City Council Meeting

MINUTES City Council Meeting Tuesday, January 12, 2021 at 6:00 PM Carnegie Town Hall, 235 West 10th St., Sioux Falls, South Dakota 57104 CALL TO ORDER 1. MEETING ROLL CALL Present: Council Member Janet Brekke (via telecom), Council Member Christine M. Erickson, Council Member Alex Jensen, Council Member Rick Kiley, Council Member Greg Neitzert, Council Member Marshall Selberg, Council Member Curt Soehl (via telecom), Council Member Pat Starr (via telecom), Mayor Paul TenHaken Absent: None 2. INVOCATION  Pastor Layne Nelson, East Side Lutheran Church 3. PLEDGE OF ALLEGIANCE Mayor Paul TenHaken recognized Scout Troop 346 who were in attendance. CONSENT AGENDA 4. APPROVAL OF THE CONSENT AGENDA A motion was made by Council Member Erickson and seconded by Council Member Kiley to approve the Consent Agenda. Roll call vote to approve. 8 Yes: Brekke, Erickson, Jensen, Kiley, Neitzert, Selberg, Soehl, Starr; 0 No: (None). Motion Passed. 5. APPROVAL OF MINUTES  Informational Meeting of Tuesday, January 5, 2021  Regular City Council Meeting of Tuesday, January 5, 2021 COMMUNICATIONS 6. Approval of contracts/agreements on the memorandum dated January 8, 2021. 7. Report of Requests for Quotes for Fuel dated: December 30, 2020; Dyed Diesel #1 (3,250 Gallons) and Dyed Diesel #2 (3,250 Gallons); Vollan Oil (Dyed Diesel #1 $1.705 and Dyed Diesel #2 $ 1.619); Coles Petroleum (Dyed Diesel #1 $1.7725 and Dyed Diesel #2 $ 1.6725); Farstad Oil, Howes Oil, CHS Oil and Olson Oil, all no bid. Bid awarded to: Vollan Oil. 8. Report of Requests for Quotes for Fuel dated: December 30, 2020; Dyed Diesel #1 (3,750 Gallons) and Dyed Diesel #2 (3,750 Gallons). The City of Sioux Falls is purchasing off the State of South Dakota Fuels, Transport Contract Number 17423, the awarded contractor is Harms Oil, price paid is Dyed Diesel #1 $1.5869 and Dyed Diesel #2 $ 1.6949. 9. Report of Requests for Quotes for Fuel dated: December 30, 2020; Unleaded (1,500 Gallons). The City of Sioux Falls is purchasing off the State of South Dakota Fuels, Transport/Tankwagon Contract Number 17432, the awarded contractor is Vollan Oil, price paid is Unleaded $1.6802. REGULAR AGENDA 10. APPROVAL OF THE REGULAR AGENDA A motion was made by Council Member Kiley and seconded by Council Member Neitzert to approve the Regular Agenda. Roll call vote to approve. 8 Yes: Brekke, Erickson, Jensen, Kiley, Neitzert, Selberg, Soehl, Starr; 0 No: (None). Motion Passed. INTRODUCTION AND ADOPTION OF ORDINANCES ORDINANCE SECOND READINGS 11. 2nd Reading: AN ORDINANCE OF THE CITY OF SIOUX FALLS, SD, AMENDING THE CODE OF ORDINANCES OF THE CITY BY CHANGING A STREET NAME. Private Applicant(s): Jarding Construction A motion was made by Council Member Neitzert and seconded by Council Member Jensen to adopt Ordinance No. 8-21. Roll call vote to adopt. 8 Yes: Brekke, Erickson, Jensen, Kiley, Neitzert, Selberg, Soehl, Starr; 0 No: (None). Motion Passed. 12. 2nd Reading: AN ORDINANCE OF THE CITY OF SIOUX FALLS, SD, APPROVING TERMINATION OF THE RAILROAD SWITCH TRACK EASEMENT. Sponsor: Mayor A motion was made by Council Member Selberg and seconded by Council Member Kiley to adopt Ordinance No. 9-21.  Roll call vote to adopt. 8 Yes: Brekke, Erickson, Jensen, Kiley, Neitzert, Selberg, Soehl, Starr; 0 No: (None). Motion Passed. HEARINGS AND RESOLUTIONS 13. A RESOLUTION VACATING THE WEST 33' OF THE SE1/4 OF THE SE1/4, LYING ADJACENT TO TRACT 1 KNOCHENMUS 2ND ADDITION, AND ALSO LYING ADJACENT TO THE SW1/4 OF THE SE1/4 ALL IN SECTION 12, TOWNSHIP 101N, RANGE 49W, MINNEHAHA COUNTY, SD (LISTED AS FUTURE STREET RIGHT-OF- WAY AS RECORDED AS PLAT 95540 IN BOOK 69 OF PLATS, PAGE 8), AS SHOWN ON EXHIBIT A. Private Applicant(s): Golden Gateway, LLC A motion was made by Council Member Selberg and seconded by Council Member Kiley to adopt Resolution No. 6-21. Roll call vote to adopt. 8 Yes: Brekke, Erickson, Jensen, Kiley, Neitzert, Selberg, Soehl, Starr; 0 No: (None). Motion Passed. RESOLUTION NO. 6-21 A RESOLUTION VACATING THE WEST 33' OF THE SE1/4 OF THE SE1/4, LYING ADJACENT TO TRACT 1 KNOCHENMUS 2ND ADDITION, AND ALSO LYING ADJACENT TO THE SW1/4 OF THE SE1/4 ALL IN SECTION 12, TOWNSHIP 101N, RANGE 49W, MINNEHAHA COUNTY, SD (LISTED AS FUTURE STREET RIGHT-OF- WAY AS RECORDED AS PLAT 95540 IN BOOK 69 OF PLATS, PAGE 8), AS SHOWN ON EXHIBIT A. WHEREAS, a petition to vacate city right-of-way has been filed by the owners of the following described property: Tract 1, Knochenmus 2nd Addition to the City of Sioux Falls, South Dakota A portion of the SE1/4 of the SE1/4 of Section 12, Township 101 N, Range 49 W lying adjacent to Tract 1, Knochenmus 2nd Addition A portion of the SW1/4 of the SE1/4 of Section 12, Township 101 N, Range 49 W lying adjacent to the West 33' of the SE1/4 of the SE1/4, lying adjacent to Tract 1 Knochenmus 2nd Addition WHEREAS, the hearing was held on January 12, 2021, and the petition has been duly examined and investigated by the City Council of the City of Sioux Falls. Testimony of said petition has been heard. Said property, as shown upon the plats attached to and made a part of said petition, has been used as a street, alley, or public ground but no longer serves a useful public purpose. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF SIOUX FALLS, SD:  That the 33' right-of-way as shown on Exhibit A, be and the same hereby is declared vacated, and that the City Clerk shall cause to be filed with the Register of Deeds, Minnehaha County, South Dakota, a duly certified transcript of this resolution. Date adopted: 01/12/21 . Paul TenHaken, Mayor ATTEST: Thomas Greco 14. A RESOLUTION APPROVING THE RELEASE OF A PERMANENT UTILITY EASEMENT LOCATED IN TRACT 1 KNOCHENMUS 2ND ADDITION IN THE E 1/2 SE 1/4 OF SECTION 12, TOWNSHIP 101 NORTH, RANGE 49 WEST OF THE 5TH P.M., MINNEHAHA COUNTY, SOUTH DAKOTA. Sponsor: Mayor A motion was made by Council Member Kiley and seconded by Council Member Jensen to adopt Resolution No. 7-21. Roll call vote to adopt. 8 Yes: Brekke, Erickson, Jensen, Kiley, Neitzert, Selberg, Soehl, Starr; 0 No: (None). Motion Passed. RESOLUTION NO. 7-21 A RESOLUTION APPROVING THE RELEASE OF A PERMANENT UTILITY EASEMENT LOCATED IN TRACT 1 KNOCHENMUS 2ND ADDITION IN THE E 1/2 SE 1/4 OF SECTION 12, TOWNSHIP 101 NORTH, RANGE 49 WEST OF THE 5TH P.M., MINNEHAHA COUNTY, SOUTH DAKOTA. WHEREAS, the City of Sioux Falls, SD, no longer needs a permanent utility easement area across the above-described real property, as shown on Exhibit A. Signed approvals from all public and private utilities are on file with the office of the City Engineer; and WHEREAS, the permanent utility easement was established by plat and filed in Book 69 of Plats on page 8 in the office of the Register of Deeds for Minnehaha County, SD, on January 17, 2007; NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF SIOUX FALLS, SD: That it approves the release of a permanent utility easement area, as shown on attached Exhibit A, and affecting the real property described as Tract 1 Knochenmus 2nd Addition in the E 1/2 SE 1/4 of Section 12, Township 101 North, Range 49 West of the 5th P.M., Minnehaha County, SD, and that the City Clerk shall cause to be recorded with the Register of Deeds, Minnehaha County, SD, a duly certified transcript of this resolution. Date adopted: 01/12/21 . Paul TenHaken, Mayor  ATTEST: Thomas Greco, City Clerk 15. A RESOLUTION GRANTING CONSENT OF THE CITY OF SIOUX FALLS, SOUTH DAKOTA TO THE TRANSFER OF CONTROL OF THE OPEN VIDEO SYSTEM LICENSE AGREEMENT AND OPEN VIDEO SYSTEM TO GI DI RUSHMORE TOPCO LLC. Sponsor: Mayor A motion was made by Council Member Selberg and seconded by Council Member Jensen to adopt Resolution No. 8-21. Roll call vote to adopt. 8 Yes: Brekke, Erickson, Jensen, Kiley, Neitzert, Selberg, Soehl, Starr; 0 No: (None). Motion Passed. RESOLUTION NO. 8-21 A RESOLUTION GRANTING CONSENT OF THE CITY OF SIOUX FALLS, SOUTH DAKOTA TO THE TRANSFER OF CONTROL OF THE OPEN VIDEO SYSTEM LICENSE AGREEMENT AND OPEN VIDEO SYSTEM TO GI DI RUSHMORE TOPCO LLC. WHEREAS, the City and PrairieWave Holdings, Inc. entered into an Open Video System (“OVS”) License Agreement on or about January 19, 2005, and filed as Agreement No. 05-0013 (the “OVS License Agreement”); and WHEREAS, on March 23, 2007, the City executed a Consent to Transfer of Control agreeing that the OVS License Agreement transfer to Knology, Inc.; and WHEREAS, on June 6, 2012, the City executed a Consent to Transfer of Control agreeing that the OVS License Agreement transfer to WideOpenWest Finance, LLC; and WHEREAS, the City extended the term of the OVS License Agreement through December 31, 2019, in Resolution 80-14; and WHEREAS, in Resolution 108-14, the City approved the transfer of the OVS License Agreement to Clarity Telecom, LLC dba Vast Broadband (“Vast Broadband”); and WHEREAS, in Resolution 46-19, the City and Vast Broadband agreed to a renewed OVS License Agreement that extended the existing OVS License Agreement to December 31, 2029; and WHEREAS, in Resolution 47-19, the City approved the transfer of the OVS License Agreement to Python Intermediate II, LLC, though Vast Broadband continued to operate and maintain the open video system in the City (the “System”); and WHEREAS, Python Intermediate II, LLC has agreed to a Securities Purchase Agreement that will result in control of Vast Broadband being transferred to GI DI Rushmore TopCo LLC (the “Proposed Transaction”); and WHEREAS, under the Proposed Transaction, Vast Broadband will continue to operate and maintain the System and will continue to provide cable service using the System, but Vast Broadband’s ultimate parent company will be different and, consequently, ultimate ownership of Vast Broadband will change; and WHEREAS, Section 22 of the OVS License Agreement requires the City’s consent to the Proposed Transaction, and Vast Broadband has requested such approval in a transfer application (the “Transfer Application”); and WHEREAS, in reliance on representations made by and on behalf of Vast Broadband and GI DI Rushmore TopCo LLC, the City is willing to grant its consent to the Proposed Transaction, so long as those representations are complete and accurate; and WHEREAS, the City’s approval of the Proposed Transaction is therefore appropriate if Vast Broadband will continue to be responsible for all acts and omissions, known and unknown, under the OVS License Agreement and applicable law for all purposes, including, without limitation, renewal, or extension of the OVS License Agreement; NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF SIOUX FALLS, SD, AS FOLLOWS: Section 1. The City’s consent to and approval of the Transfer Application is hereby granted in accordance with the OVS License Agreement, subject to the following conditions: 1.1 Actual closing of the Proposed Transaction consistent with the Transfer Application and written notice of the closing within thirty (30) days of the date of closing, notifying the City of the closing; 1.2 Acceptance and acknowledgement of this Resolution by Vast Broadband and GI DI Rushmore TopCo LLC within ten (10) days of the adoption of this Resolution; 1.3 GI DI Rushmore TopCo LLC shall execute and deliver a Guaranty of Performance in the form of Exhibit A, attached hereto and incorporated herewith, within thirty (30) days of the adoption of this Resolution, guarantying the full performance of the Licensee; 1.4 GI DI Rushmore TopCo LLC shall execute and deliver a Guaranty Regarding Rates and Services in the form of Exhibit B, attached hereto and incorporated herewith, within thirty (30) days of the effective date of this Resolution, specifying that subscriber services, rates, and charges in the City will not increase as a result of the Proposed Transaction; 1.5 GI DI Rushmore TopCo LLC will comply with any and all applicable conditions or requirements as set forth in all approvals granted by federal agencies with respect to the Proposed Transaction and the  Transfer Application (including any conditions with respect to programming agreements); 1.6 After closing of the Proposed Transaction, Vast Broadband will continue to be responsible for all past acts and omissions, known and unknown, under the OVS License Agreement and applicable law for all purposes in the same manner as before the Proposed Transaction; 1.7 Venue for any and all disputes arising from the Proposed Transaction between the City and the Transferee shall be in the State of South Dakota; and 1.8 The City waives none of its rights with respect to Vast Broadband’s compliance with the terms, conditions, requirements, and obligations set forth in the OVS License Agreement and in applicable law. The City’s consent to the Proposed Transaction shall in no way be deemed a representation by the City that Vast Broadband is in compliance with the OVS License Agreement and applicable law. Section 2. If any conditions or requirements specified in this Resolution are not satisfied, then the City’s consent to and approval of the Transfer Application and the Proposed Transaction are hereby denied and are void as of the date thereof. Section 3. Pursuant to Section 24 of the OVS License Agreement, GI DI Rushmore TopCo LLC shall reimburse the City all incidental legal and consultant costs incurred by the City as a result of the Proposed Transaction. Neither GI DI Rushmore TopCo LLC nor Vast Broadband shall offset such payment against any payment made or owed to the City pursuant to the OVS License Agreement. Section 4. If any of the oral or written representations made to the City by GI DI Rushmore TopCo LLC, Vast Broadband, or any subsidiary, agent, contractor, officer, or representative thereof proves to be materially incomplete, untrue, or inaccurate in any respect, such representation shall be deemed a material breach of the OVS License Agreement and applicable law, entitling the City to any available remedies, including, without limitation, revocation, or termination of the OVS License Agreement. Section 5. This Resolution shall not be construed to grant or imply with City’s consent to any other transfer or assignment of the OVS License Agreement or any other transaction that may require the City’s consent under the OVS License Agreement or applicable law. The City reserves its rights regarding any such transaction or transactions. [intentionally left blank] Date adopted: 01/12/21 . Paul TenHaken, Mayor ATTEST: Thomas Greco, City Clerk NOTICE OF HEARINGS FOR STREET VACATIONS 16. A RESOLUTION VACATING A PORTION OF THE ARROWHEAD PARKWAY RIGHT OF WAY, AS SHOWN ON EXHIBIT A. (Tract 2 Willows Edge Addition) Recommendation: Set a date of hearing for Tuesday, February 9, 2021. Sponsor: Mayor A motion was made by Council Member Kiley and seconded by Council Member Jensen to set a date of hearing for Tuesday, February 9, 2021 for Item 16. Roll call vote to set a date of hearing. 8 Yes: Brekke, Erickson, Jensen, Kiley, Neitzert, Selberg, Soehl, Starr; 0 No: (None). Motion Passed. 17. A RESOLUTION VACATING A PORTION OF THE ARROWHEAD PARKWAY RIGHT- OF-WAY, AS SHOWN ON EXHIBIT A. (Tract 3 Willows Edge Addition) Recommendation: Set a date of hearing for Tuesday, February 9, 2021. Sponsor: Mayor A motion was made by Council Member Kiley and seconded by Council Member Neitzert to set a date of hearing for Tuesday, February 9, 2021 for Item 17. Roll call vote to set a date of hearing. 8 Yes: Brekke, Erickson, Jensen, Kiley, Neitzert, Selberg, Soehl, Starr; 0 No: (None). Motion Passed. NEW BUSINESS 18. A MOTION TO RECONSIDER AN ORDINANCE OF THE CITY OF SIOUX FALLS, SD, PROVIDING A PROVISIONAL ONE-TIME SUPPLEMENTAL APPROPRIATION TO FUND A COVID-19 PUBLIC HEALTH EDUCATION CAMPAIGN. (Health, $100,000) (The ordinance was considered at the meeting of January 5, 2021.) Sponsors: Council Members Brekke and Soehl A motion was made by Council Member Brekke and seconded by Council Member Erickson to reconsider AN ORDINANCE OF THE CITY OF SIOUX FALLS, SD, PROVIDING A PROVISIONAL ONE-TIME SUPPLEMENTAL APPROPRIATION TO FUND A COVID-19 PUBLIC HEALTH EDUCATION CAMPAIGN. (Health, $100,000). Roll call vote to reconsider. 8 Yes: Brekke, Erickson, Jensen, Kiley, Neitzert, Selberg, Soehl, Starr; 0 No: (None). Motion Passed. A motion was made by Council Member Brekke and seconded by Council Member Jensen to adopt Ordinance No. 1-21. A motion was made by Council Member Brekke and seconded by Council Member Kiley to amend by adding the following two WHEREAS clauses after the Title: "WHEREAS, on March 12, 2020, the Mayor issued Executive Order No. 218 declaring an emergency to address the novel coronavirus COVID -19; and WHEREAS, on March 13, 2020, the Governor declared an emergency in the state of South Dakota in response to the COVID-19 pandemic;" And adding a Section 3 to read: " This Ordinance is hereby declared necessary for the immediate preservation of the public  health and shall become effective immediately upon its passage and publcation pursuant to SDCL 9-19-13". Roll call vote to amend. 8 Yes: Brekke, Erickson, Jensen, Kiley, Neitzert, Selberg, Soehl, Starr; 0 No: (None). Motion Passed. Roll call vote to adopt, as amended. 8 Yes: Brekke, Erickson, Jensen, Kiley, Neitzert, Selberg, Soehl, Starr; 0 No: (None). Motion Passed. GENERAL PUBLIC INPUT David Zokaites spoke about felony murder. Scott Ehrisman spoke about prior restraint and the 1st Amendment. John Cunningham spoke about ethics insurance for the City Council. ADJOURNMENT A motion was made by Council Member Jensen and seconded by Council Member Erickson to adjourn at 6:37 p.m. Roll call vote to adjourn. 8 Yes: Brekke, Erickson, Jensen, Kiley, Neitzert, Selberg, Soehl, Starr; 0 No: (None). Motion Passed. Denise D. Tucker, MMC, Assistant City Clerk