any reports of "no picture/no sound" must be responded to within sixteen (16) business hours of such report, unless reported during a weekend or holiday, which shall require a response during the next regular business day. (2) Work not requiring the Operator to enter Subscriber premises (or property) shall not require the Subscriber to be available for an appointment and shall not be delayed on account of the Grantee's inability to arrange an appointment with the Subscriber. B. Work on all other requests for Service must begin by the next business day after notification of the problem. C. The Subscriber does not need to be home for outside plant and line repairs. D. A Grantee may interrupt Service only for good cause and for the shortest time possible, including interruption for System upgrade, maintenance and repair. Grantee shall use reasonable efforts to perform maintenance at times that affect the fewest number of Subscribers. 21 E. A Grantee shall provide a pro rata credit for Service for each Service Interruption exceeding four (4) hours in any twenty-four (24) hour period, unless it is demonstrated that the Subscriber caused the outage, or the outage was planned as part of an upgrade or other work of which the City and the Subscriber received appropriate prior general notification or the Service Interruption was determined to be beyond the control of Grantee. A Subscriber is entitled to a full refund for any Cable System or equipment impairment to pay-per-view event. These credits and refunds shall be made available upon request by Subscriber. F. Service Call Charges. Unless otherwise agreed to, no charge shall be made to a Subscriber for any Service call relating to Grantee owned and Grantee maintained equipment after the initial installation of Cable Service unless the problem giving rise to the Service request can be demonstrated by Grantee to have been: (1) Caused by the negligence or malicious destruction of cable equipment by the subscriber; or (2) A problem established as having been non-cable in origin. (3) A customer education problem requiring unnecessary visits by Grantee. G. An "Identified Outage" is construed as reports ofno picture/no sound from three (3) or more Subscribers in close geographic proximity or along the same trunk or feeder line within twenty (20) minutes of each other. H. Within one (1) hour of an Identified Outage during Normal Business Hours, Service technicians will respond and use all available reasonable means to correct the outage in the shortest possible amount of time. The Grantee shall maintain and forward to the City, upon request, reports on the cause, area, duration and repair of the outage. I. Cable drop lines, cable trunk lines, or any other type of outside wiring that comprise part of the Grantee's Cable System that are located underground, shall be placed in such locations pursuant to City Code, and the surrounding ground shall be restored to a condition which is reasonably comparable to the condition immediately prior to such construction, within seventy-two (72) hours after connection to the Cable System, or such time as agreed to by the property owner. Additional time may be allowed for the completion of such restoration if individual circumstances warrant. The requirements of this subsection shall apply to all installation, reinstallation, Service or repair commenced by the Grantee within the City during Normal Operating Conditions. Communications Between Grantees and Subscribers. 22 A. Notifications to Subscribers: (1) In accordance with applicable law, Grantee shall provide written information to Subscribers on each of the following topics at the time of installation, at least annually to all Subscribers, at any time upon request, and at least thirty (30) days prior to making significant changes in such information: (a) Product and Services offered; (b) Prices and options for programming services and conditions of subscription to programming and other services and facilities; (c) Installation and maintenance policies including, when applicable, information regarding the Subscriber's home wiring rights and information describing ownership of internal wiring during the period Service is provided; (d) Instructions on how to use Services; (e) Channel positions of programming offered on a System; (f) Billing and Complaint procedures, including the name, address and telephone number of the City; (g) The availability of Converters, Lockout Devises or other signal control devices; (h) The Grantee's practices and procedures for protecting against invasions of privacy; and (i) The address and telephone number of the Grantee's office to which Complaints may be reported. (2) Grantee promotional materials, announcements and advertising of Service to Subscribers, including pay-per-view or event programming, shall clearly and accurately disclose price terms. In the case of telephone orders, the Grantee shall take appropriate steps to reasonably explain the price terms to potential customers before the order is accepted. (3) Subscribers will be given thirty (30) days advance notice of any changes in rates, programming Services, or Channel positions through any written means that is reasonably likely to bring such information to the attention of Subscribers. B. Billing: (1) Bills must be clear, concise, and understandable. Bills must be itemized, 23 with itemizations including, but not limited to, Basic and premium Service charges and equipment charges. (2) Bills must clearly show a specific payment due date. (3) If Grantee chooses to itemize, as a separate line item on bills, Franchise Fees or other government imposed fees attributable to the total bill, such fees must be shown in accordance with any applicable law concerning the Grantee's ability to itemize such fees. (4) Bills must also clearly delineate all activity during the billing period, including optional charges, rebates, and credits. Nothing in this section prohibits or restricts a Grantee from offering packages of programming to Subscribers and to identify such packages on the Subscriber bill. (5) The billing statement must clearly and conspicuously indicate the p ast due date, and if applicable the date certain that a Subscriber's Service will be eligible for disconnection. (6) Negative option billing is prohibited unless applicable federal law specifically requires that the Grantee be permitted to engage in such practice. (7) In case of a billing dispute, a Grantee must respond to a written Complaint from a Subscriber within thirty (30) days. Credits for Service shall be issued no later than the Subscriber's next billing cycle after determination that the credit is warranted. Complaint Log. Subject to the privacy provisions of 47 U.S.C. § 521 et seq., Grantor and every Grantee shall prepare and maintain written records of all Complaints made to them and the resolution of such Complaints, including the date of such resolution. Such written records shall be on file at the office of Grantee. Grantee shall make available to Grantor a written summary of such Complaints and their resolution upon request. Lockout Device. A. Grantee shall provide to any Subscriber upon request for sale or lease a Lockout Device for blocking both video and audio portions of any channel(s) of programming entering the Subscriber's premises. B. Scrambling/Blocking. Grantee shall at all times scramble both the audio and video portions of all channels with predominately ad ult oriented programming. Line Extension Policy. No resident within the Franchise Area shall be refused Service arbitrarily. Unless otherwise set forth in the Franchise Agreement, whenever Grantee 24 receives a request for Cable Service in an unserved portio n of the Franchise area where there are at least 25 dwelling units (which shall be interpreted to include businesses that have contractually agreed to subscribe to Cable Service) within one linear cable mile of the Grantee's nearest trunk or distribution c able from which it is technically feasible to extend Service, or the dwelling unit is within 125 feet of Grantee's distribution cable, it shall extend its Cable System to such Subscriber at no cost, other than the published standard installation fee charge d to all Subscribers. Mobility Limited Subscribers. Unless otherwise agreed in this Franchise Ordinance/Agreement, upon the request of mobility-limited Subscribers, Grantee shall arrange for delivery, pickup or exchange or replacement of converters or oth er equipment at the Subscriber's address. Customer Service Reporting Requirements. Based on a substantial number and a documented pattern of verbal or written Complaints received by Grantor, and upon six (6) months notice to Grantee, Grantor may require Grantee to begin collecting data of such Complaints, including, at minimum, the following: A. A telephone report containing the following information relevant to the question of whether the Grantee's telephone answering System complies with the standards of this Ordinance: (1) Total number of calls received by the Call System handling the Franchise Area; (2) Total number of calls abandoned by the Call System handling the Franchise Area; (3) Total percentage of calls abandoned; (4) Percentage of calls answered within thirty (30) seconds; and (5) A description of significant events impacting telephone response times. B. The number of free Standard Installations that were issued for failure to arrive for Standard Installations. C. A significant Service Interruptions report that tracks information on a monthly basis to include: (1) Total number of Service Interruptions; (2) Time of all Service Interruptions; (3) Total hours that the System was out-of-service as related to planned maintenance or Channel line-up changes performed by a Grantee; and 25 (4) Estimated number of Subscribers affected by each incident. In addition to the above, the City may request that Grantee begin Service Interruption reports contain graph(s) that depict Grantee's performance with respect to the items above for the first three (3) year period of this Franchise and thereafter up to a three (3) year period prior to the date the report was requested. D. Results of any technical testing on the System. Dispute Resolution. A. Grantee shall establish procedures for receiving, acting upon, and resolving customer complaints, and crediting customer accounts, without intervention by the Grantor. Such procedures shall prescribe the manner in which any Subscriber may submit a complaint by telephone, fax, e -mail or in writing to the Grantee that it has violated any provision of these Customer Service Standards, any terms or conditions of the Customer's contract with the Grantee, or reasonable business practices. Grantee shall use reasonable efforts to log oral complaints it receives an d shall not be obligated to provide verbatim reports or transcripts of oral complaints provided the nature of the complaint is adequately provided to the Grantor if requested by Grantor. B. The Grantee’s complaint procedure shall be filed with the Grantor. C. The Grantee’s investigation of a Subscriber complaint shall be concluded in no more than fifteen (15) business days after receiving the complaint, at which time the Grantee shall notify the Subscriber of the results of its investigation and its pro posed action. D. The Grantor may also notify the Subscriber of his/her rights to file a complaint with the Grantor in the event the Subscriber is dissatisfied with the Grantee's decision, and shall thoroughly explain the necessary procedures for filing such complaints with the Grantor. E. The Grantor will review and notify Grantee of all complaints it receives against Grantee regarding quality of service, equipment malfunctions, billing disputes, and property damage. In conducting its review, the Grantor may request additional information from the Grantee and/or Subscriber. SECTION 6. FRANCHISE FEE, INSURANCE PROVISIONS 1. Franchise Fee. 26 (a) Grantee shall pay to City an Annual Franchise Fee in the amount of five percent (5%) of its annual Gross Revenues as defined in Section 1. of this Agreement. (b) Any payments due under this provision shall be payable within 30 days of the end of the Grantee's fiscal quarter and shall include a report showing the basis for the computation. Grantee’s responsibility for payment of Franchise Fee under this Agreement shall commence on the first day of the calendar month that is at least 30 days after final execution of this Agreement. Until that time, Grantee shall continue to pay the Franchise Fee under any pre-existing Franchise Agreement with the Local Franchising Authority (c) The City shall have the right, at any time during the term of this Franchise, to increase the Annual Franchise Fee to the maximum percentage permitted by law, however the City shall provide Grantee at least sixty (60) days notice prior to the effective dat e of any increase or decrease of the Annual Franchise Fee. 2. Access to Records. The City shall have the right to inspect, upon reasonable notice and during normal business hours, or require Grantee to provide within a reasonable time, copies of any records maintained by Grantee which relate to System operations including specifically Grantee's accounting and financial records. 3. Indemnification. (a) Except as otherwise provided herein, Grantee shall indemnify, hold harmless, release and defend City, its officers, agents and employees from and against any and all lawsuits, claims, actions, demands, damages, disability, losses, expenses including attorney's fees and other defense costs or liabilities of any nature that may be asserted by any Person or entity arising out of the activities of Grantee, its subcontractors, employees and agents hereunder. Grantee shall be solely responsible and save City harmless from all matters relative to payment of Grantee's employees, including compliance with Social Security, withholding and other payroll requirements. (b) This indemnification obligation is not limited in any way by a limitation of the amount or type of damages or compensation payable by or for Grantee under workers' compensation, disability or other employee benefit acts, acceptance of insurance certificates required under this Agreement, or the terms, applicability or limitations of any insurance held by Grantee. (c) Grantor does not, and shall not, waive any rights against Grantee which it may have by reason of this indemnification, because of the 27 acceptance by Grantor, or the deposit with Grantor by Grantee of any of the insurance policies described in this Franchise Agreement. (d) This indemnification by Grantee shall apply to all damages and claims for damages of any kind suffered by reason of any of the aforesaid operations referred to in this Section, regardless of whether or not such insurance policies shall have been determined to be applicable to any such damages or claims for damages. (e) Grantee shall not be required to indemnify Grantor for negligence or misconduct on the part of Grantor or its officials, boards, commissions, agents, or employees (hereinafter negligence or misconduct may be referred to as "such acts"). Grantor shall hold Grantee harmless for any damage resulting from any such acts of the Grantor or its officials, boards, commissions, agents, or employees in utilizing any PEG access channels, equipment, or facilities and for any such acts committed by Grantor in connection with work performed by Grantor and permitted by this Agreement, on or adjacent to the Cable System. 4. Grantee's Insurance. Grantee shall not commence any Cable System construction work or permit any subcontractor to commence work until both shall have obtained or caused to be obtained all insurance required under this Section. Said insurance shall be maintained in full force and effect until the completion of construction. 5. Workers' Compensation Insurance. Grantee shall obtain and maintain workers' compensation insurance for all of Grantee's employees, and in case any work is sublet, Grantee shall require any subcontractor similarly to provide workers' compensation insurance for all subcontractor's employees, all in compliance with State laws, and to fully protect the Grantor from any and all claims arising out of occurrences resulting from Cable System construction work. Grantee hereby indemnifies Grantor for any damage resulting to it from failure of either Grantee or any subcontractor to take out and maintain such insurance. Grantee shall provide the Grantor with a certificate of insurance indicating workers' compensation coverage with its acceptance of this Franchise Agreement. 6. Insurance. (a) Grantee shall file, with its acceptance of this Franchise Agreement, and at all times thereafter maintain in full force and effect during the entire term of this Franchise at its sole expense, comprehensive general liability insurance that shall protect the Grantee, the Grantor, and the Grantor's officials, officers, employees and agents from claims which may arise from operations under this Franchise, whether such operations are by the Grantee, its officials, officers, directors, employees and agents, or any subcontractor of Grantee. This liability 28 insurance shall include but shall not be limited to protection against claims arising from bodily and personal injury and damage to property, resulting from Grantee's automobiles, products and completed operations. The amount of insurance for single limit coverage applying to bodily and personal injury and property damage shall not be less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in aggregate. The following endorsements shall attach to the liability policy: (1) The policy shall cover personal injury as well as bodily injury. (2) The policy shall cover blanket contractual liability subject to the standard universal exclusions of contractual liability included in the carrier's standard endorsement as to bodily injuries, personal injuries and property damage. (3) Broad form property damage liability shall be afforded. (4) The Grantor shall be named as an additional insured on the policy. (5) An endorsement shall be provided which states that the coverage is primary insurance and that no other insurance carried by the Grantor will be called upon to contribute to a loss under this coverage. (6) Standard form of cross-liability shall be afforded. (7) Each policy of insurance shall contain a statement on its face that the insurer will not cancel the policy or fail to renew the policy, whether for nonpayment of premium, or otherwise, and whether at the request of Grantee or for other reasons, except after thirty (30) days' advance written notice has been provided to Grantor. (b) Grantor reserves the right to adjust the coverage limit requirements no more than every five (5) years. Any such adjustment by the Grantor will be no greater than the increase in the State of South Dakota Consumer Price Index (all consumers) for such five (5) year period. (c) Grantee shall submit to Grantor documentation of the required insurance including a certificate of insurance signed by the insurance agent and companies named, as well as all properly executed endorsements. (d) Any deductible or self-insured retention must be declared to Grantor. SECTION 7. FRANCHISE VIOLATION/REVOCATION OF FRANCHISE 29 1. Franchise Violations. Grantor, by action of the City Manager, shall first notify Grantee of a violation in writing by personal delivery or registered or certified mail, and demand correction within a reasonable time, which shall not be less than t wenty (20) business days in the case of the failure of the Grantee to pay any sum or other amount due the Grantor under this Agreement, and thirty (30) days in all other cases. If Grantee fails to correct the violation within the time prescribed, or if Grantee fails to commence corrective action within the time prescribed and diligently remedy such violation thereafter, the Grantee shall then be given a written notice of not less than thirty (30) days of a public hearing to be held before the City Council. Said notice shall specify the violation(s) alleged to have occurred. (a) At the public hearing, the City Council shall hear and consider all relevant evidence, and thereafter render findings, its decision, and the penalty or penalties for the violation. (b) In the event the City Council finds that Grantee has corrected the violation, or has diligently commenced correction of such violation after notice thereof from Grantor and is diligently proceeding to fully remedy such violation, or that no material violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed. In determining whether a violation is material, Grantor shall take into consideration the reliability of the evidence of the violation, the nature of the violation and the damage, if an y, caused to the Grantor thereby, whether the violation was chronic, and any justifying or mitigating circumstances and such other matters as the Grantor may deem appropriate. (c) Grantor may impose any penalty or sanction authorized by Federal or State law for a violation of this Franchise, however imposition of any such penalty shall not constitute a waiver of any right of the Granter to pursue any other remedy permitted by law. 2. Revocation of Franchise. (a) Grantor's Right to Revoke. (1) In addition to all other rights which Grantor has pursuant to law or equity, Grantor reserves the right to revoke, terminate or cancel this Franchise, and all rights and privileges pertaining thereto, if after the hearing required by Section 7.1 herein, it is determined that: (i) Grantee has violated any material provision of this Franchise; or (ii) Grantee has attempted to evade any material provision of the Franchise; or 30 (iii) Grantee has practiced fraud or deceit upon Grantor or Subscriber. (b) Procedures for Revocation. (1) Granter shall provide Grantee with written notice of a cause for revocation and the intent to revoke this Franchise and shall allow Grantee thirty (30) days subsequent to receipt of the notice in which to correct the violation or to provide adequate assurance of performance in compliance with the Franchise. (2) Grantee shall be provided the right to a public hearing affording due process before the City Council prior to revocation, which public hearing shall follow the thirty (30) day notice provided in Section (b.l.) immediately above. At the public hearing, Grantee shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce relevant evidence, to require the production of evidence, to compel the relevant testimony of the officials, agents, employees or consultants of the Grantor, to compel the testimony of other persons as permitted by law, and to question witnesses. A complete verbatim record and transcript shall be made of such hearing, the cost of such transcript to be paid by Grantee. The Grantor shall provide Grantee with written notice of its decision together with written findings of fact supplementing said decision. (3) After the public hearing and upon written determination by Grantor to revoke the Franchise, Grantee may appeal said decision to an appropriate State or Federal court or agency within sixty (60) days of said decision. Unless otherwise provided by Federal or State law, the decision of the Grantor to revoke the Franchise shall be subject to review de nova. (4) During the appeal period, the Franchise shall remain in full force and effect unless the term of the Franchise Agreement expires during the appeal period. (5) The Grantor may, at its sole discretion, take any lawful action which it deems appropriate to enforce the Grantor's rights under the Franchise in lieu of, or in addition to, appeal or public hearing upon revocation of this Franchise. SECTION 8. PROTECTION OF INDIVIDUAL RIGHTS 1. Subscriber Privacy. Grantee shall comply with the terms of 47 U.S.C. § 551 relating to the protection of Subscriber privacy. SECTION 9. 31 UNAUTHORIZED CONNECTIONS AND MODIFICATIONS 1. Unauthorized Connections or Modifications Prohibited. It shall be unlawful for any firm, Person, group, company, corporation, or governmental body or agency, without the express consent of the Grantee, to make or possess, or assist anybody in making or possessing, any connection, extension, or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of the System. 2. Removal or Destruction Prohibited. It shall be unlawful for any firm, Person, group, company, corporation, or governmental body or agency to willfully interfere, tamper, remove, obstruct, or damage, or assist thereof, any part or segment of the System for any purpose whatsoever. 3. Penalty. Any firm, Person, group, company, corporation or government body or agency found guilty of violating this section may be fined not more than Two Hundred Dollars ($200.00) for each and every offense. Each continuing day of the violation shall be considered a separate occurrence and offense. SECTION 10. MISCELLANEOUS PROVISIONS 1. Franchise Renewal. Any renewal of this Franchise shall be done in accordance with applicable Federal, State and local laws and regulations. 2. Amendment of Franchise Ordinance. Grantee and Grantor may agree, from time to time, to amend this Franchise. Such written amendments may be made at any time if Grantor and Grantee agree that such an amendment will be in the public interest or if such an amendment is required due to changes in Federal, State or local laws. Grantor shall act pursuant to local law pertaining to the ordinance amendment process. 3. Mediation. To aid in the analysis and resolution of any future disputed matters relative to this Franchise Agreement, the Grantor and Grantee may, by mutual agreement (both as to whether to hire and whom to hire), employ the services of technical, financial or legal consultants, as mediators. All reasonable fees of the consultants incurred by the Grantor and the Grantee in this regard shall be borne equally. 4. Force Majeure. Neither Grantor nor Grantee shall be liable for damages or subject to penalty due to delay or failure to perform any duty imposed by this Franchise Agreement if such delay or failure results directly or indirectly from circumstances beyond the control of such party. Within thirty (30) days of Grantee's discovery of the event causing such delay or failure, Grantee shall provide Grantor written notice describing the cause of the delay or failure and estimating the period of time in which such delay or nonperformance will be cured. 32 5. Rate Regulation/Internet as a cable service. If Grantor is permitted under Federal and/or State law to regulate the rates charged by Grantee, and if Grantor elects to regulate, Grantor shall establish reasonable procedures consiste nt with due process and applicable law and follow those procedures before so regulating. In addition, if the term "internet service" is modified by Federal law or by the FCC, such services as are included within the term "cable service" shall be subject to the Franchise Fee, again, to the extent permitted by Federal and State law. SECTION 11. CONFLICT WITH OTHER ORDINANCES In the event of any conflict or ambiguity between the terms and conditions of this Franchise Ordinance and any other Ordinance, this Ordinance shall control, except as may be specifically otherwise provided in this Ordinance. The Grantor reserves all rights that it may possess under law to adopt any ordinance regulating the use of the Grantor's streets and rights of ways. SECTION 12. PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS 1. Publication; Effective Date. This Franchise shall be published in accordance with applicable South Dakota law. The Effective Date of this Franchise shall be October 1, 2024. The parties agree that, during the time between final execution of this Franchise and the Effective Date, the terms and conditions of the previous franchise agreement will govern. Grantee shall promptly reimburse Grantor the publication costs associated with this Ordinance. 2. Acceptance. (a) Grantee shall accept this Franchise Agreement within sixty (60) days of the adoption of the Franchise Ordinance by the City Council, unless the time for acceptance is extended by Grantor. Such acceptance by the Grantee shall be deemed the grant of this Franchise for all purposes. Upon acceptance of this Franchise, Grantee shall be bound by all the terms and conditions contained herein. (b) Grantee shall accept this Franchise in the following manner: (1) This Franchise shall be properly executed by Grantee and delivered to Grantor. (2) With its acceptance, Grantee shall also deliver any Insurance certificate required herein that have not previously been delivered to Grantor. 33 Passed and adopted this 10th day of September, 2024. CITY OF BROOKINGS, GRANTOR By: ATTEST: Oepke G. Niemeyer, Its: Mayor Bonnie Foster, City Clerk ACCEPTED: This Franchise Agreement is accepted and Grantee agrees to be bound by its terms and conditions. Dated: ______________________ MEDIACOM MINNESOTA LLC, GRANTEE By: Its: ___________________ 34 EXHIBIT A DROPS TO PUBLIC BUILDINGS ________________________________________________________ The following cable drops to public buildings shall be provided upon request by the Grantor: City: Brookings City and County Government Center Brookings Police Department School: All current schools Any Future schools constructed during the franchise period within 125 feet of current plant. Library Larson Ice Center Dacotah Bank Center Street Maintenance Shop City: The Brookings City and County Government Center and Brookings Police Department – 2 High speed data lines (HSD) installed at each building at no cost to the Grantor, with HSD service provided at residential rates, though not to be upgraded without monthly charge added to associated speed and service. Note: Buildings not identified on the above list may be included by Grantor’s notice to Grantee of the building and location provided the building is within 125 feet of Grantee’s nearest trunk or distribution cable. Grantee shall provide free drop within ninety (90) days after receipt of notice. 2 ORDINANCE NO. ____________ AN ORDINANCE GRANTING A FRANCHISE TO MEDIACOM MINNESOTA LLC TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE CITY OF BROOKINGS, SOUTH DAKOTA, SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF ITS PROVISIONS. The City Council of the City of Brookings ordains: STATEMENT OF INTENT AND PURPOSE The City intends, by the adoption of this Franchise, to bring about the development of a Cable Television System, and the continued operation of it. Such a development shall contribute significantly to the communication needs and desires of many. FINDINGS In the review of the application of Mediacom Minnesota LLC ("Grantee"), and as a result of a public hearing, the City Council makes the following findings: 1. The Grantee's technical ability, financial condition, legal obligations, and character were considered and approved in a full public proceeding after due notice and a reasonable opportunity to be heard; 2. Grantee's plans for constructing, upgrading, and operating the System were considered and found acceptable in a full public proceeding after due notice and a reasonable opportunity to be heard; 3. The Franchise granted to Grantee by the City complies with the existing applicable state and federal laws and regulations. SECTION 1. SHORT TITLE AND DEFINITIONS Short Title. This Franchise Ordinance shall be known and cited as the Mediacom Minnesota LLC Cable Television Franchise Ordinance or as the Franchise Agreement. Definitions. For the purposes of this Franchise, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. The word "may" is directory and discretionary and not mandatory. 3 "Basic Cable Service" means any Cable Service tier that includes the lawful retransmission of local television broadcast signals and any Public, Educational, and Governmental Access programming required by this Ordinance or a Franchise Agreement to be carried on the basic tier. Basic Cable Service as defined herein shall be consistent with 47 U.S.C. § 543(b)(7) (1997), as may from time to time be amended. "Cable Act" means the Cable Communications Policy Act of 1984, Pub. L. No. 98-549, (codified at 47 U.S.C. §§ 521-611 (1982 & Supp. V. 1987) as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, and the Telecommunications Act of 1996, Pub. L. No. 104-104 (1996) as may, from time to time, be amended. "Cable Service" or "Service" means: A. The transmission to Subscribers of video programming or Other Programming Service; and B. Subscriber interaction, if any, that is required for the selection or use of such video programming or Other Programming Service; "Cable Television System" or "Cable System" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service to multiple Subscribers within the Franchise Area, but such term does not include: A. A facility that serves only to retransmit via broadcast the television signals of one or more television broadcast stations; B. A facility that serves Subscribers without using any public Right-of-Way; C. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as it may be amended, except that such facility shall be considered a Cable System to the extent such facility, whether on a common carrier basis or otherwise, is used in the transmission of video programming directly to Subscribers unless the extent of such use is solely to provide interactive on- demand services; D. An Open Video System that complies with§ 653 of the Telecommunications Act; and E. Any facilities of any electric utility used solely for operating its electric utility System. "Capital Costs" means costs associated with assets, including but not limited to equipment and facilities, that will provide Service for more than one year, whether incurred during initial construction or throughout the life of a System. "Channel" means a portion of the frequency spectrum that is used in a Cable System and which is capable of delivering a television Channel as defined by the Federal Communications Commission. 4 "City" means the City of Brookings, South Dakota. The City is sometimes also referred to as "Grantor" in this Franchise Ordinance. "Community Access Corporation" or "CAC" means a non-profit Access Corporation serving the City, its assignees or delegees, whose duties shall include the management, and programming of the PEG Access Channels. "Complaint" means any written, faxed or electronic inquiry, allegation, or assertion made by a Person regarding Service. While "Complaint" does not include oral complaints, Grantee shall use reasonable efforts to log oral complaints it receives and shall not be obligated to provide verbatim reports or transcripts of oral complaints provided the nature of the complaint is adequately provided to the City if requested by City. "Converter" means an electronic device that converts signals to a frequency not susceptible to interference within the television receiver of a Subscriber and, through the use of an appropriate Channel selector, permits a Subscriber to view all authorized Subscriber signals delivered at designated converter dial locations. "Council" means the City Council of Brookings, South Dakota. "Drop" means the cable or cables that connect the users of the System to the distribution System. "Educational Access Facilities" means: A. Channel capacity designated for non-commercial educational access programming use; and B. Facilities and equipment for the use of such capacity. "Effective Date" means the date a Franchise becomes effective in accordance with the Franchise and the rules and procedures of the City. "FCC" means the Federal Communications Commission and any legally appointed, designated or elected agent or successor. "Franchise" means the rights and obligations extended by the City to a Person to own, lease, construct, maintain, or operate a Cable System in the Right-of-Way within the Franchise Area for the purpose of providing Cable Services. Any such authorization, in whatever form granted, shall not mean or include: (i) any other permit or authorization required for the privilege of transacting and carrying on a business within the City required by the ordinances and laws of the City; (ii) any permit, agreement, or authorization required in connection with operations in the Right-of- Way including, without limitation, permits and agreements for placing devices on or in poles, conduits, or other structures, whether owned by the City or a private entity, or for excavating or performing other work in or along the Right-of-Way. 5 "Franchise Agreement" means a Franchise granted pursuant to this Ordinance. "Franchise Area" means the telecommunications territory as currently on file with the South Dakota Public Utilities Commission, and as such territory is modified subsequent to the adoption of this Franchise Agreement. "Franchise Fee" means any tax, fee, or assessment of any kind imposed by the City or other governmental entity on a Grantee or Cable Subscriber, or both, solely because of its status as such. The term "Franchise Fee" does not include: (i) any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment that is unduly discriminatory against cable operators or cable Subscribers); (ii) Capital Costs that are required by a Franchise Agreement to be incurred by a Grantee for PEG Access Facilities; (iii) requirements or charges incidental to the awarding or enforcing of a Franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or (iv) any fee imposed under Title 17 of the United States Code. "Government Access Facilities" means: A. Channel capacity designated for non-commercial governmental access programming use; and B. Facilities and equipment for the use of such channel capacity. "Grantee" means Mediacom Minnesota LLC, its agents and employees, lawful successors, transferees or assignees. "Grantor" means the City and its successors or delegates. "Gross Revenues" means any revenue derived directly or indirectly by a Grantee from the operation of its Cable System to provide Cable Service, within the Franchise Area, other than Internet Access Service or telecommunications services, each as defined under federal law, or other services for which the Grantee is subject to a separate franchise ordinance. Gross Revenues shall include "pay" cable service fees charged to customers within the Franchise area. The term "Gross Revenues" does not include taxes on Services furnished by Grantee and imposed by any municipality, state, or other governmental unit and collected by Grantee for such governmental unit. (e.g. tax on the Franchise Fee) In addition, the FCC User Fee is not included in Gross Revenue. Fees for Internet Access Service shall not be included in Gross Revenues unless in accordance with applicable law such service may be subject to local franchise fees. It is understood and agreed that the Grantee operates other telecommunications services within the City of Brookings. Gross revenues, as defined in this paragraph, pertain 6 to only revenue derived by the Grantee from the operation of its cable system and not from any other telecommunications service or Internet Access Service Grantee offers in the City of Brookings. Specifically, Gross Revenues include all recurring video revenues including revenue from packaged video offerings both residential and commercial, the video portion of bundled services that include other telecommunication services, Internet Access Service, premium video services, music packages, specialized equipment used in multiple dwelling units, and fees charged to video customers who do not have additional telecommunications services with Mediacom Minnesota LLC. “Internet Access Service” unless determined otherwise under applicable law, means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers, unless applicable Federal law determines that proprietary content provided over the Internet is a cable service. See 47 U.S.C. §231(e)(4). "Lockout Device" means a mechanical or electrical accessory to a Subscriber's terminal that inhibits the 3video or audio portions of a certain program or certain Channel(s) provided by way of a Cable System. "Normal Business Hours" means, unless otherwise defined in a Franchise Agreement, those hours during which the Grantee's business is open in Brookings to serve its telecommunications customers. "Normal Operating Conditions" means any and all service and operational situations or conditions that are ordinarily within the control of a Grantee, including but not limited to, special promotions; pay-per-view events; rate increases; regular peak or seasonal demand periods; and maintenance, repair or upgrade of the Cable System, and any associated computer or software systems. Those conditions that are not within the control of a Grantee including but not limited to, natural disasters; civil disturbances; power outages; telephone network outages; and severe or unusual weather conditions. "Other Programming Service" means information that a Grantee makes available to all Subscribers generally. "Person" means any corporation, partnership, proprietorship, individual, organization, governmental entity or any natural person. "Public Access Facilities" means: A. Channel capacity designated for non-commercial public access programming use; and B. Facilities and equipment necessary for the use of such channel capacity. "Resident" means any Person residing in the City. 7 "Service Interruption" means the loss of picture, sound, or data on one or more cable Channels on the System, or the degradation of the picture and/or sound quality on such Channels to the extent that the subscriber is unable to use the signals. "Standard Installation" means any Service installation that can be completed using a Drop of one hundred twenty-five (125) feet or less, unless otherwise agreed to in the Franchise Agreement. "Street" means the surface of, and the space above and below, any public street, road or highway, sidewalk, easement or right-of-way now or hereafter held by City. "Subscriber" means any Person that lawfully elects to subscribe to Cable Service provided by a Grantee by means of, or in connection with, the Cable System. "System" means a Grantee's Cable System operated pursuant to a Franchise Agreement within the Franchise Area. SECTION 2. GRANT OF AUTHORITY AND GENERAL PROVISIONS 1. Grant. A Cable Television Franchise is hereby granted to Mediacom Minnesota LLC, subject to the terms and conditions of this Franchise Agreement (hereinafter also referred to as the "Agreement"). The Agreement provides Grantee with the authority, right and privilege, to construct, reconstruct, operate and maintain a Cable Television System and to provide cable service and any other cable services permitted by this Franchise or applicable law within the Streets in the City as it is now or may in the future be constituted. This Franchise does not prohibit or grant any franchise rights concerning the provision of Internet Access Services or "telecommunications services" which is defined as: "the offering of telecommunications" for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used." 2. Effective Date of This Franchise. This Franchise shall be effective on the date that both parties have executed this Franchise Agreement, provided that said date is no later than sixty (60) days after the date that the City Council, by resolution, approves this Franchise Agreement. The Franchise is further contingent upon the filing by Grantee with the City Clerk, of the executed Franchise Agreement and the required insurance certificates, except that if the filing of any such insurance certificate does not occur within sixty (60) days after the effective date of the resolution approving this Franchise Agreement and any extension of time hereunder, the Grantor may declare this Franchise Agreement null and void. 3. Franchise Required. It shall be unlawful for any Person to construct, operate or maintain a Cable Television System in City unless such Person or the Person for whom such action is being taken shall have first obtained and shall currently hold a valid Franchise 8 Agreement. It shall also be unlawful for any Person to provide Cable Service in City unless such Person shall have first obtained and shall currently hold a valid Franchise Agreement. 4. Governing Requirements. Grantee shall comply, with all lawful requirements of this Franchise Agreement and applicable State and Federal law. 5. Grant of Nonexclusive Franchise. (a) The Grantee shall have the right and privilege to construct, erect, operate, and maintain, in, upon, along, across, above, over and under any public street, road or highway, sidewalk, easement or right-of-way now laid out or dedicated and all extensions thereof, and additions thereto in City, poles, wires, cables, underground conduits, manholes, and other television conductors and fixtures necessary for the maintenance and operation in City of a Cable Television System as herein defined. (b) This Franchise shall not be construed as any limitation upon the right of Grantor, through its proper offices, and in accordance with applicable law, to grant to other qualified Persons or corporations rights, privileges or authority similar to the rights, privileges and authority herein set forth, in the same or other Streets the Grantee is entitled to occupy by this Franchise Agreement, permit or otherwise; provided, however, that such additional grants shall not operate to materially modify, revoke or terminate any rights granted to Grantee herein. 6. Franchise Term. This Franchise shall be in effect for a period of ten (10) years from the effective date, unless renewed, revoked, terminated, shortened or extended as herein provided. 7. Previous Franchises. Intentionally deleted. 8. Rules of Grantee. Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable said Grantee to exercise its rights and perform its obligations under this Franchise. 9. Franchise Area. This Franchise is granted for the area defined in Grantee's Geographical Coverage area (defined in Franchise Area and in Section 10. below), as it exists from time to time. 10. Geographical Coverage. (a) Grantee shall design, construct and maintain the Cable Television System to have the capability to pass every dwelling unit within the Grantee's 9 telecommunications territory as currently on file with the South Dakota Public Utilities Commission, and as modified subsequent to the adoption of this Franchise Agreement, and subject to any line extension requirements of the Franchise Agreement. (b) After service has been established by activating trunk and/or distribution cables for any part of the City, Grantee shall provide Cable Service to any requesting Subscriber provided the Service Installation can be completed using a Drop of One Hundred Twenty-five Feet (125') or less and provided the requesting Subscriber resides within the City, within thirty (30) days from the date of request, provided that the Grantee is able to secure all rights-of-way necessary to extend service to such Subscriber within such thirty (30) day period on reasonable terms and conditions. 11. Written Notice. All notices, reports, or demands required to be given in writing under this Franchise shall be deemed to be given when delivered personally to any officer of Grantee or to the City Manager of the City of Brookings, or forty-eight (48) hours after it is deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the party to whom notice is being given, as follows: If to City: City of Brookings Attn: City Manager City Hall P.O. Box 270 Brookings, South Dakota 57006 If to Grantee: Mediacom Minnesota LLC Regional Vice PresidentGovernment Relations Director 1504 2nd Street SE PO Box 110 Waseca, MN 56093 With a copy to: Mediacom Communications Bruce Gluckman, Esq.Legal Department One Mediacom Way Mediacom Park, NY 10918 Such addresses may be changed by either party upon notice to the other party given as provided in this Section. 12. Public, Educational or Government Access Facilities. 10 (a) Grantee shall make available to each of its subscribers who receive some or all of the Cable Services offered on the System, reception of at least two (2) access channels, which shall be used for noncommercial purposes as follows: (1) Educational access; (2) Government access; The channels designated for access shall be provided by Grantee as a part of the basic cable service. The access channels shall be made available by Grantee for use by the City and its citizens in accordance with the rules and procedures established by the City or any lawfully designated person, group, organization or agency authorized by the City for that purpose. (b) In addition, Grantee shall dedicate a third additional channel for public, educational or governmental access upon the City's request if any access channel is in continuous use from 8:00 a.m. to 11:00 p.m. for three (3) consecutive months provided, however: (1) The use of repeat programming in excess of ten percent of the amount of original programming on that channel, as well as text or character-generated programming shall not be considered a continuous use. (2) The access channels shall be considered separately. Continuous use of one channel to capacity as defined in this section is sufficient to initiate a request for an additional channel. (3) In no event shall Grantee be required to provide in excess of four (4) access channels total. (4) To the extent that any access channel is not being used for the provision of non- commercial, public, educational or governmental access purposes, Grantee shall be permitted to use such channel(s) for the provision of other services. Grantee's permitted use of any access channel made pursuant to this section shall cease within ninety (90) days of Grantee's receipt of notice from City that such channel will again be used for public, educational or governmental access. (c) Notwithstanding the above, Grantee may accommodate a request from the City for additional access capacity made pursuant to this Section by combining more than one access use on a channel provided that: (1) It is technically and economically feasible for Grantee to do so; (2) The scheduling needs of all users of the channel can be reasonably accommodated; and 11 (3) The access entity, which requires use of the alternate channel, must be able to access the alternate channel from the site where it normally originates playback of its programs and may not be required to transport tapes to a remote site for playback. (d) Origination Points Grantee shall provide free cable transmission facilities at City Hall only in the event City Hall is within the Franchise area of the Grantee, provided the cost of providing such cable transmission facilities does not exceed the sum of Ten Thousand Dollars ($10,000.00), and any costs of providing such cable transmission facilities is divided between the City and any Cable Television Franchise holders based on their respective number of subscribers. Grantee shall also contribute to the cost of modulation equipment to introduce programming onto transmission facilities with other Franchise holders based on Grantees share of the respective subscriber numbers of all Franchise holders. Grantee shall be permitted to pass this cost to Subscribers to the extent permitted by Federal and State law. However, costs of providing said facilities shall not be a credit against payment of the Franchise fee imposed under this Franchise Agreement. (e) Equipment and Facilities for Public, Educational or Government Access Facilities Grantee's Responsibility for Equipment. Grantee is responsible for all headend equipment, including repair and maintenance, essential to playback of programming of signals generated by City or its Access producing designees. City's Responsibility for Access. The City shall be responsible for the operation of Government Access Facilities and equipment. In this regard City may delegate from time to time its responsibilities to others who then shall assume the responsibility of City in accordance with the City's delegation. The City will develop reasonable rules regarding use of Access Facilities and equipment and determine the needs of the City for public, educational and governmental access services. In this regard, the City shall regularly coordinate with Grantee for the purpose of developing and maintaining reasonable Access Facilities. The City, or persons to whom it delegates responsibility for access, shall have the responsibility to provide funding for operating expenses associated with public, educational and governmental access. 13. Drops to Public Buildings. Subject to applicable law, Grantee shall provide 12 Standard Installation of one (1) cable Drop, one (1) cable outlet, and monthly Basic Cable Service without charge to the public buildings, including City, County and Public School buildings which are located within Grantee's Franchise Area. Drops and/or outlets in any locations within Grantee's Franchise Area will be provided by Grantee at the cost of Grantee's time and material. Alternatively, at the institution's request, said institution may add outlets at its own expense, as long as such installation meets Grantee's standards and provided that any fees for Cable Services are paid. Nothing herein shall be construed as requiring Grantee to extend the System to serve additional institutions as may be designated by City. 14. Annual Report. Grantee shall submit annually, within ninety (90) days after its year end, a written end-of-the-year report to Grantor containing the following information: (1) A brief summary of the previous year's (or in the case of the initial reporting year, the initial year's) installation of service lines of the Cable System, including but not limited to, service lines begun or discontinued during the reporting year. (2) The number of Subscribers served under this Franchise Agreement. (a) The City, including its agents and representatives, shall have the authority, during Normal Business Hours, to arrange for and conduct an inspection of Annual Reports required pursuant to this Franchise Agreement. The City shall give the Grantee at least twenty-four (24) hours written notice of the inspection request. If the requested information is proprietary in nature or must be kept confidential by State, Federal or local law, upon proper request by Grantee, such information obtained during such an inspection shall be treated as confidential, making it available only to those Persons who must have access to perform their duties on behalf of the City, including but not limited to the City Manager and City Clerk, the City Attorney, Finance Department and Council Members. To the extent any Federal requirement for privacy applies to the information to be submitted, said law shall control. (b) All reports and records required under this Ordinance shall be furnished at the sole expense of Grantee, except as otherwise provided in this Franchise Agreement. 15.14. Periodic Evaluation and Review. Grantor and Grantee acknowledge and agree that the field of cable television is a rapidly changing one that may see many regulatory, technical, financial, marketing and legal changes during the term of this Franchise Agreement. Therefore, to provide for the maximum degree of flexibility in this Franchise Commented [TS1]: No reporting of customer data or subscriber numbers. This is proprietary and confidential. Mediacom provides a financial summary with the franchise and PEG fee payments. 13 Agreement, and to help achieve a continued advanced and modem Cable System, the following evaluation and review provisions will apply: (a) The City may request evaluation and review sessions at any time during the term of this Agreement and Grantee shall cooperate in such review and evaluation; provided, however, that there shall not be more than one (1) evaluation and review session every three years. (b) Topics that may be discussed at any evaluation and review session include, but are not limited to, rates, channel capacity, the System performance, programming, PEG access, municipal uses of cable, Subscriber complaints, judicial rulings, FCC rulings and any other topics that the City or Grantee may deem relevant. (c) During an evaluation and review session Grantee shall fully cooperate with the City and shall provide without cost such reasonable information and documents as the City may request to perform the evaluation and review. The Grantee shall not be compelled to produce information which is deemed to be proprietary and confidential. (d) If at any time during the evaluation and review, the City reasonably believes that there is evidence of inadequate technical performance of the Cable System, the City may require Grantee, at Grantee's expense, to perform appropriate tests and analyses directed toward such suspected technical inadequacies. In making such requests, the City shall describe and identify in writing as specifically as possible the nature of the problem, the reason the City has requested special testing and the type of test that the City believes to be appropriate. Grantee shall cooperate fully with the City in performing such tests and shall report to the City the results of the tests, which shall include at least: (1) The System component tested; (2) the equipment used and procedures employed in testing; (3) the results of the test(s) and, if necessary, the method by which the System performance problem was resolved; and (4) any other information pertinent to said tests and analyses; (e) As a result of an evaluation and review session, the City or Grantee may determine that a change in the System or in the terms of the Franchise Agreement may be appropriate. In that event, either the City or the Grantee 14 may propose modifications to the System or the Franchise. Grantee and the City shall review the terms of the proposed change and any proposed amendment to this Franchise Agreement and seek to reach agreement on such change or amendment provided the change or amendment is not inconsistent with applicable law or regulations and the change or amendment technically feasible, economically reasonable and will not result in a material alteration of the rights and duties of the parties under the Franchise Agreement. SECTION 3. CONSTRUCTION STANDARDS 1. Construction Codes and Permits. (a) Grantee shall obtain all necessary permits from City before commencing any construction upgrade or extension of the System, including the opening or disturbance of any Street, or private or public property within City. (b) The City shall have the right to inspect all construction or installation work performed pursuant to the provisions of the Franchise and to make such tests at its own expense as it shall find necessary to ensure compliance with the terms of the Franchise and applicable provisions of local, state and federal law and to protect the public health, safety and welfare of Grantor's citizens. Grantee shall have the right to be present at such inspections. 2. Repair of Streets and Property. Any and all Streets or public property or private property, which are disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance or reconstruction of the System shall be promptly and fully restored by Grantee, at its expense, to a condition as good as that prevailing prior to Grantee's work. 3. Building Movers. The Grantee shall, on request of any Person holding a moving permit issued by City, temporarily move its wires or fixtures to permit the moving of buildings with the expense of such temporary removal to be paid by the Person requesting the same, and the Grantee shall be given not less than five (5) business days advance notice to arrange for such temporary changes. The Grantee shall have the right to require advance payment for the costs of moving its facilities. 4. Tree Trimming. The Grantee shall consult with the City Forester for approval to trim any trees upon and overhanging the Streets, alleys, sidewalks, or public easements of City so as to prevent the branches of such trees from coming in contact with the wires and cables of the Grantee. 15 5. No Waiver. Nothing contained in this Franchise shall relieve any Person, as defined in this Agreement, from liability arising out of the failure to exercise reasonable care to avoid injuring Grantee's facilities. 6. Undergrounding of Cable. (a) In all areas of City where all other utility lines are placed underground, Grantee shall construct and install its cables, wires and other facilities underground. (b) In any area of City where one or more public utilities are aerial, Grantee may construct and install its cables, wires and other facilities from the same pole with the consent of the owner of the pole. 7. Safety Requirements. The Grantee shall at all times employ ordinary and reasonable care and shall install and maintain in use nothing less than commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. 8. Drop Burial. Temporary drops will be buried within sixty (60) days of installation. Such sixty (60) day period shall not apply if the installation is made during the winter months, which shall be defined as November 15 to April 1. The installation period shall be extended throughout the winter months until weather conditions permit the Grantee to complete such drop buries. In the event the Grantee fails to bury said drops within sixty (60) days if outside the winter months or if the installation is made during the winter months, within sixty days after the winter months, the City shall notify the Grantee of violation of this section in accordance with the enforcement provisions in this Franchise Agreement. and the Grantee shall provide basic and expanded basic cable service without charge to the affected cable subscriber from the last date that the drop was to have been buried to the actual date of burial. All subscriber drops that are located underground shall comply with National Electrical Code (NEC) standards and shall be buried to minimum depth of six (6) inches. SECTION 4. OPERATIONS PROVISIONS 1. System Design and Channel Capacity. (a) Grantee shall develop, construct and operate a System capable of providing a minimum of 60 channels of video programming during the term of this Franchise Agreement. (b) All final programming decisions remain the discretion of Grantee; provided 16 that Grantee notifies City and Subscribers in writing thirty (30) days prior to any channel additions, deletions, or realignments, and further subject to Grantee's signal carriage obligations hereunder and pursuant to 47 U.S.C. § 531-536, and further subject to City's rights pursuant to 47 U.S.C. § 545. 2. Special Testing. (a) City may require special testing of a location or locations within the System if there is a particular matter of controversy or unresolved complaints pertaining to such locations(s). Demand for such special tests may be made on the basis of complaints received or other evidence indicating an unresolved controversy or noncompliance. Such tests shall be limited to the particular matter in controversy or unresolved complaints. The City shall endeavor to so arrange its request for such special testing so as to minimize hardship or inconvenience to Grantee or to the Subscribers caused by such testing. (b) Before ordering such tests, Grantee shall be afforded thirty (30) days to correct problems or complaints upon which tests were ordered. The City shall meet with Grantee prior to requiring special tests to discuss the need for such and, if possible, visually inspect those locations which are the focus of concern. If, after such meetings and inspections, City wishes to commence special tests and the thirty (30) days have elapsed without correction of the matter in controversy or unresolved complaints, the tests shall be conducted by a qualified engineer selected by City and Grantee. In the event that special testing is required by City to determine the source of technical difficulties, the cost of said testing shall be borne equally by the Grantee and the City. 3. Parental Control Lock. Grantee shall provide, for sale or lease, to Subscribers, upon request, a parental control locking device or digital code that permits inhibiting the video and audio portions of any channels offered by Grantee. 4. Emergency Alert Capability. Within thirty-six (36) months of the effective date of this Agreement, Grantee shall provide an Emergency Alert System (EAS) in accordance with FCC Rules and Regulations and applicable law. SECTION 5. SERVICES AND PROGRAMMING PROVISIONS. 1. Programming. (a) Broad programming categories. Grantee shall provide or enable the provision 17 of at least the following initial broad categories of programming: (1) Educational programming; (2) News & information; (3) Sports; (4) General entertainment (including movies); (5) Children/family-oriented; (6) Arts; culture and performing arts; (7) Science/documentary; (8) Weather information; (9) Public affairs; (b) Deletion or reduction of programming categories. (1) Grantee shall not delete or so limit as to effectively delete any broad category of Programming identified in this Section and within its control without the consent of the City or as otherwise authorized by law. (2) In the event of a modification proceeding under Federal law, the mix and quality of services provided by the Grantee on the effective date of this Franchise shall be deemed the mix and quality of services required under this Franchise throughout its term. 2. Leased Commercial Access. If Grantee offers leased commercial access, it shall do so in accordance with applicable Federal law. 3. Periodic Subscriber Survey. (a) Upon request by the City, but not more frequently than once every three years, the Grantee shall conduct a Subscriber survey. The City and Grantee shall discuss and agree to a reasonable sample size. The cost of the survey shall be borne equally by the City and Grantee. Grantee shall provide Grantee the results of Subscriber surveys, to the extent it determines the results do not contain confidential information. Each questionnaire shall be prepared with input from the City and conducted as to present reasonably reliable measures of Subscriber satisfaction with: 18 (1) signal quality; (2) response to Subscriber complaints; (3) billing practices; (4) program services; and (5) installation practices. (b)(a) Grantee shall provide the City with a summary of the results of any survey to the extent that the results are not confidential. Grantee shall report in writing what steps Grantee is taking to implement the findings of the survey, such as correcting problems and expanding services. 4.3. Subscriber Inquiries. Grantee shall have a publicly listed toll-free telephone number and be operated so as to receive Subscriber complaints and requests on a twenty-four (24) hour-a-day, seven (7) days-a-week basis. 5.4. Refund Policy. In the event a Subscriber established or terminates service and receives less than a full month's service, Grantee shall prorate the monthly rate on the basis of the number of days in the period for which service was rendered to the number of days in the billing period. 6.5. General Technical Standards and Customer Service Practices. A. This Ordinance incorporates technical standards and establishes customer Service practices that a Grantee must satisfy. B. In accordance with applicable law, Grantee shall maintain such equipment and keep such records as are reasonably required to enable the City to determine whether the Grantee is in compliance with all standards required by these regulations and other applicable laws. Technical Standards. The technical standards used in the operation of a System shall comply, at minimum, with the technical standards promulgated by the FCC relating to Cable Systems pursuant to the FCC's rules and regulations and found in Title 47, Sections 76.601 to 76.617, as may be amended or modified from time to time, which regulations are expressly incorporated herein by reference. Test and Compliance Procedure. Tests for a System shall be performed in accordance with the FCC's rules and regulations. Representatives of the City may witness the tests and written test reports shall be made available to the City upon reasonable prior written request. If more than Commented [TS2]: Mediacom does not do surveys on behalf of LFA's 19 ten percent (10%) of Grantee's locations in the City tested fail to meet the performance standards, Grantee shall be required to indicate what corrective measures have been taken and the entire test shall be repeated if requested by the City. Emergency Requirements. Grantee must provide emergency alert override capabilities in a manner consistent with the FCC's Emergency Alert System ("EAS") rules and consistent with any State and/or regional Emergency Alert System plans adopted in response to the FCC's EAS rules that are applicable to the Franchise Area. Programming Decisions. In accordance with applicable law, Grantee shall provide programming from each of the broad programming categories listed in accordance with the Franchise Agreement. All programming decisions remain within the sole discretion of each Grantee provided that Grantee complies with federal law regarding notice to Grantor and Subscribers prior to any Channel additions, deletions, or realignments, and further subject to the Grantee's signal carriage obligations pursuant to 47 U.S.C. §§ 531-536, as may be amended and subject to the City's rights pursuant to 47 U.S.C. § 545, as may be amended. Cable System Office Hours and Telephone Availability. A. Grantee shall maintain a customer Service office within the City for a minimum of five years from the effective date of this Franchise, which shall include a place where Subscribers may pay their bills, pick-up and return converter boxes and comparable items and receive information on the Grantee and its Services. Such Service office shall be open during Normal Business Hours. Grantee also shall maintain a publicly listed toll-free or collect call telephone access line that is available to Subscribers twenty-four (24) hours a day, seven (7) days a week. The local or toll-free numbers shall be listed, with appropriate explanations, in all widely utilized local phone directories. If Grantee discontinues use of a customer service office, it shall provide a local agent to accept payment of bills and shall provide a convenient alternative procedure for services formerly provided through its local customer Service office. A. B. Grantee shall have trained representatives available to respond to Subscriber telephone inquiries during Normal Business Hours. The term "trained representatives" shall mean employees of the Grantee who have the authority and capability while speaking with a Subscriber to, among other things, answer billing questions, and schedule Service and installation calls. C. All employees of the Grantee shall identify themselves when answering an incoming call or inquiry, or while working in the field. Supervisory personnel must use reasonable efforts to respond to Subscriber requests to speak with a "manager or supervisor" within one business day of the request under Normal Operating Conditions, Formatted: Space Before: 0.75 pt Commented [TS3]: Mediacom has removed local office language mandates from all franchise agreements. Formatted: List Paragraph, Indent: First line: 0.5", Right: 0.1", Line spacing: Multiple 1.07 li, Numbered + Level: 1 + Numbering Style: A, B, C, … + Start at: 1 + Alignment: Left + Aligned at: -0.41" + Indent at: 0.08", Tab stops: 1.08", Left 20 during Normal Business Hours and supervisory personnel will respond no later than the next business day. D. After Normal Business Hours, the telephone access line may be answered by a Service or an automated response System, including an answering machine. Inquiries received after Normal Business Hours must be responded to by a trained representative on the next business day. E. Upon reasonable prior written request, Grantee shall provide a calendar of holidays and business days during which the Grantee will be closed. Grantee shall also use reasonable efforts to provide prior notice to Subscribers through answering Service/machine, voice mail messages, bill messages, or through a Channel provided by Grantee regarding hours or dates when its offices will not be open. In addition, during such "closed" periods, the Grantee shall use reasonable efforts to provide voice messages and notice on its premises of the after hours contact numbers. F.E. Under Normal Operating Conditions, telephone answer time by a customer Service representative or automated response unit, including wait time, should not exceed thirty (30) seconds. If a call must be transferred, transfer time should not exceed thirty (30) seconds. G.F. Under Normal Operating Conditions, Subscribers should not receive a busy signal more than three percent (3%) of the time. Standards provided in the immediately preceding Section F. and this Section are intended to be reasonable, and while not mandatory, represent reasonable service quality standards. H.G. The period of three (3) hours following major outages (more than 25% of the Grantee's Subscribers) or periods of natural disasters are not included in the response requirements above, provided that Grantee has used reasonable best efforts to provide voice- mail information about the outage on phone answering equipment and the System bulletin board (assuming outage is not City-wide) and the Grantee provides documentation to City as soon as reasonably possible following the outage, including beginning and ending times, area of outage, location and cause of problem. I.H. Grantee shall respond to all Subscriber or user inquiries or complaints within ten (10) days of the inquiry or complaint, unless the resolution of the Subscriber or user inquiries or complaints is not reasonably available within that time frame, in which case Grantee shall respond as soon as reasonably possible. The requirement that Grantee respond to all Subscriber or user inquiries or complaints within ten (10) days of the inquiry or complaint as provided above shall apply except to the extent a more stringent standard is set forth for specific types of activities, inquiries or complaints in this Franchise Ordinance/Agreement. Commented [TS4]: Mediacom is 24/7 352 days a year using the toll free customer service line. 21 J. On a semi-annual basis, the Grantee, upon request, and upon six months notice, will provide the City with reports for hold time, busy signals, and abandonment rate, and if requested by the City, the Grantee will meet with the City to review such reports. The Grantor may allow periods of excused non-compliance if the Grantee can provide reasonable documentation that these periods of non-compliance were not within Normal Operating Conditions. (1) The Grantee will be deemed in compliance if: (a) During any such semi-annual period each criterion has been met or exceeded; or (b) If each criterion has been met or exceeded during four (4) months within any such semi-annual period. (2) Should the Grantee be found to be in non-compliance, the City shall notify the Grantee in writing and specify the basis for the finding. Upon notification, the Grantee shall have thirty (30) days to cure such non- compliance. (3) If the Grantee, based upon the available monthly data, fails to cure the non- compliance within the thirty (30) day period, the Grantor may commence enforcement procedures. Installations, Outages, and Service Calls. Under Normal Operating Conditions, each of the following standards must be met no less than ninety-five percent (95%) of the time as measured on a quarterly basis: A. Maintenance Service capability enabling the prompt location and correction of substantial System malfunctions or outages shall be available twenty-four (24) hours a day, seven (7) days a week. B. To the extent practical, at the time an appointment is scheduled, the Grantee shall inform the Subscriber of Service procedures, required payments, possible delays, and phone or field verification procedures which are related to the appointment and/or possible rescheduling/cancellation. C. The appointment window alternatives for Standard Installations and Service calls will be within a maximum four (4) hour time block during Normal Business Hours. Grantees may schedule Service calls and other installation activities outside of Normal Business Hours for the express convenience of a Subscriber, if so requested. D. No Grantee may cancel an appointment with a Subscriber after the close of business on the business day prior to the scheduled appointment. 22 E. If a Grantee's representative is running late for an appointment with a Subscriber and will not be able to keep the appointment as scheduled, all reasonable efforts will be made to contact the Subscriber. The appointment must be rescheduled, as necessary, at a time that is convenient for the Subscriber. F. The Grantee may phone the Subscriber within the appointment window to verify that the appointment is still needed. If the subscriber telephone is answered by a machine or Service, the Grantee may leave a message which includes a number the Subscriber may use to call back to confirm or reschedule the appointment. G. Appointments may not be canceled or rescheduled until field personnel of the Grantee make reasonable efforts to verify that the Subscriber or other authorized adult is not at the address for the appointment. H. Upon arrival at the Subscriber's address, if the Grantee verifies that a Subscriber is not at the address during the scheduled appointment window, the Grantee shall leave a door tag or similar notice with the name of the person leaving the notice, the time the person determined that the Subscriber was not at home; and a telephone number the Subscriber may call back to confirm or reschedule an appointment. I. Any vehicle used for the installation, construction, maintenance, or repair of a Cable System shall bear the identification of the Grantee in a conspicuous place and manner. J. Reconnections due to erroneous disconnection based on billing or technical errors must be completed at no charge within twenty-four (24) hours of notification by the affected Subscriber. K. Reconnections after a disconnection attributed to non-payment of bills must be completed within seven (7) business days of Grantee's receipt of back payment. L. The Subscriber may be billed for installations or reconnections as soon as each such service is installed. M. Runs in building interiors shall be as unobtrusive as reasonably possible and outlets shall be located for the convenience of the Subscriber. The Grantee shall use due care in the process of installation and shall repair any damage to the Subscriber's property caused by installation work. Such restoration shall be undertaken as soon as possible after the damage is incurred, shall be subject to reasonable Subscriber approval of the corrective action, and Grantee shall use its best efforts to complete the corrective action within no more than thirty (30) days after the damage is incurred. Should such restoration not be corrected within thirty (30) days, the Grantee shall notify the Subscriber as to the cause for the delay 23 and the date when such action shall be completed. N. Failure of the Grantee to maintain adequate budget, sufficient staff or properly trained staff shall not constitute justification for failure to comply with these provisions. Repairs and Interruptions. A. Every Grantee will begin working on Service Interruptions and outages within a reasonable timeframe but in no event later than twenty-four (24) hours after the Service Interruption becomes known. (1) Any reports of "no picture/no sound" must be responded to within sixteen (16) business hours of such report, unless reported during a weekend or holiday, which shall require a response during the next regular business day. (2) Work not requiring the Operator to enter Subscriber premises (or property) shall not require the Subscriber to be available for an appointment and shall not be delayed on account of the Grantee's inability to arrange an appointment with the Subscriber. B. Work on all other requests for Service must begin by the next business day after notification of the problem. C. The Subscriber does not need to be home for outside plant and line repairs. D. A Grantee may interrupt Service only for good cause and for the shortest time possible, including interruption for System upgrade, maintenance and repair. Grantee shall use reasonable efforts to perform maintenance at times that affect the fewest number of Subscribers. The Grantee shall post override notices on the System to advise Subscribers in advance of planned Service interruptions. For a planned Service interruption that is likely to last four (4) hours or more, Grantee shall broadcast information concerning the planned Service interruption on a Channel of Grantee used for such notices and shall notify the local newspaper. E. A Grantee shall provide a pro rata credit for Service for each Service Interruption exceeding four (4) hours in any twenty-four (24) hour period, unless it is demonstrated that the Subscriber caused the outage, or the outage was planned as part of an upgrade or other work of which the City and the Subscriber received appropriate prior general notification or the Service Interruption was determined to be beyond the control of Grantee. A Subscriber is entitled to a full refund for any Cable System or equipment impairment to pay-per-view event. These credits and refunds shall be made available upon Commented [TS5]: Planned maintenance is done overnight. 24 request by Subscriber. F. Service Call Charges. Unless otherwise agreed to, no charge shall be made to a Subscriber for any Service call relating to Grantee owned and Grantee maintained equipment after the initial installation of Cable Service unless the problem giving rise to the Service request can be demonstrated by Grantee to have been: (1) Caused by the negligence or malicious destruction of cable equipment by the subscriber; or (2) A problem established as having been non-cable in origin. (3) A customer education problem requiring unnecessary visits by Grantee. G. An "Identified Outage" is construed as reports ofno picture/no sound from three (3) or more Subscribers in close geographic proximity or along the same trunk or feeder line within twenty (20) minutes of each other. H. Within one (1) hour of an Identified Outage during Normal Business Hours, Service technicians will respond and use all available reasonable means to correct the outage in the shortest possible amount of time. The Grantee shall maintain and forward to the City, upon request, reports on the cause, area, duration and repair of the outage. I. Cable drop lines, cable trunk lines, or any other type of outside wiring that comprise part of the Grantee's Cable System that are located underground, shall be placed in such locations pursuant to City Code, and the surrounding ground shall be restored to a condition which is reasonably comparable to the condition immediately prior to such construction, within seventy-two (72) hours after connection to the Cable System, or such time as agreed to by the property owner. Additional time may be allowed for the completion of such restoration if individual circumstances warrant. The requirements of this subsection shall apply to all installation, reinstallation, Service or repair commenced by the Grantee within the City during Normal Operating Conditions. Communications Between Grantees and Subscribers. A. Notifications to Subscribers: (1) In accordance with applicable law, Grantee shall provide written information to Subscribers on each of the following topics at the time of installation, at least annually to all Subscribers, at any time upon request, and at least thirty (30) days prior to making significant changes in such information: (a) Product and Services offered; 25 (b) Prices and options for programming services and conditions of subscription to programming and other services and facilities; (c) Installation and maintenance policies including, when applicable, information regarding the Subscriber's home wiring rights and information describing ownership of internal wiring during the period Service is provided; (d) Instructions on how to use Services; (e) Channel positions of programming offered on a System; (f) Billing and Complaint procedures, including the name, address and telephone number of the City; (g) The availability of Converters, Lockout Devises or other signal control devices; (h) The Grantee's practices and procedures for protecting against invasions of privacy; and (i) The address and telephone number of the Grantee's office to which Complaints may be reported. (2) Grantee promotional materials, announcements and advertising of Service to Subscribers, including pay-per-view or event programming, shall clearly and accurately disclose price terms. In the case of telephone orders, the Grantee shall take appropriate steps to reasonably explain the price terms to potential customers before the order is accepted. (3) Subscribers will be given thirty (30) days advance notice of any changes in rates, programming Services, or Channel positions through any written means that is reasonably likely to bring such information to the attention of Subscribers. B. Billing: (1) Bills must be clear, concise, and understandable. Bills must be itemized, with itemizations including, but not limited to, Basic and premium Service charges and equipment charges. (2) Bills must clearly show a specific payment due date. (3) If Grantee chooses to itemize, as a separate line item on bills, Franchise Fees 26 or other government imposed fees attributable to the total bill, such fees must be shown in accordance with any applicable law concerning the Grantee's ability to itemize such fees. (4) Bills must also clearly delineate all activity during the billing period, including optional charges, rebates, and credits. Nothing in this section prohibits or restricts a Grantee from offering packages of programming to Subscribers and to identify such packages on the Subscriber bill. (5) The billing statement must clearly and conspicuously indicate the past due date, and if applicable the date certain that a Subscriber's Service will be eligible for disconnection. (6) Negative option billing is prohibited unless applicable federal law specifically requires that the Grantee be permitted to engage in such practice. (7) In case of a billing dispute, a Grantee must respond to a written Complaint from a Subscriber within thirty (30) days. Credits for Service shall be issued no later than the Subscriber's next billing cycle after determination that the credit is warranted. Complaint Log. Subject to the privacy provisions of 47 U.S.C. § 521 et seq., Grantor and every Grantee shall prepare and maintain written records of all Complaints made to them and the resolution of such Complaints, including the date of such resolution. Such written records shall be on file at the office of Grantee. Grantee shall make available to Grantor a written summary of such Complaints and their resolution upon request. Lockout Device. A. Grantee shall provide to any Subscriber upon request for sale or lease a Lockout Device for blocking both video and audio portions of any channel(s) of programming entering the Subscriber's premises. B. Scrambling/Blocking. Grantee shall at all times scramble both the audio and video portions of all channels with predominately adult oriented programming. Periodic Subscriber Surveys. A. Grantee may select any reasonable method to conduct periodic Subscriber surveys. The Grantor shall be responsible for any costs incurred by a Grantee that are related to the conduct of such surveys. B. In addition to Periodic Telephone Surveys, the Grantor may periodically elect 27 to supplement periodic telephone surveys with a statistically valid telephone survey, of the subject matter identified in Section 5-3 of this Franchise. Line Extension Policy. No resident within the Franchise Area shall be refused Service arbitrarily. Unless otherwise set forth in the Franchise Agreement, whenever Grantee receives a request for Cable Service in an unserved portion of the Franchise area where there are at least 25 dwelling units (which shall be interpreted to include businesses that have contractually agreed to subscribe to Cable Service) within one linear cable mile of the Grantee's nearest trunk or distribution cable from which it is technically feasible to extend Service, or the dwelling unit is within 125 feet of Grantee's distribution cable, it shall extend its Cable System to such Subscriber at no cost, other than the published standard installation fee charged to all Subscribers. Mobility Limited Subscribers. Unless otherwise agreed in this Franchise Ordinance/Agreement, upon the request of mobility-limited Subscribers, Grantee shall arrange for delivery, pickup or exchange or replacement of converters or other equipment at the Subscriber's address. Customer Service Reporting Requirements. Based on a substantial number and a documented pattern of verbal or written Complaints received by Grantor, and upon six (6) months notice to Grantee, Grantor may require Grantee to begin collecting data of such Complaints, including, at minimum, the following: A. A telephone report containing the following information relevant to the question of whether the Grantee's telephone answering System complies with the standards of this Ordinance: (1) Total number of calls received by the Call System handling the Franchise Area; (2) Total number of calls abandoned by the Call System handling the Franchise Area; (3) Total percentage of calls abandoned; (4) Percentage of calls answered within thirty (30) seconds; and (5) A description of significant events impacting telephone response times. B. The number of free Standard Installations that were issued for failure to arrive for Standard Installations. C. A significant Service Interruptions report that tracks information on a Commented [TS6]: Mediacom does not do surveys for LFA's. Mediacom does post customer call surveys that are voluntary. 28 monthly basis to include: (1) Total number of Service Interruptions; (2) Time of all Service Interruptions; (3) Total hours that the System was out-of-service as related to planned maintenance or Channel line-up changes performed by a Grantee; and (4) Estimated number of Subscribers affected by each incident. In addition to the above, the City may request that Grantee begin Service Interruption reports contain graph(s) that depict Grantee's performance with respect to the items above for the first three (3) year period of this Franchise and thereafter up to a three (3) year period prior to the date the report was requested. D. Results of any technical testing on the System. Dispute Resolution. A. Grantee shall establish procedures for receiving, acting upon, and resolving customer complaints, and crediting customer accounts, without intervention by the Grantor. Such procedures shall prescribe the manner in which any Subscriber may submit a complaint by telephone, fax, e-mail or in writing to the Grantee that it has violated any provision of these Customer Service Standards, any terms or conditions of the Customer's contract with the Grantee, or reasonable business practices. Grantee shall use reasonable efforts to log oral complaints it receives and shall not be obligated to provide verbatim reports or transcripts of oral complaints provided the nature of the complaint is adequately provided to the Grantor if requested by Grantor. B. The Grantee’s complaint procedure shall be filed with the Grantor. prior to June 1, 2011. C. The Grantee’s investigation of a Subscriber complaint shall be concluded in no more than fifteen (15) business days after receiving the complaint, at which time the Grantee shall notify the Subscriber of the results of its investigation and its proposed action. D. The Grantor may also notify the Subscriber of his/her rights to file a complaint with the Grantor in the event the Subscriber is dissatisfied with the Grantee's decision, and shall thoroughly explain the necessary procedures for filing such complaints with the Grantor. E. The Grantor will review and notify Grantee of all complaints it receives against Grantee regarding quality of service, equipment malfunctions, billing disputes, and 29 property damage. In conducting its review, the Grantor may request additional information from the Grantee and/or Subscriber. 30 SECTION 6. FRANCHISE FEE, INSURANCE PROVISIONS 1. Franchise Fee. (a) Grantee shall pay to City an Annual Franchise Fee in the amount of five percent (5%) of its annual Gross Revenues as defined in Section 1. of this Agreement. (b) Any payments due under this provision shall be payable within 30 days of the end of the Grantee's fiscal quarter and shall include a report showing the basis for the computation. Grantee’s responsibility for payment of Franchise Fee under this Agreement shall commence on the first day of the calendar month that is at least 30 days after final execution of this Agreement. Until that time, Grantee shall continue to pay the Franchise Fee under any pre-existing Franchise Agreement with the Local Franchising Authority (c) The City shall have the right, at any time during the term of this Franchise, to increase the Annual Franchise Fee to the maximum percentage permitted by law, however the City shall provide Grantee at least sixty (60) days notice prior to the effective date of any increase or decrease of the Annual Franchise Fee. 2. Access to Records. The City shall have the right to inspect, upon reasonable notice and during normal business hours, or require Grantee to provide within a reasonable time, copies of any records maintained by Grantee which relate to System operations including specifically Grantee's accounting and financial records. 3. Indemnification. (a) Except as otherwise provided herein, Grantee shall indemnify, hold harmless, release and defend City, its officers, agents and employees from and against any and all lawsuits, claims, actions, demands, damages, disability, losses, expenses including attorney's fees and other defense costs or liabilities of any nature that may be asserted by any Person or entity arising out of the activities of Grantee, its subcontractors, employees and agents hereunder. Grantee shall be solely responsible and save City harmless from all matters relative to payment of Grantee's employees, including compliance with Social Security, withholding and other payroll requirements. (b) This indemnification obligation is not limited in any way by a limitation of the amount or type of damages or compensation payable by or for Grantee under workers' compensation, disability or other employee benefit acts, acceptance of insurance certificates required under this Agreement, or the terms, 31 applicability or limitations of any insurance held by Grantee. (c) Grantor does not, and shall not, waive any rights against Grantee which it may have by reason of this indemnification, because of the acceptance by Grantor, or the deposit with Grantor by Grantee of any of the insurance policies described in this Franchise Agreement. (d) This indemnification by Grantee shall apply to all damages and claims for damages of any kind suffered by reason of any of the aforesaid operations referred to in this Section, regardless of whether or not such insurance policies shall have been determined to be applicable to any such damages or claims for damages. (e) Grantee shall not be required to indemnify Grantor for negligence or misconduct on the part of Grantor or its officials, boards, commissions, agents, or employees (hereinafter negligence or misconduct may be referred to as "such acts"). Grantor shall hold Grantee harmless for any damage resulting from any such acts of the Grantor or its officials, boards, commissions, agents, or employees in utilizing any PEG access channels, equipment, or facilities and for any such acts committed by Grantor in connection with work performed by Grantor and permitted by this Agreement, on or adjacent to the Cable System. 4. Grantee's Insurance. Grantee shall not commence any Cable System construction work or permit any subcontractor to commence work until both shall have obtained or caused to be obtained all insurance required under this Section. Said insurance shall be maintained in full force and effect until the completion of construction. 5. Workers' Compensation Insurance. Grantee shall obtain and maintain workers' compensation insurance for all of Grantee's employees, and in case any work is sublet, Grantee shall require any subcontractor similarly to provide workers' compensation insurance for all subcontractor's employees, all in compliance with State laws, and to fully protect the Grantor from any and all claims arising out of occurrences resulting from Cable System construction work. Grantee hereby indemnifies Grantor for any damage resulting to it from failure of either Grantee or any subcontractor to take out and maintain such insurance. Grantee shall provide the Grantor with a certificate of insurance indicating workers' compensation coverage with its acceptance of this Franchise Agreement. 6. Insurance. (a) Grantee shall file, with its acceptance of this Franchise Agreement, and at all times thereafter maintain in full force and effect during the entire term of this Franchise at its sole expense, comprehensive general liability insurance that 32 shall protect the Grantee, the Grantor, and the Grantor's officials, officers, employees and agents from claims which may arise from operations under this Franchise, whether such operations are by the Grantee, its officials, officers, directors, employees and agents, or any subcontractor of Grantee. This liability insurance shall include but shall not be limited to protection against claims arising from bodily and personal injury and damage to property, resulting from Grantee's automobiles, products and completed operations. The amount of insurance for single limit coverage applying to bodily and personal injury and property damage shall not be less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in aggregate. The following endorsements shall attach to the liability policy: (1) The policy shall cover personal injury as well as bodily injury. (2) The policy shall cover blanket contractual liability subject to the standard universal exclusions of contractual liability included in the carrier's standard endorsement as to bodily injuries, personal injuries and property damage. (3) Broad form property damage liability shall be afforded. (4) The Grantor shall be named as an additional insured on the policy. (5) An endorsement shall be provided which states that the coverage is primary insurance and that no other insurance carried by the Grantor will be called upon to contribute to a loss under this coverage. (6) Standard form of cross-liability shall be afforded. (7) Each policy of insurance shall contain a statement on its face that the insurer will not cancel the policy or fail to renew the policy, whether for nonpayment of premium, or otherwise, and whether at the request of Grantee or for other reasons, except after thirty (30) days' advance written notice has been provided to Grantor. (b) Grantor reserves the right to adjust the coverage limit requirements no more than every five (5) years. Any such adjustment by the Grantor will be no greater than the increase in the State of South Dakota Consumer Price Index (all consumers) for such five (5) year period. (c) Grantee shall submit to Grantor documentation of the required insurance including a certificate of insurance signed by the insurance agent and companies named, as well as all properly executed endorsements. 33 (d) Any deductible or self-insured retention must be declared to Grantor. SECTION 7. FRANCHISE VIOLATION/REVOCATION OF FRANCHISE 1. Franchise Violations. Grantor, by action of the City Manager, shall first notify Grantee of a violation in writing by personal delivery or registered or certified mail, and demand correction within a reasonable time, which shall not be less than twentyen (210) business days in the case of the failure of the Grantee to pay any sum or other amount due the Grantor under this Agreement, and thirty (30) days in all other cases. If Grantee fails to correct the violation within the time prescribed, or if Grantee fails to commence corrective action within the time prescribed and diligently remedy such violation thereafter, the Grantee shall then be given a written notice of not less than thirty (30) days of a public hearing to be held before the City Council. Said notice shall specify the violation(s) alleged to have occurred. (a) At the public hearing, the City Council shall hear and consider all relevant evidence, and thereafter render findings, its decision, and the penalty or penalties for the violation. (b) In the event the City Council finds that Grantee has corrected the violation, or has diligently commenced correction of such violation after notice thereof from Grantor and is diligently proceeding to fully remedy such violation, or that no material violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed. In determining whether a violation is material, Grantor shall take into consideration the reliability of the evidence of the violation, the nature of the violation and the damage, if any, caused to the Grantor thereby, whether the violation was chronic, and any justifying or mitigating circumstances and such other matters as the Grantor may deem appropriate. (c) Grantor may impose any penalty or sanction authorized by Federal or State law for a violation of this Franchise, however imposition of any such penalty shall not constitute a waiver of any right of the Granter to pursue any other remedy permitted by law. 2. Revocation of Franchise. (a) Grantor's Right to Revoke. (1) In addition to all other rights which Grantor has pursuant to law or equity, Grantor reserves the right to revoke, terminate or cancel this Franchise, and all rights and privileges pertaining thereto, if after the hearing required by Section 7.1 herein, it is 34 determined that: (i) Grantee has violated any material provision of this Franchise; or (ii) Grantee has attempted to evade any material provision of the Franchise; or (iii) Grantee has practiced fraud or deceit upon Grantor or Subscriber. (b) Procedures for Revocation. (1) Granter shall provide Grantee with written notice of a cause for revocation and the intent to revoke this Franchise and shall allow Grantee thirty (30) days subsequent to receipt of the notice in which to correct the violation or to provide adequate assurance of performance in compliance with the Franchise. (2) Grantee shall be provided the right to a public hearing affording due process before the City Council prior to revocation, which public hearing shall follow the thirty (30) day notice provided in Section (b.l.) immediately above. At the public hearing, Grantee shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce relevant evidence, to require the production of evidence, to compel the relevant testimony of the officials, agents, employees or consultants of the Grantor, to compel the testimony of other persons as permitted by law, and to question witnesses. A complete verbatim record and transcript shall be made of such hearing, the cost of such transcript to be paid by Grantee. The Grantor shall provide Grantee with written notice of its decision together with written findings of fact supplementing said decision. (3) After the public hearing and upon written determination by Grantor to revoke the Franchise, Grantee may appeal said decision to an appropriate State or Federal court or agency within sixty (60) days of said decision. Unless otherwise provided by Federal or State law, the decision of the Grantor to revoke the Franchise shall be subject to review de nova. (4) During the appeal period, the Franchise shall remain in full force and effect unless the term of the Franchise Agreement expires during the appeal period. (5) The Grantor may, at its sole discretion, take any lawful action which it deems appropriate to enforce the Grantor's rights under the Franchise in lieu of, or in addition to, appeal or public hearing upon revocation of this Franchise. SECTION 8. PROTECTION OF INDIVIDUAL RIGHTS 35 1. Subscriber Privacy. Grantee shall comply with the terms of 47 U.S.C. § 551 relating to the protection of Subscriber privacy. SECTION 9. UNAUTHORIZED CONNECTIONS AND MODIFICATIONS 1. Unauthorized Connections or Modifications Prohibited. It shall be unlawful for any firm, Person, group, company, corporation, or governmental body or agency, without the express consent of the Grantee, to make or possess, or assist anybody in making or possessing, any connection, extension, or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of the System. 2. Removal or Destruction Prohibited. It shall be unlawful for any firm, Person, group, company, corporation, or governmental body or agency to willfully interfere, tamper, remove, obstruct, or damage, or assist thereof, any part or segment of the System for any purpose whatsoever. 3. Penalty. Any firm, Person, group, company, corporation or government body or agency found guilty of violating this section may be fined not more than Two Hundred Dollars ($200.00) for each and every offense. Each continuing day of the violation shall be considered a separate occurrence and offense. SECTION 10. MISCELLANEOUS PROVISIONS 1. Franchise Renewal. Any renewal of this Franchise shall be done in accordance with applicable Federal, State and local laws and regulations. 2. Amendment of Franchise Ordinance. Grantee and Grantor may agree, from time to time, to amend this Franchise. Such written amendments may be made at any time if Grantor and Grantee agree that such an amendment will be in the public interest or if such an amendment is required due to changes in Federal, State or local laws. Grantor shall act pursuant to local law pertaining to the ordinance amendment process. 3. Mediation. To aid in the analysis and resolution of any future disputed matters relative to this Franchise Agreement, the Grantor and Grantee may, by mutual agreement (both as to whether to hire and whom to hire), employ the services of technical, financial or legal consultants, as mediators. All reasonable fees of the consultants incurred by the Grantor and the Grantee in this regard shall be borne equally. 4. Force Majeure. Neither Grantor nor Grantee shall be liable for damages or subject to penalty due to delay or failure to perform any duty imposed by this Franchise Agreement if 36 such delay or failure results directly or indirectly from circumstances beyond the control of such party. Within thirty (30) days of Grantee's discovery of the event causing such delay or failure, Grantee shall provide Grantor written notice describing the cause of the delay or failure and estimating the period of time in which such delay or nonperformance will be cured. 5. Rate Regulation/Internet as a cable service. If Grantor is permitted under Federal and/or State law to regulate the rates charged by Grantee, and if Grantor elects to regulate, Grantor shall establish reasonable procedures consistent with due process and applicable law and follow those procedures before so regulating. In addition, if the term "internetcable service" is modified by Federal law or by the FCC, such services as are included within the term "cable service" shall be subject to the Franchise Fee, again, to the extent permitted by Federal and State law. 6. Legal Fees. Grantee shall promptly reimburse Grantor for all legal costs associated with preparing this Ordinance and for any subsequent amendment prepared at the request of Grantee. SECTION 11. CONFLICT WITH OTHER ORDINANCES In the event of any conflict or ambiguity between the terms and conditions of this Franchise Ordinance and any other Ordinance, this Ordinance shall control, except as may be specifically otherwise provided in this Ordinance. The Grantor reserves all rights that it may possess under law to adopt any ordinance regulating the use of the Grantor's streets and rights of ways. SECTION 12. PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS 1. Publication; Effective Date. This Franchise shall be published in accordance with applicable South Dakota law. The Effective Date of this Franchise shall be October 1, 2024. The parties agree that, during the time between final execution of this Franchise and the Effective Date, the terms and conditions of the previous franchise agreement will govern the date Grantee has accepted this Franchise. Grantee shall promptly reimburse Grantor the publication costs associated with this Ordinance. 1. 2. Acceptance. (a) Grantee shall accept this Franchise Agreement within sixty (60) days of the adoption of the Franchise Ordinance by the City Council, unless the time for acceptance is extended by Grantor. Such acceptance by the Grantee shall be deemed the grant of this Franchise for all purposes. Formatted: Space Before: 0.25 pt Formatted: Font: 12 pt Commented [TS7]: Mediacom renews all franchise agreements on a quarterly basis. Formatted: List Paragraph, Indent: First line: 0.01", Right: 0.21", Line spacing: Multiple 1.03 li, Numbered + Level: 1 + Numbering Style: 1, 2, 3, … + Start at: 1 + Alignment: Left + Aligned at: -0.41" + Indent at: 0.08", Tab stops: 0.59", Left 37 Upon acceptance of this Franchise, Grantee shall be bound by all the terms and conditions contained herein. (b) Grantee shall accept this Franchise in the following manner: (1) This Franchise shall be properly executed by Grantee and delivered to Grantor. (2) With its acceptance, Grantee shall also deliver any Insurance certificate required herein that have not previously been delivered to Grantor. Passed and adopted this _________ day of ____________________________, 2024. CITY OF BROOKINGS, GRANTOR By: Oepke G. Niemeyer, Its: Mayor ATTEST: Bonnie Foster, City Clerk ACCEPTED: This Franchise Agreement is accepted and Grantee agrees to be bound by its terms and conditions. Dated: ______________________ MEDIACOM MINNESOTA LLC, GRANTEE By: Its: ______________________ 38 EXHIBIT A DROPS TO PUBLIC BUILDINGS ________________________________________________________ The following cable drops to public buildings shall be provided upon request by the Grantor: City: Brookings City and County Government Center Brookings Police Department School: All current schools Any Future schools constructed during the franchise period within 125 feet of current plant. Library Larson Ice Center Dacotah Bank Center (formerly Swiftel Center) Street Maintenance Shop The following High Speed Data lines (HSD) shall also be provided: City: The Brookings City and County Government Center and Brookings Police Department—2 High speed data lines (HSD) installed at each building at no cost to the Grantor, with HSD service provided at residential rates, though not to be upgraded without monthly charge added to associated speed and service. Note: Buildings not identified on the above list may be included by Grantor’s notice to Grantee of the building and location provided the building is within five 125hundred feet of Grantee’s nearest trunk or distribution cable. Grantee shall provide free drop within ninety (90) days after receipt of notice. Commented [TS8]: Mediacom is not serving these sites with HSD now. 39 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 24-031,Version:2 Public Hearing and Action on Ordinance 24-031, an Ordinance establishing Reasonable Accommodations Pursuant to the Federal Fair Housing Amendments Act of 1988. Summary and Recommended Action: Staff recommends approval of ordinance establishing procedure to address requests for reasonable accommodations for persons with disabilities pursuant to the Federal Fair Housing Amendments Act of 1988. Attachments: Memo Ordinance Legal Notice City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: Steve Britzman, City Attorney Council Meeting: August 27, 2024 Subject: Ordinance 24-031: Establishing Reasonable Accommodations pursuant to the Federal Fair Housing Amendments Act of 1988 Presenter: Steve Britzman, City Attorney Summary and Recommended Action: Staff recommends approval of ordinance establishing procedure to address requests for reasonable accommodations for persons with disabilities pursuant to the Federal Fair Housing Amendments Act of 1988. Item Details: Ordinance No. 24-031 is intended to establish a policy of the city, pursuant to the Federal Fair Housing Amendments Act of 1988, to provide reasonable accommodations in the application of its ordinances for disabled persons who are seeking fair and equal access to housing in the city. The proposed ordinance establishes a process for making and acting upon requests for reasonable accommodations. The proposed Ordinance provides definitions of Reasonable Accommodation, Disability or disabled, and Sober house. Instructions are provided for persons requesting accommodation, hearing procedure by the City Council, and factors which the City Council will use to evaluate requests for reasonable accommodation on behalf of persons with disabilities. Legal Considerations: The City Attorney has prepared / reviewed the proposed Ordinance. Strategic Plan Considerations:  Safe, Inclusive & Connected Community. The adoption of an Ordinance establishing a procedure to consider requests for reasonable accommodation for persons with disabilities furthers the desire to provide a safe, inclusive and connected community by addressing the needs of persons with disabilities who are seeking fair and equal access to housing in the City.  Service and Innovation Excellence. The City of Brookings will further the accessible environment by providing a mechanism for those with disabilities to request accommodation through a hearing procedure which establishes a transparent procedure and public input concerning the request for accommodation. Financial Considerations: None Supporting Documentation: Ordinance Legal Notice ORDINANCE 24-031 AN ORDINANCE ESTABLISHING REASONABLE ACCOMMODATIONS PURSUANT TO THE FEDERAL FAIR HOUSING AMENDMENTS ACT OF 1988 BE IT ORDAINED AND ADOPTED BY THE COUNCIL OF THE CITY OF BROOKINGS, STATE OF SOUTH DAKOTA, AS FOLLOWS: I. Sec. 1-13. Reasonable accommodations for persons with disabilities. (a) Purpose. It is the policy of the city, pursuant to the Federal Fair Housing Amendments Act of 1988, to provide reasonable accommodations in the application of its ordinances for disabled persons who are seeking fair and equal access to housing in the city. The purpose of this Section is to establish a process for making and acting upon requests for reasonable accommodations. (b) Definitions. For purposes of this Section, the following terms will have the meanings provided below: a. Reasonable accommodation. A “reasonable accommodation” is the provision to a disabled individual (or to a provider or developer of housing for disabled individuals) of flexibility in the application of land-use and zoning regulations or policies, including via the modification or waiver of certain requirements, if such modification or waiver is necessary to eliminate barriers to housing opportunities. b. Disability or disabled. An individual is “disabled” or suffers from a “disability” if he or she would qualify under the definitions of those terms in the Federal Fair Housing Amendments Act of 1988 and its implementing regulations. c. Sober house. A “sober house” is a residential dwelling designed to support the sobriety of all the residents who reside there and in which all such residents are unsupervised by any third party and are instead jointly responsible for the day-to-day affairs and management of the dwelling. (c) Request for accommodation. A disabled individual, the representative of a disabled individual, or a developer or provider of housing for disabled individuals may request a reasonable accommodation in the application of a city ordinance using an application form provided by the city. Such application form will be publicly available on the city’s website and at the office of the city’s community development department. The application will include a detailed explanation of why the modification is reasonably necessary to make the specific housing 4895-3163-0296, v. 1 available to the person, including (i) information establishing that the applicant (or, as applicable, the individual on whose behalf the applicant is requesting accommodation) is disabled; (ii) information demonstrating the burden the existing city ordinance places on efforts to accommodate the disabled individual; (iii) information outlining in detail the terms of the requested accommodation, and (iv) if the application is submitted on behalf of a group of disabled individuals, the number of individuals to be housed and why that number is necessary to accommodate each individual. If a project for which the request is being made also requires an additional land-use review or approval, the applicant must file the request concurrently with the land-use review. The application may be accompanied by any other documentary evidence that the applicant reasonably believes may be pertinent to evaluating the applicant’s requested accommodation. A completed application must be submitted to the Community Development Department, who in turn will promptly transmit the application and any accompanying materials to the city council. (d) Hearing before city council. a. Upon city council’s receipt of an application for accommodation, the application will be scheduled for a hearing at the next regularly scheduled city council meeting that is at least 15 days from the date of the council’s receipt of the request for accommodation. b. Notice of the hearing at which the city council will evaluate the request will be mailed at least 10 days before the meeting at which such hearing will be held to the owners of all properties located within 150 feet of the property subject to the request. c. At the hearing, the city council will evaluate the request according to the following factors: (i) whether the applicant or the individuals whom the applicant represents are disabled; (ii) whether the request is needed to allow the disabled individual equal opportunity to use and enjoy a dwelling or to live in a particular neighborhood as an individual without disabilities; (iii) whether the request is reasonable, considering the potential impact on surrounding uses, the extent to which the requested accommodation meets the stated need, and other alternatives that may meet that need; (iv) whether the request would fundamentally alter the city’s zoning scheme; (v) whether the request would impose an undue financial or administrative burden on the city; and (vi) any other factors that may have bearing on the request, as determined by the city. At the conclusion of this hearing, the city council will grant or deny the request. d. In the course of evaluating the petition at the hearing, the city council may consider, in addition to the application and the materials submitted alongside it, any additional documentary evidence presented by the applicant and the oral or written testimony of the applicant and of any 4895-3163-0296, v. 1 other interested persons. At all times, the applicant has the burden to prove by a preponderance of the evidence that it is entitled to the accommodation. (e) Nature of approval. An approved request is granted only to the applicant and does not run with the land unless the city determines (i) that the accommodation would be physically integrated into the residential structure and cannot easily be removed or altered or (ii) that the accommodation is to be used by another individual with a disability. The city council must make this finding on the record during the meeting at which the request is approved. (f) Amendments. Proposed amendments to any reasonable accommodation provided by the city must be presented and processed in the same manner as an original request. (g) Limitation for sober houses. No sober house granted a reasonable accommodation under this Ordinance may be located within 1,000 feet of another sober house that has been granted a reasonable accommodation. This distance will be measured from the property line of each property that is closest to the other property. II. Any or all ordinances in conflict herewith are hereby repealed. FIRST READING: August 27, 2024 SECOND READING: September 10, 2024 PUBLISHED: CITY OF BROOKINGS, SD Oepke G. Niemeyer, Mayor ATTEST: Bonnie Foster, City Clerk NOTICE OF PUBLIC HEARING Ordinance 24-031 NOTICE IS HEREBY GIVEN that the Brookings City Council, Brookings, South Dakota, will hold a public hearing at 6:00 p.m., CST, Tuesday, September 10, 2024, in the Brookings City & County Government Center Chambers, 520 Third Street, to consider adoption of a revision to the City Code of Ordinances, entitled Ordinance 2 4-031, an Ordinance establishing Reasonable Accommodations pursuant to the Federal Fair Housing Amendments Act of 1988. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated in Brookings, South Dakota, this 30th day of August, 2024. CITY OF BROOKINGS, SD Bonnie Foster, City Clerk Published one time 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 #:ORD 24-030,Version:2 Public Hearing and Action on Ordinance 24-030, an Ordinance to permit by Conditional Use a Major Home Occupation Hair Salon on Lot 1 in Block 3 of Moriarty Edgebrook Addition, also known as 1635 17th Avenue South. Summary and Recommended Action: Diane Nelson has applied for a Conditional Use Permit to operate a home hair salon, a Major Home Occupation in a residential district. The application meets the requirements for a major home occupation. The Planning Commission voted 6-0 recommending approval with the following condition: ·The Conditional Use Permit is valid only for the current owner. Staff recommends approval with the condition that the Conditional Use Permit is valid only for the current owner. Attachments: Memo Ordinance Notice - City Council Notice - Planning Commission Planning Commission Minutes Location Map Conditional Use Permit Application Major Home Occupation Checklist City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: Ryan Miller, City Planner Council Meeting: August 27, 2024 / September 10, 2024 Subject: Ordinance 24-030: Conditional Use Permit – Lot 1 in Block 3 of Moriarty Edgebrook Addition Person(s) Responsible: Mike Struck, Community Development Director Summary and Recommended Action: Diane Nelson has applied for a Conditional Use Permit to operate a home hair salon, a Major Home Occupation in a residential district. The application meets the requirements for a major home occupation. Staff recommends approval with the following condition. The Conditional Use Permit is valid only for the current owner. The Planning Commission voted 6-0 to recommend approval with the following condition:  The Conditional Use Permit is valid only for the current owner. Item Details: 1635 17th Avenue South is a single-family residence in the Residence R-3 Apartment District. The applicant is proposing to renovate a portion of the garage for use as a salon. The home includes a two-stall garage with three parking stalls in the driveway for a total of five parking spaces. Two spaces are required for the home occupation in addition to the required two spaces for a single -family home. Legal Consideration: None. Strategic Plan Consideration: Economic Growth – The City of Brookings will support effective diversified community investment and equitable opportunities for prosperity. Financial Consideration: None. Supporting Documentation: Ordinance Notice – City Council Notice – Planning Commission Planning Commission Minutes Location Map Conditional Use Permit Application Major Home Occupation Checklist ORDINANCE 24-030 AN ORDINANCE PERTAINING TO AN APPLICATION FOR A CONDITIONAL USE PERMIT TO ESTABLISH A MAJOR HOME OCCUPATION IN A RESIDENCE R-3 APARTMENT DISTRICT. BE IT ORDAINED BY THE CITY OF BROOKINGS, SOUTH DAKOTA: Section 1. That said Conditional Use Permit shall be approved for a Major Home Occupation on Lot 1 in Block 3 of Moriarty Edgebrook Addition to the City of Brookings, County of Brookings, State of South Dakota with the following conditions:  The Conditional Use Permit is valid only for the current owner Section 2. That said application for a conditional use permit satisfies the requirements as described in Sec. 94-278 of Chapter 94, Article V, Division 3 and Sec. 94-362 of Chapter 94, Article VI, Division 2 of the City of Brookings, South Dakota. Section 3. That all sections and ordinances in conflict herewith are hereby repealed. FIRST READING: August 27 2024 SECOND READING AND ADOPTION: September 10, 2024 PUBLISHED: September 13, 2024 CITY OF BROOKINGS, SD __________________________ Oepke G. Niemeyer, Mayor ATTEST: ________________________________ Bonnie Foster, City Clerk NOTICE OF PUBLIC HEARING Ordinance 24-030 NOTICE IS HEREBY GIVEN that the Brookings City Council, Brookings, South Dakota, will hold a public hearing at 6:00 p.m., CST, Tuesday, September 10, 2024, in the Brookings City & County Government Center Chambers, 520 Third Street, to consider adoption of a revision to the City Code of Ordinances, entitled Ordinance 24-030, an Ordinance to permit by Conditional Use a Major Home Occupation Hair Salon on Lot 1 in Block 3 of Moriarty Edgebrook Addition, also known as 1635 17 th Avenue South. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated in Brookings, South Dakota, this 30th day of August, 2024. CITY OF BROOKINGS, SD Bonnie Foster, City Clerk Published one time at an approximate c ost: $ . If you require assistance, alternative formats and/or accessible locations consistent with the Americans with Disabilities Act, please contact the City ADA Coordinator at 692-6281 at least 48 hours prior to the meeting. Published ______ time(s) at an approximate cost of $ _____________. NOTICE OF HEARING UPON APPLICATION FOR CONDITIONAL USE PERMIT NOTICE IS HEREBY GIVEN that Diane Nelson has submitted an application for a Conditional Use Permit on the following described real estate in the City of Brookings: Lot 1 in Block 3 of Moriarty Edgebrook Addition, also known as 1635 17th Avenue South. The request is for a major home occupation – hair salon in a residential district. NOTICE IS FURTHER GIVEN that said request will be acted on by the Planning Commission at 5:30 PM on Tuesday, August 6, 2024, in the Chambers Room on the third floor of the Brookings City & County Government Center at 520 Third Street, Brookings, South Dakota. Any action taken by the Planning Commission is a recommendation made to the City Council. Any person interested may appear and be heard on this matter. Dated this 24th day of July, 2024. Ryan Miller City Planner Planning Commission Brookings, South Dakota August 6, 2024 OFFICIAL MINUTES Chairperson Tanner Aiken called the meeting of the City Planning Commission to order on Tuesday, August 6, 2024, at 5:30 PM in the Council Chambers Room #310 on the third floor of the City & County Government Center. Members present were Tanner Aiken, Kyle Jamison, Scot Leddy, Nick Schmeichel, Richard Smith and Debra Spear. Jacob Limmer and Roger Solum were absent. Also present were Community Development Director Michael Struck and City Planner Ryan Miller. Also present were Phillip Altman, Nathan Traffie, Diane Nelson, Patrick Daly, Marty Syrstad, Ken Just, Tim Reid, Jim Burkhardt and Jacob Meshke. Item #6a – Diane Nelson has applied for a Conditional Use Permit to operate a home hair salon, a Major Home Occupation, in a residential district at 1635 17th Avenue South. (Smith/Schmeichel) Motion to approve the Conditional Use Permit subject to staff recommendation of the permit being valid only to the current homeowner. All present voted aye. MOTION CARRIED. OFFICIAL SUMMARY Item #6a – Diane Nelson has applied for a Conditional Use Permit to operate a home hair salon, a Major Home Occupation in a residential district at 1635 17th Avenue South. Home hair salons are allowed as a major home occupation only as single chair operation. The property is a single-family residence in the Residence R-3 Apartment district. The applicant is proposing to renovate a portion of the garage for use as a salon. The home includes a two-stall garage with three parking stalls in the driveway for a total of five parking spaces. Two spaces are required for the home occupation in addition to the required two spaces for a single-family home. Nelson was available for questions. Schmeichel clarified that the request met the outlined criteria. Miller explained that the salon would not have to be removed from the garage in the event of sale of the property but a future homeowner would have to apply for their own Conditional Use Permit. Spear asked for the plan to contain toxic or noxious chemicals. Nelson would have a contractor’s assistance with ventilation. Spear asked if it would be on the park side of the dwelling. Nelson said yes, she had considered using the basement but did not want her older clients using the steps. Aiken asked if it would be required to be built to code. Miller stated, yes, at permitting it would need to meet commercial use codes. 17TH AVE SCYPRESS POINT DR 17TH AVE S17TH AVE SCYPRESS POINT CIRBLAIRHILL CIR 1602 17TH AVE S 1530 17TH AVE S 1522 17TH AVE S 1710 17TH AVE S 1628 CYPRESS POINT CIR 1704 17TH AVE S 1634 17TH AVE S 1628 17TH AVE S 1616 17TH AVE S 1610 17TH AVE S 1631 CYPRESS POINT CIR 1607 17TH AVE S 1624 CYPRESS POINT CIR 1620 CYPRESS POINT CIR 1616 CYPRESS POINT CIR 1612 CYPRESS POINT CIR 1606 CYPRESS POINT CIR 1602 CYPRESS POINT CIR 1635 17TH AVE S 1629 17TH AVE S 1621 17TH AVE S 1723 CYPRESS POINT DR1705 CYPRESS POINT DR 1618 BLAIRHILL CIR 1603 BLAIRHILL CIR 1609 BLAIRHILL CIR 1726 WINDERMERE WAY 1725 WINDERMERE WAY 1729 WINDERMERE WAY 1728 17TH AVE S 1724 17TH AVE 1716 17TH AVE S 1709 WINDERMERE WAY1611 WINDERMERE WAY Location Map 7/24/2024 0 0.03 0.050.01 mi 0 0.04 0.080.02 km 1:2,261 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 24-025,Version:2 Second Reading and Action on Ordinance 24-025, an Ordinance Authorizing Budget Amendment No. 8 to the 2024 Budget. Summary and Recommended Action: Staff requests Council approval on this budget amendment. This amendment transfers $500,000 from the General Fund and increases the 2024 Other Capital budget in the CIP/2 nd Penny Sales Tax Fund by $3,166,168 for the Energy Savings Performance Contract with Ameresco authorized by Resolution 24-022. Attachments: Memo Ordinance City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: Ashley Rentsch, Finance Director Council Meeting: August 13, 2024 / August 27, 2024 Subject: Ordinance 24-025: Amendment No. 8 to the 2024 Budget Presenter: Ashley Rentsch, Finance Director Summary and Recommended Action: Staff requests Council approval on this budget amendment. This amendment transfers $500,000 from the General Fund and increases the 2024 Other Capital budget in the CIP/2nd Penny Sales Tax Fund by $3,166,168 for the Energy Savings Performance Contract with Ameresco authorized by Resolution 24-022. Item Details: 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 needs. The City’s Chief Building Official, Jared Thomas, has been working with Ameresco over the past year to develop a scope of capital projects that promote energy efficiency across all City facilities. The scope of work includes five (5) projects: citywide LED lighting conversion, HVAC equipment upgrades at the East Fire Station, Larson Ice Center, and Dacotah Bank Center; window and door upgrades at Larson Ice Center and the Dacotah Bank Center; Fire alarm at Larson Ice Center; and roof replacement at East Fire Station. All projects in the scope of work had been considered in the existing 10-Year Capital Improvement Plan (CIP). Citywide LED lighting had been removed from the departmental CIP budgets with the intention of combining them into one CIP line item for this project. The total project cost per the contract is $3,356,149. This amendment moves all projects up to 2024-2025, including $3,166,168 in the 2024 budget and the remaining $189,981 to be added to the 2025 budget. This amendment also includes a contribution of $500,000 from the General Fund to account for energy and maintenance savings in the General Fund to be realized as a result of the project. Legal Consideration: None. Strategic Plan Consideration:  Fiscal Responsibility – The City of Brookings will responsibly manage resources through transparency, efficiency, equity, and exceptional customer service.  Sustainability – The City of Brookings will meet environmental, community and economic desires and needs without compromising future generations’ quality of life by strategically planning, implementing and maintaining infrastructure and facilities. Financial Consideration: This amendment will increase the 2024 Capital Improvement Plan/2nd Penny Sales Tax Fund expenditure budget by $3,166,168 and transfer a contribution of $500,000 from the General Fund. Supporting Documentation: Memo Ordinance ORDINANCE 24-025 AN ORDINANCE AUTHORIZING BUDGET AMENDMENT NO. 8 TO THE 2024 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 comes due. NOW, THEREFORE, BE IT RESOLVED by the City Council that the City Manager be authorized to make the following budget adjustments to the 20 24 budget: Fund/Department Account Description Budget Increase/(Decrease) General Fund/Non- Departmental 101-000-7-899-05 Transfer Out to CIP Fund $ 500,000 CIP Fund 213-000-6-700-00 Transfer In from General Fund $ 500,000 CIP Fund 213-000-5-940-00 Other Capital $ 3,166,168 All ordinances or parts of ordinances in conflict herewith are hereby repealed. FIRST READING: August 13, 2024 SECOND READING: August 27, 2024 PUBLISHED: August 30, 2024 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 24-026,Version:2 Public Hearing and Action on Ordinance 24-026, an Ordinance Amending Chapter 82 of the Code of Ordinances of the City of Brookings and Pertaining to the Covering of Vehicle Loads in the City of Brookings. Summary and Recommended Action: Staff recommends approval of Ordinance 24-026 amending Chapter 82, Section 567 - Covering of vehicle loads; spillage. The amendment addresses a clerical error in the existing code and clarifies exemptions to include County highway vehicles. Attachments: Memo Ordinance - clean Ordinance - marked City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: John R. Thompson, Public Works Director Council Meeting: August 13, 2024 / August 27, 2024 Subject: Ordinance 24-026: Amending Chapter 82 of the Code of Ordinances of the City of Brookings Presenter: John R. Thompson, Public Works Director Summary and Recommended Action: Staff recommends approval of Ordinance 24-026 amending Chapter 82, Section 567 - Covering of vehicle loads; spillage. The amendment addresses a clerical error in the existing code and clarifies exemptions to include County highway vehicles. Item Details: Chapter 82, Section 567 – Covering of vehicle loads; spillage, was revised in 2013. The revision contained a clerical error which was not noticed until recently. The proposed amendment removes the clerical error and adds language to clarify exemptions to the code to include County highway vehicles. Legal Consideration: The City Attorney has reviewed the proposed amendment. Strategic Plan Consideration: Safe, Inclusive, Connected Community – The City of Brookings will create an environment for inclusive programs, gathering places, and events where the community can safely live, work and come together to participate in opportunities for learning, recreation and enjoyment. Financial Consideration: None. Supporting Documentation: Ordinance – marked Ordinance – clean ORDINANCE 24-026 AN ORDINANCE AMENDING CHAPTER 82 OF THE CODE OF ORDINANCES OF THE CITY OF BROOKINGS AND PERTAINING TO THE COVERING OF VEHICLE LOADS IN THE CITY OF BROOKINGS. BE IT ORDAINED AND ENACTED BY THE COUNCIL OF THE CITY OF BROOKINGS, STATE OF SOUTH DAKOTA, AS FOLLOWS: I. THAT SECTION 82-567 of the Code of Ordinances and pertaining to covering of vehicle loads is hereby amended to read as follows: Section 82-567. Covering of vehicle loads; spillage. (a) No person may drive or move a vehicle on a street or highway unless the vehicle is so constructed or loaded as to prevent its contents from dropping, sifting, leaking, blowing off, or otherwise escaping from the vehicle. This requirement does not apply to a vehicle transporting agricultural or horticultural products when hay, straw, silage or residue from a product, but not including the product itself, or when materials such as water used to preserve and handle agricultural or horticultural products while in transportation, escape from the vehicle in an amount that does not interfere with other traffic on the highway. The tailgate, faucets and taps on a vehicle shall be securely closed to prevent spillage during transportation, whether the vehicle is loaded or empty, and the vehicle must not have any holes or cracks through which material can escape. Any County highway or City maintenance vehicle engaged in either ice, snow or waste removal or citywide cleanup or emergency operations shall be exempt from this section. (b) Actual spillage of material on a street or highway or proof of that spillage is not necessary to prove a violation of this section. II. Any or all ordinances in conflict herewith are hereby repealed. FIRST READING: August 13, 2024 SECOND READING: August 27, 2024 PUBLISHED: CITY OF BROOKINGS, SD ATTEST: Oepke G. Niemeyer, Mayor Bonnie Foster, City Clerk ORDINANCE NO. 24-_____24-026 AN ORDINANCE AMENDING CHAPTER 82 OF THE CODE OF ORDINANCES OF THE CITY OF BROOKINGS AND PERTAINING TO THE COVERING OF VEHICLE LOADS IN THE CITY OF BROOKINGS. BE IT ORDAINED AND ENACTED BY THE COUNCIL OF THE CITY OF BROOKINGS, STATE OF SOUTH DAKOTA, AS FOLLOWS: I. That Section 82-567 of the Code of Ordinances and pertaining to covering of vehicle loads is hereby amended to read as follows: Sec. 82-567. Covering of vehicle loads; spillage. (a) No person may not drive or move a vehicle on a street or highway unless the vehicle is so constructed or loaded as to prevent its contents from dropping, sifting, leaking, blowing off, or otherwise escaping from the vehicle. This requirement does not apply to a vehicle transporting agricultural or horticultural products when hay, straw, silage or residue from a product, but not including the product itself, or when materials such as water used to preserve and handle agricultural or horticultural products while in transportation, escape from the vehicle in an amount that does not interfere with other traffic on the highway. The tailgate, faucets and taps on a vehicle shall be securely closed to prevent spillage during transportation, whether the vehicle is loaded or empty, and the vehicle must not have any holes or cracks through which material can escape. Any County highway or City of Brookings maintenance vehicle engaged in either ice, snow or waste ice/snow removal or citywide cleanup or emergency operations shall be exempt from this section. (b) Actual spillage of material on a street or highway or proof of that spillage is not necessary to prove a violation of this section. II. Any or all ordinances in conflict herewith are hereby repealed. FIRST READING: August 13, 2024 SECOND READING: August 27, 2024 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 24-027,Version:2 Public Hearing and Action on Ordinance 24-027, an Ordinance Amending Articles I & II of Chapter 72 - Storm Drainage, of the Code of Ordinances of the City of Brookings, South Dakota. Summary and Recommended Action: The recent update to the City’s Master Drainage Plan (Plan) recommends revisions to the City’s Storm Drainage Fee. The current drainage fee, which was established in 1985, bases the fee on land use. To provide a more equitable means of calculating this fee, the Plan recommends using an Equivalent Residential Unit (ERU). An ERU bases the fee on the average impervious for a residential parcel. All residential parcels will be assessed one ERU, while commercial and industrial lots will be assessed based on the amount of impervious coverage. Staff recommends approval of the proposed ordinance amendment. Attachments: Memo Ordinance - clean Ordinance - marked Legal Notice City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: Charlie Richter, City Engineer Council Meeting: August 13, 2024 / August 27, 2024 Subject: Ordinance 24-027: Revision to the Storm Drainage Ordinance Presenter: Charlie Richter, City Engineer Summary and Recommended Action: The recent update to the City’s Master Drainage Plan (Plan) by ISG from Des Moines, IA, recommended revisions to the City’s Storm Drainage Fee to a more equitable system for property owners. The proposed switch to the Equivalent Residential Unit (ERU) system will base the fee on the actual impervious coverage on each parcel versus the existing system that estimates the impact on land use. The proposed ERU system provides more equity and is recommended by staff. Item Details: The City currently has a storm drainage ordinance which dates back to 1985. This ordinance identifies, among other things, how the Storm Drainage Fee is to be calculated. The Storm Drainage Fee pays for the following: maintenance and replacement of drainage infrastructure; new projects which reduce flooding and improve water quality; personnel / administration; maintenance of stormwater equipment; and public education and outreach. At the time the Storm Drainage Ordinance was adopted, the City based the fee structure on a similar system used by other South Dakota municipalities that equates land-use to their stormwater impact on the community. The land-use categories identify the runoff factor used to estimate the relative volume of stormwater runoff generated from a parcel. These categories tend to under or overestimate the runoff volume generated by parcels. Technological advancements since 1985 warrant adjustments to the City’s Storm Drainage Fee structure. These advancements allow communities to utilize infra-red technology to identify and quantify impervious coverage on each parcel and provide a more equitable system to calculate storm drainage fees. A fee based on the ERU correlates the amount of actual impervious area on a lot to the runoff volume it produces. Over 80% of communities across the country use a ERU based system to calculate drainage fees. Staff presented the findings of the Plan to City Council at a November 2023 Study Session, which outlined the proposed revision to the Storm Drainage Fee and impacts. Staff is recommending a transition to the ERU system this year. If approved, property owners will realize the new fee on their 2025 property tax billing. Legal Consideration: The City Attorney has reviewed the ordinance amendment. Strategic Plan Consideration: Fiscal Responsibility – This ordinance revision will responsibly manage resources through transparency, efficiency, equity, and exceptional customer service. Financial Consideration: The recommended monthly ERU is $6.14 ($73.68/year). This equates to a 4.24% increase to the “average” single-family residential property. Industrial and commercial lots will be charged the base on the actual impervious area for that parcel. The proposed ERU of $6.14/month, along with a 3% annual increase, is projected to generate sufficient funding over the next 10 years to design and construct $12 million in stormwater related capital projects, along with annual operations and maintenance costs, increased public outreach and education, and implementation of green infrastructure programs. Supporting Documentation: Ordinance - clean Ordinance - marked Legal Notice Page 1 of 8 ORDINANCE 24-027 AN ORDINANCE AMENDING CHAPTER 72 OF THE CODE OF ORDINANCES OF THE CITY OF BROOKINGS AND PERTAINING TO STORM DRAINAGE. BE IT ORDAINED AND ENACTED BY THE COUNCIL OF THE CITY OF BROOKINGS, STATE OF SOUTH DAKOTA, AS FOLLOWS: I. THAT CHAPTER 72, ARTICLE I. and II. of the Code of Ordinances and pertaining to Storm Drainage is hereby amended to read as follows: ARTICLE 1. – IN GENERAL Sec. 72-1. Title. These regulations may be referred to as the "Storm Drainage Ordinance" of the City of Brookings and the area of extraterritorial jurisdiction. (Ord. No. 21-10, 6-8-2010) Sec. 72-2. Purpose. The purpose of this chapter is to provide for the health, safety and general welfare of the City of Brookings with respect to storm drainage to the maximum extent practicable and as required by federal and state law by: (1) Establishing methods for controlling the introduction of pollutants into the municipal separate storm sewer system (hereinafter referred to as the "MS4") in order to comply with requirements of the National Pollutant Discharge Elimination System (NPDES) permit process. (2) Prohibiting illicit connections and discharges to the municipal separate storm sewer system (MS4). (3) Establishing legal authority for the City of Brookings to carry out all inspection, surveillance and monitoring procedures necessary to ensure compliance with this chapter. (4) Establishing a drainage fee structure for funding public storm drainage infrastructure improvements within the City of Brookings. (5) Establishing stormwater design standards for the City of Brookings. (Ord. No. 21-10, 6-8-2010) Sec. 72-3. Authority. In accordance with the South Dakota Water Pollution Control Act and the Administrative Rules of South Dakota (ARSD) Chapters 74:52:01 through 74:52:11, and any other authority provided by law or as such statutes may be amended, the city does hereby exercise the power and authority with respect to storm drainage in the city and for the area of extraterritorial jurisdiction. (Ord. No. 21-10, 6-8-2010) Page 2 of 8 Sec. 72-4. Inspections by authorized city staff. As part of the city's stormwater pollution detection and elimination program, the city engineer or designee reserves the right to inspect and monitor all facilities which discharge into the MS4. All inspections may be documented and may include photographs of violations and potential problem areas. (Ord. No. 21-10, 6-8-2010) Sec. 72-5. Definitions. The following words and phrases used in this chapter are defined below: Best management practices (BMPs) mean various activities, prohibitions of practices, maintenance procedures and other management practices, either structural or non - structural, for the purpose of preventing or reducing the discharge of pollutants to the municipal stormwater system and/or waters of the state. Examples of structural BMPs may include permanent detention or retention ponds constructed to control and minimize stormwater runoff rates and volumes and to prevent, control, and minimize stormwater pollution. Non-structural BMPs may include ongoing treatment requirements, operating procedures, and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from raw materials storage. BMPs may also be temporary, such as BMPs put into place during construction and maintained until the site is permanently stabilized. Clean Water Act (CWA) means the 1972 amendment to the Federal Pollution Control Act which provides the statutory basis for the NPDES permit program and the basic structure for regulating the discharge of pollutants from point sources to waters of the United States. Concrete washout means any wash waters derived from the cleaning of concrete trucks and/or equipment. Control measures means any BMP or other method used to minimize erosion and sedimentation, and thereby minimize the discharge of pollutants to waters of the state. Detention basin means a structure or facility, natural or artificial, which stores stormwater on a temporary basis and releases it at a controlled rate. Development means a parcel of land or two or more contiguous parcels of land where grading work is performed as a single unified operation on an area equal to or greater than one acre. Disturbed area means an area of land subjected to erosion due to the removal of vegetative cover and/or earthmoving activities, including unstabilized fill and soil stockpiles. Drainage way means any channel or conduit that conveys stormwater runoff. Page 3 of 8 Equivalent Residential Unit (ERU) means the average impervious area for a residential property. The square footage of an equivalent residential unit is deemed to be 4,573 square feet. ERU financial charge means the unit financial charge established by resolution of the City Council. Final stabilization means one of the following: (1) All soil disturbing activities at the site have been completed and a uniform perennial vegetative cover with a density of 70 percent of the native cover for unpaved areas and areas not covered by permanent structures has been established, or equivalent permanent stabilization measures (such as the use of gravel, riprap, gabions, geotextiles, etc.) have been employed; or (2) When background native vegetation will cover less than 100 percent of th e ground (e.g., arid areas, beaches), the 70 percent coverage criteria is adjusted as follows: if the native vegetation covers 50 percent of the ground, 70 percent of 50 percent (0.70 × 0.50 = 0.35) would require 35 percent total cover for final stabilization. On sites with no natural vegetation, no vegetative stabilization is required; or (3) For construction projects on land used for agricultural purposes, final stabilization may be accomplished by returning the disturbed land to its pre - construction agricultural use. Areas disturbed that were not previously used for agricultural activities, such as buffer strips immediately adjacent to waters of the state, and areas that are not being returned to their pre-construction agricultural use shall meet the final stabilization criteria in subsections (1) or (2) immediately above. Flood means an overflow of surface water onto lands not normally covered by water. Floodplain means the area of land adjoining a lake or stream which is inundated when the flow of water exceeds the capacity of the normal feature. For mapping purposes, floodplains are designated according to the frequency of the flood event, such as the 100-year floodplain (one percent chance of occurrence in any given year) or the 500 - year floodplain (0.2 percent chance of occurrence in any given year). General stormwater permit means the South Dakota Department of Environment and Natural Resources (SD DENR) general National Pollutant Discharge Elimination System (NPDES) Construction Stormwater Permit covering anyone conducting a land disturbing activity which disturbs one or more acres of land. Grading means any stripping, clearing, stumping, excavating, filling, stockpiling, or any combination thereof, including the land in its excavated or filled condition. Grading permit means a permit obtained from the City of Brookings to perform a land disturbance activity. Page 4 of 8 Infiltration means the downward movement or seepage of water from the surface into the subsoil and/or groundwater. The infiltration rate is typically expressed in terms of inches per hour. Illicit discharge means any direct or indirect, continuous or intermittent discharge to the MS4, except as exempted in article III of this chapter that is not composed entirely of stormwater, and has not been authorized under a discharge permit issued by the State of South Dakota. Illicit connections means either of the following: (1) Any drain, conveyance, or component of an MS4 (as defined below), whether on the surface or subsurface, which allows an illicit discharge to enter the storm drainage system, including, but not limited to, any conveyances which allow any non-stormwater discharge including sewage, process wastewater and wash water to enter the storm drainage system; or (2) Any connections to the storm drainage system from indoor drains and sinks, regardless of whether said drain or connection had been previously allowed, permitted, or approved by an authorized agency. Infiltration means the process of percolating stormwater into the subsoil. Jurisdictional wetland, or wetland means an area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation. Land disturbing activity is any land change that may result in soil erosion from wind, water or melting, resulting in the movement of sediments into or upon waters, lands, or rights-of-way within the City of Brookings, including but not limited to building demolition, clearing and grubbing, grading, excavating, transporting and filling of land. Larger common plan of development or sale means a contiguous area of one (1) or more acres where multiple, separate and distinct construction activities are anticipated to occur at different times on different schedules under one plan, commonly referred to as a "development". Individual lots within the development which are sold to another party for the purpose of construction are still considered part of the "Larger Common Plan of Development" even after the sale. Municipal separate storm sewer system ("MS4") is defined in 40 CFR § 122.26(b)(8) and herein to mean a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, swales, manmade channels or storm drains) which are: (1) Owned and operated by a state, city, town, county, district, association, or other public body having jurisdiction over disposal of sewage, industrial wastes, stormwater or other wastes, including special districts under state law such as a sewer district, flood control district, or drainage district or similar Page 5 of 8 entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of the Clean Water Act (CWA) that discharges to waters of the United States; and (2) Designed or used for collecting or conveying stormwater; and (3) Not a combined sewer; and (4) Not part of a publicly owned treatment works (POTW) as defined at 40 CFR §122.2. Municipality means a city, town, district, sanitary district, or other public body created by or under state law with jurisdiction over the disposal of sewage, industrial wastes or other wastes. Nonpoint source means a source of pollution that is not defined as a point source by the Environmental Protection Agency (EPA). Non-stormwater discharge means any discharge to the storm drain system that is not composed entirely of stormwater. Notice of intent ("NOI") means an SDDENR form that must be filed by anyone disturbing one or more acres of land prior to the commencement of any land disturbing a ctivity in order to be covered by the SDDENR general permit. Notice of termination ("NOT") means an SDDENR form that must be filed after final stabilization of any land disturbing activity that was covered by the SDDENR general permit. The NOT notifies the SDDENR that permitted coverage is no longer required and that the site has been permanently stabilized. NPDES or National Pollutant Discharge Elimination System means an EPA permit program that controls water pollution by regulated point sources that discharge pollutants into waters of the United States. Phasing means clearing a parcel of land in distinct phases, with the stabilization of each phase completed before the clearing of the next phase. Point source (as also defined by the EPA) means any discernible, confined and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation or vessel or other floating craft from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture. Pollutant means any dredged spoil, solid waste, incinerator residue, sewage, sewage sludge, garbage, trash, munitions, chemical wastes, biological material, radioactive material, heat, wrecked or discarded equipment, rock, sand, cellar dirt or any industrial, municipal or agricultural waste discharged into waters of the state. Page 6 of 8 Receiving body of water means any lake, pond, creek, wetland or groundwater into which stormwater runoff and conveyance systems are directed. Responsible party means the person, developer or contractor who is responsible for performing all provisions and requirements of a grading permit or SDDENR stormwater discharge permit for construction activities, or the person or entity who is responsible for industrial or commercial discharges into an MS4. Sediment means mineral or organic solid particulate matter that has been removed from its point of origin by soil erosion, suspension in water or wind, or water transport. Sediment control means BMP's that prevent eroded sediment from leaving the site. Soil erosion means the wearing away of land by the action of wind, water, gravity or a combination thereof. Stabilization means the use of practices (BMP's) that prevent exposed soil from eroding. Stormwater means water runoff, including snow and ice melt, which is the direct result of a precipitation event. Stop work order means a notice issued by the city engineer or the city's designated representative, or a state or federal agency to a person, permittee, contractor, developer or property owner to immediately cease construction, grading or development activities. Stormwater pollution prevention plan ("SWPPP") means a site-specific plan which identifies potential sources of stormwater pollution at a constructi on site and specifies structural and nonstructural controls (BMP's) that will be in place to minimize negative impacts caused by stormwater discharges associated with construction activity. Stripping means any activity which removes or significantly disturbs the vegetative surface cover, including clearing and grubbing operations. Total maximum daily load ("TMDL") means the maximum daily sum total of the individual waste load allocations (WLAs) for point sources, the load allocations (LAs) for nonpoint sources and the natural background levels of pollutants that a watercourse can receive while still meeting federal or state water quality standards. TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measure. Vegetative cover means grasses, shrubs, trees and other vegetation which hold and stabilize soils. Watercourse or waterway means any body of water, including, but not limited to, lakes, ponds, rivers, streams, and bodies of water delineated by the city, state or federal governments. Page 7 of 8 Waters of the state means all waters within the jurisdiction of the State of South Dakota, including all streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and all other bodies or accumulations of water, surface and underground, natural or artificial, public or private, situated wholly or partly within or bordering upon the State of South Dakota. Water of the United States means all waters as defined in 40 CFR § 230.3(s). (Ord. No. 21-10, 6-8-2010; Ord. No. 17-031, 1-9-2018) Secs. 72-6—72-16. Reserved. ARTICLE II. STORM DRAINAGE FEE Sec. 72-17. Fee. (a) The purpose of this chapter is to establish a charge against real property within the City for the operation, maintenance, public education, and capital expenses of the storm sewer and drainage system. (b) Annual fee; basis. All parcels within the city shall be charged an annual fee for the operation, maintenance, public education, and capital improvements of the storm sewer and drainage system. The fee for each such property shall be based on the impervious lot area, and an Equivalent Residential Unit (ERU) financial charge. The storm drainage fee is determined as follows: a) Single family parcels will be charged a storm drainage fee based on 1 ERU; b) For all other parcels the storm drainage fee shall equal the impervious area (in square feet) divided by 4,573(ERU)) multiplied by the ERU financial charge (in dollars per ERU). Each parcel will be charged a storm drainage fee based on a minimum of 1 ERU. (c) Exemptions: parcels that do not convey stormwater runoff to a MS4 as determined by the City Engineer are exempt from paying the annual storm drainage fee. (d) Request for site study. Upon written request and payment of the processing fee by a property owner, a site study will be conducted by the City Engineering Division to determine the amount of impervious area a parcel contains and the appropriate fee. This written request must be submitted to the City Engineer on or before February 1 of the year the fees are charged to the subject land parcel. The site study will include a calculation of the impervious area for the subject parcel which contributes stormwater runoff to the MS4. If after completion of a site study, the storm drainage fee is determined to be incorrect, the property owner will be eligible to request an amended property tax bill. No refunds of the storm drainage fee will be issued for previous years. (Ord. No. 21-10, 6-8-2010) Sec. 72-18. Collection. The storm drainage fee established in section 72 -17 shall be an annual charge. The first one-half of such fee is due on or by April 30 and the second one-half is due on or by October 30 of the same year, payable at the office of the county finance departme nt. (Ord. No. 21-10, 6-8-2010) Created: 2024-06-25 16:40:39 [EST] (Supp. No. 17) Page 8 of 8 Sec. 72-19. Fund established. The drainage fees paid to the city shall be maintained in a separate fund to be known as the drainage and storm sewer fund. This fund shall be used to pay the cost of financing the operation, public education, maintenance or construction of the drainage and storm sewer system. (Ord. No. 21-10, 6-8-2010) Sec. 72-20. Annual review. The ERU financial charge may be reviewed annually and revised as necessary so that revenues are reasonably in balance with anticipated expenditures. Excess funds may be carried forward from year to year in order to build sufficient funds for large drainage construction projects which are scheduled or programmed for the near future, and to provide sufficient monies for unanticipated repairs, public education, replacements or maintenance of the MS4. (Ord. No. 21-10, 6-8-2010) Secs. 72-21—72-31. Reserved. II. Any or all ordinances in conflict herewith are hereby repealed. FIRST READING: August 13, 2024 SECOND READING: August 27, 2024 PUBLISHED: August 30, 2024 CITY OF BROOKINGS, SD Oepke G. Niemeyer, Mayor ATTEST: Bonnie Foster, City Clerk Page 1 of 9 ORDINANCE NO. _____ AN ORDINANCE AMENDING CHAPTER 72 OF THE CODE OF ORDINANCES OF THE CITY OF BROOKINGS AND PERTAINING TO STORM DRAINAGE. BE IT ORDAINED AND ENACTED BY THE COUNCIL OF THE CITY OF BROOKINGS, STATE OF SOUTH DAKOTA, AS FOLLOWS: I. THAT CHAPTER 72, ARTICLE I. and II. of the Code of Ordinances and pertaining to Storm Drainage is hereby amended to read as follows: Sec. 72-1. Title. These regulations may be referred to as the "Storm Drainage Ordinance" of the City of Brookings and the area of extraterritorial jurisdiction. (Ord. No. 21-10, 6-8-2010) Sec. 72-2. Purpose. The purpose of this chapter is to provide for the health, safety and general welfare of the City of Brookings with respect to storm drainage to the maximum extent practicable and as required by federal and state law by: (1) Establishing methods for controlling the introduction of pollutants into the municipal separate storm sewer system (hereinafter referred to as the "MS4") in order to comply with requirements of the National Pollutant Discharge Elimination System (NPDES) permit process. (2) Prohibiting illicit connections and discharges to the municipal separate storm sewer system (MS4). (3) Establishing legal authority for the City of Brookings to carry out all inspection, surveillance and monitoring procedures necessary to ensure compliance with this chapter. (4) Establishing a drainage fee structure for funding public storm drainage infrastructure improvements within the City of Brookings. (5) Establishing stormwater design standards for the City of Brookings. (Ord. No. 21-10, 6-8-2010) Sec. 72-3. Authority. In accordance with the South Dakota Water Pollution Control Act and the Administrative Rules of South Dakota (ARSD) Chapters 74:52:01 through 74:52:11, and any other authority provided by law or as such statutes may be amended, the city does hereby exercis e the power and authority with respect to storm drainage in the city and for the area of extraterritorial jurisdiction. (Ord. No. 21-10, 6-8-2010) Page 2 of 9 Sec. 72-4. Inspections by authorized city staff. As part of the city's stormwater pollution detection and elimination program, the city engineer or designee reserves the right to inspect and monitor all facilities which discharge into the MS4. All inspections may be documented and may include photographs of violations and potential problem areas. (Ord. No. 21-10, 6-8-2010) Sec. 72-5. Definitions. The following words and phrases used in this chapter are defined below: Best management practices (BMPs) mean various activities, prohibitions of practices, maintenance procedures and other management practices, either structural or non-structural, for the purpose of preventing or reducing the discharge of pollutants to the municipal stormwater system and/or waters of the state. Examples of structural BMPs may include permanent detention or retention ponds constructed to control and minimize stormwater runoff rates and volumes and to prevent, control, and minimize stormwater pollution. Non -structural BMPs may include ongoing treatment requirements, operating procedures, and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from raw materials storage. BMPs may also be temporary, such as BMPs put into place during construction and maintained until the site is permanently stabilized. Clean Water Act (CWA) means the 1972 amendment to the Federal Pollution Control Act which provides the statutory basis for the NPDES permit program and the basic structure for regulating the discharge of pollutants from point sources to waters of the United States. Concrete washout means any wash waters derived from the cleaning of concrete trucks and/or equipment. Control measures means any BMP or other method used to minimize erosion and sedimentation, and thereby minimize the discharge of pollutants to waters of the state. Detention basin means a structure or facility, natural or artificial, which stores stormwater on a temporary basis and releases it at a controlled rate. Development means a parcel of land or two or more contiguous parcels of land where grading work is performed as a single unified operation on an area equal to or greater than one acre. Disturbed area means an area of land subjected to erosion due to the removal of vegetative cover and/or earthmoving activities, including unstabilized fill and soil stockpiles. Drainage way means any channel or conduit that conveys stormwater runoff. Equivalent Residential Unit (ERU) means the average impervious area for a residential property. Theis square footage of an equivalent residential unit is deemed to shall be 4,573 square feet. ERU financial charge means the unit financial charge established by resolution of the Ccity cCouncil. Final stabilization means one of the following: (1) All soil disturbing activities at the site have been completed and a uniform perennial vegetative cover with a density of 70 percent of the native cover for unpaved areas and areas not covered by permanent structures has been established, or equivalent permanent stabilization measures (such as the use of gravel, riprap, gabions, geotextiles, etc.) have been employed; or (2) When background native vegetation will cover less than 100 percent of the ground (e.g., arid areas, beaches), the 70 percent coverage criteria is adjusted as follows: if the native vegetation covers 50 percent of the ground, 70 percent of 50 percent (0.70 × 0.50 = 0.35) would require 35 percent total cover for final stabilization. On sites with no natural vegetation, no vegetative stabil ization is required; or Page 3 of 9 (3) For construction projects on land used for agricultural purposes, final stabilization may be accomplished by returning the disturbed land to its pre-construction agricultural use. Areas disturbed that were not previously used for agricultural activities, such as buffer strips immediately adjacent to waters of the state, and areas that are not being returned to their pre-construction agricultural use shall meet the final stabilization criteria in subsections (1) or (2) immediatel y above. Flood means an overflow of surface water onto lands not normally covered by water. Floodplain means the area of land adjoining a lake or stream which is inundated when the flow of water exceeds the capacity of the normal feature. For mapping pu rposes, floodplains are designated according to the frequency of the flood event, such as the 100-year floodplain (one percent chance of occurrence in any given year) or the 500-year floodplain (0.2 percent chance of occurrence in any given year). General stormwater permit means the South Dakota Department of Environment and Natural Resources (SD DENR) general National Pollutant Discharge Elimination System (NPDES) Construction Stormwater Permit covering anyone conducting a land disturbing activity which disturbs one or more acres of land. Grading means any stripping, clearing, stumping, excavating, filling, stockpiling, or any combination thereof, including the land in its excavated or filled condition. Grading permit means a permit obtained from the City of Brookings to perform a land disturbance activity. Infiltration means the downward movement or seepage of water from the surface into the subsoil and/or groundwater. The infiltration rate is typically expressed in terms of inches per hour. Illicit discharge means any direct or indirect, continuous or intermittent discharge to the MS4, except as exempted in article III of this chapter that is not composed entirely of stormwater, and has not been authorized under a discharge permit issued by the State of South Dakota. Illicit connections means either of the following: (1) Any drain, conveyance, or component of an MS4 (as defined below), whether on the surface or subsurface, which allows an illicit discharge to enter the storm drainage system, including, but not limited to, any conveyances which allow any non-stormwater discharge including sewage, process wastewater and wash water to enter the storm drainage system; or (2) Any connections to the storm drainage system from indoor drains and sinks, regard less of whether said drain or connection had been previously allowed, permitted, or approved by an authorized agency. Infiltration means the process of percolating stormwater into the subsoil. Jurisdictional wetland, or wetland means an area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation. Land disturbing activity is any land change that may result in soil erosion from wind, water or melting, resulting in the movement of sediments into or upon waters, lands, or rights -of-way within the City of Brookings, including but not limited to building demolition, clearing and grubbing, grading, excavating, transporting and filling of land. Larger common plan of development or sale means a contiguous area of one (1) or more acres where multiple, separate and distinct construction activities are anticipated to occur at different times on different schedules under one plan, commonly referred to as a "development". Individual lots within the development which are sold to another party for the purpose of construction are still considered part of the "Larger Common Plan of Development" even after the sale. Municipal separate storm sewer system ("MS4") is defined in 40 CFR § 122.26(b)(8) and herein to mean a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, swales, manmade channels or storm drains) which are: Page 4 of 9 (1) Owned and operated by a state, city, town, county, district, association, or other public body having jurisdiction over disposal of sewage, industrial wastes, stormwater or other was tes, including special districts under state law such as a sewer district, flood control district, or drainage district or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of the Clean Water Act (CWA) that discharges to waters of the United States; and (2) Designed or used for collecting or conveying stormwater; and (3) Not a combined sewer; and (4) Not part of a publicly owned treatment works (POTW) as defined at 40 CFR §122.2. Municipality means a city, town, district, sanitary district, or other public body created by or under state law with jurisdiction over the disposal of sewage, industrial was tes or other wastes. Nonpoint source means a source of pollution that is not defined as a point source by the Environmental Protection Agency (EPA). Non-stormwater discharge means any discharge to the storm drain system that is not composed entirely of stormwater. Notice of intent ("NOI") means an SDDENR form that must be filed by anyone disturbing one or more acres of land prior to the commencement of any land disturbing activity in order to be covered by the SDDENR general permit. Notice of termination ("NOT") means an SDDENR form that must be filed after final stabilization of any land disturbing activity that was covered by the SDDENR general permit. The NOT notifies the SDDENR that permitted coverage is no longer required and that the site has been permanently stabilized. NPDES or National Pollutant Discharge Elimination System means an EPA permit program that controls water pollution by regulated point sources that discharge pollutants into waters of the United States. Phasing means clearing a parcel of land in distinct phases, with the stabilization of each phase completed before the clearing of the next phase. Point source (as also defined by the EPA) means any discernible, confined and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation or vessel or other floating craft from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture. Pollutant means any dredged spoil, solid waste, incinerator residue, sewage, sewage sludge, garbage, trash, munitions, chemical wastes, biological material, radioactive material, heat, wrecked or di scarded equipment, rock, sand, cellar dirt or any industrial, municipal or agricultural waste discharged into waters of the state. Receiving body of water means any lake, pond, creek, wetland or groundwater into which stormwater runoff and conveyance systems are directed. Responsible party means the person, developer or contractor who is responsible for performing all provisions and requirements of a grading permit or SDDENR stormwater discharge permit for construction activities, or the person or entity who is responsible for industrial or commercial discharges into an MS4. Sediment means mineral or organic solid particulate matter that has been removed from its point of origin by soil erosion, suspension in water or wind, or water transport. Sediment control means BMP's that prevent eroded sediment from leaving the site. Soil erosion means the wearing away of land by the action of wind, water, gravity or a combination thereof. Stabilization means the use of practices (BMP's) that prevent exposed soil from eroding. Page 5 of 9 Stormwater means water runoff, including snow and ice melt, which is the direct result of a precipitation event. Stop work order means a notice issued by the city engineer or the city's designated representative, or a state or federal agency to a person, permittee, contractor, developer or property owner to immediately cease construction, grading or development activities. Stormwater pollution prevention plan ("SWPPP") means a site-specific plan which identifies potential sources of stormwater pollution at a construction site and specifies structural and nonstructural controls (BMP's) that will be in place to minimize negative impacts caused by stormwater discharges associated with construction activity. Stripping means any activity which removes or significantly disturbs the vegetative surface cover, including clearing and grubbing operations. Total maximum daily load ("TMDL") means the maximum daily sum total of the individual waste load allocations (WLAs) for point sources, the load allocations (LAs) for nonpoint sources and the natural background levels of pollutants that a watercourse can receive while still meeting federal or state water quality standards. TMDLs can be expressed in terms of either mass per time, toxicity, or other appr opriate measure. Vegetative cover means grasses, shrubs, trees and other vegetation which hold and stabilize soils. Watercourse or waterway means any body of water, including, but not limited to, lakes, ponds, rivers, streams, and bodies of water delineated by the city, state or federal governments. Waters of the state means all waters within the jurisdiction of the State of South Dakota, including all streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and all other bodies or accumulation s of water, surface and underground, natural or artificial, public or private, situated wholly or partly within or bordering upon the State of South Dakota. Water of the United States means all waters as defined in 40 CFR § 230.3(s). (Ord. No. 21-10, 6-8-2010; Ord. No. 17-031, 1-9-2018) Secs. 72-6—72-16. Reserved. ARTICLE II. STORM DRAINAGE FEE Sec. 72-17. Fee. (a) The purpose of this chapter is to establish a charge against real property within the Ccity for the operation, maintenance, public education, and capital expenses of the storm sewer and drainage system. For operation, maintenance and capital expenses of storm sewer and drainage system. The purpose of this chapter is to establish a charge against real property within the city for the operation, maintenance and capital expenses of the storm sewer and drainage system. (b) Annual fee; basis. All parcelsreal property within the city shall be charged an annual fee for the operation, maintenance, public education, and capital improvements of the storm sewer and drainage system. The fee for each such property shall be based on the lot areaimpervious lot area, a runoff weighting factor and an Equivalent Residential Uunit (ERU) financial charge. The storm drainage fee is determined as follows: a) Single family parcels will be charged a storm drainage fee based on 1 ERU; b) For aAll other parcels the sStorm drainage fee shall equals the impervious area (in square feet) divided by 4,573(ERU)runoff weighting factor multiplied by parcel area (in square feet) multiplied by the ERUunit financial charge (in dollars per ERUsquare foot). Each parcel will be charged a storm drainage fee based on a minimum of 1 ERU. (c) Exemptions: parcels that do not convey stormwater runoff to a MS4 as determined by the City Engineer are exempt from paying the annual storm drainage fee.Runoff weighting factor; assignment by use of Table I. Page 6 of 9 The runoff weighting factor is determined by the type of land use and indicates the relative volume of stormwater runoff from a land parcel as a function of the percentage of impervious surfaces covering each land parcel. The runoff weighting factor is to be assigned by land use type as shown in Table I: TABLE I Land Use Code Land Use Runoff Weighting Factor 11 Single-family 7.5 12 Duplex 7.5 13 Townhouses 7.5 14 Apartment building (1—3 stories) 11.25 15 Apartment building (4 stories or more) 11.25 16 Dormitories 11.25 17 Mobile homes and trailers 11.25 18 Other residential 11.25 19 Estate (single-family, on 30,000 square feet or more) 2.50 21 Apparel and textiles 17.0 22 Wood, furniture, fixtures 17.0 23 Lumberyards 17.0 24 Printing and publishing 17.0 25 Warehouse, indoor storage 17.0 26 Electronic, scientific, optical 17.0 27 Construction yards, including plumbing, electrical, heating contractors 17.0 28 Chemical, petroleum storage 17.0 29 Other light, pollution free manufacturing, not included elsewhere 17.0 31 Food, agricultural processing, stockyards, rendering 17.0 32 Paper and pulp 17.0 33 Chemical, petroleum, rubber and plastic 17.0 34 Stone, glass, clay, cement, brick 17.0 35 Primary metal, smelting 17.0 36 Metal fabricating 17.0 37 Salvage, junkyard, resource recycling 7.5 38 Other heavy manufacturing not elsewhere coded 17.0 41 Bus, railroad yards, terminals, right-of-way 5.0 42 Airport 5.0 43 Auto parking ramps and lots (commercial or public only not auxiliary parking) 18.75 44 Highway and street right-of-way 5.0 45 Communication (TV, radio, etc.) 17.0 46 Utilities (gas, sewer, water, telephone, etc.) 17.0 47 Truck terminal 17.0 48 Military base 17.0 49 Other transportation communications and utilities not elsewhere coded 17.0 51 Wholesale, food produce 18.75 52 Wholesale, other 18.75 53 Extensive retail, building supplies, including lumber, home repair supplies 18.75 54 Extensive retail, farm equipment and implements 18.75 55 Extensive retail, new and used car dealers 18.75 Page 7 of 9 56 Extensive retail, recreational vehicles, marine 18.75 57 Extensive retail, tires, batteries, auto accessories 18.75 58 Extensive retail, auto repairs, body shop 18.75 59 Extensive retail, other retail with outside storage 18.75 61 Foodstore 18.75 62 Neighborhood commercial, hardware, pharmacy, laundromat, beauty shop, barbershop, neighborhood shopping center 18.75 63 Gasoline, auto service station 18.75 64 Department store, discount store, regional shopping center 18.75 65 Clothes and apparel 18.75 66 Specialty retail, jewelry, gifts, etc. 18.75 67 Furniture, household appliances 18.75 68 Other retail not elsewhere coded 18.75 71 Banks and financial institutions 18.75 72 Churches 11.25 73 Nursing homes, assisted living facilities and hospitals 11.25 74 Colleges and universities, adult education 11.25 75 Primary and secondary education 11.25 76 Day care centers 11.25 77 Medical offices, clinics 18.75 78 Government offices 18.75 79 Offices not elsewhere coded (real estate, law, etc.) 18.75 81 Cultural activities, libraries, museums, etc. 18.75 82 Assembly areas, arenas, stadiums 18.75 83 Theaters 18.75 84 Restaurants, bars, lounges 18.75 85 Hotels, motels, resort lodging 18.75 86 Public parks, golf courses, fairgrounds 1.0 87 Private country club and other recreational uses 1.0 88 Other cultural and entertainment uses, not elsewhere coded 1.0 90 Floodway (per Flood Boundary Map 10-17-1978, by the National Flood Insurance Program) 0.00 91 Cropland and farms 1.0 92 Feed lots 1.0 93 Grasslands 1.0 94 Mining and quarrying* 1.0 95 Cemetery 1.0 96 Sanitary landfills 1.0 97 Vacant 1.0 98 Under construction 1.0 99 Other not elsewhere coded 1.0 ;adv6q;Quarries are individually calculated with a runoff weighting factor of 0.00 for the actual quarry area. (d) Request for site study.; calculation of runoff weighting factor by Table II. Upon written request and payment of the processing fee byfrom a property owner, a detailed site study will be conducted by the Ccity Eengineering Divisiondepartment to determine the runoff weighting factor.amount of impervious area a parcel contains and the appropriate fee. This written request must be submitted to the Ccity Eengineer on or before February 1April 30 of the year the fees are charged to the subject land parcel. Upon receipt of a Page 8 of 9 written request, tThe site study will include a engineering department will calculatione of the percentage of impervious area for the subject parcel which contributes stormwater runoff to the MS4drainage system of the city. This system includes the storm sewer system, drainageways and all ditches and wat erways within and flowing away from the city. The runoff weighting factor is then determined through utilization of Table II.If after completion of a site study, the storm drainage fee is determined to be incorrect, the property owner will be eligible to request an amended property tax bill. No refunds of the storm drainage fee will be issued for previous years. TABLE II Percentage Impervious Area Average Runoff to Rainfall Ration (R**) Runoff Weighting Factor (R × 25) 0 0.04 1.0 10 0.19 4.75 15 0.26 6.5 20 0.30 7.50 30 0.38 9.50 40 0.45 11.25 50 0.53 13.25 60 0.60 15.00 70 0.68 17.00 80 0.75 18.75 90 0.83 20.75 100 0.90 22.50 **These values are derived from the "STORM" equation (Figure 5-20, page 5-49), which is made a part hereof and is referred to as "A Statistical Method for the Assessment of Urban Storm Drainage," EPA, Washington, D.C., January 1979. For low percentage impervious surfaces (0 percent to 20 percent), a linear relationship is assumed between the "STORM" equation and empirical data derived from drainage runoff in high depression storage, loose soils and flat areas. Interpolation of the runoff weighting factor fo r a given percentage to impervious area not listed in Table II may be obtained by assuming a linear relationship between the values listed. The city engineer may direct that the runoff weighting factor for a given parcel be calculated by a detailed site investigation and the use of Table II, where an obvious departure from the percentage of impervious surfaces of similar land uses exists. A determination of the runoff weighting factor resulting from a detailed site investigation and use of Table II, brought about either by the written request of a property owner or by direction from the city, will be used in the calculation of the storm drainage fee of the subject parcel and will replace the factor previously derived from Table I, even if the resulting value is higher. (e) Parcel area. The parcel area will be obtained from the records of the city engineer's office. (f) Unit financial charge. The unit financial charge is established by resolution of the city council. (Ord. No. 21-10, 6-8-2010) Sec. 72-18. Collection. The storm drainage fee established in section 72-17 shall be an annual charge. The first one-half of such fee is due on or by April 30May 1 and the second one-half is due on or by October 30November 1 of the same year, payable at the office of the county finance department. and remitted to the city. Page 9 of 9 Refund procedure: Upon written request from a property owner, the city may issue a refund if the incorrect drainage fee has been charged to the property owner. The engineering department will calculate the drainage fee and determine the amount of any refund owed to the property owner. The maximum refund the city may issue is the fee for the current year and the preceding two years. (Ord. No. 21-10, 6-8-2010) Sec. 72-19. Fund established. The drainage fees paid to the city shall be maintained in a separate fund to be known as the drainage and storm sewer fund. This fund shall be used to pay the cost of financing the operation, public education, maintenance or construction of the drainage and storm sewer system. (Ord. No. 21-10, 6-8-2010) Sec. 72-20. Annual review. The unit financial chargeERU financial charge may be reviewed annually and revised as necessary so that revenues are reasonably in balance with anticipated expenditures. Excess funds may be carried forward from year to year in order to build sufficient funds for large drainage construction projects which are schedule d or programmed for the near future, and . In addition, funds may be carried over to to provide sufficient monies for unanticipated repairs, public education, replacements or maintenance of the MS4drainage system. (Ord. No. 21-10, 6-8-2010) Secs. 72-21—72-31. Reserved. II. Any or all ordinances in conflict herewith are hereby repealed. FIRST READING: August 13, 2024 SECOND READING: August 27, 2024 PUBLISHED: CITY OF BROOKINGS, SD Oepke G. Niemeyer, Mayor ATTEST: Bonnie Foster, City Clerk NOTICE OF PUBLIC HEARING Ordinance 24-027 NOTICE IS HEREBY GIVEN that the Brookings City Council, Brookings, South Dakota, will hold a public hearing at 6:00 p.m., CST, Tuesday, August 27, 2024, in the Brookings City & County Government Center Chambers, 520 Third Street, to consider adoption of a revision to the City Code of Ordinances, entitled Ordinance 24-027, an Ordinance amending Articles I&II of Chapter 72 – Storm Drainage in the City of Brookings. At which time and place all persons interested will be given a full, fair and complete hearing thereon. Dated in Brookings, South Dakota, this 16th day of August, 2024. CITY OF BROOKINGS Bonnie Foster, City Clerk Published one time 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 24-0414,Version:1 Public Hearing and Action on a Commercial Corridor Design Review Overlay District Site Plan for Lot 1 in Block 1 of Reserve Fourth Addition. Summary and Recommended Action: Marty Syrstad has submitted a site plan for review within the Commercial Corridor Design Review Overlay District. The project is located on Lot 1in Block 1 of Reserve Fourth Addition near the intersection of 20th Street South and Christine Avenue. The Planning Commission voted 6-0 recommending approval. The Development Review Team recommends approval. Attachments: Memo Hearing Notice - City Council Hearing Notice - Planning Commission Planning Commission Minutes Location Map Site Plan Landscape Plan Elevations Renderings Adjacent Photos City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: Ryan Miller, City Planner Council Meeting: August 27, 2024 Subject: Commercial Corridor Design Review Overlay District Site Plan: Lot 1 in Block 1 of Reserve Fourth Addition Person(s) Responsible: Mike Struck, Community Development Director Summary and Recommended Action: Marty Syrstad has submitted a site plan for review within the Commercial Corridor Design Review Overlay District. The project is located on Lot 1 in Block 1 of Reserve Fourth Addition near the intersection of 20th Street South and Christine Avenue. The lot is located in the Commercial Corridor Design Review Overlay District. Site plans presented within the district must be reviewed by the Planning Commission and City Council. The Development Review Team recommends approval. The Planning Commission voted 6-0 to recommend approval. Item Details: The proposed development includes two phases. The current phase for review consists of a 20,430 square foot building intended for indoor pet services including boarding. A zoning revision passed in 2023 allows for pet services in the Business B -2 Districts so long as all services, storage areas, retail areas, boarding areas, and recreation areas are located entirely within a completely enclosed building. The development will be accessed via Christine Avenue. A secondary discharge to 20th Street South is included in the plans as a one way out only. Parking is located to the northwest of the primary building and includes the necessary number of minimum parking stalls for the use with excess spaces to accommodate the potential future Building 2. The proposed Building 1 includes a drop-off location at the primary entrance on the north side of the building. The trash enclosure is proposed to be located inside the building with access from a garage door on the southwest corner of the building. The proposed plans meet all zoning requirements, commercial corridor design review overlay district requirements and landscape ordinance requirements. Legal Consideration: None. Strategic Plan Consideration: Economic Growth – The City of Brookings will support effective diversified community investment and equitable opportunities for prosperity. Financial Consideration: None. Supporting Documentation: Hearing Notice – City Council Hearing Notice – Planning Commission Planning Commission Minutes Location Map Site Plan Landscape Plan Elevations Renderings Adjacent Photos If you require assistance, alternative formats and/or accessible locations consistent with the Americans with Disabilities Act, please contact the City ADA Coordinator at 692-6281 at least 48 hours prior to the meeting. Published ______ time(s) at an approximate cost of $ _____________. NOTICE OF HEARING UPON AN APPLICATION FOR APPROVAL OF A COMMERCIAL CORRIDOR DESIGN REVIEW OVERLAY DISTRICT SITE PLAN NOTICE IS HEREBY GIVEN that Marty Syrstad has submitted an application for approval of a Commercial Corridor Design Review Overlay District site plan on Lot 1 in Block 1 of Reserve Fourth Addition in the City of Brookings. NOTICE IS FURTHER GIVEN that said application will be acted on by the City Council at 6:00 PM on Tuesday, August 27, 2024, in the Chambers Room on the third floor of the Brookings City and County Government Center at 520 Third Street, Brookings, SD. Any person interested may appear and be heard on this matter. Dated this 14th day of August, 2024. Bonnie Foster City Clerk If you require assistance, alternative formats and/or accessible locations consistent with the Americans with Disabilities Act, please contact the City ADA Coordinator at 692-6281 at least 48 hours prior to the meeting. Published ______ time(s) at an approximate cost of $ _____________. NOTICE OF HEARING UPON AN APPLICATION FOR APPROVAL OF A COMMERCIAL CORRIDOR DESIGN REVIEW OVERLAY DISTRICT SITE PLAN NOTICE IS HEREBY GIVEN that Marty Syrstad has submitted an application for approval of a Commercial Corridor Design Review Overlay District site plan on Lot 1 in Block 1 of Reserve Fourth Addition in the City of Brookings. NOTICE IS FURTHER GIVEN that said application will be acted on by the Planning Commission at 5:30 PM on Tuesday, August 6, 2024, in the Chambers Room on the third floor of the Brookings City and County Government Center at 520 Third Street, Brookings, SD. Any action taken by the Planning Commission is a recommendation made to the City Council. Any person interested may appear and be heard on this matter. Dated this 24th day of July, 2024. ____________________________ Ryan Miller City Planner Planning Commission Brookings, South Dakota August 6, 2024 OFFICIAL MINUTES Chairperson Tanner Aiken called the meeting of the City Planning Commission to order on Tuesday, August 6, 2024, at 5:30 PM in the Council Chambers Room #310 on the third floor of the City & County Government Center. Members present were Tanner Aiken, Kyle Jamison, Scot Leddy, Nick Schmeichel, Richard Smith and Debra Spear. Jacob Limmer and Roger Solum were absent. Also present were Community Development Director Michael Struck and City Planner Ryan Miller. Also present were Phillip Altman, Nathan Traffie, Diane Nelson, Patrick Daly, Marty Syrstad, Ken Just, Tim Reid, Jim Burkhardt and Jacob Meshke. Item #6c – Marty Syrstad submitted a site plan for review within the Commercial Corridor Design Review Overlay District. The project is located on Lot 1in Block 1 of Reserve Fourth Addition near the intersection of 20th Street South and Christine Avenue. (Smith/Schmeichel) Motion to approve the Commercial Corridor Design Review. All present voted aye. MOTION CARRIED. OFFICIAL SUMMARY Item #6c – Marty Syrstad submitted a site plan for review within the Commercial Corridor Design Review Overlay District. The proposed development was located near the intersection of 20th St S and Christine Ave. The proposed development included two phases. The current phase for review consisted of a 20,430 square foot building intended for indoor pet services including boarding. A zoning revision passed in 2023 allowed for pet services in the Business B-2 districts so long as all services, storage areas, retail areas, boarding areas and recreation areas were located entirely within a completely enclosed building. The development would be accessed via Christine Ave. A secondary discharge to 20th St S was included in the plans as a one-way exit only. Parking located to the northwest of the primary building included the necessary number of minimum parking stalls for the use with excess spaces to accommodate the potential future Building 2. The proposed Building 1 included a drop off location at the primary entrance on the north side of the building. The trash enclosure was proposed to be located inside the building with access from a garage door on the southwest corner of the building. The proposed plans met all zoning requirements, commercial corridor design review overlay district requirements and landscape ordinance requirements. Syrtstad, property owner, and Just, RWE Planning + Design, were available for questions. Schmeichel appreciated that the builder followed the guidelines and had not requested variances. Leddy inquired on the use of Building 2. Syrstad explained that it was a potential pet space or leased space depending on growth of the business. Schmeichel asked if the exit only onto 20th St S would be right turn only. Miller said it was suggested at DRT but not required and as shown it was a one way exit with no restriction to right turn only. Project Location Level 1 0' -0" Ceilings 10' -0" T/Deck 14' -6" T/parapet 18' -0" 3 12 01 01 01 01 02 03 03 03 03 03 02 04 04 04 03 04 05 05 0607 06070607 08 0808 08 10 10 10 10 12 13 14 14 14 4" 23' - 6" 9' - 0" 9' - 0" 9' - 0" 7' - 0" 7" 6" 7' - 0" 5"7' - 0" 5" 7' - 0" 6" 7" 4' - 6" 18' - 0" 4' - 6" 5"11"7' - 1"10' - 0"9"2' - 3"11' - 0"9"2' - 3"2' - 7"6"6' - 0"3' - 0"9"4' - 9"6"8' - 0"1' - 0"3' - 0"1" 12' - 6" 18' - 0" 12' - 6" 1" 3' - 7" 8' - 0" 8' - 0" 3' - 11" 17 2' - 3" 2' - 3"2' - 3" 2' - 3" 16 1616 Level 1 0' -0" Ceilings 10' -0" T/Deck 14' -6" T/parapet 18' -0" 312 01 01 01 0202 02 02 03 0303 04 04 04 05 05 05 0607 0607 0607 08 08 08 10 10 10 12 14 14 14 11 159"2' - 3"11' - 0"9"2' - 3"2' - 7"6"6' - 0"3' - 0"5" 7' - 2" 4" 7' - 8" 18' - 0" 9' - 0" 9' - 0" 9' - 0" 7" 6"7' - 0" 5" 7' - 0" 5" 7' - 0" 6" 7" 11' - 6" 12' - 0" 10" 4"11"7' - 1"10' - 0"1" 12' - 6" 18' - 0" 12' - 6" 1"6' - 0"3' - 10" 3' - 10" 16 16 0'2'4'8'16' COPYRIGHT RWE PLANNING & DESIGN INC. 2024 PROJECT #: ARCHITECTURE PLANNING DESIGN 1303 OGDEN AVE., DOWNERS GROVE, IL 60515 7/25/2024 2:10:43 PMA-026 EXTERIOR ELEVATIONSBOOP THE SNOOTNW CORNER OF 20TH ST S & CHRISTINE AVEBROOKINGS, SD 5700624.001 3/16" = 1'-0"1 BUILDING ELEVATION - EAST 3/16" = 1'-0"2 BUILDING ELEVATION - WEST KEYNOTES - EXT ELEVATIONS 01 CHARCOAL GRAY UTILITY BRICK VENEER WITH 3-5/8" PRECAST SIL, TYP. 02 E.I.F.S. STUCCO VENEER, SAND COLOR. 03 E.I.F.S. STUCCO VENEER, WHITE COLOR. 04 METAL PANEL RAIN SCREEN BY MAC METAL. MS 750 - COLOR COPPER BRONZE. 05 7/8" CORRUGATED METAL PANEL BY PAC-CLAD. COLOR BRONZE. 06 ROOF FASCIA, SEE EXTERIOR WALL SECTION FOR BUILT UP, STEPPED BRAKE METAL FASCIA. COLOR BRONZE. 07 BRAKE METAL COPING OVER TOP OF PARAPET. SEE ROOF DETAILS 08 NEW ALUMINUM WINDOW BY KAWNEER. 09 NEW ALUMINUM STOREFRONT ENTRY WAY BY KAWNEER. 10 ALUMINUM BAND ALIGN WITH TOP OF WINDOW SYSTEMS. COLOR BRONZE. 11 STRUCTURAL TIE BACK AWNING OVER EXTERIOR DOORS. SEE STRUCTURAL DRAWINGS 12 ROOFTOP MECHANICAL EQUIPMENT T.B.D. SHOWN FOR SCREENING PURPOSES ONLY 13 PROPOSED WALL SIGN. FINAL DESIGN AND DIMENSIONS T.B.D. 14 OVERHEAD SECTIONAL DOOR, GLASS AND ALUMINUM. SEATED AT TOP OF PRECAST SILL OF UTILITY BRICK WALL. 15 VINYL WOOD-LOOK SLATTED FENCE WITH GATE TO SCREEN REFUSE AREA ENCLOSED BY BUILDING. 16 EXTERIOR UP-DOWN LIGHTING WALL SCONCE 17 EXTERIOR DOWN LIGHTING WALL SCONCE ABOVE WALL SIGN EX EXISTING NEW BULK HEAD FROM 9' 10" FROM DECK FE 10 LB EXTINGUISHER REV. DESCRIPTION DATE 1 ZONING APP 06/28/2024 2 ZONING RESUBMIT 07/23/2024 EAST ELEVATION 2360 SQFT 485 SQFT / 20.5% GLAZING WEST ELEVATION 2195 SQFT 288 SQFT / 13% GLAZING 40 SQFT WALL SIGN 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 24-081,Version:1 Public Hearing and Action on Resolution 24-081, a Resolution to amend the 2040 Comprehensive Plan’s Future Land Use Map. Summary and Recommended Action: The Community Development Department has submitted a series of Future Land Use Map revisions along 20th Street South in the City of Brookings. The seven areas include zoned property located along the 20th Street South corridor which are in conflict with the Future Land Use Map or could see future redevelopment options that may require Future Land Use Map revisions. Proposed changes do not impact current zoning and any future rezoning request would be at the discretion of property owners. The Development Review Team recommends approval of the amendments with the exception of changes west of Main Avenue. The Planning Commission voted 6-0 to recommend approval of the amendments with the exception of changes west of Main Avenue. Attachments: Memo Resolution Hearing Notice - City Council Hearing Notice - Planning Commission Planning Commission Minutes Future Land Use Map Exhibits City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: Ryan Miller, City Planner Council Meeting: August 27, 2024 Subject: Future Land Use Map Amendments – 20th Street South Presenter: Mike Struck, Community Development Director Summary and Recommended Action: The Community Development Department has submitted a series of Future Land Use Map revisions along 20th Street South in the City of Brookings. The seven areas include zoned property located along the 20th Street South corridor which are in conflict with the Future Land Use Map or could see future redevelopment options that may require Future Land Use Map revisions. Proposed changes do not impact current zoning and any future rezoning request would be at the discretion of property owners. The Development Review Team recommends approval of the amendments with the exception of changes west of Main Avenue. The Planning Commission voted 6-0 to recommend approval of the amendments with the exception of changes west of Main Avenue. Item Details: The proposed Future Land Use Map changes include: Southwest Corner of 20th Street South / Interstate 29 This area includes multiple parcels and ownership of land immediately southwest of the new interstate ramp along 20th Street South including a northern portion of Western Estates. Portions of this area are currently classified as Mobile Homes and Open Space. The proposed future land use for this area is Urban High Intensity, which would match the future land use class for property located near the 6th Street and Interstate 29 ramp. This future land use class would support medium to high density residential development and all densities of commercial development. The proposed floodplain map revision shifts the floodplain significantly to the south in this vicinity, although small areas of floodplain do remain along the southern portion of this area. Any development that would impact a floodplain would be required to submit floodplain development permits. 1600 Block of 20th Street South This area includes 7.5 acres of land located between Bluegill Addition and the future Branch Creek Addition. The existing future land use classification is Medium Density Residential. The proposed future land use classification is Urban Medium Inte nsity. A number of recent requests have been submitted by developers in this area for revisions from Medium Density Residential to Urban Medium Intensity with commercial and office redevelopment in mind. Those requests include changes along 20th Street near Ace Avenue, Lucerne Avenue, Christine Avenue and the future commercial area of Branch Creek Addition. A change from Medium Density Residential to Urban Medium Intensity introduces the potential for a mix of uses including business zoning districts. The Development Review Team suggested limiting the revision area to the north 300 -feet to match the depth of the Urban Medium Intensity area located in the adjacent Branch Creek Addition. 20th Street South / 9th Avenue This area includes existing development and zoning which conflict with the future land use classification. An existing gas station and convenience store with Business B -2 District zoning conflicts with the future land use classification of Open Wetland. The proposed future land use classification of Urban Medium Intensity would align with the existing zoning district. 20th Street South / Tallgrass Parkway This area includes multiple parcels of land located in a Business B-2A Office District. Development in this area is ongoing and part of a Planned Development District. The Planned Development District was established in order to allow storage units for the Prairie Hills Landing development. Storage units are a use associated with the Business B-3 Heavy District. The existing uses in this area align with the proposed Urban Medium Intensity future land use category. 20th Street South / Main Avenue South This area located at the corner of 20th Street South and Main Avenue South is undeveloped and zoned as a Business B -2 District. The future land use classification is Urban Low Intensity and the proposed future land use classification is Urban Medium Intensity. This revision is based on development potential consistent with Main Avenue South, which includes Business B-3 Districts for a majority of the corridor. Development may be limited in this location due to the dimensions of the buildable area and potentially limited access at the corner of Main Avenue and 20 th Street South. 100 Block of West 20th Street South This area includes an existing residential use located in an Agriculture Zoning District. The future land use classification is a mix of low-high residential densities. The proposed future land use classification is Urban Low Intensity, which would support the potential for a mix of future uses such as residential, business, and office zoning districts. The property includes two parcels commonly owned for single-family purposes. Redevelopment west of Main Avenue South is less likely in the immediate future; however, in the future there may be a demand for offices or commercial services in the area as the city continues growing to the south and west. The land is cut off from nearby residential developments, meaning any future development would be oriented towards 20th Street South. The Development Review Team discussed concern with changing the future land use map in this area due to the potential timeline for any redevelopment being so far out. The Development Review Team thought it may be best to not intervene at this point in time. DRT also discussed whether commercial uses would be appropriate. 20th Street South / Western Avenue This area includes four parcels of land with access to Western Avenue. The existing zoning varies from agriculture to high density residential. The future land use classification is currently Low Density Residential. The proposed future land use classification is Urban Low Intensity, which would support the potential for a mix of future uses such as residential, business, and office zoning districts. Redevelopment west of Main Avenue is less likely in the immediate future ; however, in the future there may be a demand for offices or commercial services in the area as the city continues growing to the south and west. The land is cut off from nearby residential developments meaning that any future development limited to Western Avenue and 20 th Street. The Development Review Team questions whether or not the City should intervene at this point in time due to the potential redevelopment timeline being so far out. Legal Consideration: None. Strategic Plan Consideration: Economic Growth – The City of Brookings will support effective diversified community investment and equitable opportunities for prosperity. Financial Consideration: None. Supporting Documentation: Resolution Hearing Notice – City Council Hearing Notice – Planning Commission Planning Commission Minutes Future Land Use Map Exhibits RESOLUTION 24-081 A RESOLUTION TO AMEND THE BROOKINGS, SOUTH DAKOTA COMPREHENSIVE PLAN 2040 WHEREAS, the Comprehensive Plan provides a Major Street Plan Map, identifies a Future Land Use Map, projects population figures for the planning period, and describes an integrated land use vision for the City; and WHEREAS, the following described property will be amended on the Future Land Use Map to wit: A portion of Outlot 1 in the NW ¼ in Section 6, Township 109, Range 49, City of Brookings, Brookings County, State of South Dakota to be amended from Open Space and Mobile Homes to Urban High Intensity; and A portion of Government Lot 3 in the SE ¼ of the NW ¼ in Section 6, Township 109, Range 49, City of Brookings, Brookings County, State of South Dakota to be amended from Open Space to Urban High Intensity; and The North 300 Feet of the East 650 Feet Excluding the North 40 Feet of Government Lot 3 of the NW ¼ in Section 1, Township 109, Range 50, City of Brookings, Brookings County, State of South Dakota to be amended from Medium Density Residential to Urban Medium Intensity; and Lot 7B and Lot 8 in Block 13 of McClemans Addition to the City of Brookings, Brookings County, State of South Dakota from Open Wetland to Urban Medium Intensity; and A portion of Block 3B in Prairie Hills Addition to the City of Brookings, Brookings County, State of South Dakota from Urban Low Intensity to Urban Medium Intensity; and The South 182 Feet of the West 1,113 Feet, Excluding the South 40 Feet in the South-East ¼ of Section 35, Township 110, Range 50, City of Brookings, Brookings County, State of South Dakota to be amended from Urban Low Intensity to Urban Medium Intensity; and WHEREAS, the City Council of the City of Brookings, SD held a public hearing in accordance with SDCL 11-6-18 on the proposed amendment to the Future Land Use Map of the Brookings, South Dakota Comprehensive Plan 2040; and WHEREAS, the City Planning Commission of the City of Brookings, SD has recommended approval of the amendments to the Future Land Use Map of the Brookings, South Dakota Comprehensive Plan 2040 in accordance with SDCL 11-6-17. NOW THEREFORE, BE IT RESOLVED that said amendment to the Future Land Use Map of the Brookings South Dakota Comprehensive Plan 2040 is hereby adopted by the City of Brookings. Passed and Approved this 27th day of August, 2024. CITY OF BROOKINGS, SD ___________________________ Oepke G. Niemeyer, Mayor ATTEST: _______________________________ Bonnie Foster, City Clerk If you require assistance, alternative formats and/or accessible locations consistent with the Americans with Disabilities Act, please contact the City ADA Coordinator at 692-6281 at least 48 hours prior to the meeting. Published ______ time(s) at an approximate cost of $ _____________. NOTICE OF HEARING UPON AMENDMENTS TO THE 2040 COMPREHENSIVE PLAN FOR THE CITY OF BROOKINGS NOTICE IS HEREBY GIVEN That the City Council will hold a public hearing on amendments to the 2040 Comprehensive Plan for the City of Brookings pertaining to the future land use map. NOTICE IS FURTHER GIVEN That said public hearing will be held at 6:00 PM on Tuesday, August 27, 2024 in the Chambers Room on the third floor of the Brookings City and County Government Center at 520 Third Street, Brookings, South Dakota. Any person interested may appear and be heard in this matter. Dated this 14th day of August, 2024. ____________________________ Bonnie Foster City Clerk If you require assistance, alternative formats and/or accessible locations consistent with the Americans with Disabilities Act, please contact the City ADA Coordinator at 692-6281 at least 48 hours prior to the meeting. Published ______ time(s) at an approximate cost of $ _____________. NOTICE OF HEARING UPON AMENDMENTS TO THE 2040 COMPREHENSIVE PLAN FOR THE CITY OF BROOKINGS NOTICE IS HEREBY GIVEN That the Planning Commission will hold a public hearing on amendments to the 2040 Comprehensive Plan for the City of Brookings pertaining to the future land use map. NOTICE IS FURTHER GIVEN That said public hearing will be held at 5:30 PM on Tuesday, August 6, 2024 in the Chambers Room on the third floor of the Brookings City and County Government Center at 520 Third Street, Brookings, South Dakota. Any action taken by the Planning Commission is a recommendation to the City Council. Any person interested may appear and be heard in this matter. Dated this 25th day of July, 2024. ____________________________ Ryan Miller City Planner Planning Commission Brookings, South Dakota August 6, 2024 OFFICIAL MINUTES Chairperson Tanner Aiken called the meeting of the City Planning Commission to order on Tuesday, August 6, 2024, at 5:30 PM in the Council Chambers Room #310 on the third floor of the City & County Government Center. Members present were Tanner Aiken, Kyle Jamison, Scot Leddy, Nick Schmeichel, Richard Smith and Debra Spear. Jacob Limmer and Roger Solum were absent. Also present were Community Development Director Michael Struck and City Planner Ryan Miller. Also present were Phillip Altman, Nathan Traffie, Diane Nelson, Patrick Daly, Marty Syrstad, Ken Just, Tim Reid, Jim Burkhardt and Jacob Meshke. Item #6d – The Community Development Department has submitted a series of Future Land Use Map revisions along 20th Street South in the City of Brookings. The seven areas include zoned property located along the 20th Street South corridor that are in conflict with the future land use map or could see future redevelopment that may require future land use map revisions. Proposed changes do not impact current zoning and any future rezoning request would be at the discretion of property owners. (Schmeichel/Smith) Motion approve Future Land Use Map Revision subject to staff recommendation of approval of the amendments with the exception of the change to the 100 Block of West 20th Street South and 20th St S/Western Ave. All present voted aye. MOTION CARRIED. OFFICIAL SUMMARY Item #6d – The proposed future land use map changes include: Southwest Corner of 20th Street South / Interstate 29 This area included multiple parcels of land immediately southwest of the new interstate ramp along 20th St S including a northern portion of Western Estates. Portions of this area were classified as Mobile Homes and Open Space. The proposed future land use for this area was Urban High Intensity, which would match the future land use located near the 6th St and Interstate 29 ramp. 1600 Block of 20th Street South This area included 7.5 acres of land located between Bluegill Addition and the future Branch Creek Addition. The existing future land use classification was Medium Density Residential. The proposed future land use classification was Urban Medium Intensity. 20th Street South / 9th Avenue This area included existing development and zoning that conflict with the future land use classification. An existing gas station and convenience store with Business B-2 district zoning conflicts with the future land use classification of Open Wetland. The proposed future land use classification of Urban Medium Intensity would align with the existing zoning district. 20th Street South / Tallgrass Parkway This area included multiple parcels of land located in a Business B-2A office district. The existing uses in this area aligned with the proposed Urban Medium Intensity future land use category. 20th Street South / Main Avenue South This area, located at the corner of 20th St S and Main Ave S, was undeveloped and zoned as a Business B-2 district. The future land use classification was Urban Low Intensity and the proposed future land use classification was Urban Medium Intensity. This revision was based on development potential consistent with Main Ave S which included Business B-3 districts for a majority of the corridor. 100 Block of West 20th Street South This area included an existing residential use located in an Agriculture zoning district. The future land use classification was a mix of low-high residential densities. The proposed future land use classification was Urban Low Intensity which supported the potential for a mix of future uses such as residential, business and office zoning districts. The property included two parcels commonly owned for single family purposes. Redevelopment west of Main Ave S was less likely in the immediate future, however, in the further distance there may be a demand for future offices or commercial services in the area as the city continues to grow to the south and west. The land was cut off from nearby residential developments meaning that any future development would be oriented towards 20th Street South. The Development Review Team discussed concern with changing the future land use map in this area due to the potential timeline for any redevelopment being so far out. -The Development Review Team thought it may be best to not intervene at this point in time. 20th Street South / Western Avenue This area included four parcels of land with access to Western Ave. The existing zoning varied from agriculture to high density residential and the future land use classification was Low Density Residential. The proposed future land use classification of Urban Low Intensity would support the potential for a mix of future uses such as residential, business and office zoning districts. Redevelopment west of Main Ave is less likely in the immediate future, however, in the further distance there may be a demand for future offices or commercial services in the area as the city continues growing to the south and west. The land is cut off from nearby residential developments meaning that any future development limited to Western Ave and 20th St S. -The Development Review Team thought it may be best to not intervene at this point in time. Tim Reid, Brookings Economic Development Corporation, appreciated Community Development proactively amending the future land use map for more businesses. Spear asked if the people within the areas were aware of the proposed change. Miller said that the property owners were notified via postcard and public notice. He went on to clarify that this was not a zoning change but a future land use map change that would make future development more flexible. Spear inquired how these spaces were chosen. Miller stated that staff discussion with planning commission regarding the number of rezones in the area prompted the proposal. Spear went on to ask about safety of kids on bikes at the soccer fields if traffic increased. Miller said, depending on the scale of development, they could request a traffic impact study. Schmeichel wondered why west of Main Ave was not looked at to be included in the amendment. Miller replied that it was discussed how likely commercial development would be that far out in the near future. Aiken commented that he was happy to see this done as a batch instead of one at a time. 20th Street South / Interstate 29 Future Land Use Zoning Current: Open Space/Mobile Homes Current: R-3A Potential: Urban Low, Urban Medium, Urban High, High Density Residential Potential: B-2, B-2A, B-3, B-4 Adjacent: •Parks (north) •Mobile Homes (south) •Urban Medium (east) •Urban Medium (west) Adjacent: •R-1A (north) •R-3A (south) •Ag (east) •B-3 (west) Recommendation: Urban High Intensity 1622 20th Street South Future Land Use Zoning Current: Medium Density Residential Current: Agriculture Potential: Urban Low, Urban Med, Medium Density Res, High Density Res Potential: R-1B, R-1C, R-1D, R-2, R-3, B- 2, B-2A Adjacent: •Medium Density Res (north) •Medium Density Res (south) •Medium Density Res (east) •Urban Medium (west) Adjacent: •R-1B/R-2 (north) •R-1B/R-2 (south) •R-1B (east) •R-3/B-2 (west) Recommendation: Urban Medium Intensity 20th Street South / 9th Avenue Future Land Use Zoning Current: Open Space / Wetland Current: B-2 Potential: Urban Low, Urban Med Potential: B-2, B-3 Adjacent: •Open Space / Wetland (north) •High Density Res (south) •Open Space / Wetland (east) •High Density Res (west) Adjacent: •R-3A (north) •PDD / B-2 (south) •Ag (east) •R-3A (west) Recommendation: Urban Medium Intensity 20th Street South / Tallgrass Parkway Future Land Use Zoning Current: Urban Low Intensity Current: PDD B-2A Potential: Urban Low Intensity, Urban Medium Intensity Potential: B-2A, B-2 Adjacent: •High Density Res (north) •High Density Res (south) •High Density Res (east) •Urban Medium (west) Adjacent: •R-3A (north) •R-3 (south) •B-2 (east) •B-2 (west) Recommendation: Urban Medium Intensity 20th Street South / Main Avenue South Future Land Use Zoning Current: Urban Low Intensity Current: B-2 Potential: Urban Low, Urban Med Potential: B-2, B-2A Adjacent: •Medium Density Res (north) •Urban Medium (south) •Medium Density Res (east) •Low Density Res (west) Adjacent: •R-2 (north) •B-2 (south) •R-1B (east) •R-1B (west) Recommendation: Urban Medium Intensity 103 W 20th Street South Future Land Use Zoning Current: Residential Current: Agriculture Potential: Urban Low, Urban Med, Medium Density Res, High Density Res Potential: R-1B, R-1C, R-1D, R-2, R-3, B- 2, B-2A Adjacent: •Low Density Res (north) •Medium Density Res (south) •High Density Res (east) •Low Density Res (west) Adjacent: •R-1B (north) •R-1D/R-2 (south) •R-1D (east) •R-2 (west) Recommendation: Urban Low Intensity 20th Street South / Western Ave Future Land Use Zoning Current: Low Density Residential Current: Agriculture / R-3 Potential: Low Density Residential, Urban Low Intensity Potential: R-1B, R-1C, R-1D, R-2, R-3, B- 2, B-2A Adjacent: •Low Density Res (north) •Low Density Res (south) •Low Density Res (east) •Low Density Res (west) Adjacent: •R-1B (north) •R-3 (south) •R-2 (east) •R-1B (west) Recommendation: Urban Low Intensity 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 24-079,Version:1 Action on Resolution 24-079, a Resolution Transferring City Manager Contingency Funds to City Departments. Summary and Recommended Action: Staff recommends approval of this resolution to transfer budgeted Contingency Funds in the amount of $23,000 to the Street Division to account for mosquito abatement for the remainder of the 2024 season. Attachments: Memo Resolution City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: Ashley Rentsch, Finance Director Council Meeting: August 27, 2024 Subject: Resolution 24-079: Transferring Contingency to City Departments Presenter: Ashley Rentsch, Finance Director Summary and Recommended Action: Staff recommends approval of this resolution to transfer budgeted Contingency Funds in the amount of $23,000 to the Street Division to account for mosquito abatement for the remainder of the 2024 season. Item Details: The City Manager’s Contingency Fund is established annually to safeguard against budget shortfalls in General Fund departments and account for items or circumstances not anticipated in the original budget ordinance. The proposed transfer will grant additional budget authority to the Street Division for expenses related to mosquito abatement for the 2024 season. The Street Division has exhausted its 2024 budget allocation for mosquito abatement due to the increase in needs and additional spraying this year. A contingency transfer of $23,000 is needed to increase budget authority in the Mosquito Control account to continue operations throughout September and possibly into October. Legal Consideration: None Strategic Plan Consideration: Fiscal Responsibility – The City of Brookings will responsibly manage resources through transparency, efficiency, equity, and exceptional customer service. Safe, Inclusive, Connected Community – The City of Brookings will create an environment for inclusive programs, gathering places, and events where the community can safely live, work and come together to participate in opportunities for learning, recreation and enjoyment. Financial Consideration: The City will transfer $23,000 from the budgeted Contingency fund to the Mosquito Control account in the Street Division (431). Supporting Documentation: Resolution RESOLUTION 24-079 A RESOLUTION TRANSFERRING CITY MANAGER CONTINGENCY FUNDS TO CITY DEPARTMENTS WHEREAS, the City of Brookings hereby transfers City Manager’s contingency funds to fund unplanned operational obligations of the municipality. This resolution is for the purpose of completing a transfer of contingency funds to the following accounts: 431 Street Division 101-431-5-426-16 Mosquito Control $23,000 Total Transfers $23,000 The Financing Source for this transfer is from the following account s: 101-405-5-856-99 Contingency Fund $23,000 Total Source of Funding $ 23,000 WHEREAS, this resolution is deemed necessary for the immediate preservation of the public peace, health, safety and support of the City, and shall become effective upon publication. Passed and Approved this 27th day of August, 2024. 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 24-078,Version:1 Action on Resolution 24-078, a Resolution Declaring Boundaries and Recommending Creation of Tax Increment Financing District #16, City of Brookings. Summary and Recommended Action: The City of Brookings proposes to create a Tax Increment District #16 in the east-central portion of the City of Brookings to support industrial development. The Planning Commission voted 6-0 recommending approval. Staff recommends approval of the resolution creating the boundaries of Tax Increment District # 16. Attachments: Memo Resolution Notice - City Council Notice - Planning Commission Minutes - Planning Commission Map City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: Mike Struck, Community Development Director Meeting: August 27, 2024 Subject: Resolution 24-078: Creating Boundaries of Tax Increment District # 16 Person(s) Responsible: Mike Struck, Community Development Director Summary and Recommended Action: The City of Brookings proposes to create a Tax Increment District #16 in the east- central portion of the City of Brookings to support industrial development. The Planning Commission voted 6-0 recommending approval. Staff recommends approval of the resolution creating the boundaries of Tax Increment District # 16. Item Details: The use of tax increment financing (TIF) to fund improvements within a specified area has become popular in the state. Many communities throughout the state have utilized tax increment financing to pay for extending roads, sewer, water, trails, and other infrastructure into areas to expedite development. As the name implies, only th e tax increment (future growth in property tax revenues) is used to fund the improvements. The base, or property tax generated before the creation of the Tax Increment Finance District, continues to be paid to the taxing authorities. Tax Increment Distri cts are created to help attract private development. In turn, these developments expand employment opportunities, increase sales tax, and expand businesses into the community. Tax Increment District # 16 boundaries consist of the Solventum property along 22nd Avenue. The proposed improvements consist of water, sanitary sewer, storm sewer, drainage facilities, site grading and street improvements for the development of industrial pad sites for the Solventum expansion. Solventum will front the costs associated with the industrial project improvements and will only be reimbursed the increment generated from the improvements. The eligible project costs are at $5 million. The proposed improvements lie within the proposed boundaries of the district. The legal description of the district is as follows:  Outlots, That Portion of SW ¼ Lying S of C & NW RR, Inc. Meyers Subdiv, Exc Lot 5A, 5B, 6B, & 7B & Exc S .84 Ac of L H-11, Exc L H-8 Sec 30-110-49, Also N ½ NW ¼ Exc H-2 & Exc. .43 Acres of Lot H-5 in City of Brookings The notice was published one time at least 10 days but not more than 30 days prior to the public hearing consistent with SDCL 11-9-3. The Planning Commission must provide a recommendation on the district boundaries to the City Council for creation of a TIF District. State law requires that tax increment districts cannot exceed ten (10%) percent of the assessed tax value of a municipality. Estimating the base value of proposed Tax Increment District #16 and all existing Tax Increment Districts combined is less than two (2%) percent of the total 2024 taxable valuation. Legal Consideration: None Strategic Plan Consideration: Economic Growth – The City of Brookings will support effective diversified community investment and equitable opportunities for prosperity. Financial Consideration: None. Tax Increment Financing is a pay-as-you-go financing mechanism in which the developer fronts the costs of improvements and is only reimbursed what the district generates in tax increment revenue. Supporting Documentation: Memo Resolution Notice – City Council Notice – Planning Commission Minutes – Planning Commission Map RESOLUTION 24-078 RESOLUTION PROVIDING FOR THE CREATION OF TAX INCREMENT FINANCING DISTRICT #16, CITY OF BROOKINGS WHEREAS, the Planning Commission has recommended the District Boundaries for Tax Increment Financing District #16, City of Brookings, and has recommended its creation; and WHEREAS, the City of Brookings has the powers, pursuant to SDCL 11-9-2, to create Tax Increment Financing District #16, City of Brookings, and to define its boundaries. NOW, THEREFORE, IT IS HEREBY RESOLVED: 1. Authority and Declaration of Necessity. The City of Brookings declares the necessity for the creation of Tax Increment Financing District #16, City of Brookings (hereinafter sometimes referred to as the “District”), pursuant to SDCL Chapter 11 -9. Further, the City finds that the improvement of the area within the District is likely to enhance significantly the value of substantially all of the other real property in the District and is necessary for economic development within the city. 2. Findings. The City Council makes the following findings with regard to affordable housing: a. The proposed improvements will create new jobs and diversity the overall economic base of the City of Brookings through industrial development. b. The South Dakota Department of Revenue has reviewed the TIF Plan and classified the Tax Increment District #16 of City of Brookings to be Industrial Development. c. At least 50 percent of the real property within the district will stimulate and develop the general economic welfare and prosperity of t he state through the promotion and advancement of housing opportunities. d. The improvement of the area is likely to significantly enhance the value of substantially all other real property in the district. e. The aggregate assessed value of the District plus the tax incremental base of all other existing Districts in the city does not exceed 10 percent of the total assessed valuation in the City. 3. Boundaries of District. The Boundaries of the district are determined to be as follows: Outlots, That Portion of SW ¼ Lying S of C & NW RR, INC. Meyers Subdiv. EXC Lot 5A, 5B,6B, & 7B & EXC S .84 AC of L H-11, EXC L H-8 SEC 30-110-49, Also N ½ NW ¼ EXC H-2, & EXC .43 Acres of Lot H-5 (113.06 AC) All located in the City of Brookings, Brookings County, South Dakota including within and adjacent rights-of-ways. 4. Findings of Annual Appropriation TID. Tax Increment District #16 will be designated as an Annual Appropriations TIF to ensure that it does NOT count against constitutional debt. 5. Creation of Tax Increment Fund. There is hereby created, pursuant to SDCL 11-9- 31, a City of Brookings Tax Increment Financing District #16 Fund, which shall be a segregated asset account. All tax increments collected pursuant to Tax Incremental District #16 shall be deposited into the Tax Increment Financing District #16 Fund. All funds in the Tax Increment Financing District #16 Fund shall be used solely for those purposes expressly stated and reasonably inferred in SDCL Chapter 11 -9. Passed and Approved this 27th day of August, 2024. CITY OF BROOKINGS, SD ____________________________________ Oepke G. Niemeyer, Mayor ATTEST: Bonnie Foster, City Clerk If you require assistance, alternative formats and/or accessible locations consistent with the Americans with Disabilities Act, please contact the City ADA Coordinator at 692-6281 at least 48 hours prior to the meeting. Published time(s) at an approximate cost of $ . NOTICE OF PUBLIC HEARING OF THE BROOKINGS CITY COUNCIL ON THE CREATION OF THE TAX INCREMENT DISTRICT NUMBER SIXTEEN FOR THE BENEFIT OF INDUSTRIAL DEVELOPMENT, Notice is hereby given pursuant to § 11-9 of the South Dakota Codified Laws, that a public hearing shall be conducted at 520 3rd St., Room 310, Brookings City and County Government Center, Brookings, South Dakota, on August 27, 2024 at 6:00 p.m. or as soon thereafter as can be heard by the Brookings City Council on the question of whether to recommend the formation of a tax incremental district to be located in the following location:  OUTLOTS, THAT PORTION OF SW 1/4 LYING S OF C & NW RR, INC. MEYERS SUBDIV. EXC LOT 5A, 5B, 6B, & 7B & EXC S .84 AC OF L H-11, EXC L H-8 SEC 30-110-49, ALSO N1/2 NW 1/4 EXC H-2, & EXC .43 ACRES OF LOT H-5 TOTAL - 113.06 AC All Located in the City of Brookings, Brookings County, South Dakota including within and adjacent rights-of-ways. At said time and place, the City Council shall give all parties who appear or submit written comments an opportunity to express their views with respect to the proposed creation of the District and its proposed location. Bonnie Foster, City Clerk If you require assistance, alternative formats and/or accessible locations consistent with the Americans with Disabilities Act, please contact the City ADA Coordinator at 692-6281 at least 48 hours prior to the meeting. Published time(s) at an approximate cost of $ . NOTICE OF PUBLIC HEARING OF THE BROOKINGS PLANNING COMMISSION ON THE CREATION OF THE TAX INCREMENT DISTRICT NUMBER SIXTEEN FOR THE BENEFIT OF INDUSTRIAL DEVELOPMENT, Notice is hereby given pursuant to § 11-9-3 of the South Dakota Codified Laws, that a public hearing shall be conducted at 520 3rd St., Room 310, Brookings City and County Government Center, Brookings, South Dakota, on August 6, 2024 at 5:30 p.m. or as soon thereafter as can be heard by the Brookings Planning Commission on the question of whether to recommend the formation of a tax incremental district to be located in the following location: • OUTLOTS, THAT PORTION OF SW 1/4 LYING S OF C & NW RR, INC. MEYERS SUBDIV. EXC LOT 5A, 5B, 6B, & 7B & EXC S .84 AC OF L H-11, EXC L H-8 SEC 30-110-49, ALSO N1/2 NW 1/4 EXC H-2, & EXC .43 ACRES OF LOT H-5 TOTAL - 113.06 AC All Located in the City of Brookings, Brookings County, South Dakota including within and adjacent rights-of-ways. At said time and place, the City Planning Commission shall give all parties who appear or submit written comments an opportunity to express their views with respect to the proposed creation of the District and its proposed location. Ryan Miller, City Planner Planning Commission Brookings, South Dakota August 6, 2024 OFFICIAL MINUTES Chairperson Tanner Aiken called the meeting of the City Planning Commission to order on Tuesday, August 6, 2024, at 5:30 PM in the Council Chambers Room #310 on the third floor of the City & County Government Center. Members present were Tanner Aiken, Kyle Jamison, Scot Leddy, Nick Schmeichel, Richard Smith and Debra Spear. Jacob Limmer and Roger Solum were absent. Also present were Community Development Director Michael Struck and City Planner Ryan Miller. Also present were Phillip Altman, Nathan Traffie, Diane Nelson, Patrick Daly, Marty Syrstad, Ken Just, Tim Reid, Jim Burkhardt and Jacob Meshke. Item #6e – The City of Brookings proposes to create a Tax Increment District Number Sixteen in the east central portion of the City of Brookings to support industrial development. (Jamison/Schmeichel) Motion to approve the creation of Tax Increment District Number Sixteen. All present voted aye. MOTION CARRIED. OFFICIAL SUMMARY (Following is a summary of the meeting and not a word for word dictation. Please see the City’s website to view the meeting video for full details. https://cityofbrookings.legistar.com/calendar.aspx ) Item #6e – The City of Brookings proposed to create Tax Increment District Number Sixteen in the east central portion of the City of Brookings to support industrial development at Outlots, That Portion of SW ¼ Lying S of C & NW RR, Inc. Meyers Subdiv, Exc Lot 5A, 5B, 6B, & 7B & Exc S .84 Ac of L H-11, Exc L H-8 Sec 30-110-49, Also N ½ NW ¼ Exc H-2 & Exc. .43 Acres of Lot H-5. The use of tax increment financing (TIF) to fund improvements within a specified area has become popular in the state. Many communities throughout the state have utilized tax increment financing to pay for extending roads, sewer, water, trails, and other infrastructure into areas to expedite development. As the name implies, only the tax increment (future growth in property tax revenues) is used to fund the improvements. The base, or property tax generated before the creation of the Tax Increment Finance District, continues to be paid to the taxing authorities. Tax Increment Districts are created to help attract private development. In turn, these developments expand employment opportunities, increase sales tax, and expand businesses into the community. Tax Increment District #16 boundaries consist of the Solventum property along 22nd Ave. The proposed improvements consist of water, sanitary sewer, storm sewer, drainage facilities, site grading and street improvements for the development of industrial pad sites for the Solventum expansion. Solventum would front the costs associated with the industrial project improvements and would only be reimbursed the increment generated from the improvements. The eligible project costs are at $5 million. The proposed improvements lie within the proposed boundaries of the district. Schmeichel asked for a map of existing TIFS and how many the city was allowed to have. Struck said the quantity was unlimited but the valuation was limited to 10% of the assessed tax valuation of the city of Brookings. After this proposal the city would be at roughly 2%. Schmeichel asked how many jobs this brings. Reid said the expansion would create 46 new jobs and about $2.6 million in payroll. The investment was almost $222 million and would have an economic output of $289 million. Schmeichel said this was the first TIF he had seen where the project had already been started and did not want this to become common. Schmeichel said several large businesses in town have expanded without requesting a TIF and the job output of this project was not that high. Reid stated that there are not going to be as many new manufacturing jobs due to automation. This project replaced jobs that were lost when a line was sold off. Brookings Economic Development Corporation had been working with 3M before they sold to Solventum to try to keep them in Brookings. The expansion also had a one-time boost to the economy in sales tax and construction costs. This project may have already begun but the discussion began a year ago and took time to fine tune. Schmeichel explained that his inquiries were because he did not want to come close to the 10% threshold and limit future benefits. He also did not want to get into the habit of companies beginning construction and asking for money later similar to stadiums threatening to leave a community if the city does not provide funding. Jamison clarified that the first vote was on district boundaries and second vote is on the creation of the TIF. 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 24-080,Version:1 Action on Resolution 24-080, a Resolution Adopting the Tax Increment District #16 Project Plan. Summary and Recommended Action: Resolution adopting a project plan detailing the proposed improvements, associated costs, and the plan for financing the improvements for Tax Increment District #16. The Planning Commission votes 6-0 recommending approval. Staff recommends approval of the resolution adopting the project plan for Tax Increment District #16. Attachments: Memo Resolution Project Plan City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ City Council Agenda Item Memo From: Mike Struck, Community Development Director Meeting: August 27, 2024 Subject: Resolution 24-080: Tax Increment District # 16 Project Plan Person(s) Responsible: Mike Struck, Community Development Director Summary and Recommended Action: Resolution adopting a project plan detailing the proposed improvements, associated costs, and the plan for financing the improvements for Tax Increment District #16. The Planning Commission votes 6-0 recommending approval. Staff recommends approval of the resolution adopting the project plan for Tax Increment District #16. Item Details: The City of Brookings is proposing the creation of Tax Increment District #16 to construct improvements in the east-central portion of the community for an industrial development project. Solventum is planning an expansion at their current location and grading and infrastructure improvements are necessary to accommodate the expansion projects. State law (SDCL 11-9-13) requires the Planning Commission adopt a Project Plan for each Tax Increment District and submit the plan to the governing body. The plan must contain specific information as stated in SDCL Chapter 11-9. The Developer is responsible to front the costs of the project improvements and will only be reimbursed property tax increment generated from development occurring within the district. The aggregate assessed value of the taxable property in Tax Increment District #16, plus the tax increment base of all other existing districts is less than two (2%) percent of the total assessed value of all taxable property in the City. State law restricts the maximum percentage to ten (10%) percent. Tax Increment District #16 proposes to construct improvements consisting of water, sanitary sewer, storm sewer, drainage facilities, and site grading for the expansion of industrial development. The Project Plan identifies eligible project costs as $5,000,000 and the Tax Increment Financing District shall be decertified at such time as the project costs have been reimbursed or 20 years has expired from the date the district was created, whichever occurs first. The legal description of the district is as follows:  Outlots, That Portion of SW ¼ Lying S of C & NW RR, Inc. Meyers Subdiv, Exc Lot 5A, 5B, 6B, & 7B & Exc S .84 Ac of L H-11, Exc L H-8 Sec 30-110-49, Also N ½ NW ¼ Exc H-2 & Exc. .43 Acres of Lot H-5 in City of Brookings All Located in the City of Brookings, Brookings County, South Dakota including within and adjacent rights-of-ways. The Planning Commission must provide a recommendation on the project plan to the City Council. Legal Consideration: None. Strategic Plan Consideration:  Economic Growth – The City of Brookings will support effective diversified community investment and equitable opportunities for prosperity. Financial Consideration: Tax Increment Financing is pay-as-you-go in which the developer fronts the costs of the improvements and is only reimbursed by the positive tax increment revenue generated as a result of the project. Supporting Documentation: 1. Memo 2. Resolution 3. Project Plan RESOLUTION 24-080 RESOLUTION APPROVING TAX INCREMENT FINANCING DISTRICT #16 WHEREAS, the Brookings Planning Commission has recommended the approval of the Tax Increment Financing District #16 Project Plan, City of Brookings; and WHEREAS, the City Council finds that all requirements have been met in order to approve said Tax Increment Plan. NOW THEREFORE, BE IT RESOLVED by the City Council 1. Approval of Project Plan. The project plan, a copy of which is on file with the City Finance Officer hereby approved. 2. Findings. The City Council finds that the project plan is feasible and that it conforms to the City’s master plan. All findings made in the tax increment financing project plan are included herein by reference. 3. Effective 20 days after publication. This resolution shall become effective 20 days after publication and absent any challenge at law all findings and conclusions in the Tax Increment Financing Project Plan for Tax Increment Financing District Number Sixteen, City of Brookings shall be final. Passed and Approved this 27th day of August, 2024. CITY OF BROOKINGS, SD _____________________________ Oepke G. Niemeyer, Mayor ATTEST: ___________________________ Bonnie Foster, City Clerk | Page 1 Submitted by: Tobin J. Morris Colliers Securities On behalf of Solventum Created: July 2024 TAX INCREMENT FINANCE DISTRICT #16 TAX INCREMENT FINANCE DISTRICT #1 TAX INCREMENT FINANCE DISTRICT #1 TAX INCREMENT FINANCE DISTRICT #1 TAX INCREMENT FINANCE DISTRICT #1 TAX INCREMENT FINANCE DISTRICT #1 TAX INCREMENT FINANCE DISTRICT #1 TAX INCREMENT FINANCE DISTRICT #1 TAX INCREMENT FINANCE DISTRICT #1 Colliers Securities 124 West Dakota Ave| Pierre, SD 57501 Tobin.morris@colliers.com Colliers Securities LLC Page 1 Table of Contents ......................................................................................................................................................... 1 Introduction – The Project ................................................................................................................ 2 Creation of City of Brookings Tax Increment District #16............................................................ 6 Taxable Value of City of Brookings ................................................................................................. 7 Kind, Number, Location, and Detailed Costs of Proposed Public Works and Improvements SDCL § 11-9-13(1).............................................................................................................................. 8 Feasibility Study, Economic Development Study, and Fiscal Impact Statement ...................... 12 Method of Financing, Timing of Costs and Monetary Obligations............................................. 13 Estimated Impact of Tax Increment Financing on Revenues of Taxing Jurisdictions ............. 14 Maps .................................................................................................................................................. 15 Supplementary Findings ................................................................................................................. 16 Changes to City & County Comprehensive/Master Plan Map, Building Codes & City or County Ordinances per SDCL §11-9-16 (4) .................................................................................. 16 List of Estimated Non-Project Costs .............................................................................................. 16 Statement of Displacement and Relocation Plan .......................................................................... 16 Performance Bond, Surety Bond or Other Guaranty .................................................................. 16 List of Schedules ............................................................................................................................... 17 Schedule 1 ......................................................................................................................................... 18 Schedule 2 ......................................................................................................................................... 20 Schedule 3 ......................................................................................................................................... 22 Schedule 4 ......................................................................................................................................... 24 Schedule 5 ......................................................................................................................................... 25 List of Attachments .......................................................................................................................... 26 Attachment 1 .................................................................................................................................... 27 Attachment 2 .................................................................................................................................... 28 Attachment 3 .................................................................................................................................... 29 Attachment 4 .................................................................................................................................... 30 Attachment 5 .................................................................................................................................... 31 Colliers Securities LLC Page 2 INTRODUCTION – THE PROJECT Tax Increment Financing (TIF) is an incentive utilized by local governments to attract private development and investment. New investment equals new jobs, more customers, and in turn, more investment opportunity. The incentive can also help attract and retain existing businesses and workers that might otherwise find more attractive options elsewhere. The jobs and additional investment, both private and public, mean more money for the community. Tax Increment Financing helps to overcome costs that often prevent redevelopment and private investment from occurring in the community. As a result, the TIF area itself improves and property values increase. Specifically, money for improvements and other incentives comes from the growth in property valuations and the corresponding property tax revenues — the tax increment. A tax increment is the difference between the amount of property valuation present within the TIF district before TIF district designation and the amount of property valuation increase due to the creation of a TIF district. Property taxes collected on the original valuation existing in the TIF at the time of its designation continue to be distributed to the city, school district, county and all other taxing districts in the same manner as if the TIF district did not exist. Only property taxes collected as a result of the incremental increase in the value of these properties after formation of the TIF district are available for use by the counties or cities to fund projects costs in the TIF district. In addition to increasing property valuation, creating a Tax Increment District for the benefit of economic development can mean retaining and creating more jobs. Today’s business climate allows corporations the flexibility to call any state in the union their home. It is up to local communities to attract and retain companies to their communities. Using Tax Increment Financing is one of the most powerful economic development tools to help communities achieve their goals. A local government, per South Dakota Codified Law, Chapter 11-9, can designate a specific area within its boundaries as a redevelopment area appropriate for a TIF district and prepare a plan for development. TIF projects must be recommended for approval by the County or City Planning Commission and the County or City Commission/Council. The intention of this TIF Project is to increase economic development in the City of Brookings. The Project will consist of the industrial expansion of Solventum plant in the City of Brookings including providing the necessary infrastructure for the development. Colliers Securities LLC Page 3 Purpose & General Definitions The property upon which this Tax Incremental District (TID) is proposed to be implemented is located within City of Brookings, South Dakota. As such, the creation of City of Brookings TIF #16 shall be conditioned upon the creation of the District by resolution, and the establishment of the TID boundaries and approval of the TID Project plan by the City Planning and Zoning Commission. The purpose of this Plan, to be implemented by City of Brookings, South Dakota is to satisfy the requirements for a Tax Increment District Number 16 as specified in SDCL Chapter 11 -9. The principal purpose of the Plan is to define eligible property and to define a Tax Increment Plan for funding eligible activities in an eligible area of the City. The Plan will describe the boundary, estimated costs, feasibility and fiscal impact of the District. This Plan was prepared for adoption by the City Council in recognition that the area requires a coordinated, cooperative strategy, with financing possibilities, to promote economic development and accomplish the City’s development objectives for improving the continued viability by promoting economic development within the City of Brookings The driving interest in the establishment of this Plan is to offer tax increment financing as a tool to stimulate and leverage private sector development and redevelopment, and to promote economic development throughout the District through the Solventum business expansion. Solventum’s 262,000 square foot expansion will include: • CHG Production Expansion – 80,000 square foot • CHG Mezzanines – 23,000 square foot • Utility Expansion – 16,000 square foot • Warehouse and Docks – 105,000 square foot • New Sterilizer – 38,000 square foot Colliers Securities LLC Page 4 General Definitions The following terms found in this Plan are defined as the following: “Base” or “Tax Incremental Base” means the aggregate assessed value of all taxable property located within a Tax Incremental District on the date the district is created, as determined by SDCL § 11-9-20. “Blighted or Economic Development” SDCL § 11-9-8. (1) Not less than twenty-five percent, by area, of the real property within the district is a blighted area or not less than fifty percent, by area, of the real property within the district will stimulate and develop the general economic welfare and prosperity of the state through the promotion and advancement of industrial, commercial, manufacturing, agricultural, or natural resources; and (2) The improvement of the area is likely to enhance significantly the value of substantially all of the other real property in the district. “City Council” means the City Council of the City of Brookings, South Dakota “Calendar Year” means the starting date of January 1 to an ending date of December 31st. “Department of Revenue” means the South Dakota Department of Revenue. “Developer” means Solventum “Developer’s Agreement” means the agreement between Developer and City of Brookings concerning this Tax Incremental District. “District” means the Tax Incremental District. “Economic Development” means all powers expressly granted and reasonably inferred pursuant to SDCL § 9-54. “Fiscal year” means that fiscal year for City of Brookings “Generally Applicable Taxes” shall have the same meaning as set forth in 26 CFR § 1.141-4€. “Governing body” means the Brookings City Council “Grant” means the transfer for a governmental purpose of money or property to a transferee that is not a related party to or an agent of the municipality; “Infrastructure Improvements” means a street, road, sidewalk, parking facility, pedestrian mall, alley, bridge, sewer, sewage treatment plant, property designed to reduce, eliminate, or prevent the spread of identified soil or groundwater contamination, drainage system, waterway, waterline, water storage facility, rail line, utility line or pipeline, or other similar or related structure or improvement, together with necessary easements for the structure or improvement, for the benefit of or for the protection of the health, welfare, or safety of the public generally. “Planning Commission” means the City of Brookings Planning Commission Colliers Securities LLC Page 5 “Plan” means this Project Plan. “Project Costs” means any expenditure or monetary obligations by City of Brookings, whether made, estimated to be made, incurred or estimated to be incurred, which are listed as Project Costs herein will include any costs incidental thereto but diminished by any income, special assessments, or other revenues, other than tax increments, received, or reasonably expected to be received, by City of Brookings in connection with the implementation of this Plan. “Project Plan” means a properly approved Plan for the development or redevelopment of a tax incremental district including all properly approved amendments thereto as recommended pursuant to SDCL § 11-9-13. “Public Works” means the Infrastructure Improvements, the acquisition by purchase or condemnation of real and personal property within the Tax Incremental District and the sale, lease, or other disposition of such property to private individuals, partnerships, corporations, or other entities at a price less than the cost of such acquisition which benefit or further the health, safety, welfare and economic development of the City and Project Costs. “Taxable Property” means all real taxable property located in a Tax Incremental District. “Tax Incremental District” means a contiguous geographic area within a Count defined and created by resolution of the governing body and named City of Brookings Tax Incremental District #16 “Tax Increment Valuation” is the total value of the Tax Incremental District minus the tax incremental base pursuant to § 11-9-19. “Tax Increment Law” means South Dakota Codified Laws Chapter 11-9. Colliers Securities LLC Page 6 CREATION OF CITY OF BROOKINGS TAX INCREMENT DISTRICT #16 Representatives of the Developer have approached officials of City of Brookings regarding the possibility of creating a Tax Incremental Financing District (“TID”) to assist in the Project Costs within the Plan on land located within the City of Brookings, South Dakota. The TID will consist of the expansion of the Solventum manufacturing plant in the City of Brookings and all necessary infrastructure needs. Economic Development is important to the economic vitality of communities. It can attract and retain employees to a community by bringing additional job opportunities to the City of Brookings. The primary objective of TIF #16 is to offset some of the eligible project costs for the expansion of Solventum. Property Within Tax Increment #16 The real property to be located within the Tax Increment District is within the boundaries of the City of Brookings and described as follows: • OUTLOTS, THAT PORTION OF SW 1/4 LYING S OF C & NW RR, INC. MEYERS SUBDIV. EXCLOT 5A, 5B,6B,& 7B & EXC S .84 AC OF L H-11, EXC L H-8 SEC 30-110-49, ALSO N1/2 NW 1/4 EXC H-2, & EXC .43 ACRES OF LOT H-5 TOTAL - 113.06 AC All Located in the City of Brookings, Brookings County, South Dakota including within and adjacent rights-of-ways. Colliers Securities LLC Page 7 TAXABLE VALUE OF CITY OF BROOKINGS State law requires that tax increment districts cannot exceed ten percent of the taxable value of a municipality. The 2023 Taxes Payable 2024 value for City of Brookings is $2,143,044,301. The base value of the taxable property for inclusion into this Tax Incremental District #16, as estimated but not yet verified by Brookings County Director of Equalization, is $17,828,000. 11-9-7. Maximum percentage of taxable property in municipality permitted in districts. In order to implement the provisions of this chapter, the resolution required by § 11-9-5 shall contain a finding that the aggregate assessed value of the taxable property in the district plus the tax incremental base of all other existing districts does not exceed ten percent of the total assessed value of taxable property in the municipality. There is currently nine other active TIF districts in the City of Brookings. Using the estimates provided for TID #16, the value of all existing Tax Increment Districts combined is less than 2% of the total 2024 Taxable Valuation. All TIF Base Value must be less than 10% $2,143,044,301 $214,304,430 $0 $178,246 $17,828,000 $31,059,094 City of Brookings Taxable Value 16 Total 12 14 15 $396,200 11 $0 $8,061,712 $163,395 $2,808,849 $1,063,292 9 10 $559,400 6 7 8 City of Brookings Tax Increment District Base Value Colliers Securities LLC Page 8 KIND, NUMBER, LOCATION, AND DETAILED COSTS OF PROPOSED PUBLIC WORKS AND IMPROVEMENTS SDCL § 11-9-13(1) In order to implement the provisions of SDCL Chapter 11-9, the following are Project Costs and expenditures made or estimated to be made and the monetary obligations incurred or estimated to be incurred. The Project Costs include capital costs, financing costs, real property assembly costs, professional fee costs, imputed administration costs, relocation costs, organizational costs, discretionary costs and grants, plus any costs incidental thereto. All Proj ect Costs are found to be necessary and convenient to the creation of the Tax Incremental District and its implementation. The project constitutes economic development which is a proper public purpose of the City. The City exercises the powers expressly stated in and reasonably inferred by SDCL §11-9-15 and Chapter 9-54. The City shall enter into all contracts in accordance with South Dakota Law. Costs of Public Works and Improvements In accordance with SDCL § 11-9-14 the following is the kind, number, location and dollar amount of estimated Project Costs, costs of public works and improvements. The following are estimated costs of the Project: Kind of Project Location1 Amount Reference2 Capital Costs (Street, Water & Sewer) (cleaning & grading of land & associated costs)2 District 11-9-15(1) Financing Costs District 11-9-15(2) Real Property Assembly District 11-9-15(3) Professional Fees District 11-9-15(4) Administrative Costs District 11-9-15(5) Relocation Costs District 11-9-15(6) Organizational Costs District 11-9-15(7) Discretionary Costs and Grants District $5,000,000 11-9-15(8) Eligible Project Costs $5,000,000 Colliers Securities LLC Page 9 The above are estimates of the costs involved in the project; the final total may be greater or smaller. An itemized listing of the estimated costs is set forth on Schedule 1. Because the cost estimates are only projected expenditures, the total authorized TID costs is expected to be $5,000,000. This amount is the controlling value with respect to authorized TID Project C osts rather than the particular line item amounts contained in the above Chart and Schedule 1. The line item categories proposed are for guidance only, and actual costs will be determined upon completion of the improvements. The above total represents eligible Project Costs. Only such amounts as are feasible will be allowed by the City or by monetary obligation. 1District shall mean the Tax Increment District. 2SDCL §11-9-15 (1) Capital costs, including the actual costs of the construction of public works or improvements, buildings, structures, and permanent fixtures; the demolition, alteration, remodeling, repair, or reconstruction of existing buildings, structures, and permanent fixtures; the acquisition of equipment; the clearing and grading of land; and the amount of interest payable on tax incremental bonds or notes issued pursuant to this chapter until such time as positive tax increments to be received from the district, as estimated by the Project Plan, are sufficient to pay the principal of and interest on the tax incremental bonds or notes when due; (2) Financing costs, including all interest paid to holders of evidences of indebtedness issued to pay for Project Costs, any premium paid over the principal amount thereof because of the redemption of such obligations prior to maturity and a reserve for the payment of principal of and interest on such obligations in an amount determined by the governing body to be reasonably required for the marketability of such obligations; (3) Real property assembly costs, including the actual cost of the acquisition by a municipality of real or personal property within a tax incremental district less any proceeds to be received by the municipality from the sale, lease, or other disposition of such property pursuant to a Project Plan; (4) Professional service costs, including those costs incurred for architectural, planning, engineering, and legal advice and services; (5) Imputed administrative costs, including reasonable charges for the time spent by municipal employees in connection with the implementation of a Project Plan; (6) Relocation costs; (7) Organizational costs, including the costs of conducting environmental impact and other studies and the costs of informing the public of the creation of tax incremental districts and the implementation of project plans; and (8) Payments and grants made, at the discretion of the governing body, which are found to be necessary or convenient to the creation of tax incremental districts or the implementation of project plans. Colliers Securities LLC Page 10 Conditions of the Developer Agreement relating to Constitutional Debt It is specifically a condition of the proposed Developer’s Agreement that the City's obligation to pay is limited to the proceeds of the positive tax increment from the TID receipted into the TIF Fund. The obligation of the City to pay pursuant to the proposed Agreement does not constitute a general indebtedness of the City or a charge against the City's general taxing power. The provisions of SDCL 11-9-36 are specifically incorporated within the Agreement by reference. It is also to be specifically agreed that the City has made no representation that the proceeds from such Fund shall be sufficient to retire any indebtedness incurred by Developer. The parties further acknowledge that SDCL 11 -9-25 limits the duration of allocation of the positive tax increment payments and the fund created by the TID. Additionally, the City’s obligations to make the payments set forth in the proposed Agreement shall be lawfully made from funds to be budgeted and appropriated on an ANNUAL BASIS for that purpose during the City's then current fiscal year, thus not counting towards Constitutional Debt. If at any time during the term of this Agreement, the governing body of the City shall fail or refuse to approve or authorize the funds due hereunder, then the Agreement shall terminate upon the end of the fiscal year for which funds were approved or authorized, without penalty to the City. The City's obligation hereunder shall not in any way be construed to be a debt of the City in contravention of any applicable constitutional or statutory limitation or requirement concerning the creation of indebtedness by the City, nor shall anything contained herein constitute a pledge of the general credit, tax revenues, funds or moneys of the City. Notwithstanding anything to the contrary contained in the proposed Agreement, the City hereby acknowledges and agrees that the obligations of the City under this Agreement are a material inducement for Developer to incur various development and construct improvements upon the TID property and the failure to pay tax increment to Developer will be financially detrimental to future improvements on said property. The Developer anticipates requesting reimbursement of those eligible reimbursement costs that relate to site work, street and utility build-out, and engineering, together with financing costs. It is anticipated the City will seek reimbursement of the TIF-eligible sewer project costs, and that the parties would allocate increment payments arising from the TIF. It is further understood that the amount of $5,000,000 will be the maximum amount the City will ever pass on acting as a conduit for TIF #16. This amount will include any and all interest associated with the debt and the controlling value of the TIF will never pay more than $5,000,000. All TIF revenue will be passed onto the Developer until the full amount has been paid or 20 years from the year of creation, whichever happens first. Any division of revenue will be a condition of the developer’s agreement. The payment of tax increment funds under this Agreement is a Grant under Chapter 11-9 of the South Dakota Codified Laws (the “Grant”). The Grant is a personal property right vested with the Developer on the effective date of this Agreement. The City will Grant this amount to the Developer and thus not have to account for any assets on the City’s financial statement. The Developer will be responsible for obtaining their financing and the City will not be liable for any Developer debt. Upon completion of the construction of the infrastructure improvements, the Developer shall certify to the City’s Finance Officer the costs of construction, including capital costs, Professional Fees, and contingency costs. The Developer shall provide contractor/supplier invoices or other supporting documentation upon request of the Finance Officer. Upon certification and verification of costs, the City shall pay all available tax increment fund revenues not to exceed $5,000,000. Colliers Securities LLC Page 11 Expenditures Exceeding Estimated Cost Any expenditures, which in sum would exceed the total amount of the TID amount of $5,000,000 will require an amendment of this Plan. All amendments would be undertaken pursuant to SDCL §11-9- 23. When the expenditures within the Plan are increased in excess of more than 35 percent of the total above, the Department of Revenue will be required to reset the base, in accordance with SDCL §11 - 9-23. If the Project Costs are not provided for in the original plan, the governing body would be required to amend the plan which requires the South Dakota Department of Revenue to re -determine the tax increment base when additional Project Costs are added to a plan. SDCL §11-9-23. Colliers Securities LLC Page 12 FEASIBILITY STUDY, ECONOMIC DEVELOPMENT STUDY, AND FISCAL IMPACT STATEMENT Detailed List of Estimated Project Costs Attached as Schedule 1 is a detailed list of estimated Project Costs for each of the phases of the project as per SDCL § 11-9-13(3). No expenditure for Project Costs is provided for more than five years after the District is created. Feasibility Study An economic feasibility study per SDCL § 11-9-13(2) is attached as Schedule 2. Economic Development Study Attached is Schedule 3 an Economic Development Study showing the impact of the Tax Increment District, until and after the bonds are repaid, upon all entities levying property taxes in the district. Required as per SDCL § 11-9-13(4). Fiscal Impact Statement Attached is Schedule 4 a Fiscal Impact Statement showing the impact of the Tax Increment District, until and after the bonds are repaid, upon all entities levying property taxes in the district. Required as per SDCL § 11-9-13(4). Colliers Securities LLC Page 13 METHOD OF FINANCING, TIMING OF COSTS AND MONETARY OBLIGATIONS The payment of Project Costs is anticipated to be made by the City to Developer from the special fund of the Tax Incremental District. SDCL § 11 -9-13(5). Pursuant to the Developer’s Agreement, the City will pay to the Developer all available tax increment funds it receives from the District. Maximum Amount of Tax Increment Revenue The maximum amount of tax increment revenue bonds or monetary obligations to be paid through Tax Increment District #16 shall be the amount sufficient to reimburse the City for the payments made for Project Costs and pay all tax increment bonds or monetary obligations in an amount not to exceed $5,000,000 principal and interest or such lesser amount as may be feasible with the estimated revenue generated by the Tax Increment District. The final terms and conditions will be set forth in the Developer’s Agreement. Duration of Tax Increment Plan The duration of the Plan will extend to the number of years it will take for the reimbursement of the City, the extinguishment of bonds and the monetary obligation except that the Plan duration shall not exceed 20 calendar years of revenue from the date of creation of the District. Colliers Securities LLC Page 14 ESTIMATED IMPACT OF TAX INCREMENT FINANCING ON REVENUES OF TAXING JURISDICTIONS The site will generate taxes to the local jurisdictions at or above the assessed value of the base. All taxing districts shall receive the taxes from that base which will be the value set for 2022 taxes payable in 2023. The tax increment will be available to the taxing jurisdictions at or before twenty years after the creation of the District. Schedule 5 details the tax capture implications to each of the local taxing jurisdictions. After the repayment of the bonds and monetary obligations, taxing entities will receive their proportionate share of tax dollars for the base value and the tax incremental values. Mechanisms are built within State Codified Law to ensure that school districts are held harmless by TIF districts for their General and Special Education Funds. For these purposes, law (SDCL 13-13- 10.2) defines four classifications of TIFs: • Economic Development - Any area where there is or will be one or more businesses engaged in any activity defined as commercial or industrial by the governing body that has zoning authority over the land contained within the tax incremental district • Industrial – Any factory or any business engaged primarily in the manufacturing or assembly of goods, the processing of raw materials, and the wholesale distribution of products for resale • affordable Housing – Includes an area where: 1. The original selling price of any house in the district will be at or below the first-time homebuyer purchase price limit being used by the South Dakota Housing Development Authority as of the date the house is sold; OR 2. The monthly rental rate of all multifamily housing units in the district will be at or below the calculated rent for the state's eighty percent area median income as of the date the district is created, for a minimum of five years following the date of first occupancy. • Local – Any tax incremental districts that do not fall under Economic Development or Industrial All public school districts are funded through the State Aid to Education formula. The two primary channels of the formula are State Aid and Local Effort. Multiple agencies of the State of South Dakota calculate the amount of General Fund monies to be distributed to school districts each year through the State portion. Local effort is considered the amount of revenue that is generated by local property taxes at maximum levies. If a TIF is classified as Economic Development, Industrial, or Affordable Housing, the school funding that would be generated by the increment valuation is considered lost local effort and is paid through the State Aid side of the formula. If a TIF is classified as Local, the affected school district funding must be recouped through local effort in the form of an additional levy added to the General and Special Education Funds. In either scenario, the school district receives the financial need associated with the increment valuation. City of Brookings TIF #16 will be classified as Industrial; therefore, any lost local effort will be covered through the State Aid to Education Formula. Colliers Securities LLC Page 15 MAPS The Conditions map, SDCL § 11-9-16(1), is included as Attachment 2. The Improvements map, SDCL § 11-9-16(2), is included as Attachment 3. The Zoning Change Map, SDCL § 11-9-16(3), is included as Attachment 4. Colliers Securities LLC Page 16 SUPPLEMENTARY FINDINGS CHANGES TO CITY & COUNTY COMPREHENSIVE/MASTER PLAN MAP, BUILDING CODES & CITY OR COUNTY ORDINANCES PER SDCL §11-9-16 (4) No changes to neither City ordinances nor the City Master Plan are required. LIST OF ESTIMATED NON-PROJECT COSTS The following is a list of the non-Project Costs per SDCL § 11-9-16(5). All costs are listed as taxable value; actual non-project costs will exceed the following amounts. Item Amount Construction of the Solventum Expansion $153,000,000 TOTAL $153,000,000 STATEMENT OF DISPLACEMENT AND RELOCATION PLAN No residents or families will be displaced by the Project. SDCL § 11-9-16(6) PERFORMANCE BOND, SURETY BOND OR OTHER GUARANTY As security for its fulfillment of the agreement with the governing body, a purchaser or lessee of redevelopment property may furnish a performance bond, with such surety and in such form and amount as the governing body may approve or make such other guaranty as the governing body may deem necessary in the public interest. This additional security may be provided for in a Developer’s Agreement. Colliers Securities LLC Page 17 LIST OF SCHEDULES SCHEDULE 1 - Estimated Project Cost SCHEDULE 2 - Economic Feasibility Study & Estimated Captured Taxable Values SCHEDULE 3 - Economic Development Study SCHEDULE 4 - Fiscal Impact Statement Colliers Securities LLC Page 18 SCHEDULE 1 ESTIMATED PROJECT COSTS Estimates TID Eligible of Project Costs Requested The City of Brookings has determined that this will be an Industrial Tax Increment District, thus the eligible cost will be in the form of an infrastructure grant that will not exceed $5,000,000 This is a permitted use under SDCL 11-9-15. 11-9-15. Specific items included in project costs. Project costs include: (1) Capital costs, including the actual costs of the construction of public works or improvements, buildings, structures, and permanent fixtures; the demolition, alteration, remodeling, repair, or reconstruction of existing buildings, structu res, and permanent fixtures; the acquisition of equipment; the clearing and grading of land; and the amount of interest payable on tax incremental bonds issued pursuant to this chapter until such time as positive tax increments to be received from the district, as estimated by the project plan, are sufficient to pay the principal of and interest on the tax incremental bonds when due; . (2) Financing costs, including all interest paid to holders of evidences of indebtedness issued to pay for project costs, any premium paid over the principal amount thereof because of the redemption of such obligations prior to maturity a nd a reserve for the payment of principal of and interest on such obligations in an amount determined by the governing body to be reasonably required for the marketability of such obligations; . (3) Real property assembly costs, including the actual cost of the acquisition by a municipality of real or personal property within a tax incremental district less any proceeds to be received by the municipality from the sale, lease, or other disposition of such property pursuant to a project plan; . (4) Professional service costs, including those costs incurred for architectural, planning, engineering, and legal advice and services; . (5) Imputed administrative costs, including reasonable charges for the time spent by municipal employees in connection with the implementation of a project plan; (6) Relocation costs; . (7) Organizational costs, including the costs of conducting environmental impact and other studies and the costs of informing the public of the creation of tax incremental districts and the implementation of project plans; and . (8) Payments and grants made, at the discretion of the governing body, which are found to be necessary or convenient to the creation of tax incremental districts, the implementation of project plans, or to stimulate and develop the general economic welfare and prosperity of the state. Colliers Securities LLC Page 19 The following shows the preliminary cost summary provided by the project engineer. Colliers Securities LLC Page 20 SCHEDULE 2 ECONOMIC FEASIBILITY STUDY & TAXABLE VALUE The City has been asked to create a Tax Increment District to help offset the expansion associated with this project. This feasibility study provides that the Project Costs can be financed through tax increment financing under South Dakota Tax Incremental District Law (South Dakota Codified Laws Chapter 11 -9). Tax increment financing is an indispensable self- financing tool used throughout the United States to help local governments successfully develop and redevelop areas and encourage economic development. In tax increment financing, the current real property tax assessed value of all properties in a designated project area (“tax increment financing district”) is established as the “base value.” As development in the tax increment financing district increas es the assessed values of the redeveloped properties, a portion of the additional tax revenue generated by the increase in assessed value over the base value is set aside and committed by the City to the reimbursement of approved project costs. Tax increment financing is permitted only in connection with a “Project Plan” duly adopted by the City. The property is currently estimated to have a taxable value of $17,828,000. The improvements to be made to the property are estimated to add to the assessed valuation. The estimated increment resulting from the improvements would be approximately $5,000,000 in new value once fully developed. Since only positive tax increment will be applied, the proposed project is feasible. All of the project costs are found to be necessary and convenient to the creation of the Tax Incremental District and the implementation of the project. The City’s role is to simply act as a conduit for the revenue and pass on all positive increment to the Developer or to reimburse the C ity for their expenses, of which, will never exceed $5,000,000 in total payments, or 20 years, whichever comes first. It is assumed that all obligations incurred would be adequately secured as to allow the payment of principal and interest when due, whether by means of a taxable bond or loan. The actual repayment schedule may change, but all principal and interest shall be paid within the life of the TID. Utilizing the information regarding expected increment valuation and tax generation, it is possible to estimate an expected revenue stream that can be utilized to retire debt that will be created as a result of implementing the Project Plan. City of Brookings TID #16 is proven feasible based upon the projections made by the Developer, projecting a total in excess of $5,000,000 in tax revenue during the life of the 20- year TID can be found in the following tables. For purposes of this Project Plan, it is anticipated no increment generated by C ity TID #16 will be available until the earliest of calendar year 2027 and thereafter. Colliers Securities LLC Page 21 TID Tax Revenue Estimates Available for City of Brookings This project will have properties that are classified as Non-Ag Other The following projections show the total amount of revenue the TID would produce if it went the full 20 years based on the projections above. $16,853,250 Year % Assessed Projected Valuation Taxable Valuation Taxation 2024 0%$0 $0 $0 2025 0%$0 $0 $0 2026 40%$6,741,300 $6,067,170 $114,943 2027 100%$16,853,250 $15,167,925 $287,356 2028 100%$16,853,250 $15,167,925 $287,356 2029 100%$16,853,250 $15,167,925 $287,356 Projected Valuation Projects Planned Completion Square Footage CHG Production Expansion Jul-25 80,000 CHG Mezzanines Jul-25 23,000 Utility Expansion May-25 16,000 Warehouse and Docks Jun-25 105,000 New Sterilizer Jun-25 38,000 262,000Total School County City Fire Water Abulance Total Equalized 12.658 4.004 2.262 0 0.021 0 18.945 90% Construction Year Valuation Year Revenue Year Project Increment 1 Project Increment 2 Project Increment 3 Project Increment 4 Total Amount Available for D/S 2024 2025 2026 $114,943 $114,943 2025 2026 2027 $287,356 $0 $287,356 2026 2027 2028 $287,356 $0 $0 $287,356 2027 2028 2029 $287,356 $0 $0 $0 $287,356 2028 2029 2030 $287,356 $0 $0 $0 $287,356 2029 2030 2031 $287,356 $0 $0 $0 $287,356 2030 2031 2032 $287,356 $0 $0 $0 $287,356 2031 2032 2033 $287,356 $0 $0 $0 $287,356 2032 2033 2034 $287,356 $0 $0 $0 $287,356 2033 2034 2035 $287,356 $0 $0 $0 $287,356 2034 2035 2036 $287,356 $0 $0 $0 $287,356 2035 2036 2037 $287,356 $0 $0 $0 $287,356 2036 2037 2038 $287,356 $0 $0 $0 $287,356 2037 2038 2039 $287,356 $0 $0 $0 $287,356 2038 2039 2040 $287,356 $0 $0 $0 $287,356 2039 2040 2041 $287,356 $0 $0 $0 $287,356 2040 2041 2042 $287,356 $0 $0 $0 $287,356 2041 2042 2043 $287,356 $0 $0 $0 $287,356 $5,000,000 $0 $0 $0 $5,000,000 Colliers Securities LLC Page 22 SCHEDULE 3 ECONOMIC DEVELOPMENT STUDY Introduction City of Brookings has been approached concerning the creation of a tax increment district (TID). Per South Dakota Codified Law 11 -9-8, the governing body must make a finding that not less than 50%, by area, of the real property within the district will stimulate and develo p the general economic welfare and prosperity of the State through the promotion and advancement of industrial, commercial, manufacturing, agricultural and natural resources, and the improvement of the area is likely to enhance significan tly the value of substantially all of the other real property in the district. Study Area Boundary The Project boundaries are described and depicted on the maps in Attachments 1 and 2 of this Plan. Establishing Economic Development South Dakota law describes economic development as activity that stimulates and develops the general economic welfare and prosperity of the state through the promotion and advancement of industrial, commercial, manufacturing, agricultural, or natural resources. The definition of Economic Development for State Aid to Education Formula purpose is any area where there is or will be one or more businesses engag ed in any activity defined as commercial or industrial. The proposed City of Brookings TID #16 meets both of these criteria. The area within the boundaries of the TIF is to continue to expand the existing Solventum facility. The proposed expansion will consist of an additional 262,000 square feet. The investment in the Project area will stimulate and develop the general economic welfare and prosperity of the region through the promotion of economic development. Finding That the Improvements to the Area Are Likely To Enhance Significantly the Value Of Substantially All Of The Other Real Property In The District It is definitively found that once the improvements set forth within the Project Plan are initiated, the improvements will enhance significantly the value of substantially all of the other real property in the district. The City of Brookings TID #16 will provide the much needed economic development to the growing City of Brookings region. A supplemental use of the TIF will be improvements as deemed necessary within the developed area. Conditions Within The Study Area; Land Use And Planning Land Use, Planning And Comprehensive Plan The City of Brookings Comprehensive Plan is consistent with the proposed use of the District. Colliers Securities LLC Page 23 Findings within the Project Area Analysis It is found that not less than 50%, by area, of the real property within the District will stimulate and develop the general economic welfare and prosperity of the State of South Dakota through the promotion and advancement of economic development. It is also found that the improvement of the area is likely to enhance significantly the value of substantially all of the other real property in the District in accordance with SDCL 11 -9-8. Colliers Securities LLC Page 24 SCHEDULE 4 FISCAL IMPACT STATEMENT FOR CITY OF BROOKINGS TID #16 Introduction A fiscal impact statement shows the impact of the TID, both until and after the bonds or obligations are repaid, upon all entities levying taxes upon property in the District. The following fiscal impact statement is intended to provide only a brief analys is of the estimated impact of the Tax Increment District to the public pursuant to SDCL § 11 -9-13(4). It is not intended to challenge a more detailed, complete financial analysis. Definitions “Assumptions” means factors or definitions used in the fiscal analysis. Assumptions may include facts and figures identified by the District and educated guesses that are sometimes necessary when not all of the information is available. Assumptions are often used to ext rapolate an estimate. Assumptions may include an estimate of tax levies of each taxing entity, the school aid formula contribution, the value of the real property, etc. "Base Revenues” means the taxes collected on the base value. “Fiscal Impact” means the increase or decrease in revenues and generally refers to an impact to revenues caused by the district. “Revenue” means ad valorem taxes. “Tax Increment District” means City of Brookings Tax Increment District Number 16 “Taxing Districts” means all political subdivisions of the state which have ad valorem taxing power over property within the boundaries of the Tax Increment District. “Tax Increment Revenues" means all revenues above the Base Revenues. Assumptions 1. The property will have improvements which at completion is esti mated at taxable purposes at $15,167,925 2. The average tax levy of all taxing districts will be $18.945 per thousand dollars of taxable valuation. 3. Tax increment will start to be collected in 2027 and end prior to 2044. 4. The discretionary formula will be waived by Developer. Colliers Securities LLC Page 25 SCHEDULE 5 ESTIMATED CAPTURED TAXABLE VALUES For purposes of this Project Plan, it is assumed that the Developer will elect not to use the real property tax discretionary formula currently utilized in the City of Brookings, South Dakota, pertaining to payment of real property taxes (i.e., 20% Year 1; 40% Year 2; 60% Year 3; 80% Year 4; and 100% Year 5.) * Actual valuation shall depend upon the value determined by the Brookings County Director of Equalization when assessed, with the application of dollars-per-thousand from local taxes. All tax increment revenues shall be from Generally Applicable Taxes attributable to the improvements to be constructed in the TID. The potential for total increment collections are estimated to be at the maximum range of $5,000,000 covering a span of captured tax years not to exceed 20. Collection is anticipated to begin in 2026, and the schedule carries out the tax captured 20 years from the date of Plan adoption. The following dollars-per-thousand rates are the current taxing rates of the local taxing jurisdictions for “NA” property types: Utilizing the information regarding expected increment valuation and tax generation, it is possible to generate an expected revenue stream that can be utilized to retire debt that will be created as a result of implementing the Project Plan. 2024 Property Tax Rate "NA" Brookings School District Brookings County City of Brookings East Dakota Water District Total 12.658 4.004 2.262 0.021 18.945 Colliers Securities LLC Page 26 LIST OF ATTACHMENTS Attachment 1 - Descriptions of Real Property (1) Attachment 2 - Conditions map, SDCL § 11-9-16 (2) Attachment 3 - Improvements map, SDCL § 11-9-16(3) Attachment 4 - Zoning Change Map SDCL § 11-9-16(4) Attachment 5 – Department of Revenue Classification Letter (6) Colliers Securities LLC Page 27 ATTACHMENT 1 DESCRIPTIONS OF REAL PROPERTY: • OUTLOTS, THAT PORTION OF SW 1/4 LYING S OF C & NW RR, INC. MEYERS SUBDIV. EXCLOT 5A, 5B,6B,& 7B & EXC S .84 AC OF L H-11, EXC L H-8 SEC 30-110-49, ALSO N1/2 NW 1/4 EXC H-2, & EXC .43 ACRES OF LOT H-5 TOTAL - 113.06 AC All Located in the City of Brookings, Brookings County, South Dakota including within and adjacent rights-of-ways. Colliers Securities LLC Page 28 ATTACHMENT 2 Conditions picture for City of Brookings Tax Incremental District #16, SDCL § 11-9-16(1) The following are pictures showing the current conditions of the proposed location of TIF #16: Colliers Securities LLC Page 29 ATTACHMENT 3 Improvements map for the City of Brookings TIF #16, SDCL § 11-9-16 The image below shows the Boundary for TIF #16: Colliers Securities LLC Page 30 ATTACHMENT 4 Zoning Map for City of Brookings Tax Incremental District #16 SDCL § 11-9-16(2). Colliers Securities LLC Page 31 ATTACHMENT 5 Department of Revenue Classification Letter for the City of Brookings TIF #16: 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 24-0429,Version:1 City of Brookings Progress Report. Summary: Samantha Beckman, Assistant to the City Manager, will provide a progress report highlighting the City’s activities/projects. Attachments: Progress Report City of Brookings Printed on 8/29/2024Page 1 of 1 powered by Legistar™ Progress ReportAugust 2024 City Manager & City Clerk •Downtown Master Plan •Dashboards •New Employee •Genesis Farms LLC •Alcohol Compliance Check Passes: •Wilbert’s Bar & Grill •Brookings Municipal Liquor Store •Walmart •Hy-Vee Food Store •El Tapatio •Sake •Danger Von Dempsey’s •Brookings Softball Association Public Works Engineering Division •University Blvd & 22nd Ave Sewer Improvements •Target: September 2024 •Status:Curb and gutter complete. Paving to begin next week. •Street Maintenance and Overlay Project ▪Target: October 2024 ▪Status:7th St curb and gutter to begin week of August 19. 8th St sanitary sewer work is progressing well. Public Works Engineering Division(cont.) •Chip Seal •Target:August •Status:Complete •Slurry Seal •Target: July •Status: Complete •Concrete Maintenance Project •Target: September 2024 •Status: Near completion •20th Street South (BMU) •Status:Complete with warranty items remaining •34th Ave (BMU) •Target: November 2024 •Status:34th Ave closed at 6th Street Public Works Solid Waste Division •Solid Waste Master Plan (implementation) •Solid Waste Education/Outreach •Leachate Force Main Design •Parking Lot Pavement •Operational Gap Analysis •2024 Projects •Household Hazardous Waste Event •Landfill Equipment Building •E-Waste Program •Collection Truck Replacement Police •Personnel •New Hires •Internal Promotion •Community Policing •Cone with a Cop •Safety Town •SDSU Welcome Packets •National Night Out •Citizen First Responder Academy •FREE Bicycle Registration Parks & Rec •Activity Center Programs •Soggy Doggy Event •Larson Ice Center •Dutch Elm/Emerald Ash Borer •Pickleball Art Screen •NRPA Green Stormwater Infrastructure •Dacotah Bank Center •Bike Subcommittee •Kristin Zimmerman 520 Third St, Suite 130, Brookings, SD kzimmerman@brookings-sd.gov Deadline: September 5, 2024 •Project Updates Library •New Windows •Summer Events/Programs