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HomeMy WebLinkAbout10B - SMSC Interconnection Agt ~INNESO~~ MEETING DATE: AGENDA #: PREPARED BY: AGENDA ITEM: DISCUSSION: ALTERNATIVES: (1) CITY COUNCIL AGENDA REPORT September 2, 2003 10B Frank Boyles, City Manager CONSIDER APPROVAL OF A RESOLUTION APPROVING A WATERSUPPL Y INTERCONNECTION AGREEMENT BETWEEN THE CITY OF PRIOR LAKE AND THE SHAKO PEE MDEWAKANTON SIOUX COMMUNITY. Historv: The City of Prior Lake, as part of the 2020 Vision and Strategic Plan, has adopted a four-fold program regarding domestic water. One aspect of this program is water production. To facilitate domestic water production, especially during times of emergency, the City has entered into an interconnection agreement with the City of Savage. Over the last few years, this interconnection has been used by both cities. In one case, a Savage well failed and Prior Lake provided water. This year Savage provided Prior Lake with water during our historic dry spell in August. Current Circumstances: A cooperative street reconstruction project is underway between Scott County, Prior Lake and the SMSC. As part of this project CSAH 42 is being upgraded as is the CSAH 42 / CSAH 83 intersection. Also as part of the reconstruction project, Prior Lake and the SMSC are extending utilities to strengthen their respective sewer and water systems. As part of these improvements, a water system interconnection has been designed and will soon be under construction. Conclusion: The construction plans have been reviewed by Public Works Director Bud Osmundson and City Engineer Sue McDermott. The changes they requested were made. In order to complete the interconnection, it is necessary for both Prior Lake and the SMSC to execute an agreement which outlines the operation of the system. Attached is an agreement collaboratively drafted by the City Attorney and SMSC attorney. (2) Motion and Second to Adopt Resolution 03-XX Approving the Intergovernmental Cooperative Agreement as proposed. Take no action, or provide staff with additional direction. RECOMMENDED MOTION: Alternative (1). 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 1:\CQUNCILIAGNRPTSI2003\SMSC INTERCQN~IIOOdp.e~lITY EMPLOYER RESOLUTION 03-XX SOLUTION APPROVING THE INTERGOVERNMENTAL COOPERATIVE AGREEMENT FOR THE CONSTRUCTION AND MAINTENANCE OF WATER SUPPLY CONNECTIONS BETWEEN THE SHAKOPEE MDEWAKANTON SIOUX (DAKOTA) COMMUNITY AND THE CITY OF PRIOR LAKE. Motion By: Second By: WHEREAS, the SMSC Community and City desire to cooperate on issues of mutual concern that will encourage and enhance the government-to-government relationship between the City and the SMSC; and WHEREAS, the parties recognize that the water supply systems currently serving each party may be insufficient to adequately address present and future needs in times of emergency; and WHEREAS, feasibility and engineering design studies have been conducted and the parties each find that a water system interconnection between the SMSC and the City will address existing and future needs for water in times of emergency and broadly serve the parties' mutual best interests; and WHEREAS, an Intergovernmental Cooperative Agreement for the construction and maintenance of water supply connections between the Shakopee Mdewakanton Sioux (Dakota) Community and City of Prior Lake has been collaboratively prepared, which terms and conditions are acceptable to the parties. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA that: 1. The recitals set forth above are incorporated herein. 2. The Intergovernmental Cooperative Agreement for the Construction and Maintenance of Water Supply Connections between the City and SMSC is hereby approved, and the Mayor and City Manager are hereby authorized to execute the agreement. PASSED AND ADOPTED THIS 20d DAY OF SEPTEMBER, 2003. YES NO Haugen Haugen Blomberg Blomberg LeMair LeMair Petersen Petersen Zieska Zieska City Manager, City of Prior Lake 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER INTERGOVERNMENTAL COOPERATIVE AGREEMENT FOR THE CONSTRUCTION AND MAINTENANCE OF WATER SUPPLY CONNECTIONS BETWEEN THE SHAKOPEE MDEWAKANTON SIOUX (DAKOTA) COMMUNITY AND THE CITY OF PRIOR LAKE This Agreement made and entered into this _ day of September, 2003, by and between the Shakopee Mdewakanton Sioux (Dakota) Community ("Community"), a sovereign Indian Tribe, federally recognized and organized under the provisions of the Indian Reorganization Act of 1934, and is governed under the terms of the Constitution approved by the Secretary of the Interior on November 28, 1969, as amended, and the City of Prior Lake ("City"), a Minnesota municipal corporation. RECITALS WHEREAS, the Community desires to cooperate with the City on issues of mutual concern that will encourage and enhance the govemment-to-govemment relationship between the City and the Community; WHEREAS, the parties each respectively desire to provide for the protection of people and property and ensure a continuous supply of safe drinking water for public and private users within each respective jurisdiction; and WHEREAS, the parties recognize that the water supply systems currently serving each party may be insufficient to adequately address present and future needs in times of emergency; and WHEREAS, the General Council of the Community adopted a Wellhead Protection Plan for the purpose of protecting and preserving the quantity and quality of groundwater available for use by the Community; and WHEREAS, consistent with those purposes, the Community Wellhead Protection Plan calls for the construction of an interconnection between the Shakopee Mdewakanton Sioux (Dakota) Community water system and the City of Prior Lake water system; and WHEREAS, General Council Resolution No. 06-28-02-003 authorized feasibility and engineering design studies to determine whether such interconnection would serve the Community's best interests; and WHEREAS, feasibility and engineering design studies indicate that such interconnection between the Community's water system and the City of Prior Lake's water system will serve to provide for an emergency water supply to the Community and to the City; and DN: 194274, v.2 INTERGOVERNMENTAL COOPERATIVE AGREEMENT EMERGENCY WA TER INTERCONNECT SMSC/CITY OF PRIOR LAKE August 27. 2003 Page 2 WHEREAS the Community has completed the Project Design, attached hereto and incorporated herein as Exhibit A, and the City has certified that the design is acceptable for purposes of the Project; and WHEREAS the parties each find that the water system interconnection between the Community and the City will address existing and future needs for water in times of emergency and broadly serve the parties' mutual best interests. NOW, THEREFORE, in consideration ofthe mutual promises, representations and consideration set forth herein, the sufficiency of which is not disputed, Community and City enter into this Intergovernmental Cooperative Agreement to ensure the continued success of the government-to- government relationship between the Community and the City, and to assist one another when the Community or the City faces a water emergency. ARTICLE 1. RECITALS The above recitals are incorporated herein as iffully set forth. ARTICLE II. DEFINITIONS A. "Community means the Federally recognized tribal government of the Shakopee Mdewakanton Sioux (Dakota) Community, which is organized under the provisions ofthe Indian Reorganization Act of 1934, and which is located within the geographical limits of Scott County, Minnesota. B. "Community Enterprises" means those tribal government entities owned and operated by the Community within the bounds of the Community's territory and on all land owned by the Community. C. "City" shall mean the City of Prior Lake, Scott County, Minnesota, a body politic and corporate under the laws of the State of Minnesota. D. "Parties" shall mean the Community and the City, both of whom are signatory parties to this Agreement. E. "Emergency" shall mean that a party to this Agreement cannot meet on a temporary and intermittent basis its water supply demands for domestic, industrial and commercial use or public safety requirements. F. "Project" shall mean the water interconnect project, depicted in Exhibit A designed and constructed to interconnect the Community's water system with the City's water system for purposes of intergovernmental cooperation when a water emergency exists. ON: 194274, v.2 2 INTERGOVERNMENTAL COOPERATIVE AGREEMENT EMERGENCY WATER INTERCONNECT SMSC/CITY OF PRIOR LAKE August 27. 2003 Page 3 G. "Supplying Party" shall mean the party providing water during a water emergency. H. "Requesting Party" shall mean the party recelvmg water during a water emergency. ARTICLE III. STATEMENT OF PURPOSE The parties hereby agree that the purpose of this Agreement is to provide a framework for government-to-government cooperation for construction of the Project and ongoing potable water resource allocation management. ARTICLE IV. TERM The initial term of this Agreement shall run from the date of execution first noted above through December 31, 2003, and shall, thereafter renew automatically for one (1) year terms commencing January I of each year. Either party may terminate this Agreement by providing at least 180 days written notice of intent not to renew to the other party anytime after the initial term. ARTICLE V. DUTIES OF THE PARTIES 5.1 CONSTRUCTION; RIGHTS-OF-WAY; EMERGENCY USE; PAYMENT A. Except as otherwise noted, the parties shall each bear the cost and expense of acquiring all necessary permits, licenses and rights-of-way to complete each respective portion of the Project. B. The City shall obtain all permits, licenses and rights-of-way necessary to complete its portion of the Project and will grant to the Community all such permits, licenses and rights-of-way to enable the Community to complete its portion of the Project, including license to enter the water interconnect site for inspection, monitoring, repair, use and any other reason consistent with the intent ofthis Agreement. C. The Community shall bear the sole cost for construction of the Project. The Community shall prepare bid packages; advertise for bids for the work and construction of the Project; receive, open and award bids pursuant to said advertisement; and enter into a contract for construction with the successful bidder at the unit prices specified in the bid of such bidder. D. The Community shall have overall authority and sole responsibility to administer the contract for construction; to inspect the construction of the Project; and to ensure completion of the Project in accordance with Project plans and specifications. The Community shall have ultimate authority and sole responsibility in initiating and determining change orders, DN: 194274, v.2 3 INTERGOVERNMENTAL COOPERATIVE AGREEMENT EMERGENCY WATER INTERCONNECT SMSC/CITY OF PRIOR LAKE August 27. 2003 Page 4 supplemental agreements and final quantities. The City shall have the right to inspect the construction of the Project upon giving the Community notice of intent to do so. Oral notice is acceptable. E. In addition, the Community shall bear the cost of improvements and maintenance, including installation and monitoring of water meters which shall be the Community's sole and exclusive responsibility. The City agrees that it may not charge the Community for any connection or trunk charges. F. The Community shall, at its own cost and expense, remove and replace all Community-owned signs, if any, that are within the construction limits of the Project. The City shall, at its own cost and expense remove and replace all City-owned or non-Community-owned signs, if any, that are within the construction limits of the Project. G. flushing. The parties agree to establish protocol for periodic inspection and system 5.2 EMERGENCY USE If at any time during the term of this Agreement either party determines that an emergency situation exists sufficient to warrant the use of emergency water from the interconnect, that party shall advise the other party of the requirement for use of emergency water. 5.2.1 The Requesting Party will advise the Supplying Party, as soon as practically possible: (1) the nature of the water emergency; (2) the potential water quantity that may be required; and (3) an estimate of what period of time the emergency may exist. 5.2.2 The Supplying Party will determine the amount of the emergency water it can supply to the Requesting Party, considering the Supplying Party's requirements for its domestic, industrial and commercial use or public safety requirements. 5.3 PAYMENT BY THE PARTIES Within thirty (30) days following receipt of an invoice for either parties' use of emergency water, the Requesting Party will pay the Supplying Party for each unit of water used from the other's water supply, to be billed at an identical rate which is mutually adopted by the Prior Lake City Council and SMSC Tribal Council from time to time. ARTICLE VI. WARRANTIES AND REPRESENTATIONS A. The Community hereby warrants, represents and covenants that it is a sovereign Indian Tribe, recognized and organized under the Indian Reorganization Act of 1934,25 U.S.C. DN: 194274. v.2 4 INTERGOVERNMENTAL COOPERATIVE AGREEMENT EMERGENCY WATER INTERCONNECT SMSC/CITY OF PRIOR LAKE August 27. 2003 Page 5 461, et seq., in good standing under the laws of the Untied States of America; that it has the requisite power and authority to enter into and perform this Agreement, and this Agreement has been duly authorized by all necessary action on the part of the Community and has been duly executed and delivered; such execution, delivery and performance by the Community of this Agreement does not conflict with or result in a violation of any procedures or organic documents governing the Community's existence or operations; that the execution and delivery of this Agreement does not violate any judgment, order, or decree of any court or arbiter to which the Community is a party; and that the Community shall comply with all duties hereunder. B. The City hereby warrants, represents and covenants that it is a legitimately established City of the State of Minnesota, a body politic and corporate under the laws of the State of Minnesota; that has the requisite power and authority to enter into and perform this Agreement, and this Agreement has been duly authorized by all necessary action on the part of the City and has been duly executed and delivered; such execution, delivery and performance by the City of this Agreement does not conflict with or result in a violation of any documents governing the City's existence or operations; that the execution and delivery of this Agreement does not violate any judgment, order, or decree of any court or arbiter to which the City is a party; and that the City shall comply with all duties hereunder. ARTICLE VII. LIMITATIONS ON LIABILITY A. Neither the City, its officers, agents or employees, or attorneys either in their individual or official capacity, shall be responsible or liable in any manner to the Community for any claim, demand, action or cause of action of any kind or character arising out of, allegedly arising out of or by reason of the performance, negligent performance or nonperformance of the planning, design, construction, acquisition of right-of-way and easements, maintenance, restoration, repair, improvement or replacement work on the Project by the Community, or arising out of the negligence of any contractor under any contract let by the Community for the performance of said work; and the Community agrees to defend, save and keep said City, its officers, agents, employees and attorneys harmless from all claims, demands, actions or causes of action arising out of negligent performance by the Community, its officers, agent, or employees of any act required by, or taken pursuant to, this Agreement. The Community's agreement to defend, save and keep the City harmless as provided in the previous sentence shall terminate upon the final acceptance of the construction of the Project by the City. B. Neither the Community, its officers, agents or employees, either in their individual or official capacity, shall be responsible or liable in any manner to the City for any claim, demand, action or cause of action of any kind or character arising out of, allegedly arising out of or by reason of the performance, negligent performance or nonperformance of the planning, design, construction, acquisition of right-of-way and easements, maintenance, restoration, repair, improvement or replacement work by the City, or arising out of the DN: 194274, v.2 5 INTERGOVERNMENTAL COOPERATIVE AGREEMENT EMERGENCY WATER INTERCONNECT SMSCICITY OF PRIOR LAKE August 27, 2003 Page 6 negligence of any contractor under any contract let by the City for the performance of said work; and the City agrees to defend, save and keep said Community, its officers, agents and employees harmless from all claims, demands, actions or causes of action arising out of negligent performance by the City, its officers, agents, employees or attorneys of any act required by, or taken pursuant to, this Agreement. C. Nothing in this Agreement is intended to waive the City's liability limitations pursuant to Minnesota Statutes Chapter 466. ARTICLE VIII. RELATIONSHIP OF PARTIES 8.1 EMPLOYEES AND CONTRACTORS A. Any and all employees of the City and all other persons engaged by the City in the performance of any work or services required or provided herein to be performed by the City shall not be considered employees, agents or independent contractors of the Community, and any and all claims that mayor might arise under the worker's compensation laws or unemployment laws of the Community or the State of Minnesota on behalf of said City employees while so engaged and any and all claims made by any third parties as a consequence of any act or omission on the part of said City employees while so engaged in any of the work or services to be rendered herein shall be the sole responsibility of the City and shall in no way be the obligation or responsibility ofthe Community. B. Any and all employees of the Community and all other persons engaged by the Community in the performance of any work or services required or provided herein to be performed by the Community shall not be considered employees, agents or independent contractors of the City, and any and all claims that mayor might arise under the worker's compensation laws or unemployment laws of the Community or the State of Minnesota on behalf of said Community employees while so engaged and any and all claims made by any third parties as a consequence of any act or omission on the part of said Community employees while so engaged in any ofthe work or services to be rendered herein shall be the sole responsibility of the Community and shall in no way be the obligation or responsibility of the City. 8.2 GOVERNMENTAL AUTHORITY Nothing in this Agreement shall be construed or interpreted to limit or expand any jurisdiction or authority of either of the parties, to waive any immunities, or to otherwise modify the legal rights of any person, to accomplish any act violative of tribal, state or federal law or to subject the parties to any liability to which they would not otherwise be subject by law. DN: 194274. v.2 6 INTERGOVERNMENTAL COOPERATIVE AGREEMENT EMERGENCY WA TER INTERCONNECT SMSC/CITY OF PRIOR LAKE August 27. 2003 Page 7 8.3 NATURE OF PAYMENTS Payments made by the Community pursuant to the terms of this Agreement are not and shall not be construed to be taxes, payments in lieu of taxes, or payments for services provided by the City to the Community. ARTICLE IX. EVENTS OF DEFAULT A. Events of default, as used herein, shall mean any of the following events: (1) The failure by either party hereto to timely perform any of the duties, obligations, or responsibilities required of them hereunder. (2) Any material misrepresentation of fact by either party hereto, including, but not limited to, misrepresentations made in the provision of information required by this Agreement. B. If either party commits a default under the terms hereof, or fails to perform any obligation with regard to this Agreement, then the non-defaulting party shall provide the defaulting party with notice of the default which complies with the notice provisions of Article X hereof, and if the defaulting party fails to cure such default within thirty (30) days of notice of the default, then the defaulting party shall be liable to the non-defaulting party for costs and expenses incurred to effect a cure. However, such thirty (30) day period shall not be held to apply if cure cannot be had within the prescribed period and if the defaulting party is proceeding with due diligence to effect cure to the satisfaction of the non-defaulting party. ARTICLE X. SOVEREIGN IMMUNITY Nothing in this Agreement is nor shall be construed to be a waiver of the Community's sovereign immunity from suit, and the Community hereby expressly retains its sovereign immunity from suit. In the event of a conflict between the provisions of this paragraph and any other language contained herein, the language of this paragraph shall control and prevail. ARTICLE XI. NOTICES A. Unless otherwise provided, notice under this Agreement shall be in writing, signed by the officers signatory to this Agreement or their successors, and shall be sent by Certified Mail, Return Receipt Requested, to the Parties at the following addresses: DN: 194274, V.2 7 INTERGOVERNMENTAL COOPERATIVE AGREEMENT EMERGENCY WATER INTERCONNECT SMSCICITY OF PRIOR LAKE August 27. 2003 Page 8 To the Community: Stanley R. Crooks, Chairman Shakopee Mdewakanton Sioux (Dakota) Community 2330 Sioux Trail N.W. Prior Lake, MN 55372 With a Copy to: Bill Rudnicki, Tribal Administrator To City: Frank Boyles, City Manager 16200 Eagle Creek Avenue Prior Lake, MN 55372-1714 With Copies to: Suesan Lea Pace, City Attorney Halleland, Lewis, Nilan, Sipkins & Johnson 600 Pillsbury Center South 220 South Sixth Street Minneapolis, MN 55402-4501 B. Notice of amendments to the Notice of Addresses shown above shall be provided in writing if an individual designated to receive notice is replaced or substituted by a party. ARTICLE XII. GENERAL PROVISIONS 12.1 MERGER A. This Agreement contains the entire agreement between the parties, and no statements, promises or inducements made by either party or agent of either party that are not contained in this written Agreement shall be valid or binding. B. This Agreement may not be enlarged, modified, or altered except in writing in accordance with the above provisions. C. Any and all prior agreements or understandings between the parties related to the Project shall terminate upon execution of this Agreement. 12.2 FACSIMILE AS GOOD AS ORIGINAL The parties agree that a facsimile/fax or other reproduction type copy of this Agreement so long as signed by both parties shall be considered an original and shall be fully enforceable against both parties notwithstanding anything to the contrary in applicable law, and both parties voluntarily waive any such requirements. DN: 194274, v.2 8 INTERGOVERNMENTAL COOPERATIVE AGREEMENT EMERGENCY WATER INTERCONNECT SMSC/CITY OF PRIOR LAKE August 27. 2003 Page 9 12.3 CAPTIONS Captions and paragraph headings used in this Agreement are for convenience only, and are not a part of this Agreement, and shall not be deemed to limit or alter any provisions of this Agreement, and shall not be deemed relevant in construing the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the day and year first above written. SHAKO PEE MDEW AKANTON SIOUX (DAKOTA) COMMUNITY By: By: Stanley Crooks, Chairman Lori K. Beaulieu, Sec.lTreas. Date: Date: Approved as to form and execution: By: William Hardacker, Tribal Attorney Date: DN: 194274. v.2 9 Date: By: Date: By: Date: By: INTERGOVERNMENTAL COOPERATIVE AGREEMENT EMERGENCY WATER INTERCONNECT SMSC/CITY OF PRIOR LAKE August 27.2003 Page 10 CITY OF PRIOR LAKE Jack G. Haugen Its Mayor Frank F. Boyles Its City Manager Suesan Lea Pace, City Attorney DNo 194274. v.2 10