HomeMy WebLinkAbout8A-SMSC Agreement O� PRION
U 4646 Dakota Street SE
Prior Lake, MN 55372
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CITY COUNCIL AGENDA REPORT
MEETING DATE: MARCH 23, 2015
AGENDA#: 8A
PREPARED BY: LARRY POPPLER, CITY ENGINEER/INSPECTIONS DIRECTOR
PRESENTED BY: 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
Previous City Council agendas (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. It also provides various action options for the city
council to consider on this topic.
Histo
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 few months, City Staff has
worked with the SMSC Staff to prepare an agreement with hopes that both
parties could 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 31, 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 CSAR 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 many of final points
of contention noted above but at this writing not all issues have been
resolved. Below is an update on each.
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. The agreement contains a draft letter to the BIA regarding the trust
request. A streamlined Trust process also assists in faster completion of
City utilities and the roadway 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.
Representatives of the SMSC have received a copy of the letter. It is their
opinion that the letter neither endorses nor is it neutral in nature. Although
there has been no formal opinion provided by the SMSC, one suggestion to
bring the letter more in line with the spirit of the agreement is to end it after
the first paragraph identified as#2 which says:
"POSITION WITH RESPECT TO THIS APPLICATION:"
"The city has entered into a cooperative agreement with the SMSC (see
attached Exhibit 1). 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."
Please see the attached draft letter.
2
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 mail near the intersection of CSAH 82
and Stemmer Ridge Road, however the topography and wetlands severely
limit the uses in this area. The concept plan which is incorporated in the
agreement shows a future spot for a water treatment plant but does not
show the strip mall.
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 2400
acre annexation area. The SMSC is concerned with language which ties
future SMSC Business Councils hands on property acquisitions. While we
do not yet have agreement on this topic, it had been 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."
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
3
Securing Right of Difficult Set forth in the
Way/ Easements agreement
Timing for Summer 2016 Fall 2015/Spring
Completion of City 2016
Utilities
Attached is a copy of the agreement approved by the SMSC Business
Council 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 and least expensive way of completing the
utilities and improvements for Stemmer Ridge Road and is the method
recommended by City Staff. However additional alternatives are discussed
below.
ISSUES: Do Nothing But Cooperate
The city council could chose to do nothing and to cooperate with the SMSC
in developing their subdivision. It seems likely that the SMSC would install
the street as shown in the agreement since they are likely to include it as
one of their exhibits in the fee to trust application to the BIA to demonstrate
their willingness to work with the city to mitigate impacts from this trust
application. The city could attempt to negotiate a reasonable price for the
city portion of the road and the city's utilities lying below it. The city would
likely have to submit neutral language to the BIA regarding this particular
trust application in hopes that the SMSC would reciprocate in cooperation.
A strongly worded letter could result in a higher price tag to the city or a
redesign of the subdivision in a way which is not helpful in achieving the
city's objectives. Other considerations of this alternative are listed below:
• Loss of bargaining power
• Costs unknown
• Delay in timing of the improvements
• No permanence in right of way/easements (50 year lease)
Utilize Another Alignment To Complete the Road and Utilities
The city could work with the county to use the Howard Lake Road Alignment
or perhaps an alignment through the city and regional parks. Unless all or a
portion of the Howard Lake Road alignment were used, there would be no
way to extent the road all the way north the County Road 82. The city would
have to work in tandem with the county make this option work. There are
some potential impacts with this approach:
• 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
4
• Roadway alignment limited to Howard Lake Road for access to the
park.
• To avoid the SMSC property yet achieve a roadway connection from
CSAH 12 to CSAH 82, the City would need to acquire property from
Scott County and run the roadway through Spring Lake Regional
Park. Depending on the route, the purchase of homes and
reconstruction of roadways may be necessary. Howard Lake Road
once connected CSAH 12 with CSAH 82 but Scott County removed
the Howard Lake Road and developed Spring Lake Regional Park
in reliance on the City's Comprehensive Plan showing the Stemmer
Ridge Road connection.
As indicated above the staff believes that approval of the sewer and water
agreement is the preferable option. If the council does not believe that it can
approve the agreement in the form endorsed by the Business Council then
it could adopt the document with amendments. Two amendments appear
most appropriate. One would add the language regarding purchases in the
2400 acre annexation area. The other could provide that the endorsement
letter be neutral rather than positive. Following the adoption of the
agreement, the council could send the document back to the SMSC
business council for their consideration and direct its negotiation team
accordingly.
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 SMSC
PROJECT
Trunk Sewer Fund $286,000 $299,000
TrunkW, terFund �����, $411, 00 %000n ;
Street Oversize Fund $652,000
SMSC FUNDING $4,183,000
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.
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 either as approved by the business council or with
modifications the city council desires.
2) Motion and second to take no action on the SMSC Agreement and direct
the staff to cooperate with the SMSC for the purpose of assuring that
the roadway and utilities are installed in the location heretofore
contemplated at the best possible cost to the city.
5
3) Motion and second to take no action on the agreement and instead take
the next step in the public improvement project by awarding bid to WSB
to complete the necessary engineering work to design the project,
acquire road right of way, bid and award the project and complete
construction inspection (Adoption of Agenda Item 86).
4) Motion and second the take no action on the agreement and direct staff
to work with the county to investigate an alternative alignment and
estimate the costs therefore.
RECOMMENDED A motion and a second for approval of Alternative# 1
MOTION:
6
04 P RIOT
U
4646 Dakota Street SE
so'l?. 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 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 March 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 MARCH 2015.
VOTE Hedberg Keeney McGuire Morton Thompson
Aye ❑ ❑ ❑ ❑ ❑
Nay ❑ ❑ ❑ ❑ ❑
Absent ❑ ❑ ❑ ❑ ❑
Abstain ❑ ❑ ❑ ❑ ❑
Frank Boyles, City Manager
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U 4646 Dakota Street SE
Prior Lake,MN 55372
MIN?"5p'�A
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 X.
b. Assessments.There are$ 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
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 82/154'' Street. The City shall submit a letter to the United States
government endorsing the Trust Application (the "Endorsement Letter"). Said letter shall be in
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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
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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.
I I. 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
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
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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 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.
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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.]
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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
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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
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