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HomeMy WebLinkAbout8A - SMSC Cooperative Agreement for Stemmer O� FRIO� U 4646 Dakota Street SE Prior Lake,MN 55372 ��NIYBSO�P CITY COUNCIL AGENDA REPORT MEETING DATE: FEBRUARY 23, 2015 AGENDA#: 8A PREPARED BY: LARRY POPPLER, CITY ENGINEER/INSPECTIONS DIRECTOR PRESENTED BY: LARRY POPPLER FRANK BOYLES, CITY MANAGER RIC ROSOW, CITY ATTORNEY 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 82/154T" STREET DISCUSSION: Introduction The City Council agendas for both the December 22, 2014 and the January 12, 2015 included lengthy staff reports regarding this agreement. This agenda report does not recite those previous reports rather they are available to the city council in the document center of the city's web site. The city council has directed that the agreement placed on tonight's agenda for consideration. This report provides updated information based on amendments to the agreement and recent discussion points with the City Council and the SMSC. History The City Council has discussed the SMSC agreement at work sessions on December 8, 2014 and January 12, 2015. Each discussion included specific concerns with the agreement. Over the last two months, City Staff has worked with the SMSC Staff to prepare an agreement which both parties can support. At the January 26, 2015 City Council meeting, a negotiating team was created which included Mayor Hedberg and Councilor Keeney. The purpose of the negotiating team was to meet with the SMSC Business Council to discuss the points of contention in the agreement. The negotiating team met with the SMSC on Tuesday February 3rd, 2015. The meeting helped in understanding perspectives and reasoning behind the final points of contention. These points include the following: 1. Alignment 2. Timing for Completion of Improvements 3. Letter from City on Trust Application and Language of the Letter 4. Permanence of Right of Way Phone 952.447.9800 / Fax 952.447.4245/www.cityofpriorlake.com 5. Uses within 1000 feet of CSAH 82. 6. Purchase of Property in the Annexation Area Current Circumstances As the council may recall, the SMSC business council previously adopted the attached agreement. Progress has been made on the final points of contention noted above but at this writing not all issues have been resolved. Below is an update on each. o. Alignment The SMSC and City agree on the alignment. The agreement has been changed to include the specific conceptual alignment. Timing of Improvements The agreement specifies that the improvements be completed within 12 months of the property being accepted into trust and that the agreement could be cancelled if the property is not within trust by December 31, 2015. Considering the delays in reaching agreement with the SMSC, the date has been adjusted to March 30, 2016. Practically speaking the improvements would be completed in the summer of 2016, whether the property were put into trust in December of 2015 or March of 2016. Letter from City on Trust Application The SMSC is confident that the application will meet the BIA criteria and that this property will eventually become Trust property regardless of the City's position on the matter.An endorsement letter streamlines the process and from the SMSC's perspective is the only tangible deliverable from the City within the agreement. A streamlined Trust process also assists in faster completion of City utilities through the agreement. The negotiating team has prepared the attached draft language for city council consideration. The format of the letter is similar to the YMCA letter in that it: 1. Responds to the BIA Questions, 2. States the city's position on this specific request without regard to future requests and 3. Enumerates longer term concerns created by continuing trust applications. Permanence of Right of Way The City Council expressed concern that the right of way would not be permanent if the property were converted to Trust status. The City Attorney has reviewed this matter and has found that if the easement were granted prior to conversion into Trust, the Federal Government would honor the easement or right of way for the use of the public. This arrangement is contemplated in the agreement. Uses within 1000 feet of CSAH 82 A concern was expressed regarding the uses within 1000 feet of CSAH 82 as discussed in the agreement. The SMSC has represented that within that 1000 feet they are currently anticipating residential use and a water treatment facility near Howard Lake Road. It is possible they may consider a small convenience store or strip mall near the intersection of CSAH 82 2 and Stemmer Ridge Road, however the topography and wetlands severely limit the uses in this area. Annexation Area Purchases The City Council is concerned with expenditures for the completion of City utilities which may go unused if the SMSC purchases property in the annexation area. The SMSC is concerned with language which ties future SMSC Business Councils on property acquisitions. While we do not yet have agreement on this topic as of yet, it is our hope that language which is the same or similar to the following will be added: "The SMSC does not at this time intend to purchase land in the annexation area. In the event it does the SMSC will negotiate with the City in good faith on any property purchased in the annexation area." I expect to have an update on this language at the city council meeting. Comparison Below is a comparison table between a City led special assessment project and the SMSC agreement project: City Project SMSC Agreement Costs to City $1,349,000 (Not $778,000 Including Assessments) 2015 City Bonding City Bonding $3.6 No City Bonding Million Needed Consultant Costs $500,000 (Included in $100,000 (In addition total project costs) to $778K) Greatest Risk Assessment Challenges Legal Enforceability and Collection Securing Right of Difficult Set forth in the Way/ Easements agreement Timing for Fall 2015/Spring 2016 Fall 2015/Spring Completion of City2016 Utilities Attached is a copy of the agreement for consideration by the City Council. Conclusion Based on the comparison between a City Project and SMSC agreement and the risks associated with a City project, the SMSC agreement appears to be the most practical method of completing the improvements for Stemmer Ridge Road and is the method recommended by City Staff. 3 ISSUES: The City can choose neither of the options outlined above. In that case the following could occur: City does not serve annexation area • No additional Expenditures • Previous City investment of$4.25 Million wasted • Inconsistent with City Comprehensive Plan • Inconsistent with Annexation Agreement with Spring Lake Township • Property owners, in reliance of the annexation agreement and comprehensive plan, do not gain from investments within annexation area • City development of 2400 acres voided. • Portion of Spring Lake Township severed from rest of township City uses alternative route for utilities • Previous City investment of$1.2 Million unused • New expenditures of$7.5 to 9 Million for new route • Delay in development of Annexation area • Unknown challenges as alternative routes have not been studied City enters agreement after Property goes into Trust • Loss of bargaining power within the agreement • Costs unknown • Delay in timing of the improvements • No permanence in right of way/easements (50 year lease) If the City Council decides not to move forward with the SMSC Agreement, a separate action item is on the agenda this evening to approve a professional services contract with WSB & Associates for consultant services to proceed with the special assessment project 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. PROJECTCITY SIVISC y PROJECT �{ Trunk Sewer Fund $286,000 $299,000 '1ki :J$47,9, Street Oversize Fund $652,000 SMSC F�JN®1NCWap;;oii' rI ;$4 13330 } Total $4,985,000 $4,985,000 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. Also to be considered is the $3 million in trunk fees which would be due if a private developer were involved. 4 ALTERNATIVES: 1) A motion and a second to approve a Resolution approving an agreement with the SMSC for construction and maintenance of Stemmer Ridge Road. 2) Motion and second to take no action or deny this item for a specific reason. 3) Table this item until some date in the future. RECOMMENDED A motion and a second for approval of Alternative# 1 MOTION: 5 O� PR 0 r U 4646 Dakota Street SE :�,rMvEso` t Prior Lake, MN 55372 RESOLUTION 15-xxx A RESOLUTION APPROVING A COOPERATIVE AGREEMENT WITH THE SHAKOPEE MDEWAKANTON SIOUX COMMUNITY FOR THE STEMMER RIDGE ROAD PROJECT Motion By: Second By: WHEREAS, Stemmer Ridge Road is shown in the City's Comprehensive Plan as a collector street between CSAH 82 and CSAH 12; and WHEREAS, The City initiateda City public improvement project to complete the Stemmer Ridge Road Project and utilities financed largely through special assessments; and WHEREAS, The SMSC has purchased property along the Stemmer Ridge Road route and also desires to complete the road and utility 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 February 23, 2015 for the Stemmer Ridge Road Project and authorize the Mayor and City Manager to execute the same. PASSED AND ADOPTED THIS 23rd DAY OF FEBRUARY 2015. VOTE Hedberg Keeney McGuire Morton Thompson Aye ❑ ❑ ❑ ❑ ❑ Nay ❑ ❑ ❑ ❑ ❑ Absent ❑ ❑ ❑ ❑ ❑ Abstain ❑ ❑ ❑ ❑ ❑ Frank Boyles, City Manager o� F ()R r ti U 4646 Dakota Street SE Prior Lake, MN 55372 REGULAR CITY COUNCIL MEETING MINUTES January 26, 2015 EXTRACT OF MINUTES CALL TO ORDER The meeting was called to order at 7:00 p.m. Present were Mayor Hedberg, Councilors Keeney, McGuire, and Morton. Councilor Thompson was absent. Also present were Manager Boyles, Assistant Manager Meyer, Attorney Rosow, Finance Director Erickson, Engineer/Inspections Director Poppler, Project Engineer Thongvanh, Community and Economic Development Director Rogness, Planner Matzke, Public Works Director Gehler, Police Chief O'Rourke, Communications Coordinator Peterson, and Executive Assistant Dull. 9C. 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 82/154th Street Boyles: Reviewed the staff report dated January 26, 2015 in connection with the agenda item. Staff recommended the Council designate Mayor Hedberg and Councilor Keeney as the City's Negotiating Team. Hedberg: Requested Councilors provide comments and issues to be addressed during the negotiation process. Morton: Commented issues were: 1)sovereignty and enforcement of the agreement once in Trust; 2)questions about the City's rights for the road right of way and utilities; 3)whether additional land would be purchased by the SMSC in the annexation area in the future, even though intent is not to purchase more land in the area now, and no expansion by the City invalidating the City's need to install utilities now; and 4) significant concerns about the amount of land being placed in trust as it keeps growing and the total was concerning to the City. McGuire: Concurred with issues stated and offered his concerns were: 1) the total 2400 acres; and 2) the long term road and utilities needed some sort of guarantee for access with respect to the City's annexation area. Keeney: Agreed with other Councilors and added: 1) the negotiating team set an appropriate scope as this project serves only the land identified; 2) noted a conflict that both the City and SMSC want to install utilities in the same place and road which needed to be further delineated; 3) construction of the road, location, and park access; and 4) impacts to the Prior Lake community with the amount of land going into Trust. Hedberg:Assented and advised concerns were: 1)securing permanent rights to use the road and access utilities; 2) 2400 acres being placed into Trust; 3) strongly worded guarantee by the SMSC to not continue purchase of additional property in that area; 4) not going beyond the scope of this unique project specific to the area. MOTION BY MCGUIRE, SECOND BY MORTON TO APPOINT MAYOR HEDBERG AND COUNCILOR KEENEY AS THE CITY'S NEGOTIATING TEAM AND TO REPORT BACK TO THE COUNCIL AS A WHOLE ON A REGULAR BASIS. VOTE Hedberg Keeney McGuire Morton Thompson Aye ® E ® ® ❑ Nay ❑ ❑ ❑ ❑ ❑ Abstain ❑ ❑ ❑ ❑ ❑ Absent ❑ ❑ ❑ ❑ The motion carried. 1 Agreement Approved by SMSC Business Council (Electronic pages 8-29) 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 THIS COOPERATIVE AGREEMENT (the "Agreement") is made and entered into this day of , 2015, by and between the CITY OF PRIOR LAKE, a Minnesota municipal corporation ("City") and the SHAKOPEE MDEWAKANTON 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"): B. The SMSC 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 agreed to by Spring Lake Township such land being south of 160th Street, east of County Road 79, north of 190th 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 154th 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 agreement does not establish a precedent of any nature; 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 1 of 15 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 for 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, 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 thousand (1000) feet of CSAH 82/154t' Street. The City shall submit a letter to the United States 2of15 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 extension of Stemmer Ridge Road to CSAH 82/154th 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 however the 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. 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 3of15 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 March 30, 2016 the City may upon written notice to the SMSC cancel 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. 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. 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"). 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 that has the 4of15 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. 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. 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. 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 2015, attached hereto as Exhibit F. This Agreement and all of its terms have 5of15 been authorized and approved by the City Council of the City of Prior Lake by Resolution adopted the day of , 201_, attached hereto as Exhibit G. 25. 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. 26. 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. 27. 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. 28. NON-WAIVER OF IMMUNITY. Nothing in this agreement shall constitute a waiver of the SMSC's sovereign immunity to suit. 29. 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 NW Prior Lake, MN 55372 Prior Lake, MN 55376 30. SIGNING OF AGREEMENT. This Agreement may be signed in counterparts and on different dates by each party without affecting the validity thereof. 31. 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. 32. 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.] 6of15 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 , 2015, 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 7of15 SHAKOPEE MDEWAKANTON SIOUX COMMUNITY By: Charlie Vig Its: Tribal Chairman By: William J. Hardacker Its: Special Staff Legal Counsel STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this day of 2015, by Charlie Vig and William J. Hardacker, the Tribal Chairman and Special Staff Legal Counsel, 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 General Council. Notary Public 8of15 EXHIBIT A [Sketch Depiction of SMSC Property—Recital A] 9of15 EXHIBIT B [Legal Description of SMSC Property—Recital A] 10 of 15 EXHIBIT C [North/South Road Alignment—Paragraph 21 11 of 15 PRELIMINARY CONCEPT c MEADOWS AT : MrmG LAKE \ DAKOTA.SPORTS .// >,^, 't!'.i♦Ylii!!!!l i.i.lYi!•�Y.!!YY ♦4 _...- FIT. I Y AR— LAKE PROPERTY \\ PARK PUNNING AREA �3 � W11- H.— ET oHOWARD LAKE AR� RIC LAKE _ u SPRING LAKE REGIONAL BIKE TRAIL PARK A SPRING LAKE * •/0 p $e•&h. - REGIONAL PARK WETUND PROPOSED BOARDWALKj— t. z aF }-�WETUNO " ...._. fy . PARK ilt fi �s k r . � EXISTING SIDEWALK � EKISTINGTRAIL r LEGEND r A. PRN. zE ] E 11 ^ M L 5 6 Avl anc�loT 51 [."TWIN HOMES INYAN 1 OTONWE (LITTLE RAPIDS , LAYOUT y% EXHIBIT D [Endorsement Letter—Paragraph 41 12 of 15 o� rR1o� ti U 4646 Dakota Street SE Prior Lake,MN 55372 April xx, 2015 United States Department of the Interior Bureau of Indian Affairs VIA EMAIL&U.S. MAIL Midwest Regional Office Attn: Regional Director 5600 West American Boulevard, Suite 500 Bloomington, Minnesota 55437 Re: Shakopee Mdewakanton Sioux Community Fee to Trust Application Division of Fee to Trust TR- Dear Ms. Rosen: Pursuant to the Notice of Non-Gaming Land Acquisition Application ("Application") dated XXXX XX, 2015, the City of Prior Lake submits the following response. On XXXXX XX, 2015 the City of Prior Lake became aware of an application filed with the BIA by the Shakopee Mdewakanton Sioux Community ("SMSC") to transfer approximately 200 acres of land ("Property") into trust and to declare it part of the SMSC reservation.All of the Property is located within the City of Prior Lake. I. INFORMATION REQUESTED BY BIA: In answer to specific questions asked by the BIA in the notice dated XXXXXX XX, 2015: a. Property Taxes. The Property Taxes on the property attriburtable to the City of Prior Lake are $XXXXXXXXX. b. Assessments.There are$XXXXXXX existing assessments on the Property. c. Services. The City provides police services to the Property. The City has also provided and maintains access to the Property over Howard Lake Road. The City and SMSC cooperatively provide fire services to the Property. d. Zoning.All of the Property is zoned agricultural and the portion along County Road 82 is guided urban medium density (4.1 to 7 dwelling units per acre along Count and the remainder is low density (0 to 4 dwellings per acre). Phone 952.447.9800/Fax 952.447.4245/www.cityofpriorlake.com Regional Director, Midwest Regional Office U.S. Dept. of the Interior, Bureau of Indian Affairs ***********DATE******** Page 2 II. POSITION WITH RESPECT TO THIS APPLICATION: The city has entered into a cooperative agreement with the SMSC (see attached Exhibitl). This fee to trust application is an integral part of that agreement. In the absence of this agreement the city would have significant concerns about this application for fee to trust. The City's Comprehensive Plan includes critical City infrastructure which has long been planned to be located on and under the subject property. This planned infrastructure includes critical trunk water, critical trunk sanitary sewer,and an important collector street critical to transit in this portion of the community.This roadway also provides public access to the adjoining City and County park properties to the East per the planned design of the parks. These infrastructure need is important to connect City infrastructure from CSAH 82 to CSAH 12 and without it the city's plans for annexation in Spring Lake Township will come to a halt.The City has made significant investment in this area in excess of$4 million to date to implement and comply with the Comprehensive Plan which is a legal document requiring city compliance. Considering these factors, the SMSC land purchase and trust application are in conflict with the City Comprehensive Plan. As the Bureau of Indian Affairs has recommended in past fee to trust applications, the City and the SMSC have therefore negotiated the aforementioned agreement (attached as Exhibit 1) which concurrently allows for this critical infrastructure to be installed and the SMSC meet their housing needs. The agreement includes the following important provisions: • Grants permanent easements by the SMSC to the City for the installation of City utilities and roadway to be public to assure the collector road connection from CSAH 12 to CSAH 82. • Describes the roadway to be constructed as meeting MNDOT Standards as two lane divided with roundabout,traffic calming,landscaping and trail and sidewalk. • Designates that the SMSC will maintain the public roadway in perpetuity. • Confirms that the SMSC constructs the roadway and City utilities. • Requires that the City pay the SMSC for certain costs for City utility pipes. • Affirms that the SMSC pay the full cost of the roadway including traffic calming and access to the City and Regional Park facilities. • Since the road and utilities referred to in the agreement above will open for development approximately 2400 acres, the agreement provides safeguards intended to preserve most, if not all, of this property for city residential development purposes. While the agreement is helpful in many ways to overcome the immediate concerns with regard to City utilities and the road connection, other factors for the subject property have been considered as a part of the agreement but are important points which should be noted. Regional Director, Midwest Regional Office U.S. Dept. of the Interior, Bureau of Indian Affairs ***********DATE******** Page 3 • The subject property was the next area to be developed within the City. The City must now wait until the improvements are complete across the subject property to realize additional development to the southwest. • The City had planned to receive approximately$3 million in development fees from the subject property which covers the cost of previous and future expenditures related to City infrastructure. • A portion of the costs of the extension of City Infrastructure across the subject property (the pipe costs) would normally be anticipated to be paid for by development fees of the subject property. Now, due to having to jump across the subject property, the funding of those duplicative costs must be borne by future development and City utility customers. • The careful planning of City infrastructure included the subject property which accounts for approximately 5% of the new sewer and water system capacity intended to serve future development to the southwest. The SMSC has plans to serve the subject property with their own systems. As a result, the City system has been overbuilt and the City must extend service to other properties in the 2400 acre area to fully utilize and be reimbursed for this capacity. III. CONCERNS WITH RESPECT TO FUTURE APPLICATION: a. Cumulative Effect: The SMSC has actively been purchasing land within and surrounding the City of Prior Lake and transferring that property to trust. The cumulative effect of multiple transfers of property within and surrounding the City into trust is significant. The SMSC has indicated that it currently owns approximately 4122 acres in the Prior Lake/Shakopee area and that 1844 of those acres are held in trust. In Prior Lake, the amount is 1886 total acres owned of which 960 acres are in trust. The SMSC has informed the City of its intent to transfer all property it owns into trust. The continuation of trust transfers includes a substantial amount of property and will have an extensive impact on the City's economic development, transportation and infrastructure network, and orderly annexation and growth as mandated by Minnesota Statutes and Metropolitan Council policy, tax revenue, planning, operations and ability to provide necessary services. The City requests that the BIA consider the cumulative impact of trust transfers on the City of Prior Lake as shown below: Trust Total Total Total Total Incremental Incremental Request Acres Acres Acres Acres in Taxes Taxes in Trust Now Regional Director, Midwest Regional Office U.S. Dept. of the Interior, Bureau of Indian Affairs ***********DATE******** Page 4 Date/ Owned Trust this After This (Private Name (PL) (PL) Request Request Development) PL Tesmer Dolan 2x10 acre parcels along CSAH 42 1/20/15 1886 960 87 1047 YMCA X/XX/2015 1981 1047 200 1247 (PL) = City of Prior Lake boundaries b. Duplicative Infrastructure: The City has been following its Comprehensive Plan to build infrastructure to serve properties within the City borders and the orderly annexation area with Spring Lake Township. The City has expended millions to build City infrastructure. Certain purchases and conversion of property into trust by the SMSC means certain infrastructure or capacity will never be used as the SMSC plans to serve properties with its own infrastructure.The installation of duplicative infrastructure in these areas is inefficient and to the extent that the full utilization of the infrastructure never occurs or is significantly delayed,the expenses incurred by the City may never be fully recouped and therefore become a tax payer burden. It is imperative that the SMSC and City work together to understand the development needs of each other and either avoid the others plans or combine infrastructure systems. We believe the agreement, through its language regarding the 2400 acres annexation area, is a first step in this direction. The City appreciates the BIA's consideration of these matters and encourages the BIA to contact the City if it has additional questions. Respectfully submitted, Regional Director, Midwest Regional Office U.S. Dept. of the Interior, Bureau of Indian Affairs ***********DATE******** Page 5 Kenneth L. Hedberg Mayor, City of Prior Lake cc: Charlie Vig, Chair,SMSC EXHIBIT E (Project Design Depiction—Paragraph 51 13 of 15 EXHIBIT F [SMSC Resolution—Paragraph 24] 14 of 15 EXHIBIT G [SMSC Resolution—Paragraph 241 15 of 15 Agreement with City Modifications (Electronic pages 30-51) 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 THIS COOPERATIVE AGREEMENT(the"Agreement")is made and entered into this day of , 2015, by and between the CITY OF PRIOR LAKE, a Minnesota municipal corporation ("City") and the SHAKOPEE MDEWAKANTON 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"): B. The SMSC 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 agreed to by Spring Lake Township such land being south of 160th Street, east of County Road 79, north of 190th 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 154th 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 agreement does not establish a precedent of any nature; 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 1 of 15 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 the concept plan for 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,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 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 2of15 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 extension of Stemmer Ridge Road to CSAH 82/154th 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 however the 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. 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 3of15 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 March 30, 2016 the City may upon written notice to the SMSC cancel 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. 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. 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 purchasc 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. 4of15 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 that 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. 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. 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. 5of15 24. 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 , 2015, 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 , 201_, attached hereto as Exhibit G. 25. 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. 26. 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. 27. 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. 28. NON-WAIVER OF IMMUNITY. Nothing in this agreement shall constitute a waiver of the SMSC's sovereign immunity to suit. 29. 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 NW Prior Lake, MN 55372 Prior Lake, MN 55376 30. SIGNING OF AGREEMENT. This Agreement may be signed in counterparts and on different dates by each party without affecting the validity thereof. 31. 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. 32. 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.] 6of15 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 , 2015, 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 7of15 SHAKOPEE MDEWAKANTON SIOUX COMMUNITY By: Charlie Vig Its: Tribal Chairman By: William J. Hardacker Its: Special Staff Legal Counsel STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this day of , 2015, by Charlie Vig and William J. Hardacker,the Tribal Chairman and Special Staff Legal Counsel, 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 General Council. Notary Public 8of15 EXHIBIT A [Sketch Depiction of SMSC Property—Recital A] 9of15 EXHIBIT B [Legal Description of SMSC Property—Recital AJ 10 of 15 EXHIBIT C [North/South Road Alignment—Paragraph 21 11 of 15 PRELIMINARY CONCEPT c MEADOWS AT : MrmG LAKE \ DAKOTA.SPORTS .// >,^, 't!'.i♦Ylii!!!!l i.i.lYi!•�Y.!!YY ♦4 _...- FIT. I Y AR— LAKE PROPERTY \\ PARK PUNNING AREA �3 � W11- H.— ET oHOWARD LAKE AR� RIC LAKE _ u SPRING LAKE REGIONAL BIKE TRAIL PARK A SPRING LAKE * •/0 p $e•&h. - REGIONAL PARK WETUND PROPOSED BOARDWALKj— t. z aF }-�WETUNO " ...._. fy . PARK ilt fi �s k r . � EXISTING SIDEWALK � EKISTINGTRAIL r LEGEND r A. PRN. zE ] E 11 ^ M L 5 6 Avl anc�loT 51 [."TWIN HOMES INYAN 1 OTONWE (LITTLE RAPIDS , LAYOUT y% EXHIBIT D [Endorsement Letter—Paragraph 41 12 of 15 o� rR1o� ti U 4646 Dakota Street SE Prior Lake,MN 55372 April xx, 2015 United States Department of the Interior Bureau of Indian Affairs VIA EMAIL&U.S. MAIL Midwest Regional Office Attn: Regional Director 5600 West American Boulevard, Suite 500 Bloomington, Minnesota 55437 Re: Shakopee Mdewakanton Sioux Community Fee to Trust Application Division of Fee to Trust TR- Dear Ms. Rosen: Pursuant to the Notice of Non-Gaming Land Acquisition Application ("Application") dated XXXX XX, 2015, the City of Prior Lake submits the following response. On XXXXX XX, 2015 the City of Prior Lake became aware of an application filed with the BIA by the Shakopee Mdewakanton Sioux Community ("SMSC") to transfer approximately 200 acres of land ("Property") into trust and to declare it part of the SMSC reservation.All of the Property is located within the City of Prior Lake. I. INFORMATION REQUESTED BY BIA: In answer to specific questions asked by the BIA in the notice dated XXXXXX XX, 2015: a. Property Taxes. The Property Taxes on the property attriburtable to the City of Prior Lake are $XXXXXXXXX. b. Assessments.There are$XXXXXXX existing assessments on the Property. c. Services. The City provides police services to the Property. The City has also provided and maintains access to the Property over Howard Lake Road. The City and SMSC cooperatively provide fire services to the Property. d. Zoning.All of the Property is zoned agricultural and the portion along County Road 82 is guided urban medium density (4.1 to 7 dwelling units per acre along Count and the remainder is low density (0 to 4 dwellings per acre). Phone 952.447.9800/Fax 952.447.4245/www.cityofpriorlake.com Regional Director, Midwest Regional Office U.S. Dept. of the Interior, Bureau of Indian Affairs ***********DATE******** Page 2 II. POSITION WITH RESPECT TO THIS APPLICATION: The city has entered into a cooperative agreement with the SMSC (see attached Exhibitl). This fee to trust application is an integral part of that agreement. In the absence of this agreement the city would have significant concerns about this application for fee to trust. The City's Comprehensive Plan includes critical City infrastructure which has long been planned to be located on and under the subject property. This planned infrastructure includes critical trunk water, critical trunk sanitary sewer,and an important collector street critical to transit in this portion of the community.This roadway also provides public access to the adjoining City and County park properties to the East per the planned design of the parks. These infrastructure need is important to connect City infrastructure from CSAH 82 to CSAH 12 and without it the city's plans for annexation in Spring Lake Township will come to a halt.The City has made significant investment in this area in excess of$4 million to date to implement and comply with the Comprehensive Plan which is a legal document requiring city compliance. Considering these factors, the SMSC land purchase and trust application are in conflict with the City Comprehensive Plan. As the Bureau of Indian Affairs has recommended in past fee to trust applications, the City and the SMSC have therefore negotiated the aforementioned agreement (attached as Exhibit 1) which concurrently allows for this critical infrastructure to be installed and the SMSC meet their housing needs. The agreement includes the following important provisions: • Grants permanent easements by the SMSC to the City for the installation of City utilities and roadway to be public to assure the collector road connection from CSAH 12 to CSAH 82. • Describes the roadway to be constructed as meeting MNDOT Standards as two lane divided with roundabout,traffic calming,landscaping and trail and sidewalk. • Designates that the SMSC will maintain the public roadway in perpetuity. • Confirms that the SMSC constructs the roadway and City utilities. • Requires that the City pay the SMSC for certain costs for City utility pipes. • Affirms that the SMSC pay the full cost of the roadway including traffic calming and access to the City and Regional Park facilities. • Since the road and utilities referred to in the agreement above will open for development approximately 2400 acres, the agreement provides safeguards intended to preserve most, if not all, of this property for city residential development purposes. While the agreement is helpful in many ways to overcome the immediate concerns with regard to City utilities and the road connection, other factors for the subject property have been considered as a part of the agreement but are important points which should be noted. Regional Director, Midwest Regional Office U.S. Dept. of the Interior, Bureau of Indian Affairs ***********DATE******** Page 3 • The subject property was the next area to be developed within the City. The City must now wait until the improvements are complete across the subject property to realize additional development to the southwest. • The City had planned to receive approximately$3 million in development fees from the subject property which covers the cost of previous and future expenditures related to City infrastructure. • A portion of the costs of the extension of City Infrastructure across the subject property (the pipe costs) would normally be anticipated to be paid for by development fees of the subject property. Now, due to having to jump across the subject property, the funding of those duplicative costs must be borne by future development and City utility customers. • The careful planning of City infrastructure included the subject property which accounts for approximately 5% of the new sewer and water system capacity intended to serve future development to the southwest. The SMSC has plans to serve the subject property with their own systems. As a result, the City system has been overbuilt and the City must extend service to other properties in the 2400 acre area to fully utilize and be reimbursed for this capacity. III. CONCERNS WITH RESPECT TO FUTURE APPLICATION: a. Cumulative Effect: The SMSC has actively been purchasing land within and surrounding the City of Prior Lake and transferring that property to trust. The cumulative effect of multiple transfers of property within and surrounding the City into trust is significant. The SMSC has indicated that it currently owns approximately 4122 acres in the Prior Lake/Shakopee area and that 1844 of those acres are held in trust. In Prior Lake, the amount is 1886 total acres owned of which 960 acres are in trust. The SMSC has informed the City of its intent to transfer all property it owns into trust. The continuation of trust transfers includes a substantial amount of property and will have an extensive impact on the City's economic development, transportation and infrastructure network, and orderly annexation and growth as mandated by Minnesota Statutes and Metropolitan Council policy, tax revenue, planning, operations and ability to provide necessary services. The City requests that the BIA consider the cumulative impact of trust transfers on the City of Prior Lake as shown below: Trust Total Total Total Total Incremental Incremental Request Acres Acres Acres Acres in Taxes Taxes in Trust Now Regional Director, Midwest Regional Office U.S. Dept. of the Interior, Bureau of Indian Affairs ***********DATE******** Page 4 Date/ Owned Trust this After This (Private Name (PL) (PL) Request Request Development) PL Tesmer Dolan 2x10 acre parcels along CSAH 42 1/20/15 1886 960 87 1047 YMCA X/XX/2015 1981 1047 200 1247 (PL) = City of Prior Lake boundaries b. Duplicative Infrastructure: The City has been following its Comprehensive Plan to build infrastructure to serve properties within the City borders and the orderly annexation area with Spring Lake Township. The City has expended millions to build City infrastructure. Certain purchases and conversion of property into trust by the SMSC means certain infrastructure or capacity will never be used as the SMSC plans to serve properties with its own infrastructure.The installation of duplicative infrastructure in these areas is inefficient and to the extent that the full utilization of the infrastructure never occurs or is significantly delayed,the expenses incurred by the City may never be fully recouped and therefore become a tax payer burden. It is imperative that the SMSC and City work together to understand the development needs of each other and either avoid the others plans or combine infrastructure systems. We believe the agreement, through its language regarding the 2400 acres annexation area, is a first step in this direction. The City appreciates the BIA's consideration of these matters and encourages the BIA to contact the City if it has additional questions. Respectfully submitted, Regional Director, Midwest Regional Office U.S. Dept. of the Interior, Bureau of Indian Affairs ***********DATE******** Page 5 Kenneth L. Hedberg Mayor, City of Prior Lake cc: Charlie Vig, Chair,SMSC EXHIBIT E [Project Design Depiction—Paragraph 51 13 of 15 EXHIBIT F [SMSC Resolution—Paragraph 241 14 of 15 EXHIBIT G (SMSC Resolution—Paragraph 241 15 of 15