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HomeMy WebLinkAbout10A-SMSC Agreement O� PRI0+P U 4646 Dakota Street SE Prior Lake,MN 55372 �INxeso'�P CITY COUNCIL AGENDA REPORT MEETING DATE: JANUARY 12, 2015 AGENDA#: 10A PREPARED BY: LARRY POPPLER, CITY ENGINEER/INSPECTIONS DIRECTOR FRANK BOYLES,CITY MANAGER PRESENTED BY: LARRY POPPLER AGENDA ITEM: CONSIDER APPROVAL OF A COOPERATIVE AGREEMENT BETWEEN THE CITY OF PRIOR LAKE AND THE SHAKOPEE MDEWAKANTON SIOUX COMMUNITY FOR THE CONSTRUCTION AND MAINTENANCE OF THE EXTENSION OF STEMMER RIDGE ROAD TO CSAH 82/154x" STREET DISCUSSION: Introduction The Stemmer Ridge Road Project has been initiated by the City Council for public improvement under Minnesota State Statutes Chapter 429 (Special Assessment). During the public improvement process, the Shakopee Mdewakanton Sioux Community(SMSC) has purchased significant property within the project area. This agenda item reviews an agreement whereby the SMSC and City work together to facilitate the design, construction, inspection and maintenance of Stemmer Ridge Road and sewer and water utilities to serve the annexation area. At their December 22, 2014 meeting the city council deferred consideration of this agenda item due to time constraints and directed that the item be placed upon this agenda. Earlier this evening this topic was discussed at the city council work session. Depending upon the outcome of that discussion the city council could remove this item from this agenda for future consideration or take whatever other action they deem appropriate. This is the same report the city council received for the December 22 meeting although a few updates were made for clarification purposes. The Draft SMSC Agreement is the same one included with the December 22 report. History Since 2005, Stemmer Ridge Road and the sewer and water beneath the roadway has been contemplated in the City's Comprehensive Plan document. In anticipation of this project, part of the 2013 County State Aid Highway 12 Project installed the structural components of the lift station that will serve the future annexation areas. The project also installed trunk forcemain that will connect to existing forcemain already installed with the previous phase of County State Aid Highway 12 construction. This forcemain currently extends north to the end of existing Stemmer Ridge Road. In order Phone 952.447.9800 / Fax 952.447.4245/www.cityofpriorlake.com to serve the future annexation areas, Stemmer Ridge Road must extend from where it currently terminates north to County State Aid Highway 82. Trunk utilities were installed as part of the County State Aid Highway 82 in 2007 in anticipation of future need. These improvements combined cost over $4.2 Million. The Stemmer Ridge Road project would be the final link for utilities to serve the approximately 2400 acre annexation area. Recognizing this fact, the City Council placed the Stemmer Ridge Road project in the Capital Improvement Program for design in 2014 and construction in 2015. On October 7, 2013, the City Council initiated the public improvement project process to complete Stemmer Ridge Road and corresponding utilities. Earlier this evening a Public Hearing was held to receive public testimony regarding the project. Since starting the public improvement process, the SMSC has purchased the Menden family parcels. These parcels encompass 95 acres of land and adds to the 70 acres already owned by the SMSC within this area. The proposed Stemmer Ridge Road route navigates through the former Menden family parcels. Current Circumstances Considering the SMSC land holdings and SMSC's desire to develop the property for primarily residential purposes, the City and SMSC have been working on an agreement for the construction of Stemmer Ridge Road and utilities. The agreement includes the following items: Alignment — The SMSC and the City would agree on a general alignment concept understanding that topography, drainage, wetlands, or land development may adjust the alignment. Utility Easement — An easement for the utilities and roadway would be recorded against the property in advance of the property going into trust status at the time the city submits a letter supporting the trust application. Once the improvements are completed, the City would return unneeded easements to the SMSC. Land Use — The agreement confirms residential use of the property other than a small area of potential commercial use within 1000 feet of CSAH 82. Trust—The agreement confirms that the City will support the trust application for these 95 acres of property plus the present 70 acres owned by the SMSC in the immediate area by sending a letter to the Bureau of Indian Affairs to this affect at the appropriate time. Project—The agreement discusses a project that would occur after the land is approved for trust status. The project would include Stemmer Ridge Road project as agreed to in the alignment paragraph. The SMSC would build the project but plans for City utilities would follow the City specifications. The City would also have an opportunity to review the bids and inspect the installation of City utilities. 2 Cost—The SMSC would pay for the design, construction, and inspection of the new roadway and utilities. Traffic control elements such as the medians and roundabout are also paid for by the SMSC. The City would only be responsible for the pipe material cost of the City sanitary sewer and watermain based upon bids received by the SMSC. Repair and Maintenance—Roles and responsibilities regarding maintenance of the streets and utilities are outlined in the agreement. The SMSC is responsible for the ongoing maintenance of the roadway. The City is responsible for maintaining the sewer and water system. Timeframe—A project completion date is set within the agreement to be 12 months after the date that the property is placed into trust. It is expected that the BIA will act upon the trust application within 8 months of its submission although the agreement provides that if the BIA has not acted on the application by March 30, 2016 the city may terminate the agreement. Annexation Area —This section of the agreement discourages future SMSC purchase of land within the annexation area and requires consultation in advance if such action is contemplated. Rights of the Public — Stemmer Ridge Road must be open to the public for use. A paragraph discusses the intent to place the roadway on the Indian Reservation Road Inventory. This effectively makes the roadway open to the public. Other Items — Other items within the agreement include: data practices, signage, acts and omissions, limitation of remedies, assignment, severability, waiver, governing law, authorization, non-impairment, representations and warranties regarding impairment, dispute resolution, non-waiver of immunity, notices, signing of the agreement, integration, and recitals. City and SMSC staff discussed various modifications to the agreement which were identified at the work session. The attached document is largely the document that the city council reviewed in a recent work session. The Exhibits have not yet been prepared and attached so those pages have not been included in this package. Please refer to the attached agreement for specific details. Conclusion Considering that the SMSC has purchased the property, City Staff recommends that the City enter into the agreement with the SMSC. ISSUES: The SMSC has purchased the 95 acre Menden property. The acquisition is confirmed by the Scott County GIS website. The property is presently zoned agricultural and the vast majority was in "Green Acres". Green Acres is a program that reduces the overall taxes on parcels within the program. The annual property taxes paid to the city for the 95 acre Menden parcels was $1,944.00. Staff estimates that since the other 70 acres are similarly situated that the total annual taxes paid to the city would be approximately$3,500.00 3 for the 165 acres. The Menden property was recently taken out of the Green Acres program and the City received a Green Acres tax distribution of $9,469. Council members have asked a variety of questions regarding the valuation, taxes, and development fees if the land remained in private ownership. Assuming that the 165 acres were developed as residential property primarily with a density of 3 units per acre (which is more than our average density) and reserving 10 acres for commercial along County Road 82, the annual city portion of the taxes generated are estimated at $334,000 or about $1,190 per household (assuming 281 households). If the property were in private ownership, these taxes would be required to pay for ongoing city services to this subdivision for the following estimated infrastructure additions: 0.70 miles of collector streets, 3 miles of neighborhood streets, 1.5 miles of sidewalks, 2 miles of trail, one neighborhood park and various stormwater ponds, pipes and accessory structures. The development fees the City would receive if the land were in private ownership is estimated at$3 Million. These fees are placed into specific City Funds to finance the infrastructure for which they were collected (Streets, Sewer, Water, Parks, Storm Water, Etc.). If the land were in private ownership the City would also owe oversizing charges to the private developer for street, sewer, water, and stormwater facilities which serve more than the immediate neighborhood. It is estimated that the trunk and oversizing payment that would be owed to the developer would amount to $250,000 for a lift station that would be required plus $1,349,000 for oversizing the sewer, water and streets as shown below under a City project scenario. The remaining amounts stay in the specific Funds to help build the remainder of the City systems. The City would net about $1.4 Million more than would be contributed to this project. These fees replenish the Funds that have been used to build infrastructure improvements that were intended to serve this and other areas. Future Trunk Fund and Street Oversizing Fund expenditures would facilitate infrastructure improvements in other areas of the City such as the annexation area. Estimated Development Fees $3,000,000 Less: Payment to Developer Lift Station $ 250,000) Oversizing Sewer, Water, Street $1,349,000 Net $1,401,000 It should be noted that the City will be updating its rate studies to determine the impact that development over the past 10 years has had on the Trunk Fund, Street Oversizing Fund, etc. For example, certain assumptions about development density, amount of developable land, etc were used when the study is conducted. Over time, there will be variances to those assumptions which can impact the amount of fees collected and the use of the funds for 4 projects, thus impacting the remaining balance of the Funds for future projects. It is estimated that the total project cost including road, sewer, water, amenities and traffic calming is $4.985 million whether the City or SMSC builds the project. Using the special assessment approach, about $3,636,000 of the project will be assessed to the benefiting properties in this area. If the SMSC owned the property in fee status, they could be assessed as any other owner, provided the City can prove benefit for all four systems: street, sewer, water and storm water. The City would contribute $299,000 from sewer trunk, $479,000 in water trunk and $652,000 in street oversizing (totaling $1,349,000). On the other hand, the agreement with the SMSC would require City sewer and water trunk contributions of an estimated $778,000. The SMSC would pay $4,183,000. The SMSC will be solely responsible for ongoing maintenance costs of the street in perpetuity except for the City sewer and water pipes. Estimated Development Fees $0 Less: Payment to SMSC Oversizing Sewer, Water, Street $778,000 Net $778,000 The City Council has asked that the following additional questions: Q: What is the likely outcome if the city opposes the trust application? A: While the answer is uncertain, our experience has been that municipal opposition alone has only delayed but not defeated a trust request. The most recent example occurred when Scott County, Shakopee and Prior Lake* (*for a time) opposed a trust application for 745 acres of in Shakopee and 110 acres of land in Prior Lake. After in excess of $1 Million in legal and other related fees according Scott County Administrator, Gary Shelton, more than one trip to Washington D.C. and almost ten years delay, the request was granted. Here the situation is different. The trust request is on 165 acres solely within the City of Prior Lake and the City would be out of developable land well before the ten year period were over so delay is not a strategy we would want to pursue. Moreover, the BIA utilizes seven criteria for evaluating a trust request. Only one of the criteria is "impact upon the adjacent municipality" which is weighed the same as the other six. 5 The SMSC indicates that there are 60 community members who desire homesteads right now. Last year they completed an actuarial analysis which confirmed future need for residential property. If the BIA were to engage in approving part of the application, our expectation is the residential portion would be approved because of the present need notwithstanding other properties which may be available. Q: Would opposing the application delay the city's ability to get the sewer connection built? A: Yes. The SMSC will not develop the property until the land is placed in trust. The 429 process would need to continue with this scenario beginning with condemnation of the land. The city attorney has indicated that the city would not be eligible to use "Quick Take" Condemnation as this time as we have no immediate need owing to the current status of the project since plans and specifications are not prepared nor do we have bids. Q: What would happen in a worst case scenario where the land goes into trust even with our opposition and the city has no agreement or easement? A: If this happens, the City would need to find an alternative alignment to develop the annexation area. An alternate alignment for sewer/water could follow CSAH 82 to CSAH 17 south to CSAH 12. It is estimated that the cost of that route would be $7.5 to $9 Million, much of which would be borne by the City with some special assessments. In addition to these costs, $1.2 Million of investment in infrastructure on CSAH 12 and existing Stemmer Ridge Road would be wasted. Because of this risk, it is recommended that the City continue to follow the 429 process together with this agreement as a fall back in the event of some unforeseen scenario. Over time, the City has been the recipient of an annual gift amount of$400,000. The SMSC has also donated to numerous City projects (some examples include ball field lights for Ryan Park, skate park, ATV, training, SCBA Gear, ATD units, amphitheater, Dakotah Ice Rink, park trails, etc.). This list is by no means complete. Opposing a trust application could undermine future contributions. It could also undermine our ability to work toward larger agreements like a second water agreement. All of this is speculation but the city council has requested this information. If the City apposed the trust application and proceeded with a City project, the following outcomes could happen: 1. The SMSC could appeal the special assessments. 6 2. The SMSC could delay the project construction and requiring the city to use the eminent domain process. 3. The trust application could be processed by the BIA regardless of the City's objection. Q: Should eminent domain be started? A: Eminent domain may be started in conjunction with a 429 City project. This process takes roughly 7 months as time is needed to prepare title work, good faith offers, etc. A negotiated offer have to be tendered prior to starting a 90 day eminent domain process, but if an eminent domain process is necessary it could undermine our relationship with the SMSC. It could also be viewed as contrary if the City Council's previous practice of avoiding eminent domain where ever possible. It appears only a matter of time that this SMSC property would be placed into trust status. The history of SMSC land purchase shows that the SMSC does not sell property back to others. The City could continue to follow the 429 process and assess the SMSC for the installation of Stemmer Ridge Road, however the agreement appears to be the most efficient and effective manner to install the improvements for the following reasons: 1. Most cost effective for the City as it provides savings to the trunk fund expenditures as shown in the funding table below 2. Provides for another partnership opportunity with the SMSC 3. Elimination of assessment challenge risk 4. Elimination of property acquisition process 5. Provides disincentive for further purchase within the annexation area by preparing the land for urban development. 6. Eliminates need for City oversight of a lengthy 429 process. FINANCIAL The preliminary cost estimate for the project is $4,985,000 with the traffic IMPACT: calming features. The funding table below shows how the costs could be financed by either a City "429" project or the agreement with the SMSC. CITY PROJECT SMSC PROJECT TRAFFICW/ TRAFFIC W/ CALMING CALMING Assessments $3,``fi36,000 $24Q00 ,., Trunk Sewer Fund $286,000 $299,000 Trunk Water Fund__ X411,000 $47 ,000 Street Oversize Fund $652,000 SMSC FUNDING r $4-1$3,O00 Total $4,985,000 $4,985,000 7 Each of these estimates include an estimated $210,000 in right of way. Since the SMSC already own the property, this estimated right of way cost could be deducted from the project total for the SMSC project. The added traffic calming costs increase the street oversizing contribution from $277,460 to $652,000 for a City project. Due to the design speed changes, additional length was added to the street and corresponding utilities. New data on pipe material costs have increased the overall sewer and water pricing. ALTERNATIVES: 1. A motion and a second to approve a cooperative agreement between the City of Prior Lake and the Shakopee Mdewakanton Sioux Community for the construction and maintenance of the extension of Stemmer Ridge Road to CSAH 82/154'h Street. 2. Deny this item for a specific reason and provide staff with direction. 3. Table this item until some date in the future. RECOMMENDED A motion and a second for approval of Alternative# 1 MOTION: 8 O� PRION U t� 4646 Dakota Street SE `yr mso�c. Prior Lake, MN 55372 RESOLUTION 15-xxx A RESOLUTION APPROVING A COOPERATIVE AGREEMENT BETWEEN THE CITY OF PRIOR LAKE AND THE SHAKOPEE MDEWAKANTON SIOUX COMMUNITY FOR THE CONSTRUCTION AND MAINTENANCE OF THE EXTENSION OF STEMMER RIDGE ROAD TO CSAH 82/154TH STREET Motion By: Second By: WHEREAS, Stemmer Ridge Road is shown in the City's Comprehensive Plan for connection between CSAH 82 and CSAH 12; and WHEREAS, The City began a process to complete a City project to complete the Stemmer Ridge Road Project and utilities; and WHEREAS, The SMSC has purchased property along the Stemmer Ridge Road route and also desires to complete the project; and WHEREAS, The City is authorized to enter into contracts pursuant to Minnesota Statutes Chapter§412.221; and WHEREAS, The Parties desire to enter into an Agreement to complete the Stemmer Ridge Road Project. NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: 1. The recitals set forth above are incorporated herein. 2. The City Council hereby approves a Cooperative Agreement with the Shakopee Mdewakanton Sioux Community dated January 12, 2015 for the extension of Stemmer Ridge Road to CSAH 82/ 154th Street and authorizes the Mayor and City Manager to execute the same. PASSED AND ADOPTED THIS 12th DAY OF JANUARY, 2015. VOTE Hedberg Keeney McGuire Morton Thompson Aye ❑ ❑ ❑ ❑ ❑ Nay ❑ ❑ ❑ ❑ ❑ Absent ❑ ❑ ❑ ❑ ❑ Abstain ❑ ❑ ❑ ❑ ❑ Frank Boyles, City Manager COOPERATIVE AGREEMENT BETWEEN THE CITY OF PRIOR LAKE AND THE SHAKOPEE MDEWAKANTON SIOUX COMMUNITY FOR THE CONSTRUCTION AND MAINTENANCE OF THE EXTENSION OF STEMMER RIDGE ROAD TH TO CSAH 82/154 STREET THIS COOPERATIVE AGREEMENT (the “Agreement”) is made and entered into CITY OF PRIOR this ________ day of ___________________, 2014, by and between the LAKESHAKOPEE MDEWAKANTON , a Minnesota municipal corporation (“City”) and the SIOUX COMMUNITY, a federally recognized Indian Tribe (“SMSC”). RECITALS A. The SMSC is the owner in fee simple of real property located within the City of Prior Lake as depicted on Exhibit A, attached hereto, and legally described as shown on Exhibit B (the “Property”): \[insert legal description\] B. TheSMSC will apply to the United States government to place the Property in trust status pursuant to 25 C.F.R. § 151.1 et seq. (the “Trust Application”) for use as residential parcels for SMSC Members; C. The City has existing sanitary sewer lines that extend to the northern portion of the Property and to the south of the property along Stemmer Ridge Road; D. Approximately 2400 acres of land that lie to the southwest in an annexation area th agreed to by Spring Lake Township such land being south of 160 Street, east of County Road th 79, north of 190 Street and west of CSAH 17 (hereinafter referred to as the “Annexation Area”) that requires municipal services for development; E. The parties agree to cooperate in the construction and maintenance of an extension of Stemmer Ridge Road from where it currently terminates south of the Property, across the Property to connect with County State Aid Highway (“CSAH”) 82, also known as th 154 Street, said roadway to provide access to the future SMSC residential parcels, and the construction of City water, and sanitary sewer which collectively are referred to as “Utilities”) across the Property to allow the City to provide water and sanitary sewer service to the Annexation Area and the construction of initial phases by the SMSC of a residential subdivision including street and storm sewer (the “Project”); F . The parties desire to enter into this Agreement to establish their respective duties and obligations for the funding, construction, and maintenance of the above-described Project; G. The City will support and endorse the Tribe’s Trust Application, while acknowledging this type of an agreement is not a prerequisite to having the Property taken into trust 1 of 16 status and that this agreement does not establish a precedent upon which the City can rely in relation to any future SMSC fee to trust application and similarly neither can the SMSC rely on the City’s support and endorsement for future actions of any type; and H. The City is authorized to enter into this Agreement pursuant to Minnesota Statutes § 471.59. The SMSC has a current and rapidly growing demand for residential parcels and will require the planned residential units by the end of 2019 to meet this demand. The costs for these improvements are included in the SMSC five year CIP. Notwithstanding this need and planned expense the obligations to construct is conditioned upon the SMSC legislative body approving the necessary funds for the project. The City has expended significant funds constructing infrastructure in reliance on development of the Annexation Area. Notwithstanding this need and previous expenditure, the City’s obligations herein are conditioned upon its City Council approving necessary funding for the Project. J. For purposes of this Agreement Force Majeure shall have the following meaning: Force majeure means a condition beyond the reasonable control of the SMSC or the City and which either could not, by reasonable diligence, have avoided. Such conditions include natural disaster, fire, accidents, actions or decrees of governmental bodies, acts of God, wars (declared and undeclared), acts of terrorism, riots, embargoes, civil insurrection, and other events of force majeure, but shall not include a lack of funds or insufficiency of resources caused by lack of funds. NOW, THEREFORE, in consideration of their mutual covenants the parties agree as follows: 1.EFFECTIVE DATE. This Agreement shall become effective on the date set forth above. 2.ALIGNMENT. Both the SMSC and the City of Prior Lake agree to concept F for \[ID1\] the north / south road as shown in Exhibit C. It is understood that while this concept shows a general alignment, final design may adjust this alignment due to topography, wetland, or land use considerations. Notwithstanding, the street improvements shall include traffic calming design features such as a roundabout at the park entrance road, medians, minimum lane widths, street lights, a trail and sidewalk system and a design speed of 35 MPH. 3.UTILITY EASEMENT. At the time the City submits the Endorsement Letter as provided for in Paragraph 4, SMSC shall grant to the City an easement over the Property and within the right-of-way of the planned location of Stemmer Ridge Road for water and sewer purposes (the “Utility Easement”). The Easement shall grant the City the right to enter upon the Property for the purpose of repairing and maintaining utilities located in the Utility Easement and shall also include a duty to repair and restore any SMSC utility or roadway impacted by the repair. The City may begin to utilize this Utility Easement on the earlier of the date the land is taken into trust or upon completion of construction of the Utilities by the SMSC. After SMSC’s construction of the Utilities is complete, the City Manager shall present to the City Council a resolution to vacate any portion of the easement area not necessary for the operation, 2 of 16 maintenance, or repair of the utilities. The City shall be responsible for all costs associated with the operation, repair, and maintenance of the Utilities. 4.TRUST APPLICATION. The SMSC shall submit the Trust Application to the United States government within sixty (60) days of the date of this Agreement. The land use for the Trust Application for the Property is residential use, except for that property which is within one th thousand (1000) feet of CSAH 82/154 Street. The City shall submit a letter to the United States government endorsing the Trust Application (the “Endorsement Letter”). Said letter shall be in the form attached as Exhibit D to this Agreement, and shall be submitted by the City with-in the authorized comment period for the Trust Application. If the City fails to submit the Endorsement Letter as required herein, the SMSC shall have the right to immediately terminate this Agreement. The SMSC shall provide notice to the City within three (3) business days of its receipt of a decision from the United States government on the Trust Application. 5.PROJECT DESCRIPTION. The Project shall consist of the design and construction of a right-of-way across the Property to provide access to future SMSC residential subdivisions, the th extension of Stemmer Ridge Road to CSAH 82/154 Street, the construction of water and sewer utilities within the right-of-way of the extension of Stemmer Ridge Road and the initial phases of construction of the SMSC residential subdivision, all as depicted on the attached Exhibit E, incorporated herein. 6.PLANS AND SPECIFICATIONS. SMSC shall have plans and specifications prepared for the Project. The sewer and water plans shall meet the City’s Public Works Design Manual and SMSC plans for the storm sewer and ponds shall meet the requirements of the SMSC’s Design Manual. The street improvements shall meet MnDOT State Aid requirements. The plans and specifications shall be subject to City approval as set forth below. 7.COST. SMSC shall be responsible for the full cost of the design, construction and materials for the Project, including but not limited to street, curb and gutter, valves, manhole covers, catch basins, and hydrants, except the material cost of the sanitary sewer pipe and water pipe only which the City shall pay for by reimbursement to the SMSC as provided for herein. The SMSC shall be responsible for the full cost of traffic safety improvements associated with the street work including but not limited to medians and roundabouts. 8.BIDDING AND CONTRACT. SMSC shall obtain bids for construction of the Project. The water and sanitary sewer pipe materials for the Utilities, to be paid for by the City, shall be itemized as a line item on the bid. Labor for installation of the Utilities shall be itemized as a separate line item. Once received, the bids shall be reviewed by both parties. The SMSC shall award the construction contract to the approved bidder, provided howeverthe pipe material bid and the award of the construction contract shall be subject to the City Council approval as set forth in Paragraph 9 hereof. Upon completion of installation of the Utilities the SMSC shall invoice the City for the pipe material cost. The City shall pay the invoice within thirty (30) calendar days. The SMSC shall supervise construction and administer the contract and shall be the paying agent for all payments due to the contractor and any other individual or entity hired in relation to the construction of the Project. 3 of 16 9.CITY APPROVAL. Prior to the award of the contract by the SMSC the City Council shall have the opportunity to review and approve the construction bids relative to the pipe material costs. The SMSC shall submit documents suitable for determining the pipe material costs to the City for approval prior to execution of the documents or performance of any related work. The City Council shall review the submission and shall provide to SMSC written approval or objection within forty-five (45) days of the City’s receipt of the document(s). If the City Council objects, SMSC and the City shall use best efforts to achieve a mutually agreeable resolution on the pipe material cost. The approval of the bid, award of the bid, and execution of the construction contract shall not occur until the City and SMSC achieve a resolution acceptable to both parties. 10.COMPLETION OF THE PROJECT. Construction of the Utilities portion of the Project shall be completed within twelve (12) months of the date that SMSC receives notice that the federal government has accepted the Property in Trust status. If the Property has not been accepted into Trust by December 2015 the City may upon written notice to the SMSC cancel \[ID2\] this agreement. Upon cancellation neither party shall have any obligations hereunder to the other. Cancellation of the Agreement shall not terminate the easement granted to the City under Paragraph 3 hereof. \[ID3\] 11.REPAIR AND MAINTENANCE. After construction is complete, SMSC shall be responsible for the repair and maintenance of the portion of Stemmer Ridge Road lying within the Trust Property. The SMSC shall be responsible for, and bear the full cost of, restoring any impacted City infrastructure to an “as was or better” condition subject to inspection and acceptance by the City. 12. The City shall be responsible for the repair and maintenance of all portions of Stemmer Ridge Road not located within the Trust Property. The City shall be responsible for maintenance and repair of the City watermain and sanitary sewer pipe. The SMSC hereby grants the City permission to manage traffic on Stemmer Ridge Road across the Trust Property for purposes of maintenance and repair of the utilities, except that any temporary closure shall maintain resident and emergency vehicle access to the Community residential subdivision served by the roadway except in the event of a Force Majeure. The City shall be responsible for, and bear the full cost of, restoring any impacted SMSC utilities or infrastructure to an “as was or better” condition subject to inspection and acceptance by the SMSC. 13.INSPECTION. During construction of the Project, the City shall be responsible for inspecting the City sewer and water systems by either City staff or an outside consultant representing the City. The SMSC shall be responsible for inspecting the street improvements and other utilities serving the SMSC. 14.SIGNAGE. The City shall have the non-exclusive right to install signage within the right-of-way of Stemmer Ridge Road consistent with typical road signage that exists throughout the City, including but not limited to directional signage to Spring Lake Regional Park and the City Park. 4 of 16 15.ANNEXATION AREA. The granting of the easement and installation of the City water and sewer utilities allows the City to serve the development of the approximately 2400 acre annexation area agreed to by Spring Lake Township (the “Annexation Area”). It is not the intent of the SMSC to purchase land within the Annexation Area and if any such purchase is contemplated, the SMSC shall consult with the City prior to the purchase. The SMSC will negotiate in good faith with the City on any impacts that any SMSC land purchase may have with respect to the trunk sewer and water system. \[ID4\] 16.RIGHTS OF PUBLIC. The SMSC shall use its best efforts to have the portion of the constructed roadway lying on Trust Property listed on the Indian Reservation Roads Inventory maintained by the United States Department of the Interior, Bureau of Indian Affairs which has the effect of making the roadway a public roadway. Until such listing is made, the SMSC grants to the City, on behalf of the public, the right to use the portion of Stemmer Ridge Road on the Trust Property. The SMSC may close Stemmer Ridge Road for such temporary periods of time that are necessary for repair and maintenance of the road and for emergencies except that any such closure shall maintain resident and emergency vehicle access to City residential subdivisions except in the event of a Force Majeure. 17.FUTURE INFRASTRUCTURE. The SMSC agrees to work with the City for the future siting of water supply infrastructure and an integrated water supply system. 18.ACTS AND OMISSIONS. Each party shall be is responsible for its own acts and omissions and the results thereof to the extent authorized by law. Nothing in this Agreement constitutes a waiver by the City of any statutory or common law, defenses, immunities, or limits on liability. In no event shall the obligations of the City for a tort claim exceed the amount that the City would be obligated to pay under the provisions and limitations of Minn. Stat. Chap 466. In no event shall the obligations of the SMSC for a tort claim exceed the amount the SMSC would be obligated to pay under the provision and limitations of the SMSC Tort Claims Ordinance. 19.DATA PRACTICES. All data created, collected, received, maintained or disseminated by the City for any purpose in the course of this Agreement is governed by the Minnesota Government Data Practices Act, Minn. Stat. Ch. 13, any other applicable state statute, or any state rules adopted to implement the act, as well as federal regulations on data privacy. The SMSC asserts that it is not subject to the Minnesota Government Data Practices Act. To the extent it is decided by a court of competent jurisdiction that the SMSC is subject to the Minnesota Government Data Practices Act, it shall comply with the Act. 20.LIMITATION OF REMEDIES . In the event of a breach of the Agreement, neither party shall be entitled to recover punitive, special or consequential damages or damages for loss of business. 21.ASSIGNMENT. Neither party shall assign this Agreement, nor any interest arising herein, without the prior written consent of the other party. 5 of 16 22.SEVERABILITY. The provisions of this Agreement are severable. If any portion hereof is, for any reason, held by a court of competent jurisdiction to be contrary to law, such decision shall not affect the remaining provisions of this Agreement. 23.WAIVER. No action nor failure to act by the City or the SMSC shall constitute a waiver of any right or duty afforded any of them under the Agreement, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. 24.GOVERNING LAW. When Tribal or Federal law does not apply, this Agreement is governed by and must be construed in accordance with the laws of the State of Minnesota without regard to Minnesota’s conflict-of-law provisions. 25.AUTHORIZATION. This Agreement and all of its terms have been authorized and approved by the SMSC’s Business Council Resolution No. _________, adopted the ____ day of ____________, 2014, attached hereto as Exhibit F. This Agreement and all of its terms have been authorized and approved by the City Council of the City of Prior Lake by Resolution ________, adopted the ____ day of ___________, 2014, attached hereto as Exhibit G. 26.NON-IMPAIRMENT. SMSC’s Business Council will not initiate enactment of any law, ordinance, rule, or regulation that would impair the obligations of the SMSC under this Agreement. 27.REPRESENTATIONS AND WARRANTIES REGARDING IMPAIRMENT. The Business Council represents and warrants that it will not initiate any action to impair this Agreement, including an action to rescind this Agreement or any waiver contained herein except where the Business Council is acting on behalf of the SMSC as the non-breaching party in a breach of this Agreement. 28.DISPUTE RESOLUTION. The parties may meet if agreed to by both to attempt to negotiate an amicable resolution of any dispute arising from this Agreement. 29.NON-WAIVEROF IMMUNITY . Nothing in this agreement shall constitute a waiver of the SMSC’s sovereign immunity to suit. 30.NOTICES. Notices to be given under this Agreement shall be given by enclosing the same in a sealed envelope, postage prepaid and deposited in same in the U.S. Postal Service, addressed to the parties as listed below: City of Prior Lake Shakopee Mdewakanton Sioux Community Attn: City Engineer Attn: William Rudnicki 4646 Dakota Ave SE 2330 Sioux Trail SW Prior Lake, MN 55372 Prior Lake, MN 55376 31.SIGNING OF AGREEMENT . This Agreement may be signed in counterparts and on different dates by each party without affecting the validity thereof. 6 of 16 32.INTEGRATION. The entire and integrated agreement of the parties contained in this Agreement shall supersede all prior negotiations, representations, or agreements between the parties regarding the subject matter hereof, whether written or oral. 33.RECITALS . The recitals set forth in paragraphs A through H are incorporated herein and made a part hereof. IN WITNESS WHEREOF, this Agreement has been executed as of the day and year first above written. \[Remainder of Page Intentionally Left Blank. Signature Pages Follow.\] 7 of 16 CITY OF PRIOR LAKE BY: Kenneth L. Hedberg, Mayor BY: Frank Boyles, City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _______ day of ____________, 2014, by Kenneth L. Hedberg and Frank Boyles, the Mayor and City Manager, respectively, of the City of Prior Lake, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. __________________________________________ Notary Public 8 of 16 SHAKOPEE MDEWAKANTON SIOUX COMMUNITY By: Its: By: Its: STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this ______ day of ___________, 2014, by __________________ and ___________________, the ______________ and ________________, respectively, of the Shakopee Mdewakanton Sioux Community, a federally recognized Indian Tribe, on behalf of the tribe and pursuant to the authority granted by its _____________________. __________________________________________ Notary Public DRAFTED BY: Gregerson, Rosow, Johnson & Nilan, ltd 650 Third Avenue South Suite 1600 Minneapolis, MN 55402 9 of 16 EXHIBIT A \[Sketch Depiction of SMSC Property – Recital A\] 10 of 16 EXHIBIT B \[Legal Description of SMSC Property – Recital A\] 11 of 16 EXHIBIT C \[North/South Road Alignment – Paragraph 2\] 12 of 16 EXHIBIT D \[Endorsement Letter – Paragraph 4\] 13 of 16 EXHIBIT E \[Project Design Depiction – Paragraph 5\] 14 of 16 EXHIBIT F \[SMSC Resolution – Paragraph 24\] 15 of 16 EXHIBIT G \[SMSC Resolution – Paragraph 24\] 16 of 16