HomeMy WebLinkAbout13.D.2. Joint Powers Agreement and Memo of Agreement for the Prior Lake Outlet Channel and Structure
)3.[),2..
CITY OF SHAKOPEE
Memorandum
TO: Mayor & City Council
Mark McNeill, City Administrator
FROM: Bruce Loney, Public Works Director
SUBJECT: Consider Approval of Joint Powers Agreement (JP A) and
Memorandum of Agreement (MOA) for Construction, Use,
Operation and Maintenance of the Prior Lake
Outlet Channel and Outlet Structure
DATE: August 8, 2007
INTRODUCTION:
Attached is a Joint Powers Agreement (JPA) and a Memorandum of Agreement MOA)
for the Prior Lake Outlet Channel between the Prior Lake - Spring Lake Watershed
District (PLSL WD), the City of Prior Lake, the City of Shakopee and the Shakopee
Mdewakanton Sioux Community (SMSC) for review and consideration of approval by
the City Council.
BACKGROUND:
The final draft agreement is before the City Council for approval after six years of work
and negotiations by staff from the four entities involved in the agreement. The fmal draft
agreement has 64 pages and Exhibits A-H for the agreement.
The MOA has 18 Articles and 8 Exhibits. The following paragraphs will list the articles
and main points in the MOA:
Article 1 - Agreement and Effective Date
A. Establishes the effective date of MOA as October 1, 2006, regardless
of when all parties sign the MOA.
Article 2 - Definition and Rules of Construction
A. Clarifies terms in MOA.
Article 3 - Recitals and Statement of Purpose
A. Provides background for MOA and the intended purpose for MOA.
B. Section 0 outlines the reasons for the MOA, which includes the SMSC
as a Project Cooperator. If the SMSC is not approved by the Secretary
of the Interior, then the JPA is necessary.
Article 4 - Representations and Warranties
A. Outlines each party's existence and authority to the MOA.
Article 5 - Outlet Structure Repair Project and Operation of Outlet
Structure
A. Primarily affects PLSL WD and City of Prior Lake.
Article 6 - Uses and Drainage Rates for Outlet Channel
A. Spells out the drainage areas liability to the channel and maximum
average discharge rates for each party to the MOA.
Article 7 - Construction of Outlet Channel Restoration and Enhancement
Project
A. Identifies the design flows, project schedule, project design and
construction of each segment of the Prior Lake Channel for
enhancement.
Article 8 - Acquisition and Use of Outlet Channel Easements
A. Identifies the process on how easements can and will be acquired.
City of Shakopee would only assist on easements in the City of
Shakopee.
Article 9 - Operation and Maintenance of Outlet Channel
A. MOA contains provision on how the channel will be operated
and maintained including emergency maintenance situations.
B. Cost of operation and maintenance will be by each party as per Article
10.
Article 10 - Outlet Channel Cost Sharing and Funding
A. This article refers to Exhibit E - 10 Year Channel Construction and
Maintenance Cost Estimate and on how the cost share is to be
allocated.
B. Another major provision is Article 10.3, revision to cost share
allocations due to changes in tributary drainage area. Areas over 40
acres in size would constitute a recalculation.
Article 11 - Project Cooperation Meetings
A. Requires Annual Meeting to review each year's activities and
approve a budget for next year.
Article 12 - Security for Payment of SMSC Cost Share Allocations
A. To ensure payment for the SMSC for construction and maintenance,
the SMSC will deposit a letter of credit to the PLSL WD.
Article 13 - Indemnification
A. Each party to indemnify each other by work done by a project
cooperation.
Article 14 - Security for SMSC Compliance and Indemnification
A. Special article on additional security from SMSC for complying with
MOA.
Article 15 - Dispute Resolution
A. Provides for procedure to resolve disputes with binding arbitration,
the final procedure of resolution.
B. Each side would be by majority vote of all the arbitrators.
Article 16 - Term and Termination
A. Rights of all parties would remain upon termination of MOA.
Article 17 - Distribution of Property upon Termination
A. Defines how personal property and monies will be returned
if agreement is terminated.
Article 18 - General Provisions
A. Referenced Joint Powers Agreement even though SMSC cannot
enter into a Joint Powers Agreement.
The difference between the JP A and MOA is whether the SMSC is a participant in the
agreement both financially and as a contributor to the channel flow. The JP A has not had
the grammatical errors/changes made in the MOA, however, the final JP A document will
be corrected to match the MOA prior to execution. Finalization of the arbitration
provisions concerning the number of arbitrators has not been totally agreed upon,
however, Jim Thomson is fine with the current language and is agreeable to other
proposals that have been mentioned.
In the area of non-compliance, the agreement calls for the SMSC to have a $2,000,000
letter of credit for compliance of the agreement. This amount can be adjusted for
inflation every four years.
The financial difference to the City of Shakopee on having the SMSC in the agreement is
$133,916.00. In the JPA, as shown on Exhibit E, Shakopee's share is estimated to be
$1,244,145.00 and in the MOA, Shakopee's share is estimated to be $1,110,229.00.
Funds for channel improvements and operation and maintenance will be from the City's
Storm Drainage Fund.
This JPA and MOA have been reviewed by Jim Thomson, City Attorney. The JPA is
essentially the same, except without Articles 12 and 14 and the SMSC in the agreement.
If the SMSC cannot enter into the MOA or it is not approved by the BIA, then the JP A
would be entered into by the Cities of Prior Lake and Shakopee and the PLSLWD.
Currently, the City of Prior Lake has approved the MOA and lP A and the SMSC has
approved the MOA. The PLSL WD is ready to approve the agreements after the City of
Shakopee acts on the agreements.
The purpose of this agenda item is for Council to review and consider approval of the
MOA and JPA between the Cities of Prior Lake and Shakopee, PLSLWD and SMSC.
AL TERNA TIVES:
1. Authorize the appropriate City officials to execute the MOA and the JP A for the
construction, use, operation and maintenance for the Prior Lake Outlet Channel
and Outlet Structure.
2. Do not authorize the MOA and JP A at this time.
3. Table for a specific reason.
RECOMMENDATION:
Staff recommends Alternative No.1, as the agreements reduce the City's cost for
construction, operation and maintenance and establishes a coordinated design for the
Prior Lake Outlet Channel.
ACTION REQUESTED:
Authorize the appropriate City officials to execute the Memorandum of Agreement and
Joint Powers Agreement for Construction, Use, Operation and Maintenance of the Prior
Lake Outlet Channel and Outlet Structure.
~w~
Public Works Director
BLlpmp
ENGR/EF/PPENNINGTON/COUNCJL/MOA-OUTLETCHANNEL
DRAFT: 4/30/07
Reserved For Filing Information
MEMORANDUM OF AGREEMENT
FOR CONSTRUCTION, USE, OPERATION,
AND MAINTENANCE OF
THE PRIOR LAKE OUTLET CHANNEL
AND OUTLET STRUCTURE
Between the Prior Lake-Spring Lake Watershed District,
the City of Prior Lake,
the City of Shakopee, and
the Shakopee Mdewakanton Sioux Community
Effective as of October 1, 2006
DRAFT: 4/30/07
TABLE OF CONTENTS
ARTICLE 1. AGREEMENT AND EFFECTIVE DATE ................................................................ I
ARTICLE 2. DEFINITIONS AND RULES OF CONSTRUCTION .............................................. 1
2.1 Definitions............................................................................................... .............................. 1
2.2 Rules Of Construction........................................................................................................... 8
ARTICLE 3. RECITALS AND STATEMENT OF PURPOSE ......................................................9
3.1 Recitals...................................................................................................................... ............ 9
3.2 Statement Of Purpose..................................................................................... .... ................ 12
ARTICLE 4. REPRESENTATIONS AND WARRANTIES ........................................................ 13
4.1 Existence and Authority Of Watershed District .................................................................13
4.2 Existence And Authority Of Prior Lake ............................................................................. 13
4.3 Existence And Authority Of Shakopee...............................................................................14
4.4 Existence And Authority Of SMSC.................................................................................... 14
4.5 Approval And Approval Date .... ......................................................................................... 15
ARTICLE 5. OUTLET STRUCTURE REPAIR PROJECT AND
OPERATION OF OUTLET STRUCTURE ............................................................ 15
5.1 Watershed District To Undertake Outlet Structure Repair Project..................................... 15
5.2 Plans And Specifications For Outlet Structure Repair Project...........................................16
5.3 Operation And Maintenance Of Outlet Structure............................................................... 16
ARTICLE 6. USES AND DRAINAGE RATES FOR OUTLET CHANNEL..............................16
6.1 Permitted Use By Watershed District ............ ..................................................................... 16
6.2 Permitted Uses And Drainage Areas For Prior Lake, Shakopee, And SMSC.................... 17
6.3 Maximum Average Discharge Rates .................................................................................. 17
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page ii
DRAFT: 4/30/07
6.4 Verifying Watershed District's Maximum Average Discharge Rate .................................18
6.5 Verifying Other Tributary Acreages And Maximum Average Discharge
Rates......................................................................................................................... ........... 19
6.6 Exceeding Maximum Discharge Rates And Changes To Address
Exceedances........................................................................................................................ 20
ARTICLE 7. CONSTRUCTION OF OUTLET CHANNEL RESTORATION
AND ENHANCEMENT PROJECT ........................................................................22
7.1 Design Flows...................................................................................................................... 22
7.2 Proj ect Schedule.................................................................................................................. 22
7.3 Project Design............. ....... .......... ....................................................................................... 23
7.4 Project Construction By Watershed District Or Other Project Cooperators....................... 23
7.5 Use Of The Outlet Channel During Construction And Vegetation
Establishment...................................................................................................................... 25
7.6 Construction Cost Participation.......................................................................................... 26
ARTICLE 8. ACQUISITION AND USE OF OUTLET CHANNEL
EASEMENTS........................................................................................................... 26
8.1 Acquisition By Dedication, Purchase, Or Right-of-Way Grant ......................................... 26
8.2 Acquisition By Purchase Or Condemnation In Prior Lake Or Shakopee ........................... 26
8.3 Acquisition Of Easements Or Rights-Of-Way On Fee Land Or Trust Land...................... 27
8.4 Easement Acquisition Costs............................................................................................... 28
8.5 Additional Authorized Easement Uses............................................................................... 28
ARTICLE 9. OPERATION AND MAINTENANCE OF OUTLET CHANNEL......................... 31
9.1 General....................................................................................................................... ......... 31
9.2 Preparation Of Maintenance Plans...................................................................................... 31
9.3 Operation And Maintenance By Watershed District Or Other Project
Cooperators................................................................................................................... ...... 32
9.4 Emergency Maintenance By Watershed District Or Other Project
Cooperators................................................................................................................... ...... 33
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page iii
DRAFT: 4/30/07
9.5 Operation and Maintenance Cost Participation .................................................................. 34
ARTICLE 10. OUTLET CHANNEL COST SHARING AND FUNDING .................................... 35
10.1 Estimated Costs................................................................................................................... 35
10.2 Cost-Share Allocation...................... ................................................................................... 35
10.3 Revisions To Cost-Share Allocations Due To Changes In Tributary
Drainage Areas................................................................................................................... 37
10.4 Creation Of Design And Construction Fund And Payment Of Construction
Cost-Share Allocations....................................................................................................... 38
10.5 Creation Of Operation And Maintenance Fund And Payment Of Operation
And Maintenance Cost-Share Allocations................ .......................................................... 41
10.6 Creation Of Emergency Maintenance Fund And Payment Of Emergency
Maintenance Cost-Share Allocations.................................................................................. 42
10.7 General Fund Administration And Recordkeeping ............................................................ 43
SECTION 11. PROJECT COOPERATOR MEETINGS ................................................................44
11.1 General Provisions................................................................................ ...... ........................44
11.2 Annual Meeting And Failure To Agree On Budgets .......................................................... 45
11.3 Initial Meeting..................................................................................................................... 46
11.4 Other Meetings............................................................................................................... ..... 46
ARTICLE 12. SECURITY FOR PAYMENT OF SMSC COST-SHARE
ALLOCATIONS...................................................................................................... 46
12.1 SMSC To Provide Letters Of Credit................................................................................... 46
12.2 Drawing Against SMSC Cost Share Letters Of Credit....................................................... 48
ARTICLE 13. INDEMNIFICATION .... .......................................................................................... 52
13.1 Watershed District Indemnification Of Prior Lake, Shakopee, And SMSC....................... 52
13.2 Prior Lake Indemnification Of Watershed District, Shakopee, And SMSC....................... 52
13.3 Shakopee Indemnification Of Watershed District, Prior Lake, And SMSC....................... 53
13.4 SMSC Indemnification Of Watershed District, Prior Lake, And Shakopee....................... 54
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page iv
DRAFT: 4/30/07
13.5 Limitation On Liability Of Project Cooperators .................................................................55
13.6 Insurance And Evidence Of Coverage................................................................................ 55
ARTICLE 14. SECURITY FOR SMSC COMPLIANCE AND
INDEMNIFI CATION.......................................................................................... .... 57
14.1 SMSC Compliance And Indemnification Letter Of Credit ................................................ 57
14.2 Basis For Compliance Or Indemnification Draws.............................................................. 57
14.3 Letter Of Credit Replacement After Draw.......................................................................... 59
14.4 No Draw During Dispute Resolution..................................................................................60
ARTICLE 15. DISPUTE RESOLUTION........................................................................................ 60
15.1 Policy For Resolving Disputes............ ...... .......................................................................... 60
15.2 Procedure For Resolving Disputes...................................................................................... 60
15.3 Enforcement Of Judgment Or Order...................................................................................62
15.4 Limited Sovereign Immunity Waiver .................................................................................63
ARTICLE 16. TERM AND TERMINATION ................................................................................. 63
ARTICLE 17. DISTRIBUTION OF PROPERTY UPON TERMINATION .................................. 64
17.1 Distribution Of Property Generally .................................................................................... 64
17.2 Conveyance Of Title To Easements Outside The Watershed District................................ 64
ARTICLE 18. GENERAL PROVISIONS .......................................................................................64
18.1 Counterparts...................................................................................................................... .. 64
18.2 Entire Agreement, Amendment, And Waiver..................................................................... 64
18.3 MOA/JP A Precedence........................................................................................................ 65
18.4 Notices................................................................................................................................ 65
18.5 No Third Party Beneficiaries ..............................................................................................66
18.6 Successors And Assigns......................................................... ............................................ 66
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page v
DRAFT: 4/30/07
TABLES
Table I: Outlet Channel Tributary Drainage Areas in Acres (downstream of
Prior Lake) .......................................................................................................................... 17
Table 2: Maximum Average Discharge Rates to Outlet Channel Segments ....................................18
Table 3: Outlet Channel Restoration and Enhancement Project Design Flows by
Segment ........................................................................................................................... ...22
Table 4: Cost-Share Allocation for Outlet Channel Fund Payments ................................................ 35
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page vi
DRAFT: 4/30/07
EXHIBITS
Exhibit A - Outlet Channel Map ......................................................................................................A-l
Exhibit B - Outlet Channel Segment Drainage Areas...................................................................... B-1
Exhibit C - Projected Average Discharge Rate Calculation Formula and Example
Calculations....................................................................................... .............. ............... C-l
Exhibit D - Outlet Channel Design, Construction, and Maintenance Schedule ..............................D-l
Exhibit E - Nine Year Estimate of Outlet Channel Design, Construction, and
Operation And Maintenance Costs................................................................................ E-l
Exhibit F - Calculation Method for Cost-Share Allocation ..............................................................F-l
Exhibit G - Drainage Area Change Recalculation Example ............................................................ G-l
Exhibit H - 2006 Fund Payments .....................................................................................................H-l
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page vii
DRAFT: 4/30/07
MEMORANDUM OF AGREEMENT
FOR CONSTRUCTION, USE, OPERATION,
AND MAINTENANCE OF
THE PRIOR LAKE OUTLET CHANNEL
AND OUTLET STRUCTURE
ARTICLE 1. AGREEMENT AND EFFECTIVE DATE
The PRIOR LAKE-SPRING LAKE WATERSHED DISTRICT, a Minnesota political
subdivision (the "Watershed District"), the CITY OF PRIOR LAKE, a Minnesota municipal
corporation ("Prior Lake"), the CITY OF SHAKOPEE, a Minnesota municipal corporation
("Shakopee"), and the SHAKOPEE MDEW AKANTON SIOUX COMMUNITY, a Federally
recognized Indian tribe (the "SMSC"), jointly the "Project Cooperators", enter into this
Memorandum Of Agreement For Construction, Use, Operation, And Maintenance Of The
Prior Lake Outlet Channel And Outlet Structure (this "MOA," as more fully defined in
Section 2.1Y.) to be effective as of October 1,2006 (the "Effective Date"). In entering into
this MOA, the Project Cooperators mutually acknowledge that this MOA's Provisions
constitute sufficient consideration.
ARTICLE 2. DEFINITIONS AND RULES OF CONSTRUCTION
2.1 Definitions
Unless otherwise expressly provided in this MOA or the context otherwise requires, the
following capitalized words have the following defined meanings when used in this
MOA.
A. Annual Meeting. As defined in Section 11.2.
B. Approval Date. As defined in Section 4.5A.
C. Best Storm Water Management Practices. Storm water management practices
approved or required by the Watershed District.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 1
DRAFT: 4/30/07
D. Claims. Any and all actions, causes of action, claims, costs, damages, demands,
debts, executions, expenses (including reasonable attorneys' fees and expert and
other fees and expenses), fines, judgments, liens, losses, obligations, penalties, or
suits.
E. Conceptual Design. The Prior Lake Outlet Channel Future Conceptual Plan, a
plan for restoring and enhancing the Outlet Channel, that was developed with the
input of the Project Cooperators as part of the Prior Lake Outlet Channel and
Lake Volume Management Study completed by the Watershed District in 2003.
The Conceptual Design is based on the use of ecological principles,
bioengineering, and natural stream technology practices to improve channel
stability, reduce erosion, and enhance the habitat and aesthetics of the Outlet
Channel.
F. Construct/Construction. All activities involved in building, creating, improving,
or restoring a drainage way, trail, underground utility, or other device, object, or
structure including: acquiring land for the work; bidding and contracting for the
work; building, managing, inspecting, and approving the work; and remediating
contamination or pollution of soil, water, structures, or other media necessary to
perform the work.
G. Construction Costs. All costs related to Construction including: accountant,
architect, appraisal, attorney, Construction management, engineering, and other
professional fees and costs; contamination and pollution remediation costs;
bidding, budgeting, contracting, office, travel, and other management costs;
building or construction costs; easement, right-of-way, and other acquisition
costs; erosion control costs; inspection costs; material costs; security costs; and
staff costs.
H. Design. All activities involved in conceiving, designing, and planning, and in
obtaining approval for plans for, a drainage way, trail, underground utility, or
other device, object, or structure including: devising, discussing, drawing, and
modifying plans and specifications; determining easements, rights-of-way, and
other property interests needed; investigating contamination or pollution of soil,
water, structures, or other media; preparing remedial action plans and other
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 2
DRAFT: 4/30/07
documents related to contamination and pollution; testing soil and water; asking
for, discussing, and getting comments on, or approvals of, plans and
specifications from Project Cooperators or others; and asking for, discussing, and
getting governmental comments on, or approvals of, licenses, permits, or other
approvals for plans and specifications.
L Design And Construction Budget. As defined in Section II.2A.(7).
J. Design And Construction Fund. The fund defined and established in
Section lOA.
K. Design Costs. All costs related to Design including: accountant, architect,
appraisal, attorney, engineering, geotechnical, scientific, and other professional
fees and costs; bidding, budgeting, contracting, office, travel, and other
management costs; investigation and testing costs; meeting and coordination
costs; application preparation costs and fees; license, permit, and other
governmental approval fees; administrative appeal and contested case fees and
costs; and staff costs.
L. Design Flows. As defined in Section 7.1.
M. DNR. The Minnesota Department of Natural Resources.
N. Effective Date. As defined in Article I.
O. Emergency Maintenance. All activities necessary to achieve immediate
compliance with applicable laws and agreements, when immediate compliance is
required, and to address conditions that pose an immediate threat to the
functioning of a drainage way, trail, underground utility, or other device, object,
or structure such as accidental damage, acts of vandalism, bank failure, culvert
obstruction, storm damage, structural failure, or a contaminant or pollutant spill
including: repairing or rebuilding the device, object, or structure; rebuilding,
repairing, or restoring drainage channel banks or beds; removing obstructions;
burning, mowing, planting, replanting, spraying, trimming, or otherwise
managing vegetation; removing sediment from accumulation zones; cleaning up
contaminant or pollutant spills; and protecting wildlife habitat and the aquatic
environment.
P. Emergency Maintenance Costs. All costs related to Emergency Maintenance
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 3
DRAFT: 4/30/07
including: accountant, appraisal, architect, attorney, Construction management,
engineering, geotechnical, scientific, and other professional fees and costs; bank
and bed stabilization costs; bidding, budgeting, contracting, office, travel, and
other management costs; clean-up costs; contaminant or pollution remediation
costs; building or construction costs; erosion control costs; inspection costs;
license, permit, and other approval costs; material costs; repair costs; replacement
costs; security costs; sediment removal costs; staff costs; vegetation management
costs; and wildlife and aquatic environment protection costs.
Q. Emergency Maintenance Fund. The fund defined and established in
Section 10.6.
R. Fee Land. Land owned in fee now or hereafter by the SMSC.
s. Initial Meeing. As defined in Section 11.3.
T. JPA. As defined in Section 3.1P.
U. Lake Outlet Project. As defined in Section 3.1B.
JI: LMCIT. As defined in Section 13.6A.
W. MaintainlMaintenance. All activities necessary to keep a drainage way, trail,
underground utility, or other device, object, or structure in good repair, working
efficiently, and in compliance with applicable laws and agreements including:
rebuilding, repairing, or restoring the drainage way, device, object, or structure;
rebuilding, repairing, or restoring channel banks or beds; removing obstructions;
burning, mowing, planting, replanting, spraying, trimming, or otherwise
managing vegetation; removing sediment from accumulation zones; cleaning up
contaminant or pollutant spills; and protecting wildlife habitat and the aquatic
environment.
X Maximum Average Discharge Rate(s). As defined in Section 6.3.
J: MOA. This Memorandum Of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure, including
the following exhibits that are attached to and are a part of this MOA:
Exhibit A - Outlet Channel Map
Exhibit B - Outlet Channel Segment Drainage Areas
Exhibit C - Projected Average Discharge Rate Calculation Formula and
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 4
DRAFT: 4/30/07
Example Calculations
Exhibit D - Outlet Channel Design. Construction. and Maintenance Schedule
Exhibit E - Nine Year Estimate of Outlet Channel Design. Construction. and
Operation And Maintenance Costs
Exhibit F - Calculation Method for Cost-Share Allocation
Exhibit G - Drainage Area Change Recalculation Example
Exhibit H - 2006 Fund Payments
Z. lOO-Year Rainfall Event. The total rainfall from a 24-hour rainfall event with a
100 year frequency of return, assuming a Soil Conservation Service Type II
rainfall distribution, as specified in Technical Paper 40, Rainfall Frequency Atlas
of the United States for Durations from 30 minutes to 24 Hours and Return
Periods from one to 100 Years (NOAA, 1961).
AA. Operate/Operation. All activities needed to keep a drainage way, trail,
underground utility, or other device, object, or structure working, including;
accounting for funds received and expended; adjusting equipment that is part of,
and regularly inspecting, the drainage way or other device, object, or structure;
bidding and contracting for, or otherwise providing, Maintenance; budgeting the
use of funds received; overseeing the use of the drainage way or other device,
object, or structure; providing staff for these activities; raising funds to pay for the
enterprise; and otherwise managing the enterprise.
BB. Operation And Maintenance Budget As defined in Section II.2A.(8).
Cc. Operation And Maintenance Costs. All costs related to Operation or
Maintenance including: accountant, architect, appraisal, attorney, engineering,
geotechnical, scientific, and other professional fees and costs; bank and bed
stabilization costs; bidding, budgeting, contracting, office, travel, and other
management costs; clean-up costs; contamination and pollution remediation costs;
building or construction costs; erosion control costs; inspection costs; license,
permit, and other approval costs; repair costs; replacement costs; sediment
removal costs; security costs; staff costs; vegetation management costs; and
wildlife and aquatic environment protection costs.
DD. Operation And Maintenance Fund. The fund defined and established in
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 5
DRAFT: 4/30/07
Section 10.5.
EE. Outlet Channel. The seven miles of natural and built drainage courses within the
municipal boundaries of Prior Lake and Shakopee that were connected, built, and
improved as part of the Lake Outlet Project. See Exhibit A - Outlet Channel
Map. The Outlet Channel extends from the Outlet Structure north to the
Minnesota River at Blue Lake. The Outlet Channel is divided into the following
eight segments:
. Segment I: Prior Lake to County Road 42
. Segment 2: County Road 42 to the inlet of Pike Lake
. Segment 3: The outlet of Pike Lake to Pike Lake Trail
. Segment 4: Pike Lake Trail to County Road 16
. Segment 5: County Road 16 to the inlet of Dean Lake
. Segment 6: The outlet of Dean Lake to State Trunk: Highway 169
. Segment 7: State Trunk Highway 169 to State Trunk: Highway 101
. Segment 8: State Trunk Highway 101 to the Minnesota River
FF. Outlet Channel Restoration And Enhancement Project. As defined in
Section 3.11.
GG. Outlet Structure Repair Project. As defined in Section 3.1G.
HH. Outlet Structure. The structure and pipe that were installed on Prior Lake by the
Watershed District in 1983 as part of the Lake Outlet Project, to provide an outlet
for the lake. See Exhibit A.
IL Outlet Operating Plan. The Outlet Control Structure For Prior Lake
Management Policy And Operating Procedures (revised October 2004), a plan
documenting the management policy and operating procedures for the Outlet
Structure, as developed by the Watershed District and approved by the DNR in
February 2005.
JJ. Prior Lake. As the context requires, either a Project Cooperator as defined in
Article I or a lake in the City of Prior Lake.
KK. Project. As defined in Section 3.IJ.
LL. Project Cooperators. As defined in Article I.
MM. Projected Average Discharge Rate. The expected average storm water discharge
rate from development that occurs after the Effective Date, as calculated by a
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 6
DRAFT: 4/30/07
Project Cooperator according to the formula in Exhibit C - Proiected Average
Discharge Rate Calculation Formula and Example Calculations. for the entire
drainage area within that Project Cooperator's jurisdiction tributary to an Outlet
Channel segment.
NN. Projected Discharge Rate. The expected storm water discharge rate from a
development or redevelopment qalculated in cfs for the 100- Y ear Rainfall Event
using storm water discharge specifications for a developed or redeveloped area.
00. Provision. Any agreement, condition, duty, grant, immunity, indemnity,
obligation, promise, provision, release, representation, responsibility, right, term,
or warranty.
PP. Public Service Activity/Activities. As defined in Section 8.5A.
QQ. Shako pee. A Project Cooperator as defined in Article I.
RR. SMSC. A Project Cooperator as defined in Article I.
SS. SMSC Design And Compliance And Indemnification Letter Of Credit. An
irrevocable letter of credit from the SMSC with the Watershed District, Prior
Lake, and Shakopee as beneficiaries, in a form satisfactory to the Watershed
District, from a surety located in the State, and as further provided in
Section 14.1.
TT. SMSC Construction Letter Of Credit. An irrevocable letter of credit from the
SMSC with the Watershed District as the beneficiary, in a form satisfactory to the
Watershed District, from a surety located in the State, and as further provided in
Section 12.1A.
uu. SMSC Emergency Maintenance Letter Of Credit. An irrevocable letter of credit
from the SMSC with the Watershed District as the beneficiary, in a form
satisfactory to the Watershed District, from a surety located in the State, and as
further provided in Section 12.1 C.
Vf: SMSC Operation And Maintenance Letter Of Credit. An irrevocable letter of
credit from the SMSC with the Watershed District as the beneficiary, in a form
satisfactory to the Watershed District, from a surety located in the State, and as
further provided in Section 12.1B.
Wfv. State. The State of Minnesota.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 7
DRAFT: 4/30/07
xx Trust Land. Land held now and hereafter by the United States, in trust, for the
beneficial interest of the SMSC.
IT 2-Year Rainfall Event. The total rainfall from a 24-hour rainfall event with a two
year frequency of return, assuming a Soil Conservation Service Type II rainfall
distribution, as specified in Technical Paper 40, Rainfall Frequency Atlas ofthe
United States for Durations from 30 minutes to 24 Hours and Return Periods from
one to 100 Years (NOAA, 1961).
ZZ. Watershed District. A Project Cooperator as defined in Article 1.
2.2 Rules Of Construction
In interpreting this MOA, the following rules of construction will be used.
A. Captions, Gender, Number, And Language Of Inclusion. The Article and Section
headings in this MOA are for convenience of reference only and do not define,
limit, or prescribe the scope or intent of any MOA Provision. As used in this MOA,
the singular includes the plural and vice versa, and the masculine, feminine, and
neuter adjectives include one another.
B. Construction. The rule of strict construction does not apply to this MOA. This
MOA will not be interpreted in favor of or against any Project Cooperator merely
because of their respective efforts in preparing or modifying it.
C. Words And Phrases. The following words and phrases have the following
meanings in this MOA:
(1) applicable law means all applicable federal, State, regional, county,
municipal, local, or other constitutions, charters, bylaws, laws, statutes, codes,
ordinances, rules, and regulations, including the applicable law of the Project
Cooperators.
(2) cft means cubic feet per second.
(3) include means include without limitation.
(4) including means including but not limited to.
(5) incurred by means asserted against, imposed upon, incurred by, paid by, or
suffered.
(6) parties means two or more of the Project Cooperators as the context of this
MOA indicates;
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 8
DRAFT: 4/30/07
(7) party means one or more of the Project Cooperators as the context of this
MOA indicates; and
(8) subject to approval by means the entity whose approval is necessary may
grant or deny approval, but approval cannot be unreasonably conditioned or
delayed, and denial must have a reasonable basis and cannot be unreasonably
delayed.
ARTICLE 3. RECIT ALS AND STATEMENT OF PURPOSE
The following recitals and statement of purpose are incorporated in this MOA.
3.1 Recitals
A. The Project Cooperators have the power to enter into this MOA and desire to do so.
B. In 1983, the Watershed District completed a project to build an artificial outlet for
Prior Lake to drain water from Prior Lake and transport the water to the Minnesota
River ("Lake Outlet Project"). The Lake Outlet Project connected and improved a
natural drainage system of lakes, streams, and wetlands within the municipal
boundaries of Prior Lake and Shakopee to connect Prior Lake and the Minnesota
River. The resulting drainage way is known as the Outlet Channel. See Exhibit A.
C. The Outlet Channel drains water from land within the jurisdictions of Prior Lake
and Shakopee and SMSC Fee Land and Trust Land. The drainage areas tributary to
each Outlet Channel segment are shown on Exhibit B - Outlet Channel Segment
Drainage Areas.
D. Since completion of the Lake Outlet Project, development has occurred in areas of
Prior Lake and Shakopee tributary to the Outlet Channel, and the SMSC has
acquired land tributary to the Outlet Channel for development. Consequently Prior
Lake, Shakopee, and the SMSC use the Outlet Channel to convey storm water from
developed areas within their boundaries or ownership to the Minnesota River.
E. The approved comprehensive plans of Prior Lake, Shakopee, and Scott County
identify substantial additional development that will occur in drainage areas
tributary to the Outlet Channel.
F. The SMSC plans additional development on both Fee Land and Trust Land in
drainage areas tributary to the Outlet Channel.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 9
DRAFT: 4/30/07
G. The Watershed District plans repairs and modifications to the Outlet Structure to
address wear and tear that has occurred since its installation; to improve its
efficiency and safety; and to reduce its operating costs ("Outlet Structure Repair
Project").
H. The Outlet Structure directly and immediately benefits properties within the City of
Prior Lake because it reduces Prior Lake water levels on riparian property within
the established flood plain. The Outlet Structure Repair Project will continue these
benefits.
L The Project Cooperators desire to clarify their respective responsibilities and rights
regarding implementation of the Outlet Structure Repair Project and the ongoing
use, Operation, and Maintenance of the Outlet Structure.
J. The Project Cooperators are planning a project to restore and enhance the Outlet
Channel using ecological principles, bioengineering, and natural stream
technologies that will restore channel stability, improve water quality, enhance
channel habitat and aesthetics, and assure capacity for existing and future storm
water flows ("Outlet Channel Restoration And Enhancement Project" or
"Project"), all in accordance with the Conceptual Design.
K. The Outlet Channel Restoration And Enhancement Project directly and immediately
benefits the Project Cooperators because: .
(1) The Project conforms to and implements Prior Lake, Shakopee, and the
SMSC's overall drainage plan in the Outlet Channel's drainage area;
(2) The easements to be acquired within Shakopee and Prior Lake can also be
used by those cities for underground public utility and trail purposes; and
(3) An operable Outlet Channel with adequate storm water conveyance capacity
allows for orderly development by Prior Lake, Shakopee, and the SMSC.
L. Prior Lake and Shakopee desire to assist the Watershed District to acquire the
easements necessary in their respective cities for Construction of the Outlet Channel
Restoration And Enhancement Project.
M. The SMSC desires to assist the Watershed District to acquire the easements and
rights-of-way necessary on Fee Land and Trust Land that the SMSC might purchase
in the future.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 10
DRAFT: 4/30/07
N. The Project Cooperators desire to clarify their respective responsibilities and rights
regarding implementation of the Outlet Channel Restoration And Enhancement
Project and the ongoing use, Operation, and Maintenance of the Outlet Channel.
O. The Project Cooperators have agreed to allocate Design Costs and Construction
Costs for the Outlet Channel Restoration And Enhancement Project, and Operation
And Maintenance Costs and Emergency Maintenance Costs for the Outlet Channel
among the Project Cooperators using the following principles.
(1) The cost-share obligation should be allocated among the Project Cooperators
based on each Project Cooperator's current and anticipated use of the Outlet
Channel for storm water conveyance.
a. The Watershed District's cost-share obligation should be based on its
maximum release rate through the Outlet Structure of 65 cfs.
b. The cost-share obligation for Prior Lake, Shakopee, and the SMSC should
be based on each Project Cooperator's tributary drainage area by Outlet
Channel segment and its Maximum Average Discharge Rate or Rates as
identified by each Project Cooperator and incorporated into this MOA.
(2) The contributing drainage area from the SMSC should include Fee Land and
Trust Land.
(3) A separate cost-share allocation should be determined for each Outlet Channel
segment.
(4) Each Project Cooperator's cost-share obligation should begin at the point
furthest from Blue Lake where storm water from that Project Cooperator's
jurisdictional boundaries first flows into the Outlet Channel and extend from
that first point of discharge downstream to the point of inlet into Blue Lake.
P. To implement the Outlet Channel Restoration And Enhancement Project and
provide for ongoing use, Operation, and Maintenance of the Outlet Channel and
Outlet Structure, two agreements are being signed - this MOA between the Project
Cooperators and the Joint Powers Agreement For Construction, Use, Operation,
And Maintenance Of The Prior Lake Outlet Channel And Outlet Structure pursuant
to Minnesota Statutes Section 471.59 (the "JPA") between the Watershed District,
Prior Lake, and Shakopee. For reasons of State law, the SMSC does not have
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 11
DRAFT: 4/30/07
authority to participate in a joint powers agreement for utility and drainage
purposes, and can only participate by executing this MOA with the Watershed
District, Prior Lake, and Shakopee. This necessitates this MOA. But the MOA
must be approved by the Secretary of the Interior. If this approval is not
forthcoming, or if the MOA is approved and terminates in the future for any reason,
the Watershed District, Prior Lake, and Shakopee desire to implement the Project
and provide for ongoing use, Operation, and Maintenance of the Outlet Channel and
Outlet Structure without the SMSC. This necessitates the JPA. If the MOA is
approved by the Secretary of the Interior, the Project Cooperators intend this MOA,
and not the JP A, to control their relationship. If this MOA is not approved, or if it
is approved and terminates in the future for any reason, the Watershed District,
Prior Lake, and Shakopee intend their relationship to continue and be controlled by
the JP A, and not by this MOA.
3.2 Statement Of Purpose
The general purpose of this MOA is to:
A. Establish Provisions under which the Watershed District will improve, use, Operate,
and Maintain the Outlet Structure.
B. Preserve the Watershed District's discharge capacity rights to the Outlet Channel
from consumption by storm water drainage generated from new development and
redevelopment in the Outlet Channel drainage area.
C. Allocate Outlet Channel drainage capacity above that required for the Watershed
District among the other Project Cooperators to promote orderly development
within the Outlet Channel drainage area.
D. Establish Provisions under which the Project Cooperators will implement the Outlet
Channel Restoration And Enhancement Project, including acquisition of the
additional easements needed and allocation of Design Costs and Construction Costs
among them.
E. Establish Provisions under which the Project Cooperators will use, Operate, and
Maintain the Outlet Channel, including specification of their respective
responsibilities for Operation, Maintenance, and Emergency Maintenance,
allocation of Operation And Maintenance Costs and Emergency Maintenance Costs
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 12
DRAFT: 4/30/07
among them, and identification of additional uses that Prior Lake, Shakopee, and
the SMSC can make of the easements acquired for the Outlet Channel Restoration
And Enhancement Project.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
Each Project Cooperator represents and warrants to the other Project Cooperators, and each of
them, as follows:
4.1 Existence and Authority Of Watershed District
The Watershed District represents and warrants that it is a watershed district duly
organized and operating under Minnesota Statutes, Chapters 103B and 103D and that it
has the corporate power and authority to execute and deliver this MOA, to perform
fully its obligations under this MOA, and to consummate the transactions contemplated
by this MOA. The execution and delivery by the Watershed District of this MOA, the
performance of its obligations under this MOA, and the consummation of the
transactions contemplated by this MOA have been duly authorized by all requisite
corporate action of the Watershed District, and do not and will not conflict with, result
in a violation of, or constitute a default under any State statute its Constitution or
bylaws, any other applicable law, any agreement or other instrument binding upon the
Watershed District, or any court decree or order applicable to the Watershed District.
This MOA is the legal, valid, and binding obligation of the Watershed District,
enforceable against the Watershed District in accordance with its Provisions.
4.2 Existence And Authority Of Prior Lake
Prior Lake represents and warrants that it is a municipal corporation duly organized and
operating under Minnesota Statutes, Chapter 412 and that it has the corporate power
and authority to execute and deliver this MOA, to perform fully its obligations under
this MOA, and to consummate the transactions contemplated by this MOA. The
execution and delivery by Prior Lake of this MOA, the performance of its obligations
under this MOA, and the consummation ofthe transactions contemplated by this MOA
have been duly authorized by all requisite corporate action of the Prior Lake City
Council, and do not and will not conflict with, result in a violation of, or constitute a
default under any State statute, its Code of Ordinances, any other applicable law, any
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 13
DRAFT: 4/30/07
agreement or other instrument binding upon Prior Lake, or any court decree or order
applicable to Prior Lake. This MOA is the legal, valid, and binding obligation of Prior
Lake, enforceable against Prior Lake in accordance with its Provisions.
4.3 Existence And Authority Of Shakopee
Shakopee represents that it is a municipal corporation duly organized and operating
under Minnesota Statutes, Chapter 412 and that it has the corporate power and authority
to execute and deliver this MOA, to perform fully its obligations under this MOA, and
to consummate the transactions contemplated by this MOA. The execution and
delivery by Shakopee of this MOA, the performance of its obligations under this MOA,
and the consummation of the transactions contemplated by this MOA have been duly
authorized by all requisite corporate action of the Shakopee City Council, and do not
and will not conflict with, result in a violation of, or constitute a default under any State
statute, its Code of Ordinances, any other applicable law, any agreement or other
instrument binding upon Shakopee, or any court decree or order applicable to
Shakopee. This MOA is the legal, valid, and binding obligation of Shakopee,
enforceable against Shakopee in accordance with its Provisions.
4.4 Existence And Authority Of SMSC
The SMSC represents and warrants that it is a federally recognized Indian tribe, duly
organized and existing under Section 16 of the Indian Reorganization Act of 1934, as
amended (25 V.S.C. ~476), and its Constitution. The SMSC has the full power and
authority to enter into this MOA, to perform fully its obligations under this MOA, and
to consummate the transactions contemplated by this MOA, subject to the Secretary of
the Interior's approval as provided in Section 4.5A. The execution and delivery by the
SMSC of this MOA, the performance by the SMSC of its obligations under this MOA,
and the consummation of the transactions contemplated by this MOA have been duly
authorized by all necessary governmental action of the SMSC, and do not and will not
conflict with, result in a violation of, or constitute a default under its Constitution, any
other applicable law, any agreement or other instrument binding upon the SMSC, or
any court decree or order applicable to the SMSC. This MOA is the legal, valid, and
binding obligation of the SMSC, enforceable against the SMSC in accordance with its
Provisions.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 14
DRAFT: 4/30/07
4.5 Approval And Approval Date
A. Secretary Of Interior Approval Required. The Secretary of the Interior's approval
is required for the SMSC to participate in this MOA. Whether or not to grant this
approval is in the sole and absolute discretion of the Secretary of Interior. The
SMSC will seek this approval immediately after signing this MOA and promptly
inform the other Project Cooperators if approval is granted or denied. On the date
the Secretary of Interior approves this MOA ("Approval Date"), this MOA shall go
into force as of the Effective Date. Until the Secretary of the Interior approves this
MOA, no draw can be made on the SMSC letters of credit delivered to the
Watershed District under Sections 12.1 and 14.1. If the Secretary of the Interior
disapproves this MOA, it will not become effective, and the SMSC letters of credit
delivered to the Watershed District under Sections 12.1 and 14.1 will be returned
immediately to the SMSC without any draw being made.
B. Other Consents. Except for the approval of the Secretary of the Interior, the
execution, delivery, and performance of the MOA by the SMSC mean either:
(1) That the SMSC does not need the consent or approval of any other person or
entity, including without limitation any regulatory authority or governmental
body of the United States or any state thereof, or
(2) That if any such consent or approval is needed, it has been obtained.
ARTICLE 5. OUTLET STRUCTURE REPAIR PROJECT AND OPERATION OF
OUTLET STRUCTURE
5.1 Watershed District To Undertake Outlet Structure Repair Project
The Watershed District will Design and implement the Outlet Structure Repair Project.
All Design Costs and Construction Costs of the Outlet Structure Repair Project are the
sole and exclusive responsibility of the Watershed District. Prior to the commencement
of the Outlet Structure Repair Project, the Watershed District will obtain all permits and
approvals required by any governmental unit having jurisdiction over the Outlet
Structure, including permits and approvals from Prior Lake, the Lower Minnesota
Watershed District, the DNR, and the U.S. Army Corps of Engineers Agency. Ifany
permit or approval requires modification of an Outlet Structure Repair Project plan
developed under Section 5.2, the Watershed District can make the required
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 15
DRAFT: 4/30/07
modification. The Watershed District will notify the other Project Cooperators of the
change prior to the start of Construction but need not submit the modified plans to Prior
Lake for review and comment.
5.2 Plans And Specifications For Outlet Structure Repair Project
The Watershed District will Design the Outlet Structure Repair Project to conform to
the findings of the Prior Lake Outlet Channel and Lake Volume Management Study,
dated May 2003. To begin, the Watershed District will consult with Prior Lake and
prepare plans and specifications that conform to the Prior Lake Outlet Channel and
Lake Volume Management Study considering generally acceptable engineering
specifications. Next, the Watershed District will furnish Prior Lake with complete
copies of the plans and specifications for the Outlet Structure improvements. Prior
Lake will comment on the plans and specifications and may request modifications to
them within 60 days of receipt. If Prior Lake provides comments or requests
modifications, the Watershed District will endeavor to address the comments and
incorporate the modifications into the plans and specifications. However, if situations
arise where the Watershed District receives comments or modifications that are
inconsistent with the Prior Lake Outlet Channel and Lake Volume Management Study,
to avoid delays in the Outlet Structure Repair Project, the Watershed District's
determination on questions of Design will be conclusive, and Article 15 will not apply.
5.3 Operation And Maintenance Of Outlet Structure
The Watershed District will Operate and Maintain the Outlet Structure. In doing so, the
Watershed District will release water from the Outlet Structure in accordance with the
Outlet Operating Plan and must not exceed the maximum release rate of 65 cfs as
specified in the Plan. All Operation And Maintenance Costs and Emergency
Maintenance Costs related to the Outlet Structure are the sole and exclusive
responsibility of the Watershed District.
ARTICLE 6. USES AND DRAINAGE RATES FOR OUTLET CHANNEL
6.1 Permitted Use By Watershed District
The Watershed District will use the Outlet Channel to drain water from Prior Lake and
for no other purposes.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 16
DRAFT: 4/30/07
6.2 Permitted Uses And Drainage Areas For Prior Lake, Shakopee, And SMSC
Prior Lake, Shakopee, and the SMSC will use the Outlet Channel to convey storm water
from their respective drainage areas tributary to the Outlet Channel as specified in
Table I, or Table I as subsequently modified in accordance with Section 10.3, and for
no other purposes. Prior Lake, Shakopee, and the SMSC must not convey storm water
to the Outlet Channel from acres not specified in Table I, or Table I as subsequently
modified in accordance with Section 10.3.
Table 1: Outlet Channel Tributary Drainage Areas in Acres (downstream of
Prior Lake)
Outlet Channel Watershed Prior Lake Shako pee SMSC2 Subtotal
Segment District1
1 NA 658 0 28 686
2 NA 261 0 3 264
3 NA 1,147 93 5 1,245
4 NA 805 2,443 1,989 5,237
5 NA 0 748 8 756
6 NA 0 937 250 1,187
7 NA 0 1,407 0 1,407
8 NA 0 101 0 101
Total NA 2,871 5,729 2,283 10,883
1 The Watershed District's contribution to the Outlet Channel is not dependent on
drainage area; it is based on a maximum release rate through the Outlet Structure of 65
cfs as provided in Section 5.3.
2 Includes Fee Land and Trust Land.
6.3 Maximum Average Discharge Rates
The Watershed District, Prior Lake, Shakopee, and the SMSC will not discharge storm
water to the outlet channel at rates in excess of the maximum average discharge rate or
rates set for each in this Section 6.3 ("Maximum Average Discharge Rate(s)").
A. Maximum Average Discharge Rate For Watershed District. The Watershed
District's Maximum Average Discharge Rate is its maximum release rate for water
through the Outlet Structure to the Outlet Channel as provided in Section 5.3 and as
shown in Table 2.
B. Maximum Average Discharge Rates For Prior Lake, Shakopee, And SMSC.
Prior Lake, Shakopee, and the SMSC will not discharge storm water to any Outlet
Channel segment from drainage areas in their respective jurisdictions tributary to
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 17
DRAFT: 4/30/07
that segment at a rate that exceeds their respective Maximum Average Discharge
Rates for that segment as specified in Table 2, or Table 2 as modified in accordance
with Sections 6.6 or 10.3. As stated in Table 2, the Maximum Average Discharge
Rates are based on the lOO-Year Rainfall Event. For example in Segment 4: Prior
Lake cannot discharge storm water from its 805 acres of tributary drainage area at a
rate that exceeds 0.25 cfs per acre; Shakopee cannot discharge storm water from its
2,443 acres of tributary drainage area at a rate that exceeds 0.10 cfs per acre; and
the SMSC cannot discharge storm water from its 1,989 acres of tributary drainage
area at a rate that exceeds 0.05 cfs per acre.
Table 2: Maximum Average Discharge Rates to Outlet Channel Segments
Project Cooperator Maximum Average Discharge Rate
to Outlet Channel per Acre for
100- Year Rainfall Event
Watershed District 65.00 CfSl
Prior Lake 0.25 cfs/acre2
Shakopee: south (upstream) of Dean Lake,
except 124.61 acres directly tributary to 0.1 0 cfs/acre2
Outlet Channel Segment 5
Shakopee: north (downstream) of Dean Lake,
plus 124.61 acres directly tributary to Outlet 0.25 cfs/acre2
Channel Segment 5
SMSC 0.05 cfs/acre2
1 The Watershed District's Maximum Average Discharge Rate to the Outlet Channel is
not an average rate per acre; it is the District's maximum release rate through the
Outlet Structure of 65 cfs as provided in Section 6.3A.
2 Each Maximum Average Discharge Rate was provided by the respective Project
Cooperator.
6.4 Verifying Watershed District's Maximum Average Discharge Rate
On an annual basis, the Watershed District will provide to the other Project Cooperators
a summary of the operating records and any monitoring data for the Outlet Structure to
show the release rates through the Outlet Structure for the previous calendar year and
will certify that its release rates did not exceed the Maximum Average Discharge Rate
specified in Section 6.3A. and Table 2. If the Watershed District cannot make this
certification, it will describe the reason for the failure to certify and the extent of any
exceedance.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 18
DRAFT: 4/30/07
6.5 Verifying Other Tributary Acreages And Maximum Average Discharge Rates
,
On an annual basis, Prior Lake, Shakopee, and the SMSC will each verify to the other
Project Cooperators that its use of the Outlet Channel conforms to the tributary drainage
acreages and Maximum Average Discharge Rates specified in Sections 6.2 and 6.3 as
follows.
A. Information To Be Provided. Prior Lake, Shakopee, and the SMSC will each
provide a summary of the following for tributary drainage areas in their respective
jurisdictions.
(1) The tributary drainage acres developed by Outlet Channel segment before the
Effective Date. Acreage in Prior Lake and Shakopee will be considered
developed before the Effective Date if the preliminary plat for the
development was approved by Prior Lake or Shakopee prior to the Effective
Date. SMSC Fee Land or Trust Land Acreage will be considered developed if
the SMSC General Council or Business Council approved the development
before the Effective Date.
(2) The tributary drainage acres developed by Outlet Channel segment after the
Effective Date.
(3) The tributary drainage acres remaining to be developed by Outlet Channel
segment based on each Project Cooperator's current comprehensive plan or
equivalent.
(4) The Projected Discharge Rate by Outlet Channel segment for tributary
drainage areas developed after the Effective Date.
(5) The Projected Discharge Rate by Outlet Channel segment for any tributary
drainage area redeveloped after the Effective Date.
(6) An explanation of any discharge rate offsets within an Outlet Channel
segment for tributary drainage areas redeveloped at a discharge rate higher
than the area's Projected Discharge Rate when first developed. For example,
if a low density residential area is redeveloped as a commercial area, the
Project Cooperator must show how one or more Projected Discharge Rates
will be reduced elsewhere in the tributary drainage area to offset the rate
increase associated with commercial development.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 19
DRAFT: 4/30/07
(7) A calculation of the Projected Average Discharge Rate for each Outlet
Channel segment that includes all tributary drainage areas developed after the
Effective Date; and
(8) An explanation of how future development will be managed within each
Outlet Channel segment to ensure conformance with the tributary drainage
acreages and Maximum Average Discharge Rates specified in Sections 6.2
and 6.3.
(9) The formula that the Project Cooperators will use to calculate the Projected
Average Discharge Rates for each Outlet Channel Segment and example
calculations are attached as Exhibit C.
B. Use Of Monitoring Data. As an alternative to calculating a Projected Average
Discharge Rate for any Outlet Channel segment, Prior Lake, Shakopee, or the
SMSC may provide the monitored, actual discharge rate for one or more segments
using monitoring methods that are consistent with U.S. Geological Survey
standards, subject to approval by the Watershed District.
C. Certification
(1) Prior Lake, Shakopee, and the SMSC will each certify the following for
tributary drainage areas in their respective jurisdiction:
a. The tributary drainage acres by Outlet Channel segment do not exceed
those specified in Table 1; and
b. The Projected Average Discharge Rate or monitored actual discharge rate
for each Outlet Channel segment does not exceed the Maximum Average
Discharge Rate specified in Section 6.2 for each Outlet Channel segment.
(2) If Prior Lake, Shakopee, or the SMSC, cannot make this certification, it will
describe the reason for the failure to certify and the extent of any exceedance.
6.6 Exceeding Maximum Discharge Rates And Changes To Address Exceedances
A. Options To Address An Excess Discharge Rate. If a Project Cooperator exceeds
its tributary drainage acres as specified in Section 6.2 or its Maximum Average
Discharge Rate as specified in Section 6.3 for any Outlet Channel segment or
wishes to modify either, the Project Cooperator will either:
(1) Reduce flows elsewhere within its drainage area tributary to the Outlet
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 20
DRAFT: 4/30/07
Channel so its Maximum Average Discharge Rate as specified in Section 6.3
is not exceeded, or
(2) Assuming the Project Cooperator obtains all applicable approvals:
a. If the Project is still under Construction, revise the Conceptual Design to
increase the Outlet Channel Design flow to handle the increased
Maximum Average Discharge Rate, and pay all Design Costs,
Construction Costs, Operation And Maintenance Costs, and Emergency
Maintenance Costs for increasing the Outlet Channel Design flow; or
b. If the Project is complete, make all improvements or undertake any
Maintenance to the Outlet Channel necessary to handle the increased
Maximum Average Discharge Rate and pay all Design Costs, Construction
Costs, Operation And Maintenance Costs, and Emergency Maintenance
Costs for the increased Maximum Average Discharge Rate.
B. MOA To Be Amended
(1) For Reduced Flows To Address An Exceedance. If a Project Cooperator
decides to reduce flows elsewhere within its drainage area tributary to the
Outlet Channel,
a. It will sign the necessary amendments to this MOA to implement and
require the flow reduction, and
b. It will request that the Watershed District incorporate the amendments into
this MOA, subject to approval by the other Project Cooperators in the
form of signed amendments.
(2) For Improvements Or Maintenance To Address An Exceedance. If a Project
Cooperator decides to make improvements to, or undertake Maintenance of,
the Outlet Channel:
a. It will sign the necessary amendments to this MOA to incorporate the
increased Maximum Average Discharge Rate and to pay for all Design
Costs, Construction Costs, Operation And Maintenance Costs, and
Emergency Maintenance Costs for that increased Maximum Average
Discharge Rate; and
b. It will request that the Watershed District incorporate the amendments into
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 21
DRAFT: 4/30/07
this MOA, subject to approval by the other Project Cooperators in the
form of signed amendments.
ARTICLE 7. CONSTRUCTION OF OUTLET CHANNEL RESTORATION AND
ENHANCEMENT PROJECT
7.1 Design Flows
The Outlet Channel needs restoration and enhancement to stabilize the channel banks
and ensure adequate capacity for existing and future storm water conveyance needs.
The final Design for each segment of the Outlet Channel Restoration And Enhancement
Project will be consistent with the Conceptual Design and will provide sufficient
capacity for the Outlet Channel's expected flows ("Design Flows") specified in
Table 3, which are based on the 2- Year Rainfall Event plus 65 cfs of release through the
Outlet Structure.
Table 3: Outlet Channel Restoration and Enhancement Project
Design Flows by Segment
Outlet Channel Channel Design Flows
Segment (2- Year Rainfall Event plus 65 cfs
release through Outlet Structure)
1 118 cfs
2 141 cfs
3 112 cfs
4 174 cfs
5 269 cfs
6 216 cfs
7 407 cfs
8 400 cfs
7.2 Project Schedule
The Design and Construction of the Outlet Channel Restoration And Enhancement
Project will occur over five years, beginning in 2005. The anticipated Construction
schedule for the Project is described in Exhibit D - Outlet Channel Design.
Construction. and Maintenance Schedule. The Watershed District in consultation with
the other Project Cooperators may alter the Construction schedule but will not extend
Project completion beyond 2009, subject to approval by the other Project Cooperators
in writing. To the extent possible as it builds the Project, the Watershed District will
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 22
DRAFT: 4/30/07
schedule Construction activities to coordinate with the subdivision and development of
land adjacent to the Outlet Channel.
7.3 Project Design
The Watershed District will lead, coordinate, and if necessary, make final decisions on
the Design of the Outlet Channel RestorationAnd Enhancement Project. To begin, the
Watershed District will consult with the Project Cooperators and prepare plans and
specifications for each Outlet Channel segment that conform to the Conceptual Design
considering both generally acceptable engineering practices for drainage projects and
Best Storm Water Management Practices. Next, the Watershed District will furnish the
Project Cooperators with complete copies ofthe plans and specifications for each
segment of the Outlet Channel. Then, the Project Cooperators will comment on the
plans and specifications and may request modifications to them within 60 days of
receipt. If a Project Cooperator provides comments or requests modifications, the
Watershed District will endeavor to address the comments and incorporate the
modifications into the plans and specifications. However, if situations arise where the
Watershed District receives comments or modifications that are inconsistent with the
Outlet Channel Design Flows, the Conceptual Design, or with other comments or
requested modifications, to avoid delays in the Project, the Watershed District's
determination on questions of Design will be conclusive and Article 15 will not apply.
7.4 Project Construction By Watershed District Or Other Project Cooperators
A. Construction By Watershed District. The Watershed District will Construct the
Outlet Channel Restoration and Enhancement Project in accordance with Outlet
Channel final segment plans developed under Section 7.3. Also, the Watershed
District will Construct the Project in conformance with all applicable laws and will
obtain all permits and approvals required for the Construction activities by any
governmental unit having jurisdiction over the Outlet Channel, including Prior
Lake, Shakopee, the SMSC, the Lower Minnesota Watershed District, the DNR, the
U.S. Army Corps of Engineers, and the U.S. Environmental Protection Agency. If
any permit or approval requires modification of a final segment plan developed
under Section 7.3, the Watershed District can make the required modification. The
Watershed District will notify the other Project Cooperators ofthe change prior to
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 23
DRAFT: 4/30/07
the start of Construction but need not submit the modified plans to the other Project
Cooperators for review and comment.
B. Construction By Other Project Cooperators. A Project Cooperator other than the
Watershed District may Construct a segment of the Outlet Channel Restoration And
Enhancement Project earlier than specified in Exhibit D as follows.
(1) Segment To Be Constructed According To Developed Plan
a. If a plan has been developed for that Outlet Channel segment under
Section 7.3, the Project Cooperator will Construct the segment in
accordance with the plan. Any change to the plan will be subject to
approval by the Watershed District.
b. If no plan has been developed for that Outlet Channel segment under
Section 7.3, the Project Cooperator will consult with the Watershed
District and prepare plans and specifications for the segment. Next the
Project Cooperator will furnish the Watershed District with complete
copies of the plans and specifications. The Watershed District will
approve the plans and specifications or request modifications to them
within 60 days of receipt. If modifications are requested, the Proj ect
Cooperator will incorporate them into the plans and specifications and
resubmit them to the Watershed District. The Watershed District will
approve the resubmitted plans and specifications or request modifications
to them within 30 days of receipt. This process will be repeated until the
Watershed District approves the plans and specifications or until an
impasse is reached. lfthe Project Cooperator and the Watershed District
reach impasse, then to the extent the Watershed District determines the
plans and specifications are inconsistent with the Outlet Channel Design
Flows or the Conceptual Design, the Watershed District's determination
will be conclusive, and Article 15 will not apply. After approval by the
Watershed District, the Project Cooperator may build the segment in
accordance with the approved plans and specifications.
c. The Project Cooperator will Construct the segment in conformance with
all applicable laws and will obtain all permits and approvals required for
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 24
DRAFT: 4/30/07
the Construction activities by any governmental unit having jurisdiction
over the Outlet Channel, including Prior Lake, Shakopee, the SMSC, the
Watershed District, the Lower Minnesota Watershed District, the DNR,
the U.S. Army Corps of Engineers, and the U.S. Environmental Protection
Agency. If any permit or approval requires modification of a final
segment plan developed under Section 7.3, the Project Cooperator will not
commence work until the modification has been incorporated into the
plan, subject to approval by the Watershed District.
(2) Reimbursement To Be Delayed. If a Project Cooperator Designs or Constructs
a Project segment earlier than specified in Exhibit D, it will temporarily pay
all Design Costs and Construction Costs of that segment because other Project
Cooperators are not obligated to provide their cost-share earlier than if the
segment had been built according to the schedule in Exhibit D. Design Costs
and Construction Costs incurred by a Project Cooperator beyond its cost-share
allocation will be paid from the Design And Construction Fund after the other
Project Cooperators have paid their cost-share allocations for that segment,
subject to approval by the Watershed District after it receives an itemized
statement of those costs from the Project Cooperator.
7.5 Use Of The Outlet Channel During Construction And Vegetation Establishment
The Outlet Channel will continue to be used by the Project Cooperators for storm water
conveyance while the Outlet Channel Restoration And Enhancement Project is under
Construction and before vegetation is fully established. During Construction and until
vegetation is established, the Watershed District will install and Maintain erosion
controls using Best Storm Water Management Practices. Construction efforts will be
sequenced to protect downstream resources. Despite these efforts, a situation may arise
that results in a downstream impact following a large rainfall or other runoff or
weather-related event. In the event of a downstream impact, the Project Cooperators
will work together to remediate the impact and will include that work as an element of
the overall Outlet Channel Restoration And Enhancement Project, subject to the cost-
share allocation in Section 10.2.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 25
DRAFT: 4/30/07
7.6 Construction Cost Participation
Throughout the entire MOA term, the Project Cooperators will pay all Design Costs and
Construction Costs of the Outlet Channel Restoration And Enhancement Project
according to the cost-share allocation in Section 10.2 using the Design And
Construction Fund established in Section 10.4.
ARTICLE 8. ACQUISITION AND USE OF OUTLET CHANNEL EASEMENTS
8.1 Acquisition By Dedication, Purchase, Or Right-of-Way Grant
To the extent possible, the Project Cooperators will obtain the necessary easements for
Construction of the Outlet Channel Restoration And Enhancement Project and the
ongoing Operation and Maintenance of the Outlet Channel:
A. By dedication pursuant to the Prior Lake and Shakopee subdivision ordinances if
land containing a portion of the Outlet Channel or needed easements is developed or
redeveloped during this MOA's term;
B. Through the grant of easements on Fee Land if the SMSC purchases Fee Land that
includes a portion of the Outlet Channel or needed easements during this MOA's
term; or
C Through the grant of rights-of-way over Trust Land by the United States
Government, if the SMSC purchases Trust Land that includes a portion of the
Outlet Channel or needed easements during this MOA's term.
8.2 Acquisition By Purchase Or Condemnation In Prior Lake Or Shakopee
If the Construction timing for the Outlet Channel Restoration And Enhancement Project
requires obtaining easements prior to subdivision, the Watershed District will negotiate
for and acquire through purchase or condemnation the necessary Outlet Channel
easements within the municipal boundaries of Prior Lake and Shakopee. In acquiring
the easements, the Watershed District will comply with Minnesota Statutes
Chapters 103D and 117.
A. Assistance By Prior Lake. If the Watershed District determines that condemnation
proceedings are required to acquire an easement in Prior Lake, the Watershed
District will notify Prior Lake, and Prior Lake will assist the Watershed District in
pursuing condemnation. In that event, all legal proceedings will be brought in the
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 26
DRAFT: 4/30/07
joint name of the Watershed District and Prior Lake by the Prior Lake City
Attorney. Prior Lake will be solely responsible for all legal fees of its City
Attorney.
B. Assistance By Shakopee
(1) Easement Within Watershed District's Legal Boundaries. lfthe Watershed
District determines that condemnation proceedings are required to acquire an
easement in Shakopee and the easement is within the Watershed District's
legal boundaries, Shakopee will cooperate with and assist the Watershed
District in pursuing condemnation. The legal proceedings will be brought in
the joint name of the Watershed District and Shakopee by the Shakopee City
Attorney. Shakopee will be solely responsible for all legal fees of its City
Attorney.
(2) Easement Outside Watershed District's Legal Boundaries. If the Watershed
District determines that condemnation proceedings are required to acquire an
easement in Shakopee and the easement is outside the Watershed District's
legal boundaries, Shakopee will undertake the condemnation action, and the
Watershed District will cooperate with and assist Shakopee. The legal
proceedings will be brought by the Shakopee City Attorney in the joint name
of the Watershed District and Shakopee if permissible under applicable law, or
in the name of Shakopee for the benefit of the Watershed District and
Shakopee. Shakopee will be solely responsible for all legal fees of its City
Attorney.
c. Uses 01 And Title To Easements. Easements acquired by the Watershed District
will be for drainage purposes over, under, and across the affected properties.
However, the Watershed District, Prior Lake, Shakopee, or the SMSC may acquire
an easement for purposes in addition to drainage as provided in Section 8.5. In
Prior Lake, title to the easements will be acquired in the joint names of the
Watershed District and Prior Lake. In Shakopee, title to the easements will be
acquired in the joint names of the Watershed District and Shakopee.
8.3 Acquisition Of Easements Or Rights-Of-Way On Fee Land Or Trust Land
The SMSC could acquire Fee Land or Trust Land that includes a portion of the Outlet
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 27
DRAFT: 4/30/07
Channel or needed easements before Construction of the Outlet Channel Restoration
And Enhancement Project takes place on that portion of the Outlet Channel. If this
happens and if the Watershed District needs an easement or right-of-way to build the
Project on the Fee Land or Trust Land, the SMSC will provide an easement over Fee
Land or will cooperate with the Watershed District to request a right-of-way grant from
the United States Government over Trust Land. If the SMSC grants an easement over
Fee Land, title will be held in the joint names of the Watershed District and the SMSC.
8.4 Easement Acquisition Costs
Throughout the entire MOA term, the Project Cooperators will pay all easement
acquisition costs of the Outlet Channel Restoration And Enhancement Project according
to the cost-share allocation in Section 10.2 using the Design And Construction Fund
established in Section lOA. However, if Prior Lake or Shakopee acquire an easement
for the Outlet Channel by dedication, the Project Cooperator acquiring or granting the
easement or approving the grant of right-of-way will receive no cost reimbursement for
the value ofthe easement. Ifthe SMSC grants an easement on Fee Land or if the
United States Government grants a right-of-way over Trust Land, the SMSC will
receive cost reimbursement based on the SMSC's acquisition cost of that portion of the
Fee Land subject to the easement, or Trust Land subject to the right-of-way.
8.5 Additional Authorized Easement Uses
A. Project Cooperators May Use Easements. Subject to the limitations of specific
Outlet Channel easements, Prior Lake and Shakopee may use Outlet Channel
easements in their respective jurisdictions for the Construction, Emergency
Maintenance, Operation, Maintenance, repair, reconstruction, and removal of trails
and underground utilities (individually, a "Public Service Activity," and
collectively "Public Service Activities"), including nature and recreational trails,
electricity, natural gas, sanitary sewer, storm sewer, telephone and other
communications, and water. In no event will any Public Service Activity interfere
with or otherwise restrict the drainage function of the Outlet Channel. If the
Watershed District reasonably believes a Public Service Activity will do so, it may
refuse to allow a Public Service Activity in a specific easement. Upon completion
of any Public Service Activity in an Outlet Channel easement by Prior Lake or
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 28
DRAFT: 4/30/07
Shakopee, it will restore the Outlet Channel to its previous condition, unless some
alteration of the Outlet Channel was approved by the Watershed District as part of
the Public Service Activity.
B. Plan Submission And Approval. Before using an Outlet Channel easement in its
jurisdiction for Public Service Activities, Prior Lake or Shakopee will obtain
approval from the Watershed District for its proposed use. To begin, Prior Lake or
Shakopee will consult with the Watershed District and prepare plans for the Public
Service Activities. Next Prior Lake or Shakopee will furnish the Watershed District
with complete copies of the plans and specifications for the Public Service
Activities. The Watershed District will approve the plans and specifications or
request modifications to them within 60 days of receipt. If modifications are
requested, Prior Lake or Shakopee will incorporate the modifications into the plans
and specifications and resubmit them to the Watershed District. The Watershed
District will approve the resubmitted plans and specifications or request
modifications to them within 30 days of receipt. This process will be repeated until
the Watershed District approves the plans or specifications or until an impasse is
reached. If Prior Lake or Shakopee and the Watershed District reach impasse, then
to the extent the Watershed District determines the plans and specifications are
inconsistent with the Outlet Channel Design Flows or the Conceptual Design, the
Watershed District's determination will be conclusive, and Article 15 will not
apply.
C. Implement Public Service Activities In Accordance With Plan. After approval by
the Watershed District, Prior Lake or Shakopee may implement the Public Service
Activities in accordance with the approved plans and specifications. The Project
Cooperator will implement the Public Service Activities in conformance with all
applicable laws and will obtain all permits and approvals required for the Public
Service Activities. If any permit or approval requires modification of the approved
plans and specifications, the Project Cooperator will not implement the Public
Service Activities until the modification has been incorporated into the plans and
specifications, subject to approval by the Watershed District.
D. Expanded Size Or Use Of Easements Yet To Be Acquired. If Prior Lake or
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 29
DRAFT: 4/30/07
Shakopee anticipate using an Outlet Channel easement yet to be acquired for Public
Service Activities, and if the easement will be larger than required to implement the
Conceptual Design or will be acquired for more than drainage purposes, then Prior
Lake or Shakopee will inform the Watershed District of the need for the larger
easement or broader purpose when the Design process for the affected segment
begins under Section 7.3. The Watershed District will then endeavor to incorporate
the larger easement or broader purpose in the plans and specifications for the
affected segment that are furnished to the Project Cooperators under Section 7.3.
The Project Cooperator requesting the larger easement or broader purpose will
comment on that portion of the plans and specifications relating to the easement size
and purpose and may request modifications to these portions within the time
provided in Section 7.3. The Watershed District will endeavor again to address the
comments and incorporate the modifications into the plans and specifications.
However, ifthe Watershed District determines that the larger easement or broader
purpose is inconsistent with the Outlet Channel Design Flows or the Conceptual
Design, or will delay the Project, the Watershed District's determination will be
conclusive, and Article 15 will not apply.
E. Costs To Be Borne By Those Conducting Public Service Activities. Prior Lake or
Shakopee will be solely and exclusively responsible for all costs related to their
respective Public Services Activities on Outlet Channel easements, including:
(1) Costs incurred by Prior Lake or Shakopee to Design, Construct, Operate, and
Maintain the Public Service Activities;
(2) Outlet Channel Restoration And Enhancement Project acquisition costs,
Design Costs, and Construction Costs related to an easement acquired under
Section 8.5D. to the extent those costs exceed the estimated acquisition costs,
Design Costs, and Construction Costs for an easement that was not larger than
required to implement the Conceptual Design and that did not include
purposes other than drainage;
(3) Outlet Channel Operation And Maintenance Costs and Emergency
Maintenance Costs related to an easement acquired under Section 8.5D. to the
extent those costs exceed the estimated Operation And Maintenance Costs and
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 30
DRAFT: 4/30/07
Emergency Maintenance Costs for an easement that was not larger than
required to implement the Conceptual Design and that did not include
purposes other than drainage;
(4) Outlet Channel Operation And Maintenance Costs and Emergency
Maintenance Costs related to any Public Service Activities; and
F. Claims Arising From Public Service Activities. Prior Lake or Shakopee will be
solely and exclusively responsible for all Claims arising out of or in connection with
their Public Service Activities, or with any trail or underground utility placed in an
Outlet Channel easement as a part of their Public Service Activities.
ARTICLE 9. OPERATION AND MAINTENANCE OF OUTLET CHANNEL
9.1 General
Following the completion of each segment of the Outlet Channel Restoration And
Enhancement Project, annual Operation and Maintenance activities will be necessary to
monitor the status of the Outlet Channel and ensure the stability and continued
performance of the Outlet Channel. In addition, Emergency Maintenance may be
required following significant or sustained flows or other events.
9.2 Preparation Of Maintenance Plans
The Watershed District will lead, coordinate, and if necessary, make final decisions on
plans and specifications for Maintenance of the Outlet Channel. To begin, the
Watershed District will consult with the Project Cooperators and prepare plans and
specifications for Maintenance of each Outlet Channel segment that preserve the
Conceptual Design considering generally acceptable engineering practices for drainage
systems and Best Storm Water Management Practices. Next, the Watershed District
will furnish the Project Cooperators with complete copies of the plans and
specifications for the Maintenance activities. The Project Cooperators will comment on
the plans and specifications or request modifications to them within 60 days of receipt.
If a Project Cooperator provides comments or requests modifications, the Watershed
District will endeavor to address the comments and incorporate the modifications into
the plans and specifications. However, if situations arise where the Watershed District
receives comments or modifications that are inconsistent with the Outlet Channel
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 31
DRAFT: 4/30/07
Maintenance needs, the Conceptual Design, or with other comments or requested
modifications, to avoid delays in Outlet Channel Maintenance, the Watershed District's
determination on Maintenance questions will be conclusive, and Article 15 will not
apply.
9.3 Operation And Maintenance By Watershed District Or Other Project
Cooperators
A. Watershed District To Operate And Maintain Outlet ChanneL The Watershed
District will Operate and Maintain the Outlet Channel in accordance with the Outlet
Channel final segment Maintenance plans developed under Section 9.2. The
Watershed District will do so in conformance with all applicable laws and will
obtain all permits and approvals required for Operation and Maintenance activities
by any governmental unit having jurisdiction over the Outlet Channel, including
Prior Lake, Shakopee, the SMSC, the Lower Minnesota Watershed District, the
DNR, the U.S. Army Corps of Engineers, and the U.S. Environmental Protection
Agency. If any permit or approval requires modification of a final segment
Maintenance plan developed under Section 9.2, the Watershed District can make the
required modification. The Watershed District will notify the other Project
Cooperators of the change prior to the start of Maintenance but need not submit the
modified plans to the other Project Cooperators for review and comment.
B. Annual Inspection. Each year, the Watershed District will inspect the Outlet
Channel as required in the Outlet Operating Plan. If an inspection reveals changed
conditions in any Outlet Channel segment that warrant changes in that segment's
Maintenance plan, the Watershed District will amend the segment Maintenance plan
using the procedure in Section 9.2. If an inspection reveals that Emergency
Maintenance is required, the Watershed District will undertake Emergency
Maintenance as provided in Section 9.4.
C. Operation Or Maintenance By Other Project Cooperators. The Watershed
District may contract with or enter into a delegation agreement with other Project
Cooperators to Operate or Maintain Outlet Channel segments within that Project
Cooperator's jurisdiction. The contract or delegation agreement will specify the
method for documenting Operation And Maintenance Costs incurred by the Project
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 32
DRAFT: 4/30/07
Cooperator to the Watershed District and for payment of the Project Cooperator.
All Operation or Maintenance undertaken by other Project Cooperators will be in
accordance with the Outlet Channel segment Maintenance plans developed under
Section 9.2. The Project Cooperator will Operate or Maintain Outlet Channel
segments in conformance with all applicable laws and will obtain all permits and
approvals required for Operation or Maintenance by any governmental unit having
jurisdiction over the Outlet Channel, including Prior Lake, Shakopee, the SMSC,
the Watershed District, the Lower Minnesota Watershed District, the DNR, the U.S.
Army Corps of Engineers, and the U.S. Environmental Protection Agency. Ifany
permit or approval requires modification of a final segment Maintenance plan
developed under Section 9.2, the Project Cooperator will not commence work until
the modification has been incorporated into the Maintenance plan, subject to
approval by the Watershed District. The Operation And Maintenance Costs
incurred by the Project Cooperator will be paid from the Operation And
Maintenance Fund, or be counted as a credit against the Project Cooperator's next
Operation And Maintenance Fund payment, subject to approval by the Watershed
District after it receives an itemized statement of those costs from the Project
Cooperator.
9.4 Emergency Maintenance By Watershed District Or Other Project Cooperators
A. Watershed District To Perform Emergency Maintenance. Whenever the need for
Emergency Maintenance arises, the Watershed District will respond promptly and
perform the necessary work. To the extent possible under the circumstances,
Emergency Maintenance will conform to the Maintenance plan for the Outlet
Channel segment in which the Emergency Maintenance occurs. The Watershed
District will perform the Emergency Maintenance in conformance with all
applicable laws and will obtain all permits and approvals required for Emergency
Maintenance activities by any governmental unit having jurisdiction over the Outlet
Channel, including Prior Lake, Shakopee, the SMSC, the Lower Minnesota
Watershed District, the DNR, the U.S. Army Corps of Engineers, and the U.S.
Environmental Protection Agency.
B. Emergency Maintenance By Other Project Cooperators. If a Project Cooperator
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 33
DRAFT: 4/30/07
discovers the need for Emergency Maintenance, it will communicate the emergency
to the Watershed District immediately. If the Watershed District is unavailable or
unable to complete the Emergency Maintenance, a Project Cooperator may perform
the Emergency Maintenance, which will, to the extent possible under the
circumstances, conform to the Maintenance plan for the Outlet Channel segment in
which the Emergency Maintenance occurs. The Project Cooperator will perform
the Emergency Maintenance in conformance with all applicable laws and will
obtain all permits and approvals required for Operation or Maintenance by any
governmental unit having jurisdiction over the Outlet Channel, including Prior
Lake, Shakopee, the SMSC, the Watershed District, the Lower Minnesota
Watershed District, the DNR, the U.S. Army Corps of Engineers, and the U.S.
Environmental Protection Agency. When circumstances allow, the Project
Cooperator undertaking the Emergency Maintenance will provide the other Project
Cooperators with 24 hours notice of the Emergency Maintenance; however, the
Project Cooperator is entitled to move forward with the Emergency Maintenance
regardless of response from the other Project Cooperators. The Emergency
Maintenance Costs incurred by the Project Cooperator will be paid from the
Emergency Maintenance Fund, or be counted as a credit against the Project
Cooperator's next Emergency Maintenance Fund payment, subject to approval by
the Watershed District after it receives and approves an itemized statement ofthose
costs from the Project Cooperator.
9.5 Operation and Maintenance Cost Participation
A. Operation And Maintenance Costs. Throughout the entire MOA term, the Project
Cooperators will pay all Operation And Maintenance Costs for the Outlet Channel
according to the cost-share allocation in Section 10.2 using the Operation And
Maintenance Fund established in Section 10.5.
B. Emergency Maintenance Costs. Throughout the entire MOA term, the Project
Cooperators will pay all Emergency Maintenance Costs for the Outlet Channel as
specified in Article lOusing the Emergency Maintenance Fund established in
Section 10.6. But if a discharge exceeding the Maximum Average Discharge Rates
in Table 2 causes conditions requiring Emergency Maintenance, then the Project
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 34
DRAFT: 4/30/07
Cooperator whose discharge exceeds its Maximum Average Discharge Rate will
pay all related Emergency Maintenance Costs and Claims. If multiple discharges
exceeding the Maximum Average Discharge Rates in Table 2 cause conditions
requiring Emergency Maintenance, then the Project Cooperators whose discharges
exceed their Maximum Average Discharge Rates will pay all related Emergency
Maintenance Costs and Claims in amounts proportional to their excess discharges.
ARTICLE 10. OUTLET CHANNEL COST SHARING AND FUNDING
I
10.1 Estimated Costs
Exhibit E - Nine Year Estimate of Outlet Channel Design. Construction. and Operation
And Maintenance Costs presents the estimated cost to each Project Cooperator for
Design and Construction ofthe Outlet Channel Restoration And Enhancement Project
and the first ten years of Operation and Maintenance of the Outlet Channel. These
estimates will change as the Project Cooperators develop final plans and specifications
for the Project and for Operation and Maintenance of the Outlet Channel.
10.2 Cost-Share Allocation
A. Design And Construction Cost-Share Allocation. Except as otherwise specifically
provided in this MOA, all Design Costs and Construction Costs for the Outlet
Channel Restoration And Enhancement Project for a specific Outlet Channel
segment will be allocated to the Project Cooperators according to the Outlet
Channel segment cost-share allocation in Table 4 for that Outlet Channel Segment,
or in Table 4 as modified in accordance with Sections 6.6 or 10.3.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 35
DRAFT: 4/30/07
Table 4. Cost-Share Allocation for Outlet Channel
Cost-Share for Each Project Cooperator
Outlet Channel by Outlet Segment1
Segment Watershed Prior Lake Shakopee SMSC
District
1 88.4% 11.2% 0.0% 0.4%
2 84.6% 15.0% 0.0% 0.4%
3 69.9% 27.7%2 2.0% 0.4%
4 37.8% 20.9% 29.5% 11.8%
5 34.1 % 18.8% 36.4% 10.7%
6 35.7% 19.7% 32.0% 12.6%
7 30.0%3 16.5% 43.0% 10.5%
8 29.6% 16.3% 43.7%4 10.4%
Total 49.5% 17.8% 25.1 % 7.6%
1 For all segments, except as noted below, the cost-share percentages were rounded to
the nearest tenth by rounding up numbers equal to or greater than x.x5, and by
rounding down numbers equal to or less than x.x4. Segments noted below were
rounded as indicated, so each segment will total 100%.
2 In Segment 3, the Prior Lake cost-share was rounded from 27.756% to 27.7 %.
3 In Segment 7, the Watershed District cost-share was rounded from 29.946% to 30.0%.
4
In Segment 8, the Shakopee cost-share was rounded from 43.647% to 43.7%.
B. Operation, Maintenance, And Emergency Maintenance Cost-Share Allocation
(1) For Specific Channel Segments. Operation And Maintenance Costs and
Emergency Maintenance Costs for a specific Outlet Channel segment will be
allocated to the Project Cooperators according to the Outlet Channel segment
cost-share allocation in Table 4 for that Outlet Channel Segment, or in Table 4
as modified in accordance with Sections 6.6 or 10.3.
(2) For Entire Outlet Channel. Operation And Maintenance Costs and
Emergency Maintenance Costs for the overall Outlet Channel (for example,
annual inspection costs and the annual Emergency Maintenance Fund
payments) will be allocated to the Project Cooperators according to the
"Total" cost-share allocation in Table 4, or Table 4 as modified in accordance
with Sections 6.6 or 10.3.
C. Cost-Share Allocation Formula. The formula used to calculate the cost-share
allocation is more particularly described in Exhibit F - Calculation Method for
Cost-Chare Allocation and will be used to recalculate the cost-share allocation when
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 36
DRAFT: 4/30/07
required by other Provisions of this MOA.
10.3 Revisions To Cost-Share Allocations Due To Changes In Tributary Drainage
Areas
If any Project Cooperator's tributary drainage area changes by more than 40 acres, the
Watershed District will recalculate that Project Cooperator's cost-share allocations,
arrange for reimbursement of past costs, and amend this MOA as follows:
A. Recalculation And Payment Of Future Cost-Share Allocations. As to Outlet
Channel Restoration And Enhancement Project Design Costs and Construction
Costs and Outlet Channel Operation and Maintenance Costs and Emergency
Maintenance Costs incurred subsequent to a change in tributary drainage area, the
following Provisions will apply.
(1) Cost Recalculation
a. The Watershed District will recalculate the cost-share allocation according
to the method described in Exhibit F to reflect the change in tributary
drainage area and to document the change in Maximum Average
Discharge Rate associated with change in the tributary drainage area. For
any tributary drainage area changing jurisdictions, the Maximum Average
Discharge Rate will be the Maximum Average Discharge Rate originally
associated with the tributary drainage area.
b. In addition, the Watershed District will amend this MOA to incorporate
the recalculation including any necessary changes to Tables I, 2, and 4,
subject to approval by the other Project Cooperators in the form of signed
amendments.
(2) Payment O/Cost-Share Allocations. All Design Costs, Construction Costs,
Operation And Maintenance Costs, and Emergency Maintenance Costs
incurred after the change in tributary drainage area will be borne by the
Project Cooperators according to the cost-share allocations recalculated under
Section lOJA.(1). If the change in tributary drainage area results in an overall
discharge to that Outlet Channel segment in excess of the acquiring Project
Cooperator's Maximum Average Discharge Rate for that segment as specified
in Table 2 (recalling that the Maximum Average Discharge Rate for tributary
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 37
DRAFT: 4/30/07
section changing jurisdictions will be the same as originally provided for that
tributary drainage area as required by Section 10.3A.(1)a.), the Project
Cooperator acquiring the additional area will address the excess discharge in
accordance with Section 6.6.
B. Calculation And Reimbursement Of Past Cost-Shares. As to Outlet Channel
Restoration And Enhancement Project Design Costs, Construction Costs, and Outlet
Channel Operation And Maintenance Costs incurred before a change in tributary
drainage area, the following Provisions will apply.
(1) Cost Calculation. The Watershed District will calculate those Design Costs,
Construction Costs, and Operation And Maintenance Costs as follows:
a. Calculate the Design Costs, Construction Costs, and Operation And
Maintenance Costs incurred before the change in tributary drainage area
for the Outlet Channel segment affected by change; and
b. Calculate the proportion of the Design Costs, Construction Costs, and
Operation And Maintenance Costs attributable to the tributary drainage
area that is changing jurisdictions, based on the size of the tributary
drainage area change relative to the size ofthe total segment drainage area
based on Table I and the Maximum Average Discharge Rate for the
tributary drainage area changing jurisdictions from Table 2 using the
Maximum Average Discharge Rate originally associated with the drainage
area.
(2) Cost Reimbursement. The Project Cooperator acquiring the tributary drainage
area will reimburse the Project Cooperator from which the area was acquired
for the proportional Construction Costs and Operation And Maintenance Costs
calculated under Section 1O.3B.(1).
(3) Example. Exhibit G - Drainage Area Recalculation Example provides an
example calculation to address a change in tributary drainage area.
10.4 Creation Of Design And Construction Fund And Payment Of Construction Cost-
Share Allocations
A. Design And Construction Fund Creation And 2006 Payments. Within ten days
after the Approval Date, the Watershed District will establish a fund for the Design
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 38
DRAFT: 4/30/07
Costs and Construction Costs of the Outlet Channel Restoration And Enhancement
Project (the "Design And Construction Fund"). Within 30 days after the
Approval Date, the Project Cooperators will deposit into the Design And
Construction Fund their respective 2006 Design And Construction Fund payments
in the amounts shown on Exhibit H - 2006 Fund Payments. The 2006 Design And
Construction Fund payments will include Design Costs and Construction Costs
incurred for the Outlet Channel Restoration And Enhancement Project from
January I, 2004, to December 31, 2006, in anticipation of this MOA. These costs
are shown on Exhibit H.
B. 2007 And Subsequent Annual Payments To Design And Construction Fund.
Ninety days after the Initial Meeting, in February of2008, and in February of each
succeeding calendar year until the Design And Construction Fund is closed, each
Project Cooperator will pay into the Design And Construction Fund its share of the
Design And Construction Budget for that calendar year and any deficiency from the
previous year, according to the cost-share allocation in Section 10.2. For example,
in February of2008, each Project Cooperator will pay into the Design And
Construction Fund its share of the Design And Construction Budget for 2008 and its
share of any deficiency in the Design And Construction Fund at the end of 2007.
C. Design And Construction Fund Administration. The Design And Construction
Fund will be administered by the Watershed District in accordance with the
following Provisions.
(1) Authorized Payments. The Watershed District may use the Design And
Construction Fund at any time to pay Design Costs or Construction Costs for
the Outlet Channel Restoration And Enhancement Project, including Design
Costs and Construction Costs incurred for the Outlet Channel Restoration And
Enhancement Project from January 1,2004, to the Effective Date in
anticipation of this MOA, and to pay any Project Cooperator who acts under
and complies with Section 7.4B.
(2) Consistency With Budget. The Design and Construction expenditures will be
consistent with the budget developed during the Annual Meeting. Any
variation from the budget of more than ten percent is subject to approval by all
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 39
DRAFT: 4/30/07
the Project Cooperators in writing.
(3) Year End Reconciliation. Following the end of a calendar year and before
January 31st of the next year, the Watershed District will provide the Project
Cooperators with a detailed accounting of the Design And Construction Fund
for the previous year. If any funds remain at calendar year end, the Watershed
District will allocate the funds as credits to the Project Cooperators according
to the cost-share allocation in Section 10.2. The Watershed District will then
subtract the credits from the following year's Design Cost and Construction
Cost payments owed by the Project Cooperators. If a deficit exists at calendar
year end, the Watershed District will allocate the deficit among the Project
Cooperators as deficiencies according to the cost share allocation in
Section 10.2 and will add the deficiencies to the following year's Design
Costs and Construction Cost payments owed by the Project Cooperators. The
Project Cooperators will pay the deficiencies as provided in Section 10AB.
(4) Interest To Remain In Fund. All interest earned by the Design. And
Construction Fund will remain in the Fund to pay future Design Costs and
Construction Costs.
D. Closing The Design And Construction Fund. After Design and Construction of
the Outlet Channel Restoration And Enhancement Project and the completion of all
Design and Construction contracts and obligations, the Watershed District will
prepare and furnish to the Project Cooperators a final accounting report for the
Design And Construction Fund and close it as follows.
(1) Distribution Of Excess Funds. If any funds remain, the Watershed District
will allocate the funds as a refund to the Project Cooperators according to the
cost-share allocation in Section 10.2. The Watershed District will then pay the
refunds to the Project Cooperators, or at a Project Cooperator's direction, will
apply the refund as a credit against that Project Cooperator's next annual
Operation And Maintenance Fund payment.
(2) Payment Of Any Deficit. If a deficit exists, the Watershed District will
allocate the deficit among the Project Cooperators according to the cost share
allocation in Section 10.2 and will invoice each Project Cooperator its share of
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 40
DRAFT: 4/30/07
the deficit. Each Project Cooperator will pay the Watershed District within
120 days after receipt of the invoice.
10.5 Creation Of Operation And Maintenance Fund And Payment Of Operation And
Maintenance Cost-Share Allocations
A. Operation And Maintenance Fund Creation And 2006 Payments. Within ten days
after the Approval Date, the Watershed District will establish a fund to pay the
Operation And Maintenance Costs of the Outlet Channel (the "Operation And
Maintenance Fund"). Within 30 days after the Approval Date, the Project
Cooperators will pay into the Operation And Maintenance Fund their respective
2006 Operation And Maintenance Fund payments in the amounts shown on
Exhibit H.
B. 2007 And Subsequent Annual Payments To Operation And Maintenance Fund.
Ninety days after the Initial Meeting, in February of 2008, and in February of every
succeeding calendar year, each Project Cooperator will pay into the Operation And
Maintenance Fund its share of the Operation And Maintenance Budget for that
calendar year and any deficiency from the previous year, according to the cost-share
allocation in Section 10.2. For example, in February of2008, each Project
Cooperator will pay into the Operation And Maintenance Fund its share of the
Operation And Maintenance Budget for 2008 and its share of any deficiency in the
Operation And Maintenance Fund at the end of 2007.
C Operation And Maintenance Fund Administration. The Operation And
Maintenance Fund will be administered by the Watershed District in accordance
with the following Provisions.
(1) Authorized Payments. The Watershed District may use the Operation And
Maintenance Fund at any time to pay Operation And Maintenance Costs of the
Outlet Channel and to pay any Project Cooperator who acts under and
complies with Section 9.3C.
(2) Consistency With Budget. The Operation and Maintenance expenditures will
be consistent with the budget developed during the Annual Meeting. Any
variation from the budget of more than ten percent is subject to approval by all
the Project Cooperators in writing.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 41
DRAFT: 4/30/07
(3) Year End Reconciliation. Following the end of a calendar year and before
January 31st of the next year, the Watershed District will provide the Project
Cooperators with a detailed accounting of the Operation And Maintenance
Fund for the previous year. If any funds remain at calendar year end, the
Watershed District will allocate the funds as credits to the Project Cooperators
according to the cost~share allocation in Section 10.2. The Watershed District
will then refund the credits, or at a Project Cooperator's direction, will
subtract the credit from that Project Cooperator's next annual Operation And
Maintenance Fund payment. If a deficit exists at calendar year end, the
Watershed District will allocate the deficit among the Project Cooperators as
deficiencies according to the cost share allocation in Section 10.2 and will add
the deficiencies to the following year's Operation And Maintenance Fund
payments for the Project Cooperators. The Project Cooperators will pay the
deficiencies as provided in Section 1O.5B.
(4) Interest To Remain In Fund. All interest earned by the Operation And
Maintenance Fund will remain in the Fund to pay future Operation And
Maintenance Costs.
10.6 Creation Of Emergency Maintenance Fund And Payment Of Emergency
Maintenance Cost-Share Allocations
A. Emergency Maintenance Fund Creation And 2006 Payments. The Project
Cooperators will create a $250,000 fund to provide a stable source for Emergency
Maintenance along the Outlet Channel (the "Emergency Maintenance Fund").
Within ten days after the Approval Date, the Watershed District will establish the
Emergency Maintenance Fund. Within 30 days after the Approval Date, the Project
Cooperators will pay into the Emergency Maintenance Fund their respective 2006
Emergency Maintenance Fund payments in the amounts shown on Exhibit H.
B. 2007 Through 2010 Annual Payments To Emergency Maintenance Fund. Ninety
days after the Initial Meeting, in February of2008, and in February of each
succeeding calendar year through 2010, each Project Cooperator will pay into the
Emergency Maintenance Fund its share ofthe $50,000 annual payment for that
calendar year according to the cost-share allocation in Section 10.2. For example,
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 42
DRAFT: 4/30/07
in February of2008, each Project Cooperator will pay into the Emergency
Maintenance Fund its share of the $50,000 annual payment for 2008.
e. Emergency Maintenance Fund Administration. The Emergency Maintenance
Fund will be administered by the Watershed District in accordance with the
following Provisions.
(1) Authorized Payments. The Watershed District may use the Emergency
Maintenance Fund at any time to pay Emergency Maintenance Costs of the
Outlet Channel and to pay any Project Cooperator who acts under and
complies with Section 9.4B.
(2) Year End Report. Following the end of a calendar year and before
January 31st ofthe next year, the Watershed District will provide the Project
Cooperators with a detailed accounting of the Emergency Maintenance Fund
for the previous year.
(3) Replenishment Of Fund When Emergency Maintenance is performed on an
Outlet Channel segment, the Watershed District will replenish the Emergency
Maintenance Fund by invoicing the Project Cooperators using that segment in
an amount equal to the Emergency Maintenance Costs plus an inflation factor
equal to the Engineering News Record Construction Cost Index calculated
using 2006 as the base year, according to the cost-share allocation in
Section 10.2. If Emergency Maintenance occurs on or before December 31,
2010, the Project Cooperators will pay the invoiced amounts within 60 days.
If Emergency Maintenance occurs on or after January 1,2011, the Project
Cooperators will pay the invoice before the end of the February following
receipt of the invoice.
(4) Interest To Remain In Fund. All interest earned by the Emergency
Maintenance Fund will remain in the Fund to pay future Emergency
Maintenance Costs.
10.7 General Fund Administration And Recordkeeping
In addition to the specific fund administration requirements in Sections lOA, 10.5, and
10.6, the Watershed District will administer the Design And Construction Fund,
Operation And Maintenance Fund, and Emergency Maintenance Fund according to the
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 43
DRAFT: 4/30/07
following Provisions.
A. Accounts To Conform To Statutory Requirements. Funds will be retained in
accounts that conform to the requirements of Minnesota Statutes Chapter 118A.
B. Retention And Inspection Of Records. The Watershed District will retain all
financial records for the Funds for a period of six years following the completion of
any work. The Project Cooperators may inspect the books and records maintained
by the Watershed District for the Outlet Channel during normal business hours.
e. Quarterly Reports. The Watershed District will provide quarterly fund balance
statements for each Fund to the Project Cooperators.
D. Annual Audit. The Watershed District will include the Funds in its annual audit,
provide a copy of the audit to the Project Cooperators, and, upon request, will make
these financial records available for review or audit by any Project Cooperator.
E. Reimbursement Of Watershed District. The Watershed District will be reimbursed
from the Operation And Maintenance Fund for the actual staff costs and accounting
fees associated with maintaining financial records and reporting to the Project
Cooperators and others about the Design And Construction Fund, Operation And
Maintenance Fund, and Emergency Maintenance Fund.
SECTION 11. PROJECT COOPERATOR MEETINGS
11.1 General Provisions
A. Representation At Meetings. Each Project Cooperator will designate an individual
and an alternative to serve as representatives and attend Project Cooperator
meetings.
B. Meetings Open And Noticed. All meetings of the Project Cooperators will be
noticed and open to the public in accordance with the requirements of applicable
law governing any Project Cooperator.
e. Quorum. No business may be conducted at a meeting unless representatives of
three Project Cooperators are present.
D. Voting. Each Project Cooperator will have one vote, and any action requires the
vote of three Project Cooperators.
E. Conduct Of Meeting. Meetings will be conducted in accordance with this MOA's
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 44
DRAFT: 4/30/07
Provisions and the latest edition of Robert's Rules of Order. If a conflict arises
between this MOA's Provisions and Robert's Rules of Order, this MOA will
control. The Watershed District's representative will serve as chair.
11.2 Annual Meeting And Failure To Agree On Budgets
Beginning in March of 2008 and in March of each succeeding calendar year, the
Watershed District will convene a coordination and planning meeting of the Project
Cooperators (the "Annual Meeting").
A. Annual Meeting Activities. At the Annual Meeting, the Project Cooperators will:
(1) Review the previous year's activities;
(2) Discuss the Design and Construction planned for the Outlet Channel
Restoration And Enhancement Project in the next calendar year;
(3) Discuss the Operation and Maintenance planned for the Outlet Channel in the
next calendar year;
(4) Review any completed or requested modifications to the cost-share
allocations;
(5) Review the status of the Design And Construction Fund, the Operation And
Maintenance Fund, and the Emergency Maintenance Fund;
(6) Refine the Construction Costs and the Operation And Maintenance Costs
based on the most recent data;
(7) Approve a budget for Design Costs and Construction Cost for the next
calendar year ("Design And Construction Budget"); and
(8) Approve a budget for Operation And Maintenance Costs for the next calendar
year ("Operation And Maintenance Budget").
B. Failure To Agree On Budgets.
(1) Failure To Agree On Design And Construction Budget. If for any reason, the
Project Cooperators fail to agree on a Design And Construction Budget for the
Outlet Channel Restoration And Enhancement Project, the annual estimate
from Exhibit E plus an inflation factor equal to the Engineering News Record
Construction Cost Index calculated using the year 2006 as the base year will
apply to the next year, and the annual contributions of each Project Cooperator
will be based on the annual estimate as adjusted.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 45
DRAFT: 4/30/07
(2) Failure To Agree On Operation And Maintenance Budget. If for any reason,
the Project Cooperators fail to agree on an Operation And Maintenance
Budget for the Outlet Channel, the Operation And Maintenance Budget for the
prior year plus an inflation factor equal to the Engineering News Record
Construction Cost Index calculated using the year 2006 as the base year will
apply to the next year, and the annual contributions of each Project Cooperator
will be based on the prior year's budget as adjusted.
11.3 Initial Meeting
Within 45 days after the Approval Date, the Watershed District will convene a meeting
of the Project Cooperators ("Initial Meeting"). The meeting purpose will be to adopt
the 2007 Design And Construction Budget and the 2007 Operation And Maintenance
Budget. If for any reason, the Project Cooperators fail to agree on one or both budgets,
the budget or budgets as presented by the Watershed District will be deemed adopted
and the 2007 Design And Construction Fund, Operating And Maintenance Fund, and
Emergency Maintenance Fund payments of each Project Cooperator will be based on
that budget.
11.4 Other Meetings
Other Project Cooperator meetings may be called by the Watershed District or by a
written request to the Watershed District signed by any two Project Cooperators.
ARTICLE 12. SECURITY FOR PAYMENT OF SMSC COST -SHARE ALLOCATIONS
12.1 SMSC To Provide Letters Of Credit
As security for the payment of the SMSC's cost-share allocations under Article 10, the
SMSC will provide the Watershed District with letters of credit as follows.
A. SMSC Construction Letters Of Credit For Design And Construction Fund
(1) Initial SMSC Design And Construction Letter Of Credit. When the SMSC
signs this MOA, it will provide the Watershed District with an initial SMSC
Design And Construction Letter Of Credit in the amount of225% of the
SMSC's 2006 Design And Construction Fund payment as shown on
Exhibit H. This initial SMSC Design And Construction Letter Of Credit will
name the Watershed District as beneficiary, will be issued for a term of 18
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 46
DRAFT: 4/30/07
months, and will be in addition to the SMSC's 2006 Design And Construction
Fund payment as shown on Exhibit H.
(2) Annual SMSC Design And Construction Letters Of Credit. Beginning in
2007 and continuing in February of every succeeding calendar
year until the Design And Construction Fund is closed, the SMSC will provide
the Watershed District with a SMSC Design And Construction Letter Of
Credit in the amount of225% of the SMSC's Design And Construction Fund
payment for that calendar year. Each SMSC Design And Construction Letter
Of Credit will name the Watershed District as beneficiary, will be issued for a
term of 18 months, and will be in addition to the SMSC's payment to the
Design And Construction Fund for the calendar year.
B. SMSC Operating Letters Of Credit For Operation And Maintenance Fund
(1) Initial SMSC Operation And Maintenance Letter Of Credit. When the SMSC
signs this MOA, it will provide the Watershed District with an initial SMSC
Operation And Maintenance Letter Of Credit in the amount of 225% of the
SMSC's 2006 Operation And Maintenance Fund payment as shown on
Exhibit H. This initial SMSC Operation And Maintenance Letter Of Credit
will name the Watershed District as beneficiary, will be issued for a term of
18 months, and will be in addition to the SMSC's 2006 Design And
Construction Fund payment as shown on Exhibit H.
(2) Annual SMSC Operation And Maintenance Letters Of Credit. Beginning in
2007 and continuing in February of every succeeding calendar
year, the SMSC will provide the Watershed District with a SMSC Operation
And Maintenance Letter Of Credit in the amount of225% of the SMSC's
Operation And Maintenance Fund payment for that calendar year. Each
SMSC Operation And Maintenance Letter Of Credit will name the Watershed
District as beneficiary, will be issued for a term of 18 months, and will be in
addition to the SMSC's payment to the Operation And Maintenance Fund for
the calendar year.
(3) SMSC Can Combine Design And Construction And Operating And
Maintenance Letters of Credit. With the approval of the Watershed District,
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 47
DRAFT: 4/30/07
the SMSC may combine the initial SMSC Design And Construction Letter of
Credit and the SMSC Operation And Maintenance Letter Of Credit, or any
subsequent annual set of these letters of credit, into one letter of credit.
C. SMSC Emergency Maintenance Letters Of Credit For Emergency Maintenance
Fund. When the SMSC signs this MOA, it will provide the Watershed District
with a SMSC Emergency Maintenance Letter Of Credit in the amount of$IOO,OOO.
This SMSC Emergency Maintenance Letter Of Credit will name the Watershed
District as beneficiary, will be issued for a term acceptable to the Watershed
District, and will either renew automatically or be replaced by the SMSC not less
than three months before its expiration. This SMSC Emergency Maintenance Letter
Of Credit will be in addition to the SMSC's payments to the Emergency Operation
And Maintenance Fund in 2006 through 2010, will be in addition to any payments
made to replenish the Emergency Maintenance Fund under Section 1O.6C.(3), and
will be provided for as long as this MOA continues in force.
12.2 Drawing Against SMSC Cost Share Letters Of Credit
A. Basis For Cost Share Draw And Use Of Draw
(1) Failure To Pay Construction Cost Share Allocation. If the SMSC fails to pay
any cost share allocation to the Design And Construction Fund when due, the
Watershed District may draw on any outstanding SMSC Design And
Construction Letter Of Credit for the amount due using the process under
Section 12.2B. and will apply the draw to pay the amount due.
(2) Failure To Provide SMSC Design And Construction Letter Of Credit. Ifthe
SMSC fails to provide a SMSC Design And Construction Letter Of Credit
when due, the Watershed District may draw the full amount of any
outstanding SMSC Design And Construction Letter of Credit using the
process under Section 12.2B. The Watershed District will hold the draw in
escrow and use it to pay any SMSC cost share allocation to the Design And
Construction Fund if the SMSC fails to pay it when due.
(3) Failure To Pay Operating Cost Share Allocation. If the SMSC fails to pay
any cost share allocation to the Operation And Maintenance Fund when due,
the Watershed District may draw on any outstanding SMSC Operation And
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 48
DRAFT: 4/30/07
Maintenance Letter Of Credit for the amount due using the process under
Section 12.2B. and will apply the draw to pay the amount due.
(4) Failure To Provide SMSC Operation And Maintenance Letter Of Credit. If
the SMSC fails to provide a SMSC Operation And Maintenance Letter Of
Credit when due, the Watershed District may draw the full amount of any
outstanding SMSC Operation And Maintenance Letter of Credit using the
process under Section 12.2B. The Watershed District will hold the draw in
escrow and use it to pay any SMSC cost share allocation to the Operation And
Maintenance Fund if the SMSC fails to pay it when due.
(5) Failure To Pay Emergency Maintenance Cost Share Allocation. If the SMSC
fails to make a payment to the Emergency Maintenance Fund as provided in
Section 1O.6B. or fails to replenish the Emergency Maintenance Fund as
provided in Section 1O.6C.(3), the Watershed District may draw on the
outstanding SMSC Emergency Maintenance Letter Of Credit for the amount
due using the process under Section 12.2B. and will apply the draw to pay the
amount due.
(6) Failure To Provide SMSC Emergency Maintenance Letter Of Credit. If the
SMSC fails to provide a SMSC Emergency Maintenance Letter Of Credit
when due, the Watershed District may draw the full amount of the outstanding
SMSC Emergency Maintenance Letter of Credit using the process under
Section 12.2B. The Watershed Districtwill hold the draw in escrow and use it
to pay a SMSC annual payment or replenishment payment to the Emergency
Maintenance Fund if the SMSC fails to pay it when due.
(7) SMSC Insolvency or Dissolution
a. If the SMSC becomes insolvent or admits in writing its inability to pay
debts as they come due, if the SMSC applies for or consents to the
appointment of a trustee or receiver, if in the absence of such application
or consent, a trustee or receiver is appointed for SMSC, or if any
proceeding under any bankruptcy or insolvency law or any dissolution or
liquidation proceeding is instituted by or against SMSC, then the
Watershed District may immediately draw the full amount of any
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 49
DRAFT: 4/30/07
outstanding SMSC Design And Construction Letter of Credit, SMSC
Operation And Maintenance Letter Of Credit, and SMSC Emergency
Maintenance Letter Of Credit. The Watershed District will hold the draws
in escrow and use them to pay any SMSC cost share allocation to the
Design And Construction Fund or the Operation And Maintenance Fund,
or annual payment or replenishment payment to the Emergency
Maintenance Fund, if the SMSC fails to pay them when due.
b. If the SMSC disputes the Watershed's District's draws under this
Section 12.2A.(7), the SMSC may invoke the dispute resolution process in
Article 15 after the draw has been made. While dispute resolution is
ongoing under Article 15, the Watershed District will not disburse any
funds received as a result of draws under this Section 12.2A.(7).
c. However, as to any funds drawn on an SMSC Emergency Maintenance
Letter Of Credit and subject to dispute resolution under this
Section 12.2A.(7), the Watershed District may disburse the funds if an
Emergency Maintenance activity becomes necessary and if the Emergency
Maintenance Fund does not contain sufficient funds to pay for the activity
because the SMSC has failed to make any required payment to the
Emergency Maintenance Fund. If the dispute resolution process
determines the Watershed District should not have drawn on the
Emergency Maintenance Letter Of Credit, the Watershed District will
repay to the SMSC any funds disbursed under this Section 12.2A.(7)c.
B. Cost Share Draw Process. If the Watershed District seeks to draw on any SMSC
letter of credit under Section 12.2B.(1)-(6), the Watershed District will give the
SMSC a 30-day notice of its intent to draw specifying the reason for the draw and
the letter of credit to be drawn against. However, if the letter of credit has less than
60 days remaining before it expires, the notice period will be one-half the number of
days remaining in its term. If the notice period expires without the SMSC paying
the amount in default or providing the necessary letter of credit, the Watershed
District may draw on the specified letter of credit for the amount noticed.
C. Letter Of Credit Replacement After Draw. Within 30 days after a draw occurs on
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 50
DRAFT: 4/30/07
any SMSC letter of credit provided under Section 12.1, the SMSC will replace the
letter of credit if drawn in full or, if partially drawn, restore the letter of credit to its
full amount, and give notice to the Project Cooperators that it has done so. If after a
partial draw the SMSC does not restore a letter of credit to its full amount, the
Watershed District may draw on the letter of credit for the full amount remaining
using the process under Section 12.2B. The Watershed District will hold the draw
in escrow and use it to pay any SMSC cost share allocation to the Design And
Construction Fund or the Operation And Maintenance Fund, or annual payment or
replenishment payment to the Emergency Maintenance Fund, if the SMSC fails to
pay them when due.
D. No Draw During Dispute Resolution. If the SMSC disputes the amount in default
or tries to prevent the Watershed District from drawing on a SMSC letter of credit,
either party may invoke the dispute resolution process in Article 15. While dispute
resolution involving the SMSC is ongoing under Article 15, no draw may be made
on any SMSC letter of credit securing the disputed payment except as follows.
(1) Letter Of Credit Expiration. If any SMSC letter of credit securing a disputed
payment will expire before resolution of the dispute under Article 15, the
SMSC will extend or replace the SMSC letter of credit as required by this
MOA. If the SMSC fails to do so, the Watershed District may draw on the
SMSC letter of credit as provided in Section 12.2A. using the process in
Section 12.2B. The Watershed District will hold the draw in escrow, and in
addition to the uses allowed under Section 12.2B., the Watershed District will
disburse funds in accordance with the outcome of the dispute resolution
process.
(2) SMSC Insolvency Or Dissolution. If the Watershed District determines it has
the right to draw on a SMSC letter of credit securing a disputed payment
under Section 12.2A.(7), it may do so as provided in that Section.
(3) Lack Of Funds In Emergency Maintenance Fund. If Emergency Maintenance
becomes necessary and if the Emergency Maintenance Fund does not contain
sufficient funds to pay for the activity because the SMSC has failed to make
any required payment to the Emergency Maintenance Fund, the Watershed
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 51
DRAFT: 4/30/07
District may draw on an Emergency Maintenance Letter Of Credit and
disburse funds to pay for the Emergency Maintenance activity. If the dispute
resolution process determines the Watershed District should not have drawn
on the Emergency Maintenance Letter Of Credit, the Watershed District will
repay to the SMSC any funds disbursed under this Section 12.2D.(3).
ARTICLE 13. INDEMNIFICATION
13.1 Watershed District Indemnification Of Prior Lake, Shakopee, And SMSC
Subject to the limitations of Minnesota Statutes Chapter 466, the Watershed District
will defend, indemnify, and hold Prior Lake, Shakopee, and the SMSC harmless from
Claims arising out of or in connection with: any Design or Construction by the
Watershed District of the Outlet Structure Repair Project or the Outlet Channel
Restoration And Enhancement Project, or any portion of either; any Operation,
Maintenance, or Emergency Maintenance by the Watershed District of the Outlet
Structure or Outlet Channel; or any failure by the Watershed District to comply with
this MOA's Provisions. Under no circumstances, however, will the Watershed District
be required to pay any amounts in excess of the limits on liability established in
Minnesota Statutes Chapter 466 applicable to anyone Project Cooperator. Claims may
not be aggregated to exceed the statutory limits afforded by Minnesota Statutes
Chapter 466.
13.2 Prior Lake Indemnification Of Watershed District, Shakopee, And SMSC
A. Prior Lake General Indemnity. Subject to the limitations of Minnesota Statutes
Chapter 466, Prior Lake will defend, indemnify, and hold the Watershed District,
Shakopee, the SMSC, and their respective elected and appointed officials,
employees, and agents harmless from Claims arising out of or in connection with:
any Design or Construction by Prior Lake of any portion of the Outlet Channel
Restoration And Enhancement Project; any Operation, Maintenance, or Emergency
Maintenance by Prior Lake of the Outlet Channel; any Public Service Activity by
Prior Lake; or any failure by Prior Lake to comply with this MOA's Provisions.
Under no circumstances, however, will Prior Lake be required to pay any amounts
in excess of the limits on liability established in Minnesota Statutes Chapter 466
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 52
DRAFT: 4/30/07
applicable to anyone Project Cooperator. Claims may not be aggregated to exceed
the statutory limits afforded by Minnesota Statutes Chapter 466.
B. Prior Lake Indemnity For Public Service Activities. Subject to the limitations of
Minnesota Statutes Chapter 466 as modified in this Section 13.2B., Prior Lake will
defend, indemnify, and hold the Watershed District, Shakopee, the SMSC, and their
respective elected and appointed officials, employees, and agents harmless from
Claims arising out of or in connection with Prior Lake's Public Service Activities or
with any trail or underground utility placed in an Outlet Channel easement as part of
Prior Lake's Public Service Activities. Prior Lake understands that under
Minnesota Statutes ~ 466.03, subd. 6.e., Prior Lake is not subject to tort liability for
Claims arising out of or in connection with any trail placed in an Outlet Channel
easement as part of Prior Lake's Public Service Activities or the Public Service
Activities necessary to Design, Construct, Operate, and Maintain any trail.
Nevertheless, for the purpose of the indemnity provided in this Section 13.2B. only
and up to the limits on liability established in Minnesota Statutes Chapter 466 only,
Prior Lake waives its sovereign immunity. Under no circumstances, however, will
Prior Lake be required to pay any amounts in excess of the limits on liability
established in Minnesota Statutes Chapter 466 applicable to anyone Project
Cooperator. Claims may not be aggregated to exceed the statutory limits afforded
by Minnesota Statutes Chapter 466.
13.3 Shakopee Indemnification Of Watershed District, Prior Lake, And SMSC
A. Shakopee General Indemnity. Subject to the limitations of Minnesota Statutes
Chapter 466, Shakopee will defend, indemnify, and hold the Watershed District,
Prior Lake, the SMSC, and their respective elected and appointed officials,
employees, and agents harmless from Claims arising out of or in connection with:
any Design or Construction by Shakopee of any portion of the Outlet Channel
Restoration And Enhancement Project; any Operation, Maintenance, or Emergency
Maintenance by Shakopee of the Outlet Channel; any Public Service Activity by
Shakopee; or any failure by Shakopee to comply with this MOA's Provisions.
Under no circumstances, however, will Shakopee be required to pay any amounts in
excess of the limits on liability established in Minnesota Statutes Chapter 466
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 53
DRAFT: 4/30/07
applicable to anyone Project Cooperator. Claims may not be aggregated to exceed
the statutory limits afforded by Minnesota Statutes Chapter 466.
B. Shakopee Indemnity For Public Service Activities. Subject to the limitations of
Minnesota Statutes Chapter 466 as modified in this Section 13.3B., Shakopee will
defend, indemnify, and hold the Watershed District, Prior Lake, the SMSC, and
their respective elected and appointed officials, employees, and agents harmless
from Claims arising out of or in connection with Shakopee's Public Service
Activities or with any trail or underground utility placed in an Outlet Channel
easement as part of Shako pee's Public Service Activities. Shakopee understands
that under Minnesota Statutes ~ 466.03, subd. 6.e., Shakopee is not subject to tort
liability for Claims arising out of or in connection with any trail placed in an Outlet
Channel easement as part of Shakopee's Public Service Activities or the Public
Service Activities necessary to Design, Construct, Operate, and Maintain any trail.
Nevertheless, for the purpose of the indemnity provided in this Section 13.3B. only
and up to the limits on liability established in Minnesota Statutes Chapter 466 only,
Shakopee waives its sovereign immunity. Under no circumstances, however, will
Shakopee be required to pay any amounts in excess of the limits on liability
established in Minnesota Statutes Chapter 466 applicable to anyone Project
Cooperator. Claims may not be aggregated to exceed the statutory limits afforded
by Minnesota Statutes Chapter 466.
13.4 SMSC Indemnification Of Watershed District, Prior LakeJ And Shakopee
The SMSC will defend, indemnify, and hold the Watershed District, Shakopee, Prior
Lake, and their respective elected and appointed officials, employees, and agents
harmless from Claims arising out of or in connection with: any Design or Construction
by the SMSC of any portion of the Outlet Channel Restoration And Enhancement
Project; any Operation, Maintenance, or Emergency Maintenance by the SMSC ofthe
Outlet Channel; any Public Service Activity by the SMSC; or any failure by the SMSC
to comply with this MOA's Provisions. Under no circumstances, however, will the
SMSC be required to pay any Claims from which Minnesota municipalities are immune
under Minnesota Statutes Chapter 466 or any amounts in excess of the limits on liability
for Minnesota municipalities established in Minnesota Statutes Chapter 466 applicable
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 54
DRAFT: 4/30/07
to anyone Project Cooperator. Claims may not be aggregated to exceed the statutory
limits afforded by Minnesota Statutes Chapter 466 and this Section 13.4.
13.5 Limitation On Liability Of Project Cooperators
Notwithstanding anything to the contrary in this MOA, under no circumstances will a
Project Cooperator, including for the avoidance of doubt the SMSC, be required to pay
on behalf of itself and the other Project Cooperators any amounts in excess of the limits
on liability established in Minnesota Statutes Chapter 466 applicable to anyone Project
Cooperator. The limits ofliability for some or all of the Project Cooperators may not
be added together to aggregate or determine the maximum amount of liability for any
Project Cooperator. The intent of this Section 13.5 is to impose a limited duty to defend
and indemnify for Claims arising under this MOA subject to the limits of liability under
Minnesota Statutes Chapter 466. The purpose of creating this duty to defend and
indemnify is to simplify the defense of Claims by eliminating conflicts among
defendants, and to permit Claims against multiple defendants from a single occurrence
to be defended by a single attorney.
13.6 Insurance And Evidence Of Coverage
A. Insurance For Watershed District, Prior Lake, And Shakopee. The Watershed
District, Prior Lake, and Shakopee will maintain liability coverage with the League
of Minnesota Cities Insurance Trust ("LMCIT") under standard LMCIT liability
coverage forms for at least the amount of the maximum limit of liability under
Minnesota Statutes Section 466.04 for any number of claims arising out of a single
occurrence, as such limit may change during the term ofthis MOA. For the period
from the Effective Date through December 31, 2007, the coverage limit will be at
least $1 million per occurrence. Thereafter, the coverage limit shall change to
conform to Minnesota Statutes Section 466.04. Each Project Cooperator will name
the other three Project Cooperators as additional insureds. If insurance cannot be
obtained from the LMCIT, the Watershed District, Prior Lake, or Shakopee will
maintain private liability insurance coverage as required for the SMSC in
Section 13.6B.
B. Insurance For SMSC. The SMSC will maintain the following private liability
insurance coverage through an insurance company licensed to do business in the
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 55
DRAFT: 4/30/07
State.
(1) Commercial General Liability Coverage. The SMSC will maintain
commercial general liability coverage with a limit of at least the amount of the
maximum limit ofliability under Minnesota Statutes Section 466.04 for any
number of claims arising out of a single occurrence, as such limit may change
during the term oftms MOA. If this commercial general liability insurance
contains a general aggregate limit, the SMSC will maintain a general
aggregate limit of not less than twice the amount of coverage for each
occurrence. For the period from the Effective Date through December 31,
2007, the coverage limit will be at least $1 million per occurrence. Thereafter,
the coverage limit shall change to conform to Minnesota Statutes
Section 466.04. The commercial general liability insurance will cover liability
arising from premises, operations, independent contractors, products-
completed operations, personal injury, advertising injury, and contractually-
assumed liability. The SMSC will name the other three Project Cooperators
as additional insureds.
(2) Public Officials' Errors And Omissions Insurance. The SMSC will maintain
public officials' errors and omissions or equivalent coverage, in a form
acceptable to the Watershed District, with a limit of at least $1 million per
occurrence, and, if this insurance contains an aggregate limit, an aggregate
limit of not less than $2 million. The SMSC will name the other three Project
Cooperators as additional insureds.
C. Evidence Of Coverage And Ongoing Coverage. Each Project Cooperator will
provide the Watershed District with a certificate of insurance showing that the
required coverages are in effect, and the Watershed District will provide the other
Project Cooperators with the same evidence. No Project Cooperator will allow the
insurance required by this MOA to lapse, be canceled, be reduced in limits or
coverage, not be renewed, be changed materially, or have restrictive modifications
added during this MOA's term. In the event any Project Cooperator fails to procure
or maintain any insurance coverage required under this MOA, the Watershed
District may buy such coverage on an annual basis and add the coverage cost to the
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 56
DRAFT: 4/30/07
next annual Operation And Maintenance Fund payment due from that Project
Cooperator. If the Watershed District fails to procure or maintain any insurance
coverage required under this MOA, any other Project Cooperator may buy such
coverage on an annual basis and deduct the coverage cost from its next annual
Operation And Maintenance Fund payment.
ARTICLE 14. SECURITY FOR SMSC COMPLIANCE AND INDEMNIFICATION
14.1 SMSC Compliance And Indemnification Letter Of Credit
A. Provisions And Term. When the SMSC signs this MOA, it will provide to the
Watershed District a SMSC Compliance And Indemnification Letter Of Credit in
the amount of $2 million. This SMSC Compliance And Indemnification Letter Of
Credit will name the Watershed District, Prior Lake, and Shakopee as beneficiaries,
will be issued for a term and other Provisions acceptable to the Watershed District,
and will be replaced by the SMSC not less than three months before its expiration.
This SMSC Compliance And Indemnification Letter Of Credit will be in addition to
providing the other SMSC letters of credit required in Section 12.1, will be in
addition to maintaining the insurance coverage required in Section 13.6B, and will
be provided for as long as this MOA continues in force.
B. Adjusting Amount. Every four years after the Effective Date, the Watershed
District will calculate an inflation factor for the SMSC Compliance And
Indemnification Letter Of Credit equal to the Engineering News Record
Construction Cost Index using 2006 as the base year and sum it with $2 million to
determine a new amount for the SMSC Compliance And Indemnification Letter Of
Credit. The Watershed District will give the SMSC notice ofthis new amount and
within 30 days after receiving this notice, the SMSC will replace the outstanding
SMSC Compliance And Indemnification Letter Of Credit with a new one for the
amount specified in the notice.
14.2 Basis For Compliance Or Indemnification Draws
A. Draw For SMSC Default. If the SMSC defaults in any of its obligations under this
MOA and that default causes damage to the Outlet Channel Restoration And
Enhancement Project or another Project Cooperator, the other Project Cooperator
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 57
DRAFT: 4/30/07
may give notice of the damage and demand payment. The other Project Cooperator
will include in this notice a detailed statement of the nature ofthe default, the
damage caused, how it was caused, and the amount claimed to be owed. If after 60
days, the SMSC has not paid the amount demanded, the other Project Cooperator
may give the SMSC a 30-day notice of its intent to draw against the SMSC
Compliance And Indemnification Letter Of Credit. If the 30-day period expires
without the SMSC paying the amount demanded in the first notice, the other Project
Cooperator may draw on the SMSC Compliance And Indemnification Letter Of
Credit for the amount demanded.
B. Draw For SMSC Failure To Indemnify. If the SMSC fails to maintain insurance
coverage as required in Section 13.6B. and that failure leaves another Project
Cooperator without indemnification to which it is entitled under Section 13.4, the
other Project Cooperator may give notice to the SMSC of the failure to indemnify
and demand payment. The other Project Cooperator will include in this notice a
detailed statement of the basis and amount of the Claim on which it maintains
indemnification is owed. If after 60 days, the SMSC has not paid the amount
demanded, the other Project Cooperator may give the SMSC a 30-day notice of its
intent to draw against the SMSC Compliance And Indemnification Letter Of Credit.
If the 30-day period expires without the SMSC paying the amount demanded in the
first notice, the other Project Cooperator may draw on the SMSC Compliance And
Indemnification Letter Of Credit for the amount demanded.
C. Draw For Failure To Maintain SMSC Compliance And Indemnification Letter
Of Credit. If the SMSC fails to provide a replacement SMSC Compliance And
Indemnification Letter of Credit when due, the Watershed District may give the
SMSC a 30-day notice of its intent to draw against the SMSC Compliance And
Indemnification Letter Of Credit. However, if the letter of credit has less than 60
days remaining before it expires, the notice period will be one-half the number of
days remaining in its term. If the notice period expires without the SMSC
providing the replacement SMSC Compliance And Indemnification Letter Of
Credit, the Watershed District may draw the entire amount of the SMSC
Compliance And Indemnification Letter Of Credit. The Watershed District will
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 58
DRAFT: 4/30/07
hold the draw in escrow and use it to pay the following:
(1) Any SMSC cost-share allocation to the Design And Construction Fund or the
Operation And Maintenance Fund or annual payment or replenishment
payment to the Emergency Maintenance Fund if the SMSC fails to pay them
when due;
(2) Any damages to the Project Cooperators arising from a SMSC default in its
obligations under this MOA; or
(3) Any Claim brought against a Project Cooperator where the SMSC fails to
maintain insurance coverage as required in Section 13.6B. and that failure
leaves the Project Cooperator without indemnification to which it is entitled
under Section 13.4.
D. Draw For SMSC Insolvency or Dissolution
(1) Basis For Draw And Use. If the SMSC becomes insolvent or admits in
writing its inability to pay debts as they come due, if the SMSC applies for or
consents to the appointment of a trustee or receiver, if in the absence of such
application or consent, a trustee or receiver is appointed for SMSC, or if any
proceeding under any bankruptcy or insolvency law or any dissolution or
liquidation proceeding is instituted by or against SMSC, then the Watershed
District may immediately draw the full amount of the SMSC Compliance And
Indemnification Letter of Credit. The Watershed District will hold the draw in
escrow and use it to make any payment listed in Section 14.2C.
(2) Dispute Over Draw. If the SMSC disputes the Watershed's District's draw
under this Section 14.2D., the SMSC may invoke the dispute resolution
process in Article 15 after the draw has been made. While dispute resolution
is ongoing under Article 15, the Watershed District will not disburse any
funds received as a result of its draw under this Section 14.2D.
14.3 Letter Of Credit Replacement After Draw
Within 30 days after a draw occurs on the SMSC Compliance And Indemnification
Letter Of Credit provided under Section 14.1, the SMSC will replace the SMSC
Compliance And Indemnification Letter Of Credit if drawn in full or, if partially drawn,
restore it to its full amount and give notice to the Project Cooperators that it has done
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 59
DRAFT: 4/30/07
so. If after a partial draw the SMSC does not restore the SMSC Compliance And
Indemnification Letter Of Credit to its full amount, the Watershed District may draw on
the letter of credit for the full amount remaining using the process under Section 14.2C.
The Watershed District will hold the draw in escrow and use it to make any payment
listed in Section 14.2C.
14.4 No Draw During Dispute Resolution
If the SMSC disputes the information in a notice, the amount demanded, or a Project
Cooperator's right to draw under Sections 14.2A., B., or C., either party to the dispute
may invoke the dispute resolution process in Article 15. While dispute resolution is
occurring under Article 15, no draw may be made on the SMSC Compliance And
Indemnification Letter Of Credit except as follows.
A. Letter Of Credit Replacement. If the Watershed District determines it has the right
to draw on the SMSC Compliance And Indemnification Letter Of Credit under
Section 14.2C., it may do so as provided in that Section.
B. SMSC Insolvency Or Dissolution. If the Watershed District determines it has the
right to draw on the SMSC Compliance And Indemnification Letter Of Credit under
Section 14.2D., it may do so as provided in that Section.
ARTICLE 15. DISPUTE RESOLUTION
15.1 Policy For Resolving Disputes
The Project Cooperators acknowledge that, if disputes arise over the interpretation of
this MOA, or over the rights and obligations of the Project Cooperators under this
MOA's Provisions, such disputes will, in all likelihood, impinge on substantial rights
affecting the health and safety of the persons and property of the citizens residing
within their respective jurisdictions. The Project Cooperators also acknowledge that
any disputes will further arise under time frames that do not allow for extended
investigation or negotiations to resolve the disputes. Therefore the following dispute
procedure will apply.
15.2 Procedure For Resolving Disputes
All disputes arising out of or in connection with this MOA will be resolved as follows.
A. Dispute Notice And Initial Meeting. If a dispute arises between two or more
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 60
DRAFT: 4/30/07
Project Cooperators, any Project Cooperator involved in the dispute may send
notice of the dispute to all Project Cooperators specifying the nature of the dispute
and the parties to the dispute. Within five days after delivery of notice, a meeting
between the parties to the dispute (and any other Project Cooperator that wishes to
attend) will be held to attempt in good faith to negotiate a resolution of the dispute.
B. Mediation. If the parties to the dispute fail to resolve the dispute after a meeting, or
any additional meetings as the parties to the dispute mutually deem necessary, or if
the parties to the dispute fail to meet within five days after delivery of the notice,
the parties to the dispute will submit the dispute within five days thereafter to
mediation in accordance with Rule 114 of the Minnesota General Rules of Practice
and bear equally the costs of the mediation. The parties to the dispute will
participate in good faith in the mediation for a period of ten days, unless the parties
to the dispute mutually extend the mediation period.
C. Binding Arbitration. If the parties to the dispute are not successful in resolving the
dispute through mediation or if they fail to meet within the ten-day meeting period,
then the dispute will be resolved by binding arbitration in accordance with
Minnesota Statutes ~~ 572.08 to 572.30 as amended, and the following conditions:
(1) Selection Of Arbitrators. The dispute will be heard by a panel of four
arbitrators, one of whom will be selected by each Project Cooperator five days
after expiration of the ten-day period (or longer period if extended by written
agreement of the parties to the dispute) for mediation of the dispute. Each
Project Cooperator will select its arbitrator by giving notice of the arbitrator's
name to the other Project Cooperators. If any Project Cooperator fails to
select an arbitrator within the five-day selection period, the arbitrator will be
selected within two days after expiration of the initial selection period by the
arbitrators previously appointed by the Project Cooperators.
(2) Hearing Timing. The hearing before the arbitrators will be held within ten
days after selection of the arbitration panel, unless otherwise mutually agreed
by the parties to the dispute.
(3) Decision By Majority And Timing. A decision will be made by majority vote
of all the arbitrators. The arbitrators' decision will be rendered within 15 days
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 61
DRAFT: 4/30/07
after selection of the arbitration panel, unless otherwise mutually agreed in
writing by the parties to the dispute.
(4) Governing Law. The law governing interpretation of this MOA in any
arbitration will be the laws of the State.
(5) Costs. Each Project Cooperator will bear the costs of the arbitrator it selects
and will bear equally any other costs of the arbitration.
15.3 Enforcement Of Judgment Or Order
A. Money Judgment Involving Watershed District, Prior Lake, Or Shako pee. If the
arbitrators' decision under Section 15.2C. involves a money judgment against the
Watershed District, Prior Lake, or Shakopee, the respective Project Cooperator will
pay the money judgment within 60 days after it is issued by the arbitrators. If the
Watershed District, Prior Lake, or Shakopee fails to do so, the money judgment will
be enforceable by any other Project Cooperator in the District Court of Scott
County, Minnesota.
B. Money Judgment Or Order Involving SMSC If the arbitrators' decision under
Section 15.2C. involves a money judgment against the SMSC, the SMSC will pay
the money judgment within 60 days after it is issued by the arbitrators. If the
SMSC fails to do so, the Project Cooperator in whose favor the money judgment
was rendered may satisfy the judgment by drawing immediately upon one or more
SMSC letters of credit provided to secure the obligation upon which judgment was
rendered for the amount ofthe judgment. This right to draw is in addition to those
specified in Sections 12.2A. and 14.2.
C. Non-monetary Judgment Involving Watershed District, Prior Lake, Or Shakopee.
If the arbitrator's decision under Section 15.2C. involves a non-monetary judgment
against the Watershed District, Prior Lake, or Shakopee or a judgment about how to
interpret this MOA, the respective Project Cooperator will immediately conform to
the judgment. If the Watershed District, Prior Lake, or Shakopee fails to do so, the
judgment will be enforceable by any other Project Cooperator in the District Court
of Scott County, Minnesota.
D. Non-monetary Judgment Involving SMSC If the arbitrator's decision under
Section 15.2C. involves ajudgment about how to interpret this MOA, the SMSC
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 62
DRAFT: 4/30/07
will conform to the judgment. If the SMSC fails to conform to the judgment and
this failure causes damage to any other Project Cooperator, the failure will be
deemed a default, and the damaged Project Cooperator may proceed as provided in
Section 14.2A.
15.4 Limited Sovereign Immunity Waiver
The Project Cooperators acknowledge that the SMSC is a federally recognized Indian
tribe and that the SMSC possesses sovereign immunity from unconsented suit and other
legal proceedings, including arbitration. Despite the U.S. Supreme Court's decision in
C&L Enterprises, Inc. v. Citizen Band Potawatomi Tribe, nothing in this Agreement
shall be deemed to be an express or implied waiver of the SMSC's sovereign immunity,
except as explicitly provided in this Section 15.4.
A. Limited Waiver of Sovereign Immunity. The SMSC hereby irrevocably waives its
sovereign immunity, and all defenses based thereon, for the limited purpose of
submitting to binding arbitration as provided in Section 15.2.
B. Limitation on Recourse. Notwithstanding any other Provisions herein, any
arbitration award against the SMSC may only be for money damages and may only
be enforced and collected against one or more SMSC letters of credit provided to
secure the obligation upon which judgment was rendered.
C. Waiver of Exhaustion. The SMSC expressly waives the application of the
doctrines of exhaustion of tribal remedies, abstention, or comity and all other rights
of the SMSC that might otherwise require that claims arising from this Agreement
be heard in any of the SMSC courts (whether now or hereafter existing) or other
SMSC forums (whether now or hereafter existing) prior to the commencement of
arbitration.
ARTICLE 16. TERM AND TERMINATION
The term of this MOA is perpetual, or until otherwise expressly terminated by a unanimous
vote of the Project Cooperators. Assuming the Outlet Channel Restoration And Enhancement
Project is complete, the Watershed District's right to release 65 cfs through the Outlet Structure
and the rights of other Project Cooperators to drain areas tributary to the Outlet Channel as
described in Table I at the Maximum Average Drainage Rates described in Table 2 will
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 63
DRAFT: 4/30/07
survive this MOA's termination. Any termination will be recorded in the office of the Scott
County Recorder.
ARTICLE 17. DISTRIBUTION OF PROPERTY UPON TERMINATION
17.1 Distribution Of Property Generally
Upon this MOA's termination, all personal property acquired as a result of this MOA
will be returned to the contributing Project Cooperator. And all monies remaining in
the Design And Construction Fund, the Operation And Maintenance Fund, or the
Emergency Maintenance Fund will be returned to the Project Cooperators according to
the cost-share allocation in Section 10.2.
17.2 Conveyance Of Title To Easements Outside The Watershed District
A. Conveyance To Shakopee. Upon this MOA's termination, the Watershed District
will convey to Shakopee, all of its right, title, and interest in that portion of the
Outlet Channel lying outside of the legal boundaries of the Watershed District, east
of Pike Lake Trail or north of Scott County Road 16 within the municipal limits of
Shakopee, subject to the rights of the Watershed District and other Project
Cooperators in Article 16.
B. Conveyance To SMSC. Upon this MOA's termination, the Watershed District will
convey to the SMSC, all of its right, title, and interest in that portion of the Outlet
Channel lying outside of the legal boundary of the Watershed District, and lying
within either Trust Land or Fee Land, subject to the rights of the Watershed District
and other Project Cooperators in Article 16.
ARTICLE 18. GENERAL PROVISIONS
18.1 Counterparts
This MOA may be signed in separate counterparts, and the counterparts, taken together,
shall constitute a single agreement.
18.2 Entire Agreement, Amendment, And Waiver
This MOA and the JP A embody the entire agreement and understanding of the Project
Cooperators regarding the subject matter of this MOA and all prior agreements,
representations, statements, and understandings, oral and written, are merged in this
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 64
DRAFT: 4/30/07
MOA and the JPA by this Section 18.2. This MOA may not be altered, amended,
modified, or supplemented except in a writing signed by the Project Cooperators, which
will be effective from and after the date that it is signed by all the Project Cooperators if
an effective date is not specified. No MOA Provisions is waived unless done so in
writing and signed by the Project Cooperator against whom such waiver is asserted.
18.3 MOAlJP A Precedence
If this MOA is approved by the Secretary of the Interior, its Provisions will control the
relationship between the Project Cooperators. If this MOA is not approved by the
Secretary of the Interior, or if it is approved and terminates in the future for any reason,
the JPA's Provisions will control the relationship of the Watershed District, Prior Lake,
and Shakopee. If any conflict arises between this MOA's Provisions and the JPA and
the MOA has been approved and has not been terminated, this MOA will control.
18.4 Notices
A. Written Notice Required. Except as otherwise specifically provided in this MOA,
all notices, demands, and communications required or provided to be given under
this MOA will be in writing and will be directed as follows:
If to Watershed District: Prior Lake-Spring Lake Watershed District
Attn: District Administrator
15815 Franklin Trail SE
Prior Lake, MN 55372
If to Prior Lake: City of Prior Lake
Artn:
,MN 55_
If to Shakopee: City of Shakopee
Artn:
,MN 55_
If to the SMSC: Shakopee Mdewakanton Sioux Community
Artn: Chairman
2330 Sioux Trail NW
Prior Lake, MN 55372
B. How Notices May Be Delivered. Notices may be:
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 65
DRAFT: 4/30/07
(1) Delivered personally;
(2) Sent by nationally recognized overnight courier; or
(3) Sent by first class, certified United States Mail, return receipt requested,
postage prepaid.
C When Notices Are Effective. Notices are effective:
(1) On receipt if delivered personally;
(2) On the next business day if sent by overnight courier; or
(3) On the date shown on the receipt if mailed, unless delivery is refused or
delayed by the addressee, in which event they are deemed delivered on the
third business day following deposit in the United States Mail.
D. Changes In Notice Address. A Project Cooperator may change the address to
which notice will be delivered by notice given to all Project Cooperators. No
Project Cooperator may require notice to be delivered to more than two addresses.
18.5 No Third Party Beneficiaries
Except as otherwise specifically provided in this MOA, no rights, privileges, or
immunities of any Project Cooperator under this MOA will inure to the benefit of any
third-party, nor will any third-party be deemed to be a beneficiary of any of this MOA's
Provisions.
18.6 Successors And Assigns
This MOA binds and inures to the benefit of the legal successors and assigns of the
Project Cooperators.
SIGNED by the Watershed District, Prior Lake, Shakopee, and the SMSC to go into force on the
Approval Date as of the Effective Date.
[THE REST OF THIS PAGE LEFT BLANK INTENTIONALL Y.]
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 66
DRAFT: 4/30/07
MEMORANDUM OF AGREEMENT
SIGNATURE PAGE FOR
PRIOR LAKE-SPRING LAKE WATERSHED DISTRICT
PRIOR LAKE-SPRING LAKE WATERSHED DISTRICT
By:
, President
By:
, Secretary
STATE OF MINNESOTA)
) ss
COUNTY OF SCOTT )
On this day of ,2007, the foregoing Memorandum of
Agreement was acknowledged before me by and
, the President and Secretary respectively, of the Prior
Lake-Spring Lake Watershed District, a Minnesota political subdivision, on behalf ofthe District.
Notary Public
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 67
DRAFT: 4/30/07
MEMORANDUM OF AGREEMENT
SIGNATURE PAGE FOR
CITY OF PRIOR LAKE
CITY OF PRIOR LAKE
By:
, Mayor
By:
, City Manager
STATE OF MINNESOTA)
) ss
COUNTY OF SCOTT )
On this day of , 2007, the foregoing Memorandum of
Agreement was acknowledge before me by and
, the Mayor and City Manager respectively, of the City of
Prior Lake, a Minnesota municipal corporation, on behalf of the City.
Notary Public
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 68
DRAFT: 4/30/07
MEMORANDUM OF AGREEMENT
SIGNATURE PAGE FOR
CITY OF SHAKO PEE
CITY OF SHAKOPEE
By:
, Mayor
By:
, City Administrator
By:
, City Clerk
STATE OF MINNESOTA)
) ss
COUNTY OF SCOTT )
On this day of , 2007, the foregoing Memorandum of
Agreement was acknowledged before me by ,
, and ,
the Mayor, City Administrator, and City Clerk respectively, of the City of Shakopee, a Minnesota
municipal corporation, on behalf of the City.
Notary Public
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 69
DRAFT: 4/30/07
MEMORANDUM OF AGREEMENT
SIGNATURE PAGE FOR
SHAKOPEE MDEW AKANTON SIOUX COMMUNITY
SHAKOPEE MDEW AKANTON SIOUX COMMUNITY
By:
Stanley R. Crooks, Chairman
By:
Keith B. Anderson, Secretary/Treasurer
STATE OF MINNESOTA )
) ss
COUNTY OF SCOTT )
On this day of , 2007, the foregoing Memorandum of
Agreement was acknowledge before me by Stanley R. Crooks and Keith B. Anderson, the Chairman
and Secretary/Treasurer respectively, ofthe Shakopee Mdewakanton Sioux Community, a federally
recognized Indian tribe, on behalf of the Community.
Notary Public
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 70
DRAFT: 4/30/07
UNITED STATES DEPARTMENT OF THE INTERIOR APPROVAL
The foregoing document is approved pursuant to 25 U.S.C. 81:
UNITED STATES DEPARTMENT OF THE INTERIOR,
BUREAU OF INDIAN AFFAIRS:
By:
, Area Director of
the Area Office of the Bureau of Indian
Affairs of the Secretary of the Interior and the
Commissioner of Indian Affairs, Acting Under
Delegated Authority.
Date: ,2007
fb.us.1348l21.l6
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 71
DRAFT 4/30/07
Exhibit A - Outlet Channel Map
.
~~---
"=r- '
-----.::.:--~----
~;::::~_ v
-......,;;:...~- ~-=-----~
-/-~'=-::---
---- lET -....,... ~ T--
-" r-------.-----_.. '
cl --
It- ____ -.. .:sJ
I \1
.tJ" ~\\1~~ r
-_.) ,~
n
A~~ ~
eo G
-,~ ~ ~~~'>
""'--- 1.0-, '.,,,,
': ----f"-.~-'f~.\
I qr-- ~~\'
--.
Note that there is no defined channel --~
through Dean Lake, Pike Lake or Jeffers ! -----4-1:6.
Ponds. The channel centerline through ! E!<
these water bodies is only provided for I
station ing pu rpo se s. (
I
i
I
,---,-
I ./~.,..)
! ~o
I
L'!::J \
'" I
i Cc
0 u~ i
? .l>
I ~
~
N
Public Waters -~
(.-.-.,
i..._c_.i PLSLWD Boundary
OJ Outlet Channel Segment
_ Segment Boundary
q 0.5 I , I I ,Mles
I I I
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure A-I
Exhibit B - Outlet Channel Segment Drainage Areas
L.eQMd!
_f!tG'~~~
c:::I~~..~.....t~AIQ
-~~-
II. __IlI:_~.mI,<~
1 IL5 0 :~! lo1i,:lW a-,;.IlI.!l1l_A <_i!!~..n.."':I_~"-
~- '!:Iyllllllo_Q,:s_...,r.-.......llf~...LW
!"W-l.:r.:w:nr-....a ::r..i: ,...,
i D:=C 2!JDB
'NIridc..J.u~...,1b:.. 1SQ.~-Cw*~ =Xhlt4~ B
-=_~IibpI...,I...,IiIJl_
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure B-1
Exhibit C - Projected Average Discharge
Rate Calculation Formula and Example Calculations
1. CALCULATION FORMULA
Projected Average Discharge Rate =
Area-weighted average of the Projected Discharge Rates of individual new developments =
I [(AND/TAND) * MaxDND]
Where:
AND = acres (i.e. size) of an individual new development
TAND = total acres of all new development after the MOA effective date
Max DND = Proj ected Discharge Rate for the 100- Y ear Rainfall Event, in
cfs/acre, for each new development
2. EXAMPLE CALCULATIONS
2.1 Scenario:
Assume that Outlet Channel Segment 2 has a drainage area of 260 acres, all within Prior
Lake. A total of 60 acres was developed prior to the MOA Effective Date, and the
remaining 200 acres are developed over a three-year period following the MOA Effective
Date, as follows:
. Year I: 50 acres of commercial development at a Projected Discharge Rate of 0.5
cfs/acre.
. Year 2: 100 acres oflow-density residential development at a Projected Discharge
Rate of 0.125 cfs/acre; and 25 acres of a development that existed prior
to the MOA Effective Date is redeveloped.
. Year 3: 50 acres of medium-density residential development at a Projected
Discharge Rate of 0.25 cfs/acre.
2.2 Background Information:
. Prior Lake Maximum Average Discharge Rate (from MOA Table 2): 0.25 cfs/acre
. Projected Discharge Rate of an existing development: 0.64 cfs/acre
2.3 Annual Certification:
Given the assumptions and background information presented above, Prior Lake would
complete its annual certification for Years I, 2, and 3 following the MOA Effective Date as
follows:
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure C-l
A. Year 1:
(1) Prior Lake would report acres of land developed before the MOA Effective
Date, land developed after the MOA Effective Date, and undeveloped land as
follows:
Developed area prior to MOA: 60 acres
Developed area after MOA: 50 acres
Undeveloped area: 150 acres
(2) Prior Lake would report that no land was redeveloped in Year I.
(3) Prior Lake would present the Projected Average Discharge Rate for new
development as follows:
Proiected Average Discharge Rate
= L [(AND/TAND) * Max DND]
= [(50 acres in Year 1/50 acres total) * 0.5 cfs/acre] = 0.5 cfs/acre
(4) Prior Lake would show how it plans to manage future development on the
remaining 150 acres of undeveloped land in this Outlet Channel segment to
meet its Maximum Average Discharge Rate of 0.25 cfs/acre.
B. Year 2:
(1) Prior Lake would report the acres of land developed before the MOA Effective
Date, land developed after the MOA Effective Date, and undeveloped land as
follows:
Developed area prior to MOA: 60 acres
Developed area after MOA: 150 acres (50 acres in Year I + 100 acres in
Year 2)
Undeveloped area: 50 acres
(2) Prior Lake would note that 25 acres of developed land was redeveloped. Prior
Lake would show that the Projected Discharge Rate of the redeveloped land is
equal to or less than the Projected Discharge Rate of the developed condition
that existed on the MOA Effective Date (that is, 0.64 cfs/acre), or if the
Projected Discharge Rate of the redeveloped land exceeded 0.64 cfs/acre, Prior
Lake would show how that additional rate was offset by a reduction elsewhere
in the Segment 2 tributary drainage area.
(3) Prior Lake would present the Projected Average Discharge rate of the new
development since the MOA Effective Date as follows:
Proi ected Average Discharge Rate
= L [(AND/TAND) * Max~]
= [(50 acres in Year 1/150 acres total) * 0.5 cfs/acre] +
[(100 acres in Year 2/150 acres total) * 0.125 cfs/acre] = 0.25
cfs/acre
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure C-2
(4) Prior Lake would show how it plans to manage future development on the
remaining 50 acres of undeveloped land in this segment to meet its Maximum
Average Discharge Rate of 0.25 cfs/acre.
C. Year 3:
(1) Prior Lake would report the acres of land developed before the MOA Effective
Date, undeveloped land, and land developed after the MOA Effective Date as
follows:
Developed area prior to MOA: 60 acres (25 acres redeveloped in Year 2)
Developed area after MOA: 200 acres (50 acres Year 1 + 100 acres in
Year 2 + 50 acres in Year 3)
Undeveloped area: o acres
(2) Prior Lake would report that no land was redeveloped in Year 3.
(3) Prior Lake would present the Projected Average Discharge rate of the new
development since the MOA Effective Date as follows:
Projected Average Discharge Rate
= L [(AND/TAND) * Max DNIJ]
= [(50 acres in Year 1/200 acres total) * 0.5 cfs/acre] +
[(100 acres in Year 2/200 acres total) * 0.125 cfs/acre] +
[(50 acres in Year 3/200 acres total) * 0.25 cfs/acre] = 0.25
cfs/acre
(4) Prior Lake would note that no new development will occur in this segment.
D. After Year 3:
After Year 3, Prior Lake's future annual certifications would consist of reporting on
any redevelopment that occurs and demonstrating that the Projected Discharge Rate
of the redevelopment is equal to or less then the previous developed condition.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure C-3
Exhibit D - Outlet Channel Design. Construction. and Maintenance Schedule
Outlet Channel
Segment 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
C
1 Prior Lake To D (winter Ml Ml Ml Ml Ml M2 M2 M2 M2
CR42 05-06)
C
2 CR 42 to Pike D (winter Ml Ml Ml Ml Ml M2 M2
Lake fulet 07-08)
Pike Lake fulet C
3 to Pike Lake D (winter Ml Ml Ml Ml Ml M2 M2
Trail 07-08)
C
4 Pike Lake Trail D (winter Ml Ml Ml Ml Ml M2
to CR 16 08-09)
C
5 CR 16 to Deans D (winter Ml Ml Ml Ml Ml M2 M2 M2
Lake Outlet 06-07)
C (fall-
6 Deans Lake D winter Ml Ml Ml Ml Ml M2 M2 M2 M2
Outlet to TH 169 05-06)
C I
7 TH 169 to TH D (winter Ml Ml Ml Ml Ml M2 M2
101 07-08)
C
8 TH 101 to Blue D (winter Ml Ml Ml Ml Ml M2
Lake fulet 08-09)
Notes: D = Design; C = Construction; Ml = 0-5 yrs. Maintenance; M2 = 6+ yrs. Maintenance.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure D-l
Exhibit E - Nine Year Estimate of Outlet Channel Design,
Construction, and Operation And Maintenance Costs
The following tables present the Watershed District's estimate by Project Cooperator ofthe Outlet Channel Restoration And
Enhancement Project Design Costs and Construction Costs from 2007 through 2009, the Outlet Channel Operation And Maintenance
Costs from 2007 through 2015, and the annual contributions to establish the Emergency Maintenance Fund.
Project
Cooperator 2007 2008 2009 2010 2011
D&C1 Maint.2 D&C Maint. D&C Maint. D&C Maint. D&C Maint.
Watershed Dist. $ 306,054 $ 76,948 $ 445,978 $ 97,491 $ 157,197 $ 151,577 -- $ 174,034 -- $ 149,270
Shakopee 219,326 $21,875 220,893 43,802 156,985 65,746 -- 88,173 -- 75,627
Prior Lake 135,318 $19,901 167,966 31,227 86,805 49,908 -- 62,308 -- 53,442
SMSC 61,463 $7,684 59,992 14,130 51,003 19,578 -- 26,864 -- 23,041
Total $ 722,160 $ 126,408 $ 894,830 $ 186,650 $ 451,990 $ 286,809 -- $ 351,380 -- $ 301,380
Project
Cooperator 2012 2013 2014 2015 Total
D&C1 Maint.2 D&C Maint. D&C Maint. D&C Maint.
Watershed Dist. -- $ 123,178 -- $ 112,907 -- $ 85,863 -- $ 74,635 $1,955,132
Shakopee -- 70,963 -- 59,999 -- 49,026 -- 37,813 1,110,229
Prior Lake -- 47,924 -- 42,262 -- 32,921 -- 26,721 756,705
SMSC -- 21,110 -- 17,888 -- 15,164 -- 11,521 329,439
Total -- $ 263,175 -- $ 233,055 -- $182,975 -- $ 150,690 $ 4,151.505
1 D & C = Design Costs and Construction Costs
2 Maint. = Operation And Maintenance Costs and Emergency Maintenance Fund payments
Notes:
. Annual costs shown here include estimated capital and Maintenance costs, but not any easement acquisition costs.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure E-l
. Construction Cost estimates are based on $150 per linear foot of Outlet Channel, less the estimated cost of the fIrst fIve years of Maintenance ($10
per linear foot).
. Operation And Maintenance Cost estimates are based on $10 per linear foot vegetation management for the fIrst fIve years after the Outlet
Channel Restoration And Enhancement Project and $5 per linear foot thereafter.
. For this table, Operation And Maintenance Costs include the establishment of a $250,000 Emergency Maintenance Fund during the fIrst five
years of the Project. The Fund will be replenished as it is used.
. Costs are based on present dollar values as of March 2006.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure E-2
Exhibit F - Calculation Method
for Cost-Share Allocation
The Outlet Channel cost-share allocation in MOA Table 4 is calculated for each Outlet Channel
segment as follows (see _ below for the column references and calculation results):
Step 1: The tributary drainage area for each Project Cooperator in each Outlet Channel segment
from MOA Table 1 (Column A) is multiplied by the Project Cooperator's Maximum
Average Discharge Rate from MOA Table 2 (Column B).
Step 2: The resulting Peak Segment Discharge Rate (Column C) is added to the Peak Discharge
Rate From Upstream (Column D) to determine the Total Peak Discharge Rate To Segment
(Column E) from each Project Cooperator in each Outlet Channel segment.
Step 3: The Total Peak Discharge Rate to the Outlet Channel for each Project Cooperator in each
Outlet Channel segment is then multiplied by the Project Cooperator's Duration Factor in
_ below (Column F) to calculate each Project Cooperator's Total Segment Flow for
each Outlet Channel segment (Column G).
Table F-l: Duration Factors
Project Cooperator Duration Factor (Days)
Watershed District 10.0
Prior Lake 0.5
Shakopee, south (upstream) of Dean Lake, 2.0
except 124.61 acres directly tributary to Outlet
Channel Segment 5
Shakopee, north (downstream) of Dean Lake, 1.0
plus 124.61 acres directly tributary to Outlet
Channel Segment 5
SMSC 2.0
Step 4: The Total Segment Flow from each Project Cooperator is then added to determine the Total
Segment Flow for each Outlet Channel segment (Column G)
Step 5: Finally, each Project Cooperator's relative flow contribution for each Outlet Channel
segment is calculated as a percent of the Total Segment Flow for that Outlet Channel
segment (Column H). That percent is then identified as the cost-share allocation for the
Project Cooperator for that Outlet Channel segment and entered in MOA Table 4.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure F-1
Table F-2: Cost-Share Allocation Calculation Table
A B C D E F G H
Maximum Peak Peak Total Peak
Tributary Average Segment Discharge Discharge Total
Outlet Drainage Discharge Discharge Rate From Rate To Duration Segment % of Total
Channel Project Area Rate Rate Upstream Segment Factor Flow Segment
Segment Cooperators (acresi (cfs/acre i (cfs) (cfs )3 (cfs) (dayst (cfs-days) FlowS
1 Watershed District NA 65.00 65.0 NA 65.0 )0.0 650.0 88.4%
Prior Lake 658 0.25 164.5 NA 164.0 0.5 82.3 11.2%
Shakopee 0 0.10 0 NA 0 2.0 0 0.0%
SMSC (SMSC) 28 0.05 1.40 NA 1.4 2.0 2.8 0.4%
Total 686 735.1 100.0%
2 Watershed District NA 0 65.0 65.0 10.0 650.0 84.6%
Prior Lake 261 0.25 65.3 164.5 229.8 0.5 114.9 15.0%
Shakopee 0 0.10 0 0 0 2.0 0 0.0%
SMSC 3 0.05 0.20 1.4 1.6 2.0 3.2 0.4%
Total 264 768.1 100.0%
3 Watershed District NA 0 0 65.0 65.0 10.0 650.0 69.9%
Prior Lake 1,147 0.25 286.8 229.8 516.6 0.5 258.3 27.7%6
Shakopee 93 0.10 9.3 0 9.3 2.0 18.6 2.0%
SMSC 5 0.05 0.25 1.6 1.85 2.0 3.7 0.4%
Total 1,245 930.6 100.0%
4 Watershed District NA 0 0 65.0 65.0 10.0 650.0 37.8%
Prior Lake 805 0.25 201.3 516.60 717.9 0.5 359.0 20.9%
Shakopee 2,443 0.10 244.3 9.3 253.6 2.0 507.2 29.5%
SMSC 1,989 0.05 99.5 1.85 101.3 2.0 202.6 11.8%
Total 5,237 1,718.8 100.0%
5 Watershed District NA 0 0 65.0 65.0 10.0 650.0 34.1%
Prior Lake 0 0.25 0 717.9 717.9 0.5 359.0 18.8%
Shakopee 748 0.10/0.257 93.5 253.6 347.1 2.0 694.2 36.4%
SMSC 8 0.05 0.4 101.3 101.7 2.0 203.4 10.7%
Total 756 1,906.6 100.0%
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure F-2
A B C D E F G H
Maximum Peak Peak Total Peak
Tributary Average Segment Discharge Discharge Total
Outlet Drainage Discharge Discharge Rate From Rate To Duration Segment % of Total
Channel Project Area Rate Rate Upstream Segment Factor Flow Segment
Segment Cooperators (acresi (cIs/acre i (cfs) (cfS)3 (cfs) (dayst (cfs-days) Flo~
6 Watershed District NA 0 0 65.0 65.0 10.0 650.0 35.7%
Prior Lake 0 0.25 0 717.9 717.9 0.5 359.0 19.7%
Shakopee 937 0.25 309.2 581.4 581.4 1.0 581.4 32.0%
SMSc 250 0.05 12.5 114.2 114.2 2.0 228.4 12.6%
Total 1,187 1,818.8 100.0%
7 Watershed District NA 0 0 65.0 65.0 10.0 650.0 30.0%8
Prior Lake 0 0.25 0 717.9 717.9 0.5 359.0 16.5%
Shakopee 1,407 0.25 351.8 581.4 932.2 1.0 932.2 43.0%
SMSc 0 0.05 0 114.2 114.2 2.0 228.4 10.5%
Total 1,407 2,170.6 100.0%
8 Watershed District NA 0 65 65.0 65.0 10.0 650.0 29.6%
Prior Lake 0 0.25 0 717.9 717.9 0.5 359.0 16.3%
Shakopee 101 0.25 25.2 933.2 958.4 1.0 958.4 43.7%9
SMSc 0 0.05 0 114.2 114.2 1.0 228.4 10.4%
Total 101 2,195.8 100.0%
1 Taken from MOA Table 1.
2 Taken from MOA Table 2. The Watershed District's discharge rate is not a maximum average rate but a maximum discharge rate through the Outlet Structure of
65cfs as set in this MOA.
3 Taken from Column E for the segment immediately upstream
4 Taken from MOA, _F, Table F-1.
s The numbers in this column are used in MOA Table 4.
6 Prior Lake's percentage was rounded from 27.756% to 27.7% so the percentages add to 100%.
7 For the Segment 5 Shakopee tributary drainage areas, 623.39 acres have a maximum discharge rate of 0.1 cfs/acre, and 124.61 acres have a maximum discharge rate
of 0.25 cfs/acre.
8 The Watershed District percentage was rounded from 29.946% to 30.0% so the percentages add to 100%.
9 Shakopee's percentage was rounded from 43.647% to 43.7% so the percentages add to 100%.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure F-3
Exhibit G - Drainage Area
Change Recalculation Example
1. SCENARIO:
The SMSC purchases 80 acres of land in Prior Lake that is tributary to Outlet Channel Segment 4.
The purchase occurs after Construction of Segments 5 and 6 of the Outlet Channel Restoration And
Enhancement Project.
2. BACKGROUND INFORMATION:
Size of Drainage Area Change: 80 acres
Segment 5 Tributary Watershed: 8,188 acres (direct plus upstream)
Segment 5 Construction and Maintenance Costs $900,000
Segment 6 Tributary Watershed: 9,376 acres (direct plus upstream)
Segment 6 Construction and Maintenance Costs $400,000
3. How DRAINAGE AREA CHANGE Is ADDRESSED:
Step 1: The Watershed District recalculates the cost-share allocation according to the method
described in ~, and applies the new cost-share allocation to all future costs.
Step 2: For each Outlet Channel segment that has been constructed prior to the drainage area
change, the Watershed District calculates the proportion of the Construction Costs and
Operation And Maintenance Costs attributable to the drainage area change based on the
size of the drainage area change relative to the size of the total drainage area.
Segment 5 costs = $900,000
Proportional costs = (80 acres/8188 acres) * $900,000 = $8,793
Segment 6 costs = $400,000
Proportional costs = (80 acres/9376 acres) * $400,000 = $3,413
Step 3: The Watershed District calculates the discharge attributable to the drainage area change
based on the Maximum Average Discharge Rate from MOA Table 2 for the Project
Cooperator with initial jurisdiction over the drainage area and the size of the drainage
area.
80 acres * 0.25 cfs/acre = 20 cfs
Step 4: The SMSC pays Prior Lake $12,206 ($8,793 + $3,413) to reimburse Prior Lake for the
share of the Outlet Channel Restoration And Enhancement Project Construction Costs
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure G-1
and Operation And Maintenance Costs Prior Lake has already paid that are attributable
to the drainage area that has changed jurisdictions.
Step 5: The Watershed District revises MOA Table 1 to reflect the revised tributary areas for
each Project Cooperator (i.e. the SMSC's tributary drainage area increases by 80 acres
in Segment 4, and Prior Lake's tributary drainage area decreases by 80 acres).
The Watershed District also revises MOA Table 2 to note that the SMSC may discharge
an additional 16 cfs (total) in Segment 4 as a result of the change in drainage area. This
is because the SMSC reimbursed Prior Lake an amount based on Prior Lake's 0.25
cfs/acre Maximum Average Discharge Rate, while the SMSC's Maximum Average
Discharge Rate is 0.05 cfs/acre. This gives the SMSC an additional 16 cfs in channel
use that they have paid for and can use in the future, as is illustrated below:
Prior Lake: 80 acres * 0.25 cfs/acre = 20 cfs
SMSC: 80 acres * 0.05 cfs/acre = 4 cfs
Difference: 16 cfs capacity that shifts from Prior Lake to SMSC
. that is, SMSC may discharge the full 20 cfs originally
associated with the 80 acres that has changed jurisdictions.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure G-2
Exhibit H - 2006 Fund Payments
1. 2006 CONSTRUCTION COSTS
The following tables detail the costs incurred or projected for the Construction of the Outlet
Channel Restoration and Enhancement Project, by channel segment, from January 1,2004,
through December 31, 2006, based on the Construction schedule in
1
1.1 Table H-l: Segment 1
Activity Amount
Design 1 $ 70,885
Construction2 377,434
Construction observation, contract3 35,821
Construction observation by Watershed 9,400
District staff
C' 4 25,000
ontmgency
Subtotal $ 518,540
Grants5 71,700
Total $ 446,840
1 Costs since January 1,2004.
2 Actual Construction Costs from January 1, 2006, through December 31,
2006. Does not include bid for work between Fountain Hills Drive and
County Road 42, which has been postponed pending the completion of the
development plans.
3 Contract Construction observation costs.
4 For Construction change orders.
5 DNR Shoreland grant: $22,000; Met. Council Environmental Partnership
Grant: $49,700.
1.2 Table H-2: Segment 5
Activity Amount
Design 1 $ 82,500
Total $ 82,500
1 Contracted Design costs. Only the Design of Segment 5 is scheduled as a
2006 cost. Construction is a 2007 cost accordin to
1 From January 1,2004, through December 31,2006, the Watershed District also incurred Design Costs for planning a
portion of Segment 4 amounting to $34,788.64 and Construction Costs for building a portion of Segment 5
amounting to $17,759.22. These costs will be credited to the Watershed District's fund payments in 2008 when
Segment 4 is scheduled for Design and in 2007 when Segment 5 is scheduled for Construction.
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure H-1
1.3 Table B-3: Segment 6
Activity Amount
Design and Construction Costsl $ 194,245
Bank stabilization2 10,000
Total $ 204,245
1 Construction Costs provided by Shakopee; a detailed cost report is
available from Shakopee or the Watershed District. Design and
Construction Costs include planning, permitting, bidding, building work,
and Shakopee Construction observation (staff and contract engineer).
2 Estimate for live staking along bank from Dean Lake outlet structure to
Highway 169.
2. 2006 OPERATION AND MAiNTENANCE COSTS
No Maintenance activities are scheduled for 2006 beyond those already included in the
Segment 1 construction contract. However, the Watershed District will inspect the Outlet
Channel twice in 2006 at a total cost of$800. And the Watershed District estimates a cost of
$5,000 to establish the three funds specified in the lP A, administer the JP A, and oversee the
Outlet Channel Operations in 2006. Thus the 2006 Operation And Maintenance Fund expenses
will total $5,800.
3. 2006 EMERGENCY MAINTENANCE COSTS
The 2006 Emergency Maintenance Fund Payments are based on each Project Cooperator's
proportional cost of the annual $50,000 total contribution to the Fund.
4. 2006 FUND PAYMENTS BY PROJECT COOPERATOR
4.1 Watershed District:
2006 Design And Construction Fund payment
Segment 1 Costs (88.4% of total) $ 395,007.00
Segment 5 Costs (34.1 % of total) 28,132.00
Segment 6 Costs (35.7% of total) 72,915.00
Less costs already paid (Segments 1 and 5) ($ 431,734.42)1
Total payment $ 64,319.58
2006 Operation And Maintenance Fund payment
(49.5% of total) $ 2,871.00
2006 Emergency Maintenance Fund payment
(49.5% of total) $ 24,750.00
Total of all payments $ 91,940.58
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure H-2
Note for the Watershed District:
1. The Watershed District's actual costs for Segments 1 and 5 from January 1,2004, through
December 31, 2006, were as follows:
Segment 1 (Design, Construction, and Const. mgmt.) $ 488,605.27
Segment 5 (Design) 57,345.43
Less grants received for Segment 1 ($ 71,700.00)
Less cost reimbursement received from Prior Lake (42,516.28)
Total $ 431,734.42
The Watershed District's actual costs do not equal the costs in Tables H-1 and H-2 because not
all contracted segment costs were expended in 2006. This work is ongoing, and some ofthe
costs will be expended in 2007 and applied to the 2007 Project accounting.
4.2 Prior Lake:
2006 Design And Construction Fund payment
Segment 1 Costs (11.2% of total) $ 50,046.00
Segment 5 Costs (18.8% of total) 15,510.00
Segment 6 Costs (19.7% oftotal) 40,236.00
Less costs already paid (Segment 1) ($ 42,516.28)
Total payment $ 63,275.72
2006 Operation And Maintenance Fund payment
(17.8% of total) $ 1,032.00
2006 Emergency Maintenance Fund payment
(17.8% oftotal) $ 8,900.00
Total of all payments $ 73,207.72
4.3 Shakopee:
2006 Design And Construction Fund payment
Segment 1 Costs (0.0% oftotal) $ 0.00
Segment 5 Costs (36.4% of total) 30,030.00
Segment 6 Costs (32.0% of total) 65,358.00
Less costs already paid (Segment 6) ($ 194,245.00)
Total payment ($ 98,857.00)
2006 Operation And Maintenance Fund payment
(25.1 % oftotal) $ 1,456.00
2006 Emergency Maintenance Fund payment
(25.1 % of total) $ 12,550.00
Total of all payments ($ 84,851.00)
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure H-3
4.4 SMSC:
2006 Design And Construction Fund payment
Segment 1 Costs (0.4% of total) $ 1,787.00
Segment 5 Costs (10.7% of total) 8,827.00
Segment 6 Costs (12.6% oftotal) 25,735.00
Less costs already paid ($ 0.00)
Subtotal $ 36,349.00
2006 Operation And Maintenance Fund payment
(7.6% of total) $ 441.00
2006 Emergency Maintenance Fund payment
(7.6% of total) $ 3,800.00
Total of all payments $ 40,590.00
fb.us.1627842.09
Memorandum of Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure H-4
DRAFT: 4/2/07
Reserved For Filing Information
JOINT POWERS AGREEMENT
FOR CONSTRUCTION, USE, OPERATION,
AND MAINTENANCE OF
THE PRIOR LAKE OUTLET CHANNEL
AND OUTLET STRUCTURE
Between the Prior Lake-Spring Lake Watershed District,
the City of Prior Lake, and
the City of Shako pee
Effective as of October 1, 2006
,
DRAFT: 4/2/07
TABLE OF CONTENTS
ARTICLE 1. AGREEMENT AND EFFECTIVE DATE.................................................................. 1
ARTICLE 2. DEFINITIONS AND RULES OF CONSTRUCTION................................................ 1
2.1 Definitions............................................................................................................................ 1
2.2 Rules Of Construction.......................................................................................................... 7
ARTICLE 3. RECITALS AND STATEMENT OF PURPOSE........................................................ 8
II Recitals...... ...................................................................... ..................................................... 8
3.2 Statement Of Purpose........................................................................................................ 12
ARTICLE 4. REPRESENTATIONS AND WARRANTIES.......................................................... 12
4.1 Existence and Authority Of Watershed District ................................................................ 12
4.2 Existence And Authority Of Prior Lake .........,................................................................... 13
4.3 Existence And Authority Of Shakopee .............................................................................. 13
ARTICLE 5. OUTLET STRUCTURE REPAIR PROJECT AND OPERATION OF
OUTLET STRUCTURE......................................................................................... 14
II Watershed District To Undertake Outlet Structure Repair Proiect.................................... 14
5.2 Plans And Specifications For Outlet Structure Repair Proiect .......................................... 14
5.3 Operation And Maintenance Of Outlet Structure .............................................................. 15
ARTICLE 6. USES AND DRAINAGE RATES FOR OUTLET CHANNEL ...............................15
QJ. Permitted Use By Watershed District ............................................ .................................... 15
6.2 Permitted Uses And Drainage Areas For Prior Lake and Shakopee ................................. 15
6.3 Maximum Average Discharge Rates................................................................................. 16
6.4 Verifying Watershed District's Maximum Average Discharge Rate ................................ 17
6.5 Verifying Other Tributary Acreages And Maximum Average Discharge
Rates............................................ ....................................................................................... 17
6.6 Exceeding Maximum Discharge Rates And Changes To Address
.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page i
DRAFT: 4/2/07
Exceedances.................................................................................................................... ... 19
ARTICLE 7. CONSTRUCTION OF OUTLET CHANNEL RESTORATION AND
ENHANCEMENT PROJECT ................................................................................. 21
7.1 Design Flows..................................................................................................................... 21
7.2 Proiect Schedule................................................................................................................. 21
7.3 Proj ect Design................................. ................................................................................... 22
7.4 Proiect Construction By Watershed District Or Other Proiect Cooperators...................... 22
7.5 Use Of The Outlet Channel During Construction And Vegetation
Establishment................................................................................................................... .. 24
7.6 Construction Cost Participation............. ............................................................................ 25
ARTICLE 8. ACQUISITION AND USE OF OUTLET CHANNEL EASEMENTS .................... 25
.u Acquisition By Dedication. Purchase. Or Right-of-Way Grant ........................................ 25
8.2 Acquisition By Purchase Or Condemnation In Prior Lake Or Shakopee ..........................25
8.3 Easement Acquisition Costs.............................................................................................. 26
8.4 Additional Authorized Easement Uses ..............................................................................27
ARTICLE 9. OPERATION AND MAINTENANCE OF OUTLET CHANNEL .......................... 30
9.1 General....................................................................................................................... ........ 30
9.2 Preparation Of Maintenance Plans..................................................................................... 30
9.3 Operation And Maintenance By Watershed District Or Other Proiect
Cooperators................................................................................................................. ....... 30
9.4 Emergency Maintenance By Watershed District Or Other Proiect Parties ....................... 32
9.5 Operation and Maintenance Cost Participation ................................................................. 33
ARTICLE 10. OUTLET CHANNEL COST SHARING AND FUNDING................................... 33
10.1 Estimated Costs.................. ......... ....................................................................................... 33
10.2 Cost-Share Allocation........................................................................................................ 34
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page ii
DRAFT: 4/2/07
10.3 Revisions To Cost-Share Allocations Due To Changes In Tributary
Drainage Areas .................................................................................................................. 35
10.4 Creation Of Design And Construction Fund And Payment Of Construction
Cost-Share Allocations...................................................................................................... 37
10.5 Creation Of Operation And Maintenance Fund And Payment Of Operation
And Maintenance Cost-Share Allocations................................................ ......................... 39
10.6 Creation Of Emergency Maintenance Fund And Payment Of Emergency
Maintenance Cost-Share Allocations................................................................................. 41
10.7 General Fund Administration And Recordkeeping ........................................................... 42
SECTION 11. PROJECT PARTY MEETINGS................................................................................ 43
11.1 General Provisions............................................................................................................. 43
11.2 Annual Meeting And Failure To Agree On Budgets ......................................................... 43
11.3 Initial Meeting.................................................................................................................... 45
11.4 Other Meetings................................................................................................................... 45
ARTICLE 12. INDEMNIFI CA TI ON ............................................................................................. 45
12.1 Watershed District Indemnification Of Prior Lake And Shakopee ................................... 45
12.2 Prior Lake Indemnification Of Watershed District And Shakopee ................................... 45
12.3 Shakopee Indemnification Of Watershed District And Prior Lake ................................... 47
12.4 Limitation On Liability Of Proiect Parties......................................................................... 48
12.5 Insurance And Evidence Of Coverage............................................................................... 48
AR TI CLE 13. DISPUTE RESOLUTION....................................................................................... 50
13.1 Policy For Resolving Disputes........................................................................................... 50
13.2 Procedure For Resolving Disputes..................................................................................... 50
13.3 Enforcement Of Judgment Or Order..................................................................................51
ARTICLE 14. TERM AND TERMINATION ....... ................................ ......................................... 52
ARTICLE 15. DISTRIBUTION OF PROPERTY UPON TERMINATION .................................52
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page iii
DRAFT: 4/2/07
15.1 Distribution Of Property Generally ................................................................................... 52
15.2 Conveyance Of Title To Easements Outside The Watershed District............................... 52
ARTICLE 16. GENERAL PROVISIONS ..................................................... ................................. 53
16.1 Countelparts.......................................................... ............................................................. 53
16.2 Entire Agreement. Amendment. And Waiver.................................................................... 53
16.3 MOAlJP A Precedence....................................................................................................... 53
16.4 Notices............................................................................................................................... 53
16.5 No Third Party Beneficiaries .............................................................................................54
16.6 Successors And Assigns.............................................................................. ...................... 55
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page iv
DRAFT: 4/2/07
TABLES
Table 1: Outlet Channel Tributary Drainage Areas in Acres (downstream of
Prior Lake........................................................................................................................... 17
Table 2: Maximum Average Discharge Rates to Outlet Channel Segments .................................... 18
Table 3: Outlet Channel Restoration and Enhancement Project Design Flows by
Segment........ ...................................................................................................................... 22
Table 4: Cost-Share Allocation for Outlet Channel.......................................................................... 35
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page v
DRAFT: 4/2/07
EXHIBITS
Exhibit A - Outlet Channel Map...................................................................................................... A-I
Exhibit B - Outlet Channel Segment Drainage Areas...................................................................... B-1
Exhibit C - Projected Average Discharge Rate Calculation Formula and Example
Calculations.................................................................................................................... C-l
Exhibit D - Outlet Channel Design, Construction, and Maintenance Schedule ..............................D-l
Exhibit E - Nine Year Estimate of Outlet Channel Design, Construction, and
Operation And Maintenance Costs................................................................................ E-1
Exhibit F - Calculation Method for Cost-Share Allocation ..............................................................F-1
Exhibit H - Drainage Area Change Recalculation Example ............................................................ G-1
Exhibit G - 2006 Fund Payments .....................................................................................................H-1
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page vi
DRAFT: 4/2/07
JOINT POWERS AGREEMENT
FOR CONSTRUCTION, USE, OPERATION,
AND MAINTENANCE OF
THE PRIOR LAKE OUTLET CHANNEL
AND OUTLET STRUCTURE
ARTICLE 1. AGREEMENT AND EFFECTIVE DATE
The PRIOR LAKE-SPRING LAKE WATERSHED DISTRICT, a Minnesota political
subdivision (the "Watershed District"), the CITY OF PRIOR LAKE, a Minnesota municipal
corporation ("Prior Lake"), and the CITY OF SHAKOPEE, a Minnesota municipal
corporation ("Shakopee"), jointly the "Project Parties", enter into this Joint Powers
Agreement For Construction, Use, Operation, And Maintenance O/The Prior Lake Outlet
Channel And Outlet Structure (this "JP A," as more fully defined in Section 2.1R.) to be
effective as of October 1, 2006 (the "Effective Date"). In entering into this JPA, the Project
Parties mutually acknowledge that this JPA's Provisions constitute sufficient consideration.
ARTICLE 2. DEFINITIONS AND RULES OF CONSTRUCTION
2.1 Definitions
Unless otherwise expressly provided in this JP A or the context otherwise requires, the
following capitalized words have the following defined meanings when used in this
JPA.
A. Annual Meeting. As defined in Section 11.2.
B. Best Storm Water Management Practices. Storm water management practices
approved or required by the Watershed District.
C. Claims. Any and all actions, causes of action, claims, costs, damages, demands,
debts, executions, expenses (including reasonable attorneys' fees and expert and
other fees and expenses), fines, judgments, liens, losses, obligations, penalties, or
suits.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 1
DRAFT: 4/2/07
D. Conceptual Design. The Prior Lake Outlet Channel Future Conceptual Plan, a
plan for restoring and enhancing the Outlet Channel, that was developed with the
input of the Project Parties as part of the Prior Lake Outlet Channel and Lake
Volume Management Study completed by the Watershed District in 2003. The
Conceptual Design is based on the use of ecological principles, bioengineering,
and natural stream technology practices to improve channel stability, reduce
erosion, and enhance the habitat and aesthetics of the Outlet Channel.
E. Construct/Construction. All activities involved in building, creating, improving,
or restoring a drainage way, trail, underground utility, or other device, object, or
structure including: acquiring land for the work; bidding and contracting for the
work; building, managing, inspecting, and approving the work; and remediating
contamination or pollution of soil, water, structures, or other media necessary to
perform the work.
F. Construction Costs. All costs related to Construction including: accountant,
architect, appraisal, attorney, Construction management, engineering, and other
professional fees and costs; contamination and pollution remediation costs;
bidding, budgeting, contracting, office, travel, and other management costs;
building or construction costs; easement, right-of-way, and other acquisition
costs; erosion control costs; inspection costs; material costs; security costs; and
staff costs.
G. Design. All activities involved in conceiving, designing, and planning, and in
obtaining approval for plans for, a drainage way, trail, underground utility, or
other device, object, or structure including: devising, discussing, drawing, and
modifying plans and specifications; determining easements, rights-of-way, and
other property interests needed; investigating contamination or pollution of soil,
water, structures, or other media; preparing remedial action plans and other
documents related to contamination and pollution; testing soil and water; asking
for, discussing, and getting comments on, or approvals of, plans and
specifications from Project Parties or others; and asking for, discussing, and
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 2
DRAFT: 4/2/07
getting governmental comments on, or approvals of, licenses, permits, or other
approvals for plans and specifications.
H. Design And Construction Budget. As defined in Section lOA.
L Design And Construction Fund. The fund defined and established in
Section lOA.
J. Design Costs. All costs related to Design including: accountant, architect,
appraisal, attorney, engineering, geotechnical, scientific, and other professional
fees and costs; bidding, budgeting, contracting, office, travel, and other
management costs; investigation and testing costs; meeting and coordination
costs; application preparation costs and fees; license, permit, and other
governmental approval fees; administrative appeal and contested case fees and
costs; and staff costs.
/(. Design Flows. As defined in Section 7.1.
L. DNR. The Minnesota Department of Natural Resources.
M. Emergency Maintenance. All activities necessary to achieve immediate
compliance with applicable laws and agreements, when immediate compliance is
required, and to address conditions that pose an immediate threat to the
functioning of a drainage way, trail, underground utility, or other device, object,
or structure such as accidental damage, acts of vandalism, bank failure, culvert
obstruction, storm damage, structural failure, or a contaminant or pollutant spill
including: repairing or rebuilding the device, object, or structure; rebuilding,
repairing, or restoring drainage channel banks or beds; removing obstructions;
burning, mowing, planting, replanting, spraying, trimming, or otherwise
managing vegetation; removing sediment from accumulation zones; cleaning up
contaminant or pollutant spills; and protecting wildlife habitat and the aquatic
environment.
N. Emergency Maintenance Costs. All costs related to Emergency Maintenance
including accountant, appraisal, architect, attorney, Construction management,
engineering, geotechnical, scientific, and other professional fees and costs; bank
,
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 3
DRAFT: 4/2/07
and bed stabilization costs; bidding, budgeting, contracting, office, travel, and
other management costs; clean-up costs; contaminant or pollution remediation
costs; building or construction costs; erosion control costs; inspection costs;
license, permit, and other approval costs; material costs; repair costs; replacement
costs; security costs; sediment removal costs; staff costs; vegetation management
costs; and wildlife and aquatic environment protection costs.
O. Emergency Maintenance Fund. The fund defined and established in
Section 10.6.
P. Effective Date. As defined in Article 1.
Q. Fee Land. As defined in Section 3.1C.
R. JP A. This Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure, including
the following exhibits that are attached to and are a part of this JP A:
Exhibit A - Outlet Channel Map
Exhibit B - Outlet Channel Segment Drainage Areas
Exhibit C - Proiected Average Discharge Rate Calculation Formula and
Example Calculations
Exhibit D - Outlet Channel Design. Construction and Maintenance Schedule
Exhibit E - Nine Year Estimate of Outlet Channel Design. Construction. and
Operation And Maintenance Costs
Exhibit F - Calculation Method for Cost-Share Allocation
Exhibit G - Drainage Area Change Recalculation Example
Exhibit H - 2006 Fund Payments
S. Lake Outlet Project. As defined in Section 3.1 B.
T. LMCIT. As defined in Section 12.5A.
U. MaintainlMaintenance. All activities necessary to keep a drainage way, trail,
underground utility, or other device, object, or structure in good repair, working
efficiently, and in compliance with applicable laws and agreements including:
rebuilding, repairing, or restoring the drainage way, device, object, or structure;
rebuilding, repairing, or restoring channel banks or beds; removing obstructions;
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 4
DRAFT: 4/2/07
burning, mowing, planting, replanting, spraying, trimming, or otherwise
managing vegetation; removing sediment from accumulation zones; cleaning up
contaminant or pollutant spills; and protecting wildlife habitat and the aquatic
environment.
~ Maximum Average Discharge Rate(s). As defined in Section 6.3.
~ MOA. As defined in Section 3.10.
X 100-Year Rainfall Event. The total rainfall from a 24-hour rainfall event with a
100 year frequency of return, assuming a Soil Conservation Service Type II
rainfall distribution, as specified in Technical Paper 40, Rainfall Frequency Atlas
of the United States for Durations from 30 minutes to 24 Hours and Return
Periods from one to 100 Years (NOAA, 1961).
1': Operate/Operation. All activities needed to keep a drainage way, trail,
underground utility, or other device, object, or structure working, including:
accounting for funds received and expended; adjusting equipment that is part of,
and regularly inspecting, the drainage way or other device, object, or structure;
bidding and contracting for, or otherwise providing, Maintenance; budgeting the
use of funds received; overseeing the use of the drainage way or other device,
object, or structure; providing staff for these activities; raising funds to pay for the
enterprise; and otherwise managing the enterprise.
Z. Operation And Maintenance Budget. As defined in Section 11.2A.8.
AA. Operation And Maintenance Costs. All costs related to Operation or
Maintenance including: accountant, architect, appraisal, attorney, engineering,
geotechnical, scientific, and other professional fees and costs; bank and bed
stabilization costs; bidding, budgeting, contracting, office, travel, and other
management costs; clean-up costs; contamination and pollution remediation costs;
building or construction costs; erosion control costs; inspection costs; license,
permit, and other approval costs; repair costs; replacement costs; sediment
removal costs; security costs; staff costs; vegetation management costs; and
wildlife and aquatic environment protection costs.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 5
DRAFT: 4/2/07
BB. Operation And Maintenance Fund. The fund defined and established in
Section 10.5.
Cc. Outlet Channel. The seven miles of natural and built drainage courses within the
municipal boundaries of Prior Lake and Shakopee that were connected, built, and
improved as part of the Lake Outlet Project. See Exhibit A - Outlet Channel
Map. The Outlet Channel extends from the Outlet Structure north to the
Minnesota River at Blue Lake. The Outlet Channel is divided into the following
eight segments:
. Segment 1: Prior Lake to County Road 42
. Segment 2: County Road 42 to the inlet of Pike Lake
. Segment 3: The outlet of Pike Lake to Pike Lake Trail
. Segment 4: Pike Lake Trail to County Road 16
. Segment 5: County Road 16 to the inlet of Dean Lake
. Segment 6: The outlet of Dean Lake to State Trunk Highway 169
. Segment 7: State Trunk Highway 169 to, State Trunk Highway 101
. Segment 8: State Trunk Highway 101 to the Minnesota River
DD. Outlet Channel Restoration And Enhancement Project. As defined in
Section 3.1J.
EE. Outlet Structure Repair Project. As defined in Section 3.1 G.
FF. Outlet Structure. The structure and pipe that were installed on Prior Lake by the
Watershed District in 1983 as part ofthe Lake Outlet Project, to provide an outlet
for the lake. See Exhibit A.
GG. Outlet Operating Plan. The Outlet Control Structure For Prior Lake
Management Policy And Operating Procedures (revised October 2004), a plan
documenting the management policy and operating procedures for the Outlet
Structure, as developed by the Watershed District and approved by the DNR in
February 2005.
HH. Prior Lake. As the context requires, either a Project Party as defined in Article 1
or a lake in the City of Prior Lake.
IL Project. As defined in Section 3.1 J.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 6
DRAFT: 4/2/07
JJ. Project Cooperators. As defined in Section 3.11.
KK. Project Parties. As defined in Article 1.
LL. Projected Average Discharge Rate. The expected average storm water discharge
rate from development that occurs after the Effective Date, as calculated by a
Project Party according to the formula in Exhibit C - Proiected Average
Discharge Rate Calculation Formula and Example Calculations. for the entire
drainage area within that Project Party's jurisdiction tributary to an Outlet
Channel segment.
MM. Projected Discharge Rate. The expected storm water discharge rate from a
development or redevelopment calculated in cfs for the 100- Year Rainfall Event
using storm water discharge specifications for a developed or redeveloped area.
NN. Provision. Any agreement, condition, duty, grant, immunity, indemnity,
obligation, promise, provision, release, representation, responsibility, right, term,
or warranty.
00. Public Service Activity/Activities. As defined in Section 8.4A.
PP. Shakopee. A Project Party as defined in Article 1.
QQ. SMSC. As defined in Section 3.1 C.
RR. State. The State of Minnesota.
SS. Trust Land. As defined in Section 3.1C.
TT. 2-Year Rainfall Event. The total rainfall from a 24-hour rainfall event with a two
year frequency of return, assuming a Soil Conservation Service Type II rainfall
distribution, as specified in Technical Paper 40, Rainfall Frequency Atlas of the
United States for Durations from 30 minutes to 24 Hours and Return Periods from
one to 100 Years (NOAA, 1961).
Uu. Watershed District. A Project Party as defined in Article 1.
2.2 Rules Of Construction
In interpreting this JP A, the following rules of construction will be used.
A. Captions, Gender, Number, And Language Of Inclusion. The Article and Section
headings in this JP A are for convenience of reference only and do not define, limit,
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 7
DRAFT: 4/2/07
or prescribe the scope or intent of any JP A Provision. As used in this JP A, the
singular includes the plural and vice versa, and the masculine, feminine, and neuter
adjectives include one another.
B. Construction. The rule of strict construction does not apply to this JP A. This JPA
will not be interpreted in favor of or against any Project Party merely because of
their respective efforts in preparing or modifying it.
C. Words And Phrases. The following words and phrases have the following
meanings in this JP A:
(1) applicable law means all applicable federal, State, regional, county,
municipal, local, or other constitutions, charters, bylaws, laws, statutes, codes,
ordinances, rules, and regulations, including the applicable law of the Project
Parties.
(2) cft means cubic feet per second.
(3) include means include without limitation.
(4) including means including but not limited to.
(5) incurred by means asserted against, imposed upon, incurred by, paid by, or
suffered.
(6) parties means two or more ofthe Project Parties;
(7) party means one or more of the Project Parties as the context of this JPA
indicates; and
(8) subject to approval by means the entity whose approval is necessary may
grant or deny approval, but approval cannot be unreasonably conditioned or
delayed, and denial must have a reasonable basis and cannot be unreasonably
delayed.
ARTICLE 3. RECITALS AND STATEMENT OF PURPOSE
The following recitals and statement of purpose are incorporated in this JP A.
3.1 Recitals
A. The Project Parties have the power to enter into this JP A and desire to do so.
B. In 1983, the Watershed District completed a project to build an artificial outlet for
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 8
DRAFT: 4/2/07
Prior Lake to drain water from Prior Lake and transport the water to the Minnesota
River ("Lake Outlet Project"). The Lake Outlet Project connected and improved a
natural drainage system of lakes, streams, and wetlands within the municipal
boundaries of Prior Lake and Shakopee to connect Prior Lake and the Minnesota
River. The resulting drainage way is known as the Outlet Channel. See Exhibit A.
C The Outlet Channel drains water from land within the jurisdictions of Prior Lake
and Shakopee. It also drains land owned by the Shakopee Mdewakanton Sioux
Community, a federally recognized Indian Tribe (the "SMSC") in fee now and
hereafter ("Fee Land"), and land held by the United States, in trust, now and
hereafter for the beneficial interest of the SMSC ("Trust Land"). The drainage
areas tributary to each Outlet Channel segment are shown on Exhibit B - Outlet
Channel Segment Drainage Areas.
D. Since completion of the Lake Outlet Project, development has occurred in areas of
Prior Lake and Shakopee tributary to the Outlet Channel, and the SMSC has
acquired land tributary to the Outlet Channel for development. Consequently Prior
Lake, Shakopee, and the SMSC use the Outlet Channel to convey storm water from
developed areas within their boundaries or ownership to the Minnesota River.
E. The approved comprehensive plans of Prior Lake, Shakopee, and Scott County
identify substantial additional development that will occur in drainage areas
tributary to the Outlet Channel.
F. The SMSC plans additional development on both Fee Land and Trust Land in
drainage areas tributary to the Outlet Channel.
G. The Watershed District plans repairs and modifications to the Outlet Structure to
address wear and tear that has occurred since its installation; to improve its
efficiency and safety; and to reduce its operating costs ("Outlet Structure Repair
Project").
H. The Outlet Structure directly and immediately benefits properties within the City of
Prior Lake because it reduces Prior Lake water levels on riparian property within
the established flood plain. The Outlet Structure Repair Project will continue these
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 9
DRAFT: 4/2/07
benefits.
L The Watershed District, Prior Lake, Shakopee, and the SMSC Gointly the "Project
Cooperators") desire to clarify their respective responsibilities and rights regarding
implementation of the Outlet Structure Repair Project and the ongoing use,
Operation, and Maintenance of the Outlet Structure.
J. The Project Cooperators are planning a project to restore and enhance the Outlet
Channel using ecological principles, bioengineering, and natural stream
technologies that will restore channel stability, improve water quality, enhance
channel habitat and aesthetics, and assure capacity for existing and future storm
water flows ("Outlet Channel Restoration And Enhancement Project" or
"Project"), all in accord with the Conceptual Design.
K. The Outlet Channel Restoration And Enhancement Project directly and immediately
benefits the Project Parties because:
(1) The Project conforms to and implements Prior Lake and Shakopee's overall
drainage plan in the Outlet Channel's drainage area;
(2) The easements to be acquired within Shakopee and Prior Lake can also be
used by those cities for underground public utility and trail purposes; and
(3) An operable Outlet Channel with adequate storm water conveyance capacity
allows for orderly development by Prior Lake and Shakopee.
L. Prior Lake and Shakopee desire to assist the Watershed District to acquire the
easements necessary in their respective cities for Construction of the Outlet Channel
Restoration And Enhancement Project.
M. The Project Parties desire to clarify their respective responsibilities and rights
regarding implementation of the Outlet Channel Restoration And Enhancement
Project and the ongoing use, Operation, and Maintenance of the Outlet Channel.
N. The Project Parties have agreed to allocate Design Costs and Construction Costs for
the Outlet Channel Restoration And Enhancement Project, and Operation And
Maintenance Costs and Emergency Maintenance Costs for the Outlet Channel
among the Project Parties using the following principles.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 10
DRAFT: 4/2/07
(1) The cost-share obligation should be allocated among the Project Parties based
on each Project Party's current and anticipated use of the Outlet Channel for
storm water conveyance.
a. The Watershed District's cost-share obligation should be based on its
maximum release rate through the Outlet Structure of 65 cfs.
b. The cost-share obligation for Prior Lake and Shakopee should be based on
each Project Party's tributary drainage area by Outlet Channel segment
and its Maximum Average Discharge Rate or Rates as identified by each
Project Party and incorporated into this JPA.
(2) A separate cost-share allocation should be determined for each Outlet Channel
segment.
(3) Each Project Party's cost-share obligation should begin at the point furthest
from Blue Lake where storm water from that Project Party's jurisdictional
boundaries first flows into the Outlet Channel and extend from that first point
of discharge downstream to the point of inlet into Blue Lake.
O. To implement the Outlet Channel Restoration And Enhancement Project and
provide for ongoing use, Operation, and Maintenance of the Outlet Channel and
Outlet Structure, two agreements are being signed - the Memorandum Of
Understanding For Construction, Use, Operation, And Maintenance Of The Prior
Lake Outlet Channel And Outlet Structure between the Project Cooperators (the
"MOA") and this JP A between the Project Parties. For reasons of State law, the
SMSC does not have authority to participate in ajoint powers agreement for utility
and drainage purposes, and can only participate by executing the MOA with the
Watershed District, Prior Lake, and Shakopee. This necessitates the MOA. But the
MOA must be approved by the Secretary of the Interior. If this approval is not
forthcoming, or if the MOA is approved and terminates in the future for any reason,
the Project Parties desire to implement the Project and provide for ongoing use,
Operation, and Maintenance of the Outlet Channel and Outlet Structure without the
SMSC. This necessitates this JPA. If the MOA is approved by the Secretary of the
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 11
DRAFT: 4/2/07
Interior, the Project Cooperators intend the MOA, and not this JP A, to control their
relationship. If the MOA is not approved, or if it is approved and terminates in the
future for any reason, the Project Parties intend their relationship to continue and be
controlled by this JP A, and not the MOA.
3.2 Statement Of Purpose
The general purpose of this JPA is to:
A. Establish Provisions under which the Watershed District will improve, use, Operate,
and Maintain the Outlet Structure.
B. Preserve the Watershed District's discharge capacity rights to the Outlet Channel
from consumption by storm water drainage generated from new development and
redevelopment in the. Outlet Channel drainage area.
C. Allocate Outlet Channel drainage capacity above that required for the Watershed
District among the other Project Parties to promote orderly development within the
Outlet Channel drainage area.
D. Establish Provisions under which the Project Parties will implement the Outlet
Channel Restoration And Enhancement Project, including acquisition of the
additional easements needed and allocation of Design Costs and Construction Costs
among them.
E. Establish Provisions under which the Project Parties will use, Operate, and Maintain
the Outlet Channel, including specification oftheir respective responsibilities for
Operation, Maintenance, and Emergency Maintenance, allocation of Operation And
Maintenance Costs and Emergency Maintenance Costs among them, and
identification of additional uses that Prior Lake and Shakopee can make of the
easements acquired for the Outlet Channel Restoration And Enhancement Project.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
Each Project Party represents and warrants to the other Project Parties, and each of them, as
follows:
4.1 Existence and Authority Of Watershed District
The Watershed District represents and warrants that it is a watershed district duly
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 12
DRAFT: 4/2/07
organized and operating under Minnesota Statutes, Chapters l03B and l03D and that it
has the corporate power and authority to execute and deliver this lP A, to perform fully
its obligations under this lP A, and to consummate the transactions contemplated by this
lPA. The execution and delivery by the Watershed District of this JPA, the
performance of its obligations under this JP A, and the consummation of the transactions
contemplated by this lP A have been duly authorized by all requisite corporate action of
the Watershed District, and do not and will not conflict with, result in a violation of, or
constitute a default under any State statute, its Constitution or bylaws, any other
applicable law, any agreement or other instrument binding upon the Watershed District,
or any court decree or order applicable to the Watershed District. This lP A is the legal,
valid, and binding obligation of the Watershed District, enforceable against the
Watershed District in accordance with its Provisions.
4.2 Existence And Authority Of Prior Lake
Prior Lake represents and warrants that it is a municipal corporation duly organized and
operating under Minnesota Statutes, Chapter 412 and that it has the corporate power
and authority to execute and deliver this lP A, to perform fully its obligations under this
lP A, and to consummate the transactions contemplated by this lP A. The execution and
delivery by Prior Lake of this lP A, the performance of its obligations under this lP A,
and the consummation of the transactions contemplated by this JP A have been duly
authorized by all requisite corporate action of the Prior Lake City Council, and do not
and will not conflict with, result in a violation of, or constitute a default under any State
statute, its Code of Ordinances, any other applicable law, any agreement or other
instrument binding upon Prior Lake, or any court decree or order applicable to Prior
Lake. This lP A is the legal, valid, and binding obligation of Prior Lake, enforceable
against Prior Lake in accordance with its Provisions.
4.3 Existence And Authority Of Shakopee
Shakopee represents that it is a municipal corporation duly organized and operating
under Minnesota Statutes, Chapter 412 and that it has the corporate power and authority
to execute and deliver this JP A, to perform fully its obligations under this lP A, and to
consummate the transactions contemplated by this JP A. The execution and delivery by
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 13
DRAFT: 4/2/07
Shakopee of this JPA, the performance of its obligations under this JPA, and the
consummation of the transactions contemplated by this JP A have been duly authorized
by all requisite corporate action of the Shakopee City Council, and do not and will not
conflict with, result in a violation of, or constitute a default under any State statute, its
Code of Ordinances, any other applicable law, any agreement or other instrument
binding upon Shakopee, or any court decree or order applicable to Shakopee. This IP A
is the legal, valid, and binding obligation of Shakopee, enforceable against Shakopee in
accordance with its Provisions.
ARTICLE 5. OUTLET STRUCTURE REPAIR PROJECT AND OPERATION OF
OUTLET STRUCTURE
5.1 Watershed District To Undertake Outlet Structure Repair Project
The Watershed District will Design and implement the Outlet Structure Repair Project.
All Design Costs and Construction Costs of the Outlet Structure Repair Project are the
sole and exclusive responsibility of the Watershed District. Prior to the commencement
of the Outlet Structure Repair Project, the Watershed District will obtain all permits and
approvals required by any governmental unit having jurisdiction over the Outlet
Structure, including permits and approvals from Prior Lake and the DNR. If any permit
or approval requires modification of an Outlet Structure Repair Project plan developed
under Section 5.2, the Watershed District can make the required modification. The
Watershed District will notify the other Project Parties of the change prior to the start of
Construction but need not submit the modified plans to Prior Lake for review and
comment.
5.2 Plans And Specifications For Outlet Structure Repair Project
The Watershed District will Design the Outlet Structure Repair Project to conform to
the findings of the Prior Lake Outlet Channel and Lake Volume Management Study,
dated May 2003. To begin, the Watershed District will consult with Prior Lake and
prepare plans and specifications that conform to the Prior Lake Outlet Channel and
Lake Volume Management Study considering generally acceptable engineering
specifications. Next the Watershed District will furnish Prior Lake with complete
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 14
DRAFT: 4/2/07
copies of the plans and specifications for the Outlet Structure improvements. Prior
Lake will comment on the plans and specifications and may request modifications to
them within 60 days of receipt. If Prior Lake provides comments or requests
modifications, the Watershed District will endeavor to address the comments and
incorporate the modifications into the plans and specifications. However, if situations
arise where the Watershed District receives comments or modifications that are
inconsistent with the Prior Lake Outlet Channel and Lake Volume Management Study,
to avoid delays in the Outlet Structure Repair Project, the Watershed District's
determination on questions of Design will be conclusive, and Article 15 will not apply.
5.3 Operation And Maintenance Of Outlet Structure
The Watershed District will Operate and Maintain the Outlet Structure. In doing so, the
Watershed District will release water from the Outlet Structure in accordance with the
Outlet Operating Plan and must not exceed the maximum release rate of 65 cfs as
specified in the Plan. All Operation And Maintenance Costs and Emergency
Maintenance Costs related to the Outlet Structure are the sole and exclusive
responsibility of the Watershed District.
ARTICLE 6. USES AND DRAINAGE RATES FOR OUTLET CHANNEL
6.1 Permitted Use By Watershed District
The Watershed District will use the Outlet Channel to drain water from Prior Lake and
for no other purposes.
6.2 Permitted Uses And Drainage Areas For Prior Lake and Shakopee
Prior Lake and Shakopee will use the Outlet Channel to convey storm water from their
respective drainage areas tributary to the Outlet Channel as specified in Table 1, or
Table 1 as subsequently modified in accord with Section 10.3, and for no other
purposes. Prior Lake and Shakopee must not convey storm water to the Outlet Channel
from acres not specified in Table 1, or Table 1 as subsequently modified in accord with
Section 10.3.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 15
DRAFT: 4/2/07
Table 1: Outlet Channel Tributary Drainage Areas in Acres (downstream of
Prior Lake)
Outlet Channel Watershed Prior Lake Shako pee Subtotal
Segment Districtl
1 * 658 0 658
2 * 261 0 261
3 * 1,147 93 1,240
4 * 805 2,443 3,248
5 * 0 748 748
6 * 0 937 937
7 * 0 1,407 1,407
8 * 0 101 101
Total * 2,871 5,729 8,600
1 The Watershed District's contribution to the Outlet Channel is not dependent on
drainage area; it is based on a maximum release rate through the Outlet Structure of
65 cfs as provided in Section 5.3.
6.3 Maximum Average Discharge Rates
The Watershed District, Prior Lake, and Shakopee will not discharge storm water to the
outlet channel at rates in excess of the maximum average discharge rate or rates set for
each in this Section 6.3 ("Maximum Average Discharge Rate(s)").
A. Maximum Average Discharge Rate For Watershed District. The Watershed
District's Maximum Average Discharge Rate is its maximum release rate for water
through the Outlet Structure to the Outlet Channel as provided in Section 5.3 and as
shown in Table 2.
B. Maximum Average Discharge Rates For Prior Lake And Shako pee. Prior Lake
and Shakopee will not discharge storm water to any Outlet Channel segment from
drainage areas in their respective jurisdictions tributary to that segment at a rate that
exceeds their respective Maximum Average Discharge Rates for that segment as
specified in Table 2, or Table 2 as modified in accord with Sections 6.6 or 10.3. As
stated in Table 2, the Maximum Average Discharge Rates are based on the 100-
Year Rainfall Event. For example in Segment 4: Prior Lake cannot discharge
storm water from its 805 acres of tributary drainage area at a rate that exceeds 0.25
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 16
DRAFT: 4/2/07
cfs per acre; and Shakopee cannot discharge storm water from its 2,443 acres of
tributary drainage area at a rate that exceeds 0.10 cfs per acre.
Table 2: Maximum Average Discharge Rates to Outlet Channel Segments
Project Party Maximum Average Discharge Rate to
Outlet Channel per Acre for
100- Year Rainfall Event
Watershed District 65.00 CfSl
Prior Lake 0.25 cfs/acre2
Shakopee: south (upstream) of Dean Lake, 0.1 0 cfs/acre2
except 124.61 acres directly tributary to
Outlet Channel Segment 5
Shakopee: north (downstream) of Dean 0.25 cfs/acre2
Lake, plus 124.61 acres directly tributary
to Outlet Channel Segment 5
1 The Watershed District's Maximum Average Discharge Rate to the Outlet Channel is
not an average rate per acre; it is the District's maximum release rate through the
Outlet Structure of 65 cfs as provided in Section 6.3A.
2 Each Maximum Average Discharge Rate was provided by the respective Project Party.
6.4 Verifying Watershed District's Maximum Average Discharge Rate
On an annual basis, the Watershed District will provide to the other Project Parties a
summary of the operating records and any monitoring data for the Outlet Structure to
show the release rates through the Outlet Structure for the previous calendar year and
will certify that its release rates did not exceed the Maximum Average Discharge Rate
specified in Section 6.3A. and Table 2. If the Watershed District cannot make this
certification, it will describe the reason for the failure to certify and the extent of any
exceedance.
6.5 Verifying Other Tributary Acreages And Maximum Average Discharge Rates
On an annual basis, Prior Lake and Shakopee will each verify to the other Project
Parties that its use of the Outlet Channel conforms to the tributary drainage acreages
and Maximum Average Discharge Rates specified in Sections 6.2 and 6.3 as follows.
A. Information To Be Provided. Prior Lake and Shakopee will each provide a
summary of the following for tributary drainage areas in their respective
jurisdictions.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 17
DRAFT: 4/2/07
(1) The tributary drainage acres developed by Outlet Channel segment before the
Effective Date. Acreage in Prior Lake and Shakopee will be considered
developed before the Effective Date if the preliminary plat for the
development was approved by Prior Lake or Shakopee prior to the Effective
Date.
(2) The tributary drainage acres developed by Outlet Channel segment after the
Effective Date.
(3) The tributary drainage acres remaining to be developed by Outlet Channel
segment based on each Project Party's current comprehensive plan or
equivalent.
(4) The Projected Discharge Rate by Outlet Channel segment for tributary
drainage areas developed after the Effective Date.
(5) The Projected Discharge Rate by Outlet Channel segment for any tributary
drainage area redeveloped after the Effective Date.
(6) An explanation of any discharge rate offsets within an Outlet Channel
segment for tributary drainage areas redeveloped at a discharge rate higher
than the area's Projected Discharge Rate when first developed. For example,
if a low density residential area is redeveloped as a commercial area, the
Project Party must show how one or more Projected Discharge Rates will be
reduced elsewhere in the tributary drainage area to offset the rate increase
associated with commercial development.
(7) A calculation of the Projected Average Discharge Rate for each Outlet
Channel segment that includes all tributary drainage areas developed after the
Effective Date; and
(8) An explanation of how future development will be managed within each
Outlet Channel segment to ensure conformance with the tributary drainage
acreages and Maximum Average Discharge Rates specified in Sections 6.2
and 6.3.
(9) The formula that the Project Parties will use to calculate the Projected
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 18
DRAFT: 4/2/07
Average Discharge Rates for each Outlet Channel Segment and example
calculations are attached as Exhibit C.
B. Use Of Monitoring Data. As an alternative to calculating a Projected Average
Discharge Rate for any Outlet Channel segment, Prior Lake or Shakopee may
provide the monitored, actual discharge rate for one or more segments using
monitoring methods that are consistent with U.S. Geological Survey standards,
subject to approval by the Watershed District.
C. Certification
(1) Prior Lake and Shakopee will each certify the following for tributary drainage
areas in their respective jurisdiction:
(a. The tributary drainage acres by Outlet Channel segment do not exceed
those specified in Table 1; and
b. The Projected Average Discharge Rate or monitored actual discharge
rate for each Outlet Channel segment does not exceed the Maximum
Average Discharge Rate specified in Section 6.2 for each Outlet Channel
segment.
(2) If Prior Lake or Shakopee cannot make this certification, it will describe the
reason for the failure to certify and the extent of any exceedance.
6.6 Exceeding Maximum Discharge Rates And Changes To Address Exceedances
A. Options To Address An Excess Discharge Rate. If a Project Party exceeds its
tributary drainage acres as specified in Section 6.2 or its Maximum Average
Discharge Rate as specified in Section 6.3 for any Outlet Channel segment or
wishes to modify either, the Project Party will either:
(1) Reduce flows elsewhere within its drainage area tributary to the Outlet
Channel so its Maximum Average Discharge Rate as specified in Section 6.3
is not e~ceeded, or
(2) Assuming the Project Party obtains all applicable approvals:
a. If the Project is still under Construction, revise the Conceptual Design to
increase the Outlet Channel Design flow to handle the increased
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 19
DRAFT: 4/2/07
Maximum Average Discharge Rate, and pay all Design Costs,
Construction Costs, Operation And Maintenance Costs, and Emergency
Maintenance Costs for increasing the Outlet Channel Design flow; or
b. If the Project is complete, make all improvements or undertake any
Maintenance to the Outlet Channel necessary to handle the increased
Maximum Average Discharge Rate and pay all Design Costs, Construction
Costs, Operation And Maintenance Costs, and Emergency Maintenance
Costs for the increased Maximum Average Discharge Rate.
B. JPA To Be Amended
(1) For Reduced Flows To Address An Exceedance. If a Project Party decides to
reduce flows elsewhere within its drainage area tributary to the Outlet
Channel,
a. It will sign the necessary amendments to this JP A to implement and
require the flow reduction, and
b. It will request that the Watershed District incorporate the amendments into
this JPA, subject to approval by the other Project Parties in the form of
signed amendments.
(2) For Improvements Or Maintenance To Address An Exceedance. If a Project
Party decides to make improvements to, or undertake Maintenance of, the
Outlet Channel:
a. It will sign the necessary amendments to this JP A to incorporate the
increased Maximum Average Discharge Rate and to pay for all Design
Costs, Construction Costs, Operation And Maintenance Costs, and
Emergency Maintenance Costs for that increased Maximum Average
Discharge Rate; and
b. It will request that the Watershed District incorporate the amendments into
this JPA, subject to approval by the other Project Parties in the form of
signed amendments.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 20
DRAFT: 4/2/07
ARTICLE 7. CONSTRUCTION OF OUTLET CHANNEL RESTORATION AND
ENHANCEMENT PROJECT
7.1 Design Flows
The Outlet Channel needs restoration and enhancement to stabilize the channel banks
and ensure adequate capacity for existing and future storm water conveyance needs.
The final Design for each segment of the Outlet Channel Restoration And Enhancement
Project will be consistent with the Conceptual Design and will provide sufficient
capacity for the Outlet Channel's expected flows ("Design Flows") specified in Table 3,
which are based on the 2- Year Rainfall Event plus 65 cfs of release through the Outlet
Structure.
Table 3: Outlet Channel Restoration and Enhancement Project
Design Flows by Segment
Outlet Channel Channel Design Flows
Segment (2- Year Rainfall Event plus 65 cfs
release through Outlet Structure)
1 118 cfs
2 141 cfs
3 112 cfs
4 174 cfs
5 269 cfs
6 216 cfs
7 407 cfs
8 400 cfs
7.2 Project Schedule
The Design and Construction of the Outlet Channel Restoration And Enhancement
Project will occur over five years, beginning in 2005. The anticipated Construction
schedule for the Project is described in Exhibit D - Outlet Channel Design.
Construction and Maintenance Schedule. The Watershed District in consultation with
the other Project Parties may alter the Construction schedule but will not extend Project
completion beyond 2009, subject to approval by the other Project Parties in writing. To
the extent possible as it builds the Project, the Watershed District will schedule
Construction activities to coordinate with the subdivision and development of land
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 21
DRAFT: 4/2/07
adjacent to the Outlet Channel.
7.3 Project Design
The Watershed District will lead, coordinate, and if necessary, make final decisions on
the Design of the Outlet Channel Restoration And Enhancement Project. To begin, the
Watershed District will consult with the Project Parties and prepare plans and
specifications for each Outlet Channel segment that conform to the Conceptual Design
considering both generally acceptable engineering practices for drainage projects and
Best Storm Water Management Practices. Next, the Watershed District will furnish the
Project Parties with complete copies of the plans and specifications for each segment of
the Outlet Channel. Then, the Project Parties will comment on the plans and
specifications and may request modifications to them within 60 days of receipt. If a
Project Parties provides comments or requests modifications, the Watershed District
will endeavor to address the comments and incorporate the modifications into the plans
and specifications. However, if situations arise where the Watershed District receives
comments or modifications that are inconsistent with the Outlet Channel Design Flows,
the Conceptual Design, or with other comments or requested modifications, to avoid
delays in the Project, the Watershed District's determination on questions of Design
will be conclusive and Article 13 will not apply.
7.4 Project Construction By Watershed District Or Other Project Cooperators
A. Construction By Watershed District. The Watershed District will Construct the
Outlet Channel Restoration and Enhancement Project in accord with Outlet Channel
final segment plans developed under Section 7.3. Also, the Watershed District will
Construct the Project in conformance with all applicable laws and will obtain all
permits and approvals required for the Construction activities by any governmental
unit having jurisdiction over the Outlet Channel, including Prior Lake, Shakopee,
the Lower Minnesota Watershed District, the DNR, and the U.S. Army Corps of
Engineers. If any permit or approval requires modification of a final segment plan
developed under Section 7.3, the Watershed District can make the required
modification. The Watershed District will notify the other Project Parties ofthe
change prior to the start of Construction but need not submit the modified plans to
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 22
DRAFT: 4/2/07
the other Project Parties for review and comment.
B. Construction By Other Project Parties. A Project Party other than the Watershed
District may Construct a segment of the Outlet Channel Restoration And
Enhancement Project earlier than specified in Exhibit D as follows.
(1) Segment To Be Constructed According To Developed Plan
a. If a plan has been developed for that Outlet Channel segment under
Section 7.3, the Project Party will Construct the segment in accord with
the plan. Any change to the plan will be subject to approval by the
Watershed District.
b. If no plan has been developed for that Outlet Channel segment under
Section 7.3, the Project Party will consult with the Watershed District and
prepare plans and specifications for the segment. Next the Project Party
will furnish the Watershed District with complete copies of the plans and
specifications. The Watershed District will approve the plans and
specifications or request modifications to them within 60 days of receipt.
If modifications are requested, the Project Party will incorporate them into
the plans and specifications and resubmit them to the Watershed District.
The Watershed District will approve the resubmitted plans and
specifications or request modifications to them within 30 days of receipt.
This process will be repeated until the Watershed District approves the
plans and specifications or until an impasse is reached. If the Project Party
and the Watershed District reach impasse, then to the extent the Watershed
District determines the plans and specifications are inconsistent with the
Outlet Channel Design Flows or the Conceptual Design, the Watershed
District's determination will be conclusive, and Article 13 will not apply.
After approval by the Watershed District, the Project Party may build the
segment in accord with the approved plans and specifications.
c. The Project Party will Construct the segment in conformance with all
applicable laws and will obtain all permits and approvals required for the
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 23
DRAFT: 4/2/07
Construction activities by any governmental unit having jurisdiction over
the Outlet Channel, including Prior Lake, Shakopee, the Watershed
District, the Lower Minnesota Watershed District, the DNR, and the U.S.
Army Corps of Engineers. If any permit or approval requires modification
of a final segment plan developed under Section 7.3, the Project Party will
not commence work until the modification has been incorporated into the
plan, subject to approval by the Watershed District.
(2) Reimbursement To Be Delayed If a Project Party Designs or Constructs a
Project segment earlier than specified in Exhibit D, it will temporarily pay all
Design Costs and Construction Costs of that segment because other Project
Parties are not obligated to provide their cost-share earlier than if the segment
had been built according to the schedule in Exhibit D. Design Costs and
Construction Costs incurred by a Project Party beyond its cost-share allocation
will be paid from the Design And Construction Fund after the other Project
Parties have paid their cost-share allocations for that segment, subject to
approval by the Watershed District after it receives an itemized statement of
those costs from the Project Party.
7.5 Use Of The Outlet Channel During Construction And Vegetation Establishment
The Outlet Channel will continue to be used by the Project Parties for storm water
conveyance while the Outlet Channel Restoration And Enhancement Project is under
Construction and before vegetation is fully established. During Construction and until
vegetation is established, the Watershed District will install and Maintain erosion
controls using Best Storm Water Management Practices. Construction efforts will be
sequenced to protect downstream resources. Despite these efforts, a situation may arise
that results in a downstream impact following a large rainfall or other ,runoff or
weather-related event. In the event of a downstream impact, the Project Parties will
work together to remediate the impact and will include that work as an element of the
overall Outlet Channel Restoration And Enhancement Project, subject to the cost-share
allocation in Section 10.2.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 24
DRAFT: 4/2/07
7.6 Construction Cost Participation
Throughout the entire lP A term, the Project Parties will pay all Design Costs and
Construction Costs of the Outlet Channel Restoration And Enhancement Project
according to the cost-share allocation in Section 10.2 using the Design And
Construction Fund established in Section 10.4.
ARTICLE 8. ACQUISITION AND USE OF OUTLET CHANNEL EASEMENTS
8.1 Acquisition By Dedication, Purchase, Or Right-of-Way Grant
To the extent possible, the Project Parties will obtain the necessary easements for
Construction of the Outlet Channel Restoration And Enhancement Project and the
ongoing Operation and Maintenance of the Outlet Channel by dedication pursuant to
the Prior Lake and Shakopee subdivision ordinances ifland containing a portion of the
Outlet Channel or needed easements is developed or redeveloped during this lP A's
term.
8.2 Acquisition By Purchase Or Condemnation In Prior Lake Or Shakopee
If the Construction timing for the Outlet Channel Restoration And Enhancement Project
requires obtaining easements prior to subdivision, the Watershed District will negotiate
for and acquire through purchase or condemnation the necessary Outlet Channel
easements within the municipal boundaries of Prior Lake and Shakopee. In acquiring
the easements, the Watershed District will comply with Minnesota Statutes
Chapters 103D and 117.
A. Assistance By Prior Lake. If the Watershed District determines that condemnation
proceedings are required to acquire an easement in Prior Lake, the Watershed
District will notify Prior Lake, and Prior Lake will assist the Watershed District in
pursuing condemnation. In that event, all legal proceedings will be brought in the
joint name of the Watershed District and Prior Lake by the Prior Lake City
Attorney. Prior Lake will be solely responsible for all legal fees of its City
Attorney.
B. Assistance By Shakopee
(1) Easement Within Watershed District's Legal Boundaries. rfthe Watershed
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 25
...'.~"_._".
DRAFT: 4/2/07
District determines that condemnation proceedings are required to acquire an
easement in Shakopee and the easement is within the Watershed District's
legal boundaries, Shakopee will cooperate with and assist the Watershed
District in pursuing condemnation. The legal proceedings will be brought in
the joint name of the Watershed District and Shakopee by the Shakopee City
Attorney. Shakopee will be solely responsible for all legal fees of its City
Attorney.
(2) Easement Outside Watershed District's Legal Boundaries. If the Watershed
District determines that condemnation proceedings are required to acquire an
easement in Shakopee and the easement is outside the Watershed District's
legal boundaries, Shakopee will undertake the condemnation action, and the
Watershed District will cooperate with and assist Shakopee. The legal
proceedings will be brought by the Shakopee City Attorney in the joint name
of the Watershed District and Shakopee if permissible under applicable law, or
in the name of Shakopee for the benefit of the Watershed District and
Shakopee. Shakopee will be solely responsible for all legal fees of its City
Attorney.
C. Uses Of And Title To Easements. Easements acquired by the Watershed District
will be for drainage purposes over, under, and across the affected properties.
However, the Watershed District, Prior Lake, or Shakopee may acquire an easement
for purposes in addition to drainage as provided in Section 8.4. In Prior Lake, title
to the easements will be acquired in the joint names of the Watershed District and
Prior Lake. In Shakopee, title to the easements will be acquired in the joint names
of the Watershed District and Shakopee.
8.3 Easement Acquisition Costs
Throughout the entire JP A term, the Project Parties will pay all easement acquisition
costs of the Outlet Channel Restoration And Enhancement Project according to the
cost-share allocation in Section 10.2 using the Design And Construction Fund
established in Section lOA. However, if Prior Lake or Shakopee acquire an easement
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 26
DRAFT: 4/2/07
for the Outlet Channel by dedication, the Project Party acquiring or granting the
easement or approving the grant of right-of-way will receive no cost reimbursement for
the value of the easement.
8.4 Additional Authorized Easement Uses
A. Project Parties May Use Easements. Subject to the limitations of specific Outlet
Channel easements, Prior Lake and Shakopee may use Outlet Channel easements in
their respective jurisdictions for the Construction, Emergency Maintenance,
Operation, Maintenance, repair, reconstruction, and removal of trails and
underground utilities (individually, a "Public Service Activity," and collectively
"Public Service Activities"), including nature and recreational trails, electricity,
natural gas, sanitary sewer, storm sewer, telephone and other communications, and
water. In no event will any Public Service Activity interfere with or otherwise
restrict the drainage function of the Outlet Channel. If the Watershed District
reasonably believes a Public Service Activity will do so, it may refuse to allow a
Public Service Activity in a specific easement. Upon completion of any Public
Service Activity in an Outlet Channel easement by Prior Lake or Shakopee, it will
restore the Outlet Channel to its previous condition, unless some alteration of the
Outlet Channel was approved by the Watershed District as part of the Public
Service Activity.
B. Plan Submission And ApprovaL Before using an Outlet Channel easement in its
jurisdiction for Public Service Activities, Prior Lake or Shakopee will obtain
approval from the Watershed District for its proposed use. To begin, Prior Lake or
Shakopee will consult with the Watershed District and prepare plans for the Public
Service Activities. Next Prior Lake or Shakopee will furnish the Watershed District
with complete copies of the plans and specifications for the Public Service
Activities. The Watershed District will approve the plans and specifications or
request modifications to them within 60 days of receipt. If modifications are
requested, Prior Lake or Shakopee will incorporate the modifications into the plans
and specifications and resubmit them to the Watershed District. The Watershed
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 27
DRAFT: 4/2/07
District will approve the resubmitted plans and specifications or request
modifications to them within 30 days of receipt. This process will be repeated until
the Watershed District approves the plans or specifications or until an impasse is
reached. If Prior Lake or Shakopee and the Watershed District reach impasse, then
to the extent the Watershed District determines the plans and specifications are
inconsistent with the Outlet Channel Design Flows or the Conceptual Design, the
Watershed District's determination will be conclusive and Article 13 will not apply.
C. Implement Public Service Activities In Accord With Plan. After approval by the
Watershed District, Prior Lake or Shakopee may implement the Public Service
Activities in accord with the approved plans and specifications. The Project Party
will implement the Public Service Activities in conformance with all applicable
laws and will obtain all permits and approvals required for the Public Service
Activities. If any permit or approval requires modification of the approved plans
and specifications, the Project Party will not implement the Public Service
Activities until the modification has been incorporated into the plans and
specifications, subject to approval by the Watershed District.
D. Expanded Size Or Use Of Easements Yet To Be Acquired. If Prior Lake or
Shakopee anticipate using an Outlet Channel easement yet to be acquired for Public
Service Activities, and if the easement will be larger than required to implement the
Conceptual Design or will be acquired for more than drainage purposes, then Prior
Lake or Shakopee will inform the Watershed District of the need for the larger
easement or broader purpose when the Design process for the affected segment
begins under Section 7.3. The Watershed District will then endeavor to incorporate
the larger easement or broader purpose in the plans and specifications for the
affected segment that are furnished to the Project Parties under Section 7.3. The
Project Cooperator requesting the larger easement or broader purpose will comment
on that portion of the plans and specifications relating to the easement size and
purpose and may request modifications to these portions within the time provided in
Section 7.3. The Watershed District will endeavor again to address the comments
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 28
DRAFT: 4/2/07
and incorporate the modifications into the plans and specifications. However, if the
Watershed District determines that the larger easement or broader purpose is
inconsistent with the Outlet Channel Design Flows or the Conceptual Design, or
will delay the Project, the Watershed District's determination will be conclusive and
Article 13 will not apply.
E. Costs To Be Borne By Those Conducting Public Service Activities. Prior Lake or
Shakopee will be solely and exclusively responsible for all costs related to their
respective Public Services Activities on Outlet Channel easements, including:
(1) Costs incurred by Prior Lake or Shakopee to Design, Construct, Operate, and
Maintain the Public Service Activities;
(2) Outlet Channel Restoration And Enhancement Project acquisition costs,
Design Costs, and Construction Costs related to an easement acquired under
Section 8AD. to the extent those costs exceed the estimated acquisition costs,
Design Costs, and Construction Costs for an easement that was not larger than
required to implement the Conceptual Design and that did not include
purposes other than drainage;
(3) Outlet Channel Operation And Maintenance Costs and Emergency
Maintenance Costs related to an easement acquired under Section 8AD. to the
extent those costs exceed the estimated Operation And Maintenance Costs and
Emergency Maintenance Costs for an easement that was not larger than
required to implement the Conceptual Design and that did not include
purposes other than drainage;
(4) Outlet Channel Operation And Maintenance Costs and Emergency
Maintenance Costs related to any Public Service Activities; and
F. Claims Arising From Public Service Activities. Prior Lake or Shakopee will be
solely and exclusively responsible for all Claims arising out of or in connection with
their Public Service Activities, or with any trail or underground utility placed in an
Outlet Channel easement as a part of their Public Service Activities.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 29
DRAFT: 4/2/07
ARTICLE 9. OPERATION AND MAINTENANCE OF OUTLET CHANNEL
9.1 General
Following the completion of each segment of the Outlet Channel Restoration And
Enhancement Project, annual Operation and Maintenance activities will be necessary to
monitor the status of the Outlet Channel and ensure the stability and continued
performance of the Outlet Channel. In addition, Emergency Maintenance may be
required following significant or sustained flows or other events.
9.2 Preparation Of Maintenance Plans
The Watershed District will lead, coordinate, and if necessary, make final decisions on
plans and specifications for Maintenance of the Outlet Channel. To begin, the
Watershed District will consult with the Project Parties and prepare plans and
specifications for Maintenance of each Outlet Channel segment that preserve the
Conceptual Design considering generally acceptable engineering practices for drainage
systems and Best Storm Water Management Practices. Next, the Watershed District
will furnish the Project Parties with complete copies ofthe plans and specifications for
the Maintenance activities. The Project Parties will comment on the plans and
specifications or request modifications to them within 60 days of receipt. If a Project
Party provides comments or requests modifications, the Watershed District will
endeavor to address the comments and incorporate the modifications into the plans and
specifications. However, if situations arise where the Watershed District receives
comments or modifications that are inconsistent with the Outlet Channel Maintenance
needs, the Conceptual Design, or with other comments or requested modifications, to
avoid delays in Outlet Channel Maintenance, the Watershed District's determination on
Maintenance questions will be conclusive, and Article 13 will not apply.
9.3 Operation And Maintenance By Watershed District Or Other Project
Cooperators
A. Watershed District To Operate And Maintain Outlet Channel. The Watershed
District will Operate and Maintain the Outlet Channel in accord with the Outlet
Channel final segment Maintenance plans developed under Section 9.2. The
Watershed District will do so in conformance with all applicable laws and will
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 30
DRAFT: 4/2/07
obtain all permits and approvals required for Operation and Maintenance activities
by any governmental unit having jurisdiction over the Outlet Channel, including
Prior Lake, Shakopee, the Lower Minnesota Watershed District, the DNR, and the
U. S. Army Corps of Engineers. If any permit or approval requires modification of a
final segment Maintenance plan developed under Section 9.2, the Watershed
District can make the required modification. The Watershed District will notify the
other Project Parties of the change prior to the start of Maintenance but need not
submit the modified plans to the other Project Parties for review and comment.
B. Annual Inspection. Each year, the Watershed District will inspect the Outlet
Channel as required in the Outlet Operating Plan. If an inspection reveals changed
conditions in any Outlet Channel segment that warrant changes in that segment's
Maintenance plan, the Watershed District will amend the segment Maintenance plan
using the procedure in Section 9.2. If an inspection reveals that Emergency
Maintenance is required, the Watershed District will undertake Emergency
Maintenance as provided in Section 9.4.
C. Operation Or Maintenance By Other Project Parties. The Watershed District may
contract with or enter into a delegation agreement with other Project Parties to
Operate or Maintain Outlet Channel segments within that Project Party's
jurisdiction. The contract or delegation agreement will specify the method for
documenting Operation And Maintenance Costs incurred by the Project Party to the
Watershed District and for payment of the Project Party. All Operation or
Maintenance undertaken by other Project Parties will be in accord with the Outlet
Channel segment Maintenance plans developed under Section 9.2. The Project
Party will Operate or Maintain Outlet Channel segments in conformance with all
applicable laws and will obtain all permits and approvals required for Operation or
Maintenance by any governmental unit having jurisdiction over the Outlet Channel,
including Prior Lake, Shakopee, the Watershed District, the Lower Minnesota
Watershed District, the DNR, and the U.S. Army Corps of Engineers. If any permit
or approval requires modification of a final segment Maintenance plan developed
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 31
DRAFT: 4/2/07
under Section 9.2, the Project Party will not commence work until the modification
has been incorporated into the Maintenance plan, subject to approval by the
Watershed District. The Operation And Maintenance Costs incurred by the Project
Party will be paid from the Operation And Maintenance Fund, or be counted as a
credit against the Project Party's next Operation And Maintenance Fund payment,
subject to approval by the Watershed District after it receives an itemized statement
of those costs from the Project Party.
9.4 Emergency Maintenance By Watershed District Or Other Project Parties
A. Watershed District To Peiform Emergency Maintenance. Whenever the need for
Emergency Maintenance arises, the Watershed District will respond promptly and
perform the necessary work. To the extent possible under the circumstances,
Emergency Maintenance will conform to the Maintenance plan for the Outlet
Channel segment in which the Emergency Maintenance occurs. The Watershed
District will perform the Emergency Maintenance in conformance with all
applicable laws and will obtain all permits and approvals required for Emergency
Maintenance activities by any governmental unit having jurisdiction over the Outlet
Channel, including Prior Lake, Shakopee, the Lower Minnesota Watershed District,
the DNR, and the U.S. Army Corps of Engineers.
B. Emergency Maintenance By Other Project Parties. If a Project Party discovers the
need for Emergency Maintenance, it will communicate the emergency to the
Watershed District immediately. If the Watershed District is unavailable or unable
to complete the Emergency Maintenance, a Project Party may perform the
Emergency Maintenance, which will, to the extent possible under the
circumstances, conform to the Maintenance plan for the Outlet Channel segment in
which the Emergency Maintenance occurs. The Project Party will perform the
Emergency Maintenance in conformance with all applicable laws and will obtain all
permits and approvals required for Operation or Maintenance by any governmental
unit having jurisdiction over the Outlet Channel, including Prior Lake, Shakopee,
the Watershed District, the Lower Minnesota Watershed District, the DNR, and the
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 32
DRAFT: 4/2/07
u.s. Army Corps of Engineers. When circumstances allow, the Project Party
undertaking the Emergency Maintenance will provide the other Project Parties with
24 hours notice of the Emergency Maintenance; however, the Project Party is
entitled to move forward with the Emergency Maintenance regardless of response
from the other Project Parties. The Emergency Maintenance Costs incurred by the
Project Party will be paid from the Emergency Maintenance Fund, or be counted as
a credit against the Project Party's next Emergency Maintenance Fund payment,
subject to approval by the Watershed District after it receives and approves an
itemized statement of those costs from the Project Party.
9.5 Operation and Maintenance Cost Participation
A. Operation And Maintenance Costs. Throughout the entire JP A term, the Project
Parties will pay all Operation And Maintenance Costs for the Outlet Channel
according to the cost-share allocation in Section 10.2. using the Operation And
Maintenance Fund established in Section 10.5.
B. Emergency Maintenance Costs. Throughout the entire JP A term, the Project
Parties will pay all Emergency Maintenance Costs for the Outlet Channel as
specified in Article lOusing the Emergency Maintenance Fund established in
Section 10.6. But if a discharge exceeding the Maximum Average Discharge Rates
in Table 2 causes conditions requiring Emergency Maintenance, then the Project
Party whose discharge exceeds its Maximum Average Discharge Rate will pay all
related Emergency Maintenance Costs and Claims. If multiple discharges
exceeding the Maximum Average Discharge Rates in Table 2 cause conditions
requiring Emergency Maintenance, then the Project Parties whose discharges
exceed their Maximum Average Discharge Rates will pay all related Emergency
Maintenance Costs and Claims in amounts proportional to their excess discharges.
ARTICLE 10. OUTLET CHANNEL COST SHARING AND FUNDING
10.1 Estimated Costs
Exhibit E - Nine Year Estimate of Outlet Channel Design. Construction. and Operation
And Maintenance Costs presents the estimated cost to each Project Party for Design and
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 33
DRAFT: 4/2/07
Construction of the Outlet Channel Restoration And Enhancement Project and the first
ten years of Operation and Maintenance of the Outlet Channel. These estimates will
change as the Project Parties develop final plans and specifications for the Project and
for Operation and Maintenance of the Outlet Channel.
10.2 Cost-Share Allocation
A. Design And Construction Cost-Share Allocation. Except as otherwise specifically
provided in this JP A, all Design Costs and Construction Costs for the Outlet
Channel Restoration And Enhancement Project for a specific Outlet Channel
segment will be allocated to the Project Parties according to the Outlet Channel
segment cost-share allocation in Table 4 for that Outlet Channel Segment, or in
Table 4 as modified in accord with Sections 6.6 or 10.3.
Table 4. Cost-Share Allocation for Outlet Channel
Cost-Share for Each Project Party
Outlet Channel by Outlet Segment1
Segment Watershed Prior Lake Shakopee
District
1 88.8% 11.2% 0.0%
2 85.0% 15.0% 0.0%
3 70.1% 27.9% 2.0%
4 42.9% 23.7% 33.4%2
5 38.2% 21.1% 40.7%3
6 40.9% 22.5%4 36.6%
7 33.5% 18.5% 48.0%
8 33.0% 18.2% 48.8%5
Total 52.5% 19.3% 28.2%
1 For all segments, except as noted below, the cost-share percentages were
rounded to the nearest tenth by rounding up numbers equal to or greater
than x.x5, and by rounding down numbers equal to or less than x.x4.
Segments noted below were rounded as indicated, so each segment will
total 100%.
2 In Segment 4, the Shakopee cost-share was rounded from 33.452% to
33.4 %.
3 In Segment 5, the Shakopee cost-share was rounded from 40.758% to
40.7%.
4 In Segment 6, the Prior Lake cost-share was rounded from 22.575% to
22.5%.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 34
DRAFT: 4/2/07
5 In Segment 8, the Shakopee cost-share for was rounded from 48.71 % to
48.8%.
B. Operation, Maintenance, And Emergency Maintenance Cost-Share Allocation
(1) For Specific Channel Segments. Operation And Maintenance Costs and
Emergency Maintenance Costs for a specific Outlet Channel segment will be
allocated to the Project Parties according to the Outlet Channel segment cost-
share allocation in Table 4 for that Outlet Channel Segment, or in Table 4 as
modified in accord with Sections 6.6 or 10.3.
(2) For Entire Outlet Channel. Operation And Maintenance Costs and
Emergency Maintenance Costs for the overall Outlet Channel (for example,
annual inspection costs and the annual Emergency Maintenance Fund
payments) will be allocated to the Project Parties according to the "Total"
cost-share allocation in Table 4, or Table 4 as modified in accord with
Sections 6.6 or 10.3.
C. Cost-Share Allocation Formula. The formula used to calculate the cost-share
allocation is more particularly described in Exhibit F - Calculation Method for
Cost-Chare Allocation and will be used to recalculate the cost-share allocation when
required by other Provisions of this JP A.
10.3 Revisions To Cost-Share Allocations Due To Changes In Tributary Drainage
Areas
If any Project Party's tributary drainage area changes by more than 40 acres, the
Watershed District will recalculate that Project Party's cost-share allocations, arrange
for reimbursement of past costs, and amend this JP A as follows:
A. Recalculation And Payment Of Future Cost-Share Allocations. As to Outlet
Channel Restoration And Enhancement Project Design Costs and Construction
Costs and Outlet Channel Operation and Maintenance Costs and Emergency
Maintenance Costs incurred subsequent to a change in tributary drainage area, the
following Provisions will apply.
(1) Cost Recalculation
a. The Watershed District will recalculate the cost-share allocation according
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 35
DRAFT: 4/2/07
to the method described in Exhibit F to reflect the change in tributary
drainage area and to document the change in Maximum Average
Discharge Rate associated with change in the tributary drainage area. For
any tributary drainage area changing jurisdictions, the Maximum Average
Discharge Rate will be the Maximum Average Discharge Rate originally
associated with the tributary drainage area.
b. In addition, the Watershed District will amend this JP A to incorporate the
recalculation including any necessary changes to Tables 1, 2, and 4,
subject to approval by the other Project Parties in the form of signed
amendments.
(2) Payment Of Cost-Share Allocations. All Design Costs, Construction Costs,
Operation And Maintenance Costs, and Emergency Maintenance Costs
incurred after the change in tributary drainage area will be borne by the
Project Parties according to the cost-share allocations recalculated under
Section 1O.3A.(1). If the change in tributary drainage area results in a
discharge to the Outlet Channel in excess of the Maximum Average Discharge
Rates specified in Table 2, the Project Party acquiring the additional area will
address the excess discharge in accord with Section 6.6.
B. Calculation And Reimbursement Of Past Cost-Shares. As to Outlet Channel
Restoration And Enhancement Project Design Costs, Construction Costs, and Outlet
Channel Operation And Maintenance Costs incurred before a change in tributary
drainage area, the following Provisions will apply.
(1) Cost Calculation. The Watershed District will calculate those Design Costs,
Construction Costs, and Operation And Maintenance Costs as follows:
a. Calculate the Design Costs, Construction Costs, and Operation And
Maintenance Costs incurred before the change in tributary drainage area
for the Outlet Channel segment affected by change; and
b. Calculate the proportion of the Design Costs, Construction Costs, and
Operation And Maintenance Costs attributable to the tributary drainage
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 36
DRAFT: 4/2/07
area that is changing jurisdictions, based on the size of the tributary
drainage area change relative to the size of the total segment drainage area
based on Table 1 and the Maximum Average Discharge Rate for the
tributary drainage area changing jurisdictions from Table 2 using the
Maximum Average Discharge Rate originally associated with the drainage
area.
(2) Cost Reimbursement. The Project Party acquiring the tributary drainage area
will reimburse the Project Party from which the area was acquired for the
proportional Construction Costs and Operation And Maintenance Costs
calculated under Section 10.3B.(1).
(3) Example. Exhibit G - Drainage Area Recalculation Example provides an
example calculation to address a change in tributary drainage area.
10.4 Creation Of Design And Construction Fund And Payment Of Construction Cost-
Share Allocations
A. Design And Construction Fund Creation. Within ten days after the MOA is
approved or disapproved by the Secretary of the Interior, the Watershed District will
establish a fund for the Design Costs and Construction Costs of the Outlet Channel
Restoration And Enhancement Project (the "Design And Construction Fund").
Within 30 days after the MOA is approved or disapproved, the Project Parties will
deposit into the Design And Construction Fund their respective 2006 Design And
Construction Fund payments in the amounts shown on Exhibit H - 2006 Fund
Payments. The 2006 Design And Construction Fund payments will include Design
Costs and Construction Costs incurred for the Outlet Channel Restoration And
Enhancement Project from January 1,2004, to the Effective Date in anticipation of
this JP A. These costs are shown on Exhibit H.
B. Annual Payments To Design And Construction Fund. Beginning in
2007 and in February of each succeeding calendar year until the
Design And Construction Fund is closed, each Project Party will pay into the
Design And Construction Fund its share of the Design And Construction Budget for
that calendar year and any deficiency from the previous year, according to the cost-
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 37
DRAFT: 4/2/07
share allocation in Section 10.2. For example, in February of2008, each Project
Party will pay into the Design And Construction Fund its share of the Design And
Construction Budget for 2008 and its share of any deficiency in the Design And
Construction Fund at the end of 2007.
C. Design And Construction Fund Administration. The Design And Construction
Fund will be administered by the Watershed District in accordance with the
following Provisions.
(1) Authorized Payments. The Watershed District may use the Design And
Construction Fund at any time to pay Design Costs or Construction Costs for
the Outlet Channel Restoration And Enhancement Project, including Design
Costs and Construction Costs incurred for the Outlet Channel Restoration And
Enhancement Project from January 1,2004, to the Effective Date in
anticipation of this JPA, and to pay any Project Party who acts under and
complies with Section 7.4B.
(2) Consistency With Budget. The Design and Construction expenditures will be
consistent with the budget developed during the Annual Meeting. Any
variation from the budget of more than ten percent is subject to approval by all
the Project Parties in writing.
(3) Year End Reconciliation. Following the end of a calendar year and before
January 31st ofthe next year, the Watershed District will provide the Project
Parties with a detailed accounting of the Design And Construction Fund for
the previous year. If any funds remain at calendar year end, the Watershed
District will allocate the funds as credits to the Project Parties according to the
cost-share allocation in Section 10.2. The Watershed District will then
subtract the credits from the following year's Design Cost and Construction
Cost payments owed by the Project Parties. If a deficit exists at calendar year
end, the Watershed District will allocate the deficit among the Project Parties
as deficiencies according to the cost share allocation in Section 10.2 and will
add the deficiencies to the following year's Design Costs and Construction
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 38
DRAFT: 4/2/07
Cost payments owed by the Project Parties. The Project Parties will pay the
deficiencies as provided in Section lOAB.
(4) Interest To Remain In Fund. All interest earned by the Design And
Construction Fund will remain in the Fund to pay future Design Costs and
Construction Costs.
D. Closing The Design And Construction Fund. After Design and Construction of
the Outlet Channel Restoration And Enhancement Project and the completion of all
Design and Construction contracts and obligations, the Watershed District will
prepare and furnish to the Project Parties a final accounting report for the Design
And Construction Fund and close it as follows.
(1) Distribution Of Excess Funds. If any funds remain, the Watershed District
will allocate the funds as a refund to the Project Parties according to the cost-
share allocation in Section 10.2. The Watershed District will then pay the
refunds to the Project Parties, or at a Project Party's direction, will apply the
refund as a credit against that Project Party's next annual Operation And
Maintenance Fund payment.
(2) Payment Of Any Deficit. If a deficit exists, the Watershed District will
allocate the deficit among the Project Parties according to the cost share
allocation in Section 10.2 and will invoice each Project Party its share of the
deficit. Each Project Party will pay the Watershed District within 120 days
after receipt of the invoice.
10.5 Creation Of Operation And Maintenance Fund And Payment Of Operation And
Maintenance Cost-Share Allocations
A. Operation And Maintenance Fund Creation. Within ten days after the MOA is
approved or disapproved by the Secretary of the Interior, the Watershed District will
establish a fund to pay the Operation And Maintenance Costs of the Outlet Channel
(the "Operation And Maintenance Fund"). Within 30 days after the MOA is
approved or disapproved, the Project Parties will pay into the Operation And
Maintenance Fund their respective 2006 Operation And Maintenance Fund
payments in the amounts shown on Exhibit H.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 39
DRAFT: 4/2/07
B. Annual Payments To Operation And Maintenance Fund. Beginning in
of2007 and continuing in February of every succeeding calendar
year, each Project Party will pay into the Operation And Maintenance Fund its share
of the Operation And Maintenance Budget for that calendar year and any deficiency
from the previous year, according to the cost-share allocation in Section 10.2. For
example, in February of2008, each Project Party will pay into the Operation And
Maintenance Fund its share of the Operation And Maintenance Budget for 2008 and
its share of any deficiency in the Operation And Maintenance Fund at the end of
2007.
C. Operation And Maintenance Fund Administration. The Operation And
Maintenance Fund will be administered by the Watershed District in accordance
with the following Provisions.
(1) Authorized Payments. The Watershed District may use the Operation And
Maintenance Fund at any time to pay Operation And Maintenance Costs of the
Outlet Channel and to pay any Project Party who acts under and complies with
Section 9.3C.
(2) Consistency With Budget. The Operation and Maintenance expenditures will
be consistent with the budget developed during the Annual Meeting. Any
variation from the budget of more than ten percent is subject to approval by all
the Project Parties in writing.
(3) Year End Reconciliation. Following the end of a calendar year and before
January 31st of the next year, the Watershed District will provide the Project
Parties with a detailed accounting of the Operation And Maintenance Fund for
the previous year. If any funds remain at calendar year end, the Watershed
District will allocate the funds as credits to the Project Parties according to the
cost-share allocation in Section 10.2. The Watershed District will then refund
the credits, or at a Project Party's direction, will subtract the credit from that
Project Party's next annual Operation And Maintenance Fund payment. If a
deficit exists at calendar year end, the Watershed District will allocate the
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 40
DRAFT: 4/2/07
deficit among the Project Parties as deficiencies according to the cost share
allocation in Section 10.2 and will add the deficiencies to the following year's
Operation And Maintenance Fund payments for the Project Parties. The
Project Parties will pay the deficiencies as provided in Section 10.5B.
(4) Interest To Remain In Fund All interest earned by the Operation And
Maintenance Fund will remain in the Fund to pay future Operation And
Maintenance Costs.
10.6 Creation Of Emergency Maintenance Fund And Payment Of Emergency
Maintenance Cost-Share Allocations
A. Emergency Maintenance Fund Creation. The Project Parties will create a
$250,000 fund to provide a stable source for Emergency Maintenance along the
Outlet Channel (the "Emergency Maintenance Fund"). Within ten days after the
MOA is approved or disapproved by the Secretary of the Interior, the Watershed
District will establish the Emergency Maintenance Fund. Within 30 days after the
MOA is approved or disapproved, the Project Parties will pay into the Emergency
Maintenance Fund their respective 2006 Emergency Maintenance Fund payments in
the amounts shown on Exhibit H.
B. Annual Payments Through 2010 To Emergency Maintenance Fund. Beginning
In of2007 and in February of each succeeding calendar year
through 2010, each Project Party will pay into the Emergency Maintenance Fund its
share of the $50,000 annual payment for that calendar year according to the cost-
share allocation in Section 10.2. For example, in February of2008, each Project
Party will pay into the Emergency Maintenance Fund its share of the $50,000
annual payment for 2008.
e. Emergency Maintenance Fund Administration. The Emergency Maintenance
Fund will be administered by the Watershed District in accord with the following
Provisions.
(1) Authorized Payments. The Watershed District may use the Emergency
Maintenance Fund at any time to pay Emergency Maintenance Costs of the
Outlet Channel and to pay any Project Party who acts under and complies with
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 41
DRAFT: 4/2/07
Section 9.4B.
(2) Year End Report. Following the end of a calendar year and before
January 31st ofthe next year, the Watershed District will provide the Project
Parties with a detailed accounting of the Emergency Maintenance Fund for the
preVIOUS year.
(3) Replenishment Of Fund When Emergency Maintenance is performed on an
Outlet Channel segment, the Watershed District will replenish the Emergency
Maintenance Fund by invoicing the Project Parties using that segment in an
amount equal to the Emergency Maintenance Costs plus an inflation factor
equal to the Engineering News Record Construction Cost Index calculated
using 2006 as the base year, according to the cost-share allocation in
Section 10.2. If Emergency Maintenance occurs on or before December 31,
2010, the Project Parties will pay the invoiced amounts within 60 days. If
Emergency Maintenance occurs on or after January 1,2011, the Project
Parties will pay the invoice before the end of the February following receipt of
the invoice.
(4) Interest To Remain In Fund All interest earned by the Emergency
Maintenance Fund will remain in the Fund to pay future Emergency
Maintenance Costs.
10.7 General Fund Administration And Recordkeeping
In addition to the specific fund administration requirements in Sections 10.4, 10.5, and
10.6, the Watershed District will administer the Design And Construction Fund,
Operation And Maintenance Fund, and Emergency Maintenance Fund according to the
following Provisions.
A. Accounts To Conform To Statutory Requirements. Funds will be retained in
accounts that conform to the requirements of Minnesota Statutes Chapter 118A.
B. Retention And Inspection Of Records. The Watershed District will retain all
financial records for the Funds for a period of six years following the completion of
any work. The Project Parties may inspect the books and records maintained by the
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 42
DRAFT: 4/2/07
Watershed District for the Outlet Channel during normal business hours.
c. Quarterly Reports. The Watershed District will provide quarterly fund balance
statements for each Fund to the Project Parties.
D. Annual A udit. The Watershed District will include the Funds in its annual audit,
provide a copy of the audit to the Project Parties and, upon request, will make these
financial records available for review or audit by any Project Party.
E. Reimbursement Of Watershed District. The Watershed District will be reimbursed
from the Operation And Maintenance Fund for the actual staff costs and accounting
fees associated with maintaining financial records and reporting to the Project
Parties and others about the Design And Construction Fund, Operation And
Maintenance Fund, and Emergency Maintenance Fund.
SECTION 11. PROJECT PARTY MEETINGS
11.1 General Provisions
A. Representation At Meetings. Each Project Party will designate an individual and
an alternative to serve as representatives and attend Project Party meetings.
B. Meetings Open And Noticed. All meetings of the Project Parties will be noticed
and open to the public in accord with the strictest requirement of applicable law
governing any Project Party.
C. Quorum. No business may be conducted at a meeting unless representatives of
three Project Parties are present.
D. Voting. Each Project Party will have one vote, and any action requires the vote of
three Project Parties.
E. Conduct Of Meeting. Meetings will be conducted in accord with this JPA's
Provisions and the latest edition of Robert's Rules of Order. Ifa conflict arises
between this JPA's Provisions and Robert's Rules of Order, this JPA will control.
The Watershed District's representative will serve as chair.
11.2 Annual Meeting And Failure To Agree On Budgets
Beginning in of 2007 and in March of each succeeding calendar year, the
Watershed District will convene a coordination and planning meeting of the Project
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 43
DRAFT: 4/2/07
Parties (the "Annual Meeting").
A. Annual Meeting Activities. At the Annual Meeting, the Project Parties will:
(1) Review the previous year's activities;
(2) Discuss the Design and Construction planned for the Outlet Channel
Restoration And Enhancement Project in the next calendar year;
(3) Discuss the Operation and Maintenance planned for the Outlet Channel in the
next calendar year;
(4) Review any completed or requested modifications to the cost-share
allocations;
(5) Review the status of the Design And Construction Fund, the Operation And
Maintenance Fund, and the Emergency Maintenance Fund;
(6) Refine the Construction Costs and the Operation And Maintenance Costs
based on the most recent data;
(7) Approve a budget for Design Costs and Construction Cost for the next
calendar year ("Design And Construction Budget"); and
(8) Approve a budget for Operation And Maintenance Costs for the next calendar
year ("Operation And Maintenance Budget").
B. Failure To Agree On Budgets.
(1) Failure To Agree On Construction Budget. If for any reason, the Project
Parties fail to agree on a Construction budget for the Outlet Channel
Restoration And Enhancement Project, the annual estimate from Exhibit E
plus an inflation factor equal to the Engineering News Record Construction
Cost Index calculated using the year 2006 as the base year will apply to the
next year, and the annual contributions of each Project Party will be based on
the annual estimate as adjusted.
(2) Failure To Agree On Operation And Maintenance Budget. If for any reason,
the Project Parties fail to agree on an Operation and Maintenance budget for
the Outlet Channel, the Operation and Maintenance budget for the prior year
plus an inflation factor equal to the Engineering News Record Construction
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 44
.
DRAFT: 4/2/07
Cost Index calculated using the year 2006 as the base year will apply to the
next year, and the annual contributions of each Project Party will be based on
the prior year's budget as adjusted.
11.3 Initial Meeting
Within 45 days after the Approval Date, the Watershed District will convene a meeting
of the Project Parties. The meeting purpose will be to adopt the 2007 Design And
Construction Budget and the 2007 Operation and Maintenance Budget. If for any
reason, the Project Parties fail to agree on one or both budgets, the budget or budgets as
presented by the Watershed District will be deemed adopted and the 2007 Design And
Construction Fund, Operating And Maintenance Fund, and Emergency Maintenance
Fund payments of each Project Party will be based on that budget.
11.4 Other Meetings
Other Project Party meetings may be called by the Watershed District or by a written
request to the Watershed District signed by any Project Party.
ARTICLE 12. INDEMNIFICATION
12.1 Watershed District Indemnification Of Prior Lake And Shakopee
Subject to the limitations of Minnesota Statutes Chapter 466, the Watershed District
will defend, indemnify, and hold Prior Lake and Shakopee harmless from Claims
arising out of or in connection with any Design or Construction by the Watershed
District of the Outlet Structure Repair Project or the Outlet Channel Restoration And
Enhancement Project, or any portion of either; any Operation, Maintenance, or
Emergency Maintenance by the Watershed District of the Outlet Structure or Outlet
Channel; or any failure by the Watershed District to comply with this JPA's Provisions.
Under no circumstances, however, will the Watershed District be required to pay any
amounts in excess of the limits on liability established in Minnesota Statutes
Chapter 466 applicable to anyone Project Party. Claims may not be aggregated to
exceed the statutory limits afforded by Minnesota Statutes Chapter 466.
12.2 Prior Lake Indemnification Of Watershed District And Shakopee
A. Prior Lake General Indemnity. Subject to the limitations of Minnesota Statutes
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 45
DRAFT: 4/2/07
Chapter 466, Prior Lake will defend, indemnify, and hold the Watershed District
and Shakopee, and their respective elected and appointed officials, employees, and
agents harmless from Claims arising out of or in connection with: any Design or
Construction by Prior Lake of any portion of the Outlet Channel Restoration And
Enhancement Project; any Operation, Maintenance, or Emergency Maintenance by
Prior Lake of the Outlet Channel; any Public Service Activity by Prior Lake; or any
failure by Prior Lake to comply with this JPA's Provisions. Under no
circumstances, however, will Prior Lake be required to pay any amounts in excess
of the limits on liability established in Minnesota Statutes Chapter 466 applicable
to anyone Project Party. Claims may not be aggregated to exceed the statutory
limits afforded by Minnesota Statutes Chapter 466.
B. Prior Lake Indemnity For Public Service Activities. Subject to the limitations of
Minnesota Statutes Chapter 466 as modified in this Section 12.2B., Prior Lake will
defend, indemnify, and hold the Watershed District and Shakopee, and their
respective elected and appointed officials, employees, and agents harmless from
Claims arising out of or in connection with Prior Lake's Public Service Activities or
with any trail or underground utility placed in an Outlet Channel easement as part of
Prior Lake's Public Service Activities. Prior Lake understands that under
Minnesota Statutes ~ 466.03, subd. 6.e., Prior Lake is not subject to tort liability for
Claims arising out of or in connection with any trail placed in an Outlet Channel
easement as part of Prior Lake's Public Service Activities or the Public Service
Activities necessary to Design, Construct, Operate, and Maintain any trail.
Nevertheless, for the purpose of the indemnity provided in this Section 12.2B. only
and up to the limits on liability established in Minnesota Statutes Chapter 466 only,
Prior Lake waives its sovereign immunity. Under no circumstances, however, will
Prior Lake be required to pay any amounts in excess of the limits on liability
established in Minnesota Statutes Chapter 466 applicable to anyone Project Party.
Claims may not be aggregated to exceed the statutory limits afforded by Minnesota
Statutes Chapter 466.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 46
DRAFT: 4/2/07
12.3 Shakopee Indemnification Of Watershed District And Prior Lake
A. Shako pee General Indemnity. Subject to the limitations of Minnesota Statutes
Chapter 466, Shakopee will defend, indemnify, and hold the Watershed District and
Prior Lake, and their respective elected and appointed officials, employees, and
agents harmless from Claims arising out of or in connection with: any Design or
Construction by Shakopee of any portion of the Outlet Channel Restoration And
Enhancement Project; any Operation, Maintenance, or Emergency Maintenance by
Shakopee ofthe Outlet Channel; any Public Service Activity by Shakopee; or any
failure by Shakopee to comply with this JPA's Provisions. Under no circumstances,
however, will Shakopee be required to pay any amounts in excess of the limits on
liability established in Minnesota Statutes Chapter 466 applicable to anyone Project
Party. Claims may not be aggregated to exceed the statutory protections afforded
by Minnesota Statutes Chapter 466.
B. Shako pee Indemnity For Public Service Activities. Subject to the limitations of
Minnesota Statutes Chapter 466 as modified in this Section 12.3B., Shakopee will
defend, indemnify, and hold the Watershed District and Prior Lake, and their
respective elected and appointed officials, employees, and agents harmless from
Claims arising out of or in connection with Shakopee's Public Service Activities or
any trail or underground utility placed in an Outlet Channel easement as part of
Shakopee's Public Service Activities. Shakopee understands that under Minnesota
Statutes ~ 466.03, subd. 6.e., Shakopee is not subject to tort liability for Claims
arising out of or in connection with any trail placed in an Outlet Channel easement
as part of Shakopee's Public Service Activities or the Public Service Activities
necessary to Design, Construct, Operate, and Maintain any trail. Nevertheless, for
the purpose of the indemnity provided in this Section 12.3B. only and up to the
limits on liability established in Minnesota Statutes Chapter 466 only, Shakopee
waives its sovereign immunity. Under no circumstances, however, will Shakopee
be required to pay any amounts in excess of the limits on liability established in
Minnesota Statutes Chapter 466 applicable to anyone Project Party. Claims may
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 47
DRAFT: 4/2/07
not be aggregated to exceed the statutory limits afforded by Minnesota Statutes
Chapter 466.
12.4 Limitation On Liability Of Project Parties
Notwithstanding anything to the contrary in this JPA, under no circumstances will a
Project Party be required to pay on behalf of itself and the other Project Parties any
amounts in excess of the limits on liability established in Minnesota Statutes Chapter
466 applicable to anyone Project Party. The limits of liability for some or all of the
Project Parties may not be added together to aggregate or determine the maximum
amount ofliability for any Project Party. The intent ofthis Section 12.4 is to impose a
limited duty to defend and indemnify for Claims arising under this JP A subject to the
limits of liability under Minnesota Statutes Chapter 466. The purpose of creating this
duty to defend and indemnify is to simplify the defense of Claims by eliminating
conflicts among defendants, and to permit Claims against multiple defendants from a
single occurrence to be defended by a single attorney.
12.5 Insurance And Evidence Of Coverage
A. Insurance For Watershed District, Prior Lake, And Shako pee. The Watershed
District, Prior Lake, and Shakopee will maintain liability coverage with the League
of Minnesota Cities Insurance Trust ("LMCIT") under standard LMCIT liability
coverage forms for at least the amount of the maximum limit of liability under
Minnesota Statutes Section 466.04 for any number of claims arising out of a single
occurrence, as such limit may change during the term of this JPA. For the period
from the Effective Date through December 31, 2007, the coverage limit will be at
least$l million per occurrence. Thereafter, the coverage limit shall change to
conform to Minnesota Statutes Section 466.04. Each Project Party will name the
other two Project Parties as additional insureds.
B. Private Liability Insurance. If a Project Party cannot obtain liability coverage with
the LMCIT, it will obtain the following private liability insurance coverage through
an insurance company licensed to do business in the State.
(1) Commercial General Liability Coverage. The Watershed District, Prior Lake,
or Shakopee will maintain commercial general liability coverage with a limit
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 48
DRAFT: 4/2/07
of at least the amount of the maximum limit of liability under Minnesota
Statutes Section 466.04 for any number of claims arising out of a single
occurrence, as such limit may change during the term of this JP A. If this
commercial general liability insurance contains a general aggregate limit, the
Project Party will maintain a general aggregate limit of not less than twice the
amount of coverage for each occurrence. For the period from the Effective
Date through December 31, 2007, the coverage limit will be at least $1 million
per occurrence. Thereafter, the coverage limit shall change to conform to
Minnesota Statutes Section 466.04. The commercial general liability
insurance will cover liability arising from premises, operations, independent
contractors, products-completed operations, personal injury, advertising
injury, and contractually-assumed liability. The other two Project Parties will
each be named as an additional insured.
(2) Public Officials' Errors And Omissions Insurance. The Watershed District,
Prior Lake, or Shakopee will maintain public officials' errors and omissions
or equivalent coverage, in a form acceptable to the Watershed District, with a
limit of at least $1 million per occurrence, and, if this insurance contains an
aggregate limit, an aggregate limit of not less than $2 million. The other two
Project Parties will each be named as an additional insured.
C. Evidence Of Coverage Ana Ongoing Coverage. Each Project Party will provide
the Watershed District with a certificate of insurance showing that the required
coverages are in effect, and the Watershed District will provide the other Project
Parties with the same evidence. No Project Party will allow the insurance required
by this JP A to lapse, be canceled, be reduced in limits or coverage, not be renewed,
be changed materially, or have restrictive modifications added during this JPA's
term. In the event any Project Party fails to procure or maintain any insurance
coverage required under this JP A, the Watershed District may buy such coverage on
an annual basis and add the coverage cost to the next annual Operation And
Maintenance Fund payment due from that Project Party. If the Watershed District
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 49
DRAFT: 4/2/07
fails to procure or maintain any insurance coverage required under this lP A, any
other Project Party may buy such coverage on an annual basis and deduct the
coverage cost from its next annual Operation And Maintenance Fund payment.
ARTICLE 13. DISPUTE RESOLUTION
13.1 Policy For Resolving Disputes
The Project Parties acknowledge that, if disputes arise over the interpretation of this
JP A, or over the rights and obligations of the Proj ect Parties under this JP A's
Provisions, such disputes will, in all likelihood, impinge on substantial rights affecting
the health and safety of the persons and property of the citizens residing within their
respective jurisdictions. The Project Parties also acknowledge that any disputes will
further arise under time frames that do not allow for extended investigation or
negotiations to resolve the disputes. Therefore the following dispute procedure will
apply.
13.2 Procedure For Resolving Disputes
All disputes arising out of or in connection with this JP A will be resolved as follows.
A. Dispute Notice And Initial Meeting. If a dispute arises between two or more
Project Parties, any Project Party involved in the dispute may send notice of the
dispute to all Project Parties specifying the nature of the dispute and the parties to
the dispute. Within five days after delivery of notice, a meeting between the parties
to the dispute (and any other Project Party that wishes to attend) will be held to
attempt in good faith to negotiate a resolution of the dispute.
B. Mediation. If the parties to the dispute fail to resolve the dispute after a meeting, or
any additional meetings as the parties to the dispute mutually deem necessary, or if
the parties to the dispute fail to meet within five days after delivery of the notice,
the parties to the dispute will submit the dispute within five days thereafter to
mediation in accordance with Rule 114 of the Minnesota General Rules of Practice
and bear equally the costs of the mediation. The parties to the dispute will
participate in good faith in the mediation for a period of ten days, unless the parties
to the dispute mutually extend the mediation period.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 50
DRAFT: 4/2/07
C. Binding Arbitration. If the parties to the dispute are not successful in resolving the
dispute through mediation or if they fail to meet within the ten-day meeting period,
then the dispute will be resolved by binding arbitration in accordance with
Minnesota Statutes ~~ 572.08 to 572.30 as amended, and the following conditions:
(1) Selection Of Arbitrators. The dispute will be heard by a panel of three
arbitrators, one of whom will be selected by each Project Party five days after
expiration of the ten-day period (or longer period if extended by written
agreement of the parties to the dispute) for mediation of the dispute. Each
Project Party will select its arbitrator by giving notice of the arbitrator's name
to the other Project Parties. If any Project Party fails to select an arbitrator
within the five-day selection period, the arbitrator will be selected within two
days after expiration of the initial selection period by the arbitrators previously
appointed by the Project Parties.
(2) Hearing Timing. The hearing before the arbitrators will be held within ten
days after selection of the arbitration panel, unless otherwise mutually agreed
by the parties to the dispute.
(3) Decision By Majority And Timing. A decision will be made by majority vote
of all the arbitrators. The arbitrators' decision will be rendered within 15 days
after selection of the arbitration panel, unless otherwise mutually agreed in
writing by the parties to the dispute.
(4) Governing Law. The law governing interpretation of this JP A in any
arbitration will be the laws of the State.
(5) Costs. Each Project Party will bear the costs of the arbitrator it selects and
will bear equally any other costs of the arbitration.
13.3 Enforcement Of Judgment Or Order
A. Money Judgment Involving Watershed District, Prior Lake, Or Shakopee. If the
arbitrators' decision under Section 13.2C. involves a money judgment against the
Watershed District, Prior Lake, or Shakopee, the respective Proj ect Party will pay
the money judgment within 60 days after it is issued by the arbitrators. If the
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 51
DRAFT: 4/2/07
Watershed District, Prior Lake, or Shakopee fails to do so, the money judgment will
be enforceable by any other Project Party in the District Court of Scott County,
Minnesota.
B. Non-monetary Judgment Involving Watershed District, Prior Lake, Or Shako pee.
If the arbitrator's decision under Section 13.2C. involves a non-monetary judgment
against the Watershed District, Prior Lake, or Shakopee or a judgment about how to
interpret this JPA, the r~spective Project Party will immediately conform to the
judgment. Ifthe Watershed District, Prior Lake, or Shakopee fails to do so, the
judgment will be enforceable by any other Project Party in the District Court of
Scott County, Minnesota.
ARTICLE 14. TERM AND TERMINATION
The term of this JP A is perpetual, or until otherwise expressly terminated by a unanimous vote
of the Project Parties. Assuming the Outlet Channel Restoration And Enhancement Project is ,
complete, the Watershed District's right to release 65 cfs through the Outlet Structure and the
rights of other Project Parties to drain areas tributary to the Outlet Channel as described in
Table I at the Maximum Average Drainage Rates described in Table 2 will survive this JPA's
termination. Any termination will be recorded in the office of the Scott County Recorder.
ARTICLE 15. DISTRIBUTION OF PROPERTY UPON TERMINATION
15.1 Distribution Of Property Generally
Upon this JPA's termination, all personal property acquired as a result ofthis JPA will
be returned to the contributing Project Party. And all monies remaining in the Design
And Construction Fund, the Operation And Maintenance Fund, or the Emergency
Maintenance Fund will be returned to the Project Parties according to the cost-share
allocation in Section 10.2.
15.2 Conveyance Of Title To Easements Outside The Watershed District
Upon this JPA's termination, the Watershed District will convey to Shakopee, all of
its right, title, and interest in that portion of the Outlet Channel lying outside of the
legal boundaries of the Watershed District, east of Pike Lake Trail or north of Scott
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 52
DRAFT: 4/2/07
County Road 16 within the municipal limits of Shako pee, subject to the rights of the
Watershed District and other Project Parties in Article 14.
ARTICLE 16. GENERAL PROVISIONS
16.1 Counterparts
This JP A may be signed in separate counterparts, and the counterparts, taken together,
shall constitute a single agreement.
16.2 Entire Agreement, Amendment, And Waiver
This JPA and the MOA embody the entire agreement and understanding of the Project
Parties regarding the subject matter of this JPA and all prior agreements,
representations, statements, and understandings, oral and written, are merged in this
JP A and the MOA by this Section 16.2. This JP A may not be altered, amended,
modified, or supplemented except in a writing signed by the Project Parties, which will
be effective from and after the date that it is signed by all the Project Parties if an
effective date is not specified. No JP A provision is waived unless done so in writing
and signed by the Project Party against whom such waiver is asserted.
16.3 MOAlJPA Precedence
If the MOA is approved by the Secretary of the Interior, its Provisions will control the
relationship between the Project Cooperators. If the MOA is not approved by the
Secretary of the Interior, or if it is approved and terminates in the future for any reason,
this JP A's Provisions will control the relationship of the Project Parties. If any conflict
arises between the MOA's Provisions and this JPA and the MOA has been approved
and has not been terminated, the MOA will control.
16.4 Notices
A. Written Notice Required. Except as otherwise specifically provided in this JP A, all
notices, demands, and communications required or provided to be given under this
JPA will be in writing and will be directed as follows:
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 53
DRAFT: 4/2/07
If to Watershed District: Prior Lake-Spring Lake Watershed District
Attn: District Administrator
15815 Franklin Trail SE
Prior Lake, MN 55372
If to Prior Lake: City of Prior Lake
Attn:
,MN 55_
If to Shakopee: City of Shakopee
Attn:
,MN 55_
B. How Notices May Be Delivered. Notices may be:
(1) Delivered personally;
(2) Sent by nationally recognized overnight courier; or
(3) Sent by first class, certified United States Mail, return receipt requested,
postage prepaid.
C. When Notices Are Effective. Notices are effective:
(1) On receipt if delivered personally;
(2) On the next business day if sent by overnight courier; or
(3) On the date shown on the receipt if mailed, unless delivery is refused or
delayed by the addressee, in which event they are deemed delivered on the
third business day following deposit in the United States Mail.
D. Changes In Notice Address. A Project Party may change the address to which
notice will be delivered by notice given to all Project Parties. No Project Party may
require notice to be delivered to more than two addresses.
16.5 No Third Party Beneficiaries
Except as otherwise specifically provided in this JP A, no rights, privileges, or
immunities of any Project Party under this JP A will inure to the benefit of any third-
party, nor will any third-party be deemed to be a beneficiary of any of this JP A's
provisions.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 54
DRAFT: 4/2/07
16.6 Successors And Assigns
This JP A binds and inures to the benefit of the legal successors and assigns of the
Project Parties.
SIGNED by the Watershed District, Prior Lake, and Shakopee to go into force on the Effective Date.
[THE REST OF THIS PAGE LEFT BLANK INTENTIONALLY.]
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 55
DRAFT: 4/2/07
JOINT POWERS AGREEMENT
SIGNATURE PAGE FOR
PRIOR LAKE-SPRING LAKE WATERSHED DISTRICT
PRIOR LAKE-SPRING LAKE WATERSHED DISTRICT
By:
, President
By:
, Secretary
STATE OF MINNESOTA)
) ss
COUNTY OF SCOTT )
On this day of ,2007, the foregoing Joint Powers
Agreement was acknowledged before me by and
, the President and Secretary respectively, of the Prior
Lake-Spring Lake Watershed District, a Minnesota political subdivision, on behalf ofthe District.
Notary Public
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 56
DRAFT: 4/2/07
JOINT POWERS AGREEMENT
SIGNATURE PAGE FOR
CITY OF PRIOR LAKE
CITY OF PRIOR LAKE
By:
, Mayor
By:
, City Manager
STATE OF MINNESOTA)
) ss
COUNTY OF SCOTT )
On this day of ,2007, the foregoing Joint Powers
Agreement was acknowledge before me by and
, the Mayor and City Manager respectively, of the City of
Prior Lake, a Minnesota municipal corporation, on behalf of the City.
Notary Public
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 57
DRAFT: 4/2/07
JOINT POWERS AGREEMENT
SIGNATURE PAGE FOR
CITY OF SHAKOPEE
CITY OF SHAKOPEE
By:
, Mayor
By:
, City Administrator
By:
, City Clerk
STATE OF MINNESOTA)
) ss
COUNTY OF SCOTT )
On this day of ,2007, the foregoing Joint Powers
Agreement was acknowledged before me by ,
, and ,
the Mayor, City Administrator, and City Clerk respectively, of the City of Shako pee, a Minnesota
municipal corporation, on behalf of the City.
Notary Public
fb.us.1693937.11
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure Page 58
DRAFT 4/2/07
Exhibit A - Outlet Channel Map
Q
-""\
I
I
AIlllO
'~~M
':.
Note that there is no defined channel
through Dean Lake, Pike Lake or Jeffers
Ponds. The channel centerline through
these water bodies is only provided for
station ing pu rpo se s,
..
1!>
. ."".
,
~ i~
J_
L.<t. N
--,' ..,J
I Public Waters
Prior 'SPring PLSLWD Boundary
LIJ Outlet Channel Segment
Lake, . . Lake '.
~-_. ~ ~/Io..,_/ - Segment Boundary
Wft,TIOIEHH'1) IHSTRn::T ~
9 0.5 , I I I i Mles
I I I Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure A-1
Exhibit B - Outlet Channel Segment Drainage Areas
I..lIpndI
--......--
c::a--~.-
--~-
K' __cr,__"..,_
1 l15 0 ...~~t __cr~_.__.._"'_
~.. ~cr~Q.i!$___"__
,...;ti ...
i DEe 2IJDE<
___ 1lQl__Cl!riW IEKIlIIllll B
____1181_
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure B-1
Exhibit C - Projected Average Discharge
Rate Calculation Formula and Example Calculations
1. CALCULATION FORMULA
Projected Average Discharge Rate =
Area-weighted average of the Projected Discharge Rates of individual new developments =
I [(AND/TAND) * Max DND]
Where:
AND = acres (i.e. size) of an individual new development
T AND = total acres of all new development after the JP A effective date
Max "DNO = Projected Discharge Rate for the 100- Year Rainfall Event, in
cfs/acre, for each new development
2. EXAMPLE CALCULATIONS
2.1 Scenario:
Assume that Outlet Channel Segment 2 has a drainage area of 260 acres, all within Prior
Lake. A total of 60 acres was developed prior to the JP A Effective Date, and the
remaining 200 acres are developed over a three-year period following the JP A Effective
Date, as follows:
. Year 1: 50 acres of commercial development at a Projected Discharge Rate of 0.5
cfs/acre.
. Year 2: 100 acres of low-density residential development at a Projected Discharge
Rate of 0.125 cfs/acre; and 25 acres of a development that existed prior to
the JP A Effective Date is redeveloped.
. Year 3: 50 acres of medium-density residential development at a Projected
Discharge Rate of 0.25 cfs/acre.
2.2 Background Information:
. Prior Lake Maximum Average Discharge Rate (from JPA Table 2): 0.25 cfs/acre
. Projected Discharge Rate of an existing development: 0.64 cfs/acre
2.3 Annual Certification:
Given the assumptions and background information presented above, Prior Lake would
complete its annual certification for Years 1, 2, and 3 following the JP A Effective Date as
follows:
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure C-1
A. Year 1:
(1) Prior Lake would report acres of land developed before the lP A Effective
Date, land developed after the JP A Effective Date, and undeveloped land as
follows:
Developed area prior to JP A: 60 acres
Developed area after JP A: 50 acres
Undeveloped area: 150 acres
(2) Prior Lake would report that no land was redeveloped in Year I.
(3) Prior Lake would present the Projected Average Discharge Rate for new
development as follows:
Proiected Average Discharge Rate
= L [(AND/TAND) * Max~]
= [(50 acres in Year 1/50 acres total) * 0.5 cfs/acre] = 0.5 cfs/acre
(4) Prior Lake would show how it plans to manage future development on the
remaining 150 acres of undeveloped land in this Outlet Channel segment to
meet its Maximum Average Discharge Rate of 0.25 cfs/acre.
B. Year 2:
(1) Prior Lake would report the acres of land developed before the JP A Effective
Date, land developed after the JP A Effective Date, and undeveloped land as
follows:
Developed area prior to JP A: 60 acres
Developed area after JP A: 150 acres (50 acres in Year 1 + 100 acres in
Year 2)
Undeveloped area: 50 acres
(2) Prior Lake would note that 25 acres of developed land was redeveloped. Prior
Lake would show that the Projected Discharge Rate of the redeveloped land is
equal to or less than the Projected Discharge Rate of the developed condition
that existed on the JPA Effective Date (that is, 0.64 cfs/acre), or if the
Projected Discharge Rate ofthe redeveloped land exceeded 0.64 cfs/acre, Prior
Lake would show how that additional rate was offset by a reduction elsewhere
in the Segment 2 tributary drainage area.
(3) Prior Lake would present the Projected Average Discharge rate of the new
development since the JP A Effective Date as follows:
Proiected Average Discharge Rate
= L [(AND/TAND) * Max ~]
= [(50 acres in Year 1/150 acres total) * 0.5 cfs/acre] +
[(100 acres in Year 2/150 acres total) * 0.125 cfs/acre] = 0.25
cfs/acre
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure C-2
(4) Prior Lake would show how it plans to manage future development on the
remaining 50 acres of undeveloped land in this segment to meet its Maximum
Average Discharge Rate of 0.25 cfs/acre.
C. Year 3:
(1) Prior Lake would report the acres of land developed before the JP A Effective
Date, undeveloped land, and land developed after the JP A Effective Date as
follows:
Developed area prior to JP A: 60 acres (25 acres redeveloped in Year 2)
Developed area after JP A: 200 acres (50 acres Year 1 + 100 acres in
Year 2 + 50 acres in Year 3)
Undeveloped area: o acres
(2) Prior Lake would report that no land was redeveloped in Year 3.
(3) Prior Lake would present the Projected Average Discharge rate of the new
development since the JP A Effective Date as follows:
Proj ected Average Discharge Rate
= I [(AND/TAND) * Max DND]
= [(50 acres in Year 1/200 acres total) * 0.5 cfs/acre] +
[(100 acres in Year 2/200 acres total) * 0.125 cfs/acre] +
[(50 acres in Year 3/200 acres total) * 0.25 cfs/acre] = 0.25
cfs/acre
(4) Prior Lake would note that no new development will occur in this segment.
D. After Year 3:
After Year 3, Prior Lake's future annual certifications would consist of reporting on
any redevelopment that occurs and demonstrating that the Projected Discharge Rate
of the redevelopment is equal to or less then the previous developed condition.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure C-3
Exhibit D - Outlet Channel Design. Construction. and Maintenance Schedule
Outlet Channel
Segment 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
C
1 Prior Lake To D (winter M1 M1 M1 M1 M1 M2 M2 M2 M2
CR42 05-06)
C
2 CR 42 to Pike D (winter M1 M1 M1 M1 M1 M2 M2
Lake Inlet 07-08)
Pike Lake Inlet C
3 to Pike Lake D (winter M1 M1 M1 M1 M1 M2 M2
Trail 07-08)
C
4 Pike Lake Trail D (winter M1 M1 M1 Ml M1 M2
to CR 16 08-09)
C
5 CR 16 to Deans D (winter Ml Ml M1 M1 M1 M2 M2 M2
Lake Outlet 06-07)
C (fall-
6 Deans Lake D winter M1 M1 M1 M1 M1 M2 M2 M2 M2
Outlet to TH 169 05-06)
C
7 TH 169 to TH D (winter M1 M1 M1 Ml M1 M2 M2
101 07-08)
C
8 TH 101 to Blue D (winter M1 M1 M1 M1 M1 M2
Lake Inlet 08-09)
Notes: D = Design; C = Construction; M1 = 0-5 yrs. Maintenance; M2 = 6+ yrs. Maintenance.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure D-1
Exhibit E - Nine Year Estimate of Outlet Channel Design.
Construction. and Operation And Maintenance Costs
The following tables present the Watershed District's estimate by Project Cooperator ofthe Outlet Channel Restoration And
Enhancement Project Design Costs and Construction Costs from 2007 through 2009, the Outlet Channel Operation And Maintenance
Costs from 2007 through 2015, and the annual contributions to establish the Emergency Maintenance Fund.
Project
Cooperator 2007 2008 2009 2010 2011
D&CI Maint.2 D&C Maint. D&C Maint. D&C Maint. D&C Maint.
Watershed Dist. $329,055 $80,141 $467,972 $103,153 $177,417 $159,144 -- $184,489 -- $158,237
Shakopee 244,954 24,747 246,794 49,265 176,610 73,709 -- 98,939 -- 84,860
Prior Lake 148,152 21,521 180,064 34,232 97,962 53,958 -- 67,952 -- 58,283
Total $722,161 $126,409 $894,830 $186,650 $451,989 $286,810 -- $351,380 -- $301,379
Project
Cooperator 2012 2013 2014 2015 Total
D&C1 Maint.2 D&C Maint. D&C Maint. D&C Maint.
Watershed Dist. -- $131,292 -- $119,786 -- $91,791 -- $79,119 $2,081,597
Shakopee -- 79,526 -- 67,267 -- 55,045 -- 42,430 1,244,145
Prior Lake -- 52,357 -- 46,002 -- 36,139 -- 29,141 825,763
Total -- $263,175 -- $233,054 -- $182,975 -- $150,690 $ 4,151,505
1 D & C = Design Costs and Construction Costs
2 Maint. = Operation And Maintenance Costs and Emergency Maintenance Fund payments
Notes:
. Annual costs shown here include estimated capital and Maintenance costs, but not any easement acquisition costs.
. Construction Cost estimates are based on $150 per linear foot of Outlet Channel, less the estimated cost of the ftrst ftve years of Maintenance
($10 per linear foot).
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure E-1
. Operation And Maintenance Cost estimates are based on $10 per linear foot vegetation management for the ftrst ftve years after the Outlet
Channel Restoration And Enhancement Project and $5 per linear foot thereafter.
. For this table, Operation And Maintenance Costs include the establishment of a $250,000 Emergency Maintenance Fund during the ftrst ftve
years ofthe Project. The Fund will be replenished as it is used.
. Costs are based on present dollar values as of March 2006.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure E-2
Exhibit F - Calculation Method
for Cost-Share Allocation
The Outlet Channel cost-share allocation in IP A Table 4 is calculated for each Outlet Channel
segment as follows (see _ below for the column references and calculation results):
Step 1: The tributary drainage area for each Project Cooperator in each Outlet Channel segment
from IPA Table 1 (Column A) is multiplied by the Project Cooperator's Maximum Average
Discharge Rate from IP A Table 2 (Column B).
Step 2: The resulting Peak Segment Discharge Rate (Column C) is added to the Peak Discharge
Rate From Upstream (Column D) to determine the Total Peak Discharge Rate To Segment
(Column E) from each Project Cooperator in each Outlet Channel segment.
Step 3: The Total Peak Discharge Rate to the Outlet Channel for each Project Cooperator in each
Outlet Channel segment is then multiplied by the Project Cooperator's Duration Factor in
_ below (Column F) to calculate each Project Cooperator's Total Segment Flow for
each Outlet Channel segment (Column G).
Table F-l: Duration Factors
Project Cooperator Duration Factor (Days)
Watershed District 10.0
Prior Lake 0.5
Shakopee, south (upstream) of Dean Lake, 2.0
except 124.61 acres directly tributary to Outlet
Channel Segment 5
Shakopee, north (downstream) of Dean Lake, 1.0
plus 124.61 acres directly tributary to Outlet
Channel Segment 5
Step 4: The Total Segment Flow from each Project Cooperator is then added to determine the Total
Segment Flow for each Outlet Channel segment (Column G)
Step 5: Finally, each Project Cooperator's relative flow contribution for each Outlet Channel
segment is calculated as a percent ofthe Total Segment Flow for that Outlet Channel
segment (Column H). That percent is then identified as the cost-share allocation for the
Project Cooperator for that Outlet Channel segment and entered in IP A Table 4.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure F-1
Table F -2: Cost-Share Allocation Calculation Table
A B C D E F G H
Maximum Peak Peak Total Peak
Tributary Average Segment Discharge Discharge Total
Outlet Drainage Discharge Discharge Rate From Rate To Duration Segment % of Total
Channel Project Area Rate Rate Upstream Segment Factor Flow Segment
Segment Cooperators (acresi (cfs/acrei (cfs) (cfS)3 (cfs) (dayst (cfs-days) Flows
1 Watershed District NA 65.00 65.0 NA 65.0 10.0 650.0 88.8%
Prior Lake 658 0.25 164.5 NA 164.5 0.5 82.3 11.2%
Shakopee 0 0.10 0 NA 0 2.0 0 0.0%
Total 658 732.3 100.0%
2 Watershed District NA 0 0 65.0 65.0 10.0 650.0 85.0%
Prior Lake 261 0.25 65.3 164.5 229.8 0.5 114.9 15.0%
Shakopee 0 0.10 0 0 0 2.0 0 0.0%
Total 261 764.9 100.0%
3 Watershed District NA 0 0 65.0 65.0 10.0 650.0 70.1%
Prior Lake 1,147 0.25 286.8 229.8 516.6 0.5 258.3 27.9%
Shakopee 93 0.10 9.3 0 9.3 2.0 18.6 2.0%
Total 1,240 926.9 100.0%
4 Watershed District NA 0 0 65.0 65.0 10.0 650.0 42.9%
Prior Lake 805 0.25 201.3 516.6 717.9 0.5 359.0 23.7%
Shakopee 2,443 0.10 244.3 9.3 253.6 2.0 507.2 33.4%6
Total 3,248 1,516.2 100.0%
5 Watershed District NA 0 0 65.0 65.0 10.0 650.0 38.2%
Prior Lake 0 0.25 0 717.9 717.9 0.5 359.0 21.1%
Shakopee 748 0.10/0.257 93.5 253.6 347.1 2.0 694.2 40.7%8
Total 748 1,703.2 100.0%
6 Watershed District NA 0 0 65.0 65.0 10.0 650.0 40.9%
Prior Lake 0 0.25 0 717.9 717.9 0.5 359.0 22.5%9
Shakopee 937 0.25 234.3 347.1 581.4 1.0 581.4 36.6%
Total 937 1,590.4 100.0%
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure F-2
A B C D E F G H
Maximum Peak Peak Total Peak
Tributary Average Segment Discharge Discharge Total
Outlet Drainage Discharge Discharge Rate From Rate To Duration Segment % of Total
Channel Project Area Rate Rate Upstream Segment Factor Flow Segment
Segment Cooperators (acresi (cfs/acrei (cfs) (cfs )3 (cfs) (dayst (cfs-days) FlowS
7 Watershed District NA 0 0 65.0 65.0 10.0 650.0 33.5%
Prior Lake 0 0.25 0 717.9 717.9 0.5 359.0 18.5%
Shakopee 1,407 0.25 351.8 581.4 933.2 1.0 933.2 48.0%
Total 1,407 1,942.2 100.0%
8 Watershed District NA 0 65 65.0 65.0 10.0 650.0 33.0%
Prior Lake 0 0.25 0 717.9 717.9 0.5 359.0 18.2%
Shakopee 101 0.25 25.2 933.2 958.4 1.0 958.4 48.8%10
Total 101 1,967.4 100.0%
1 Taken from JP A Table 1.
2 Taken from JP A Table 2. The Watershed District's discharge rate is not a maximum average rate but a maximum discharge rate through the Outlet Structure of 65
cfs as set in this JP A.
3 Taken from Column E for the segment immediately upstream.
4 TakenfromJPA,~, TableF-1.
5 The numbers in this column are used in JP A Table 4.
6 Shakopee's percentage was rounded from 33.452% to 33.4% so the percentages add to 100%.
7 For the Segment 5 Shakopee tributary drainage areas, 623.39 acres have a maximum discharge rate of 0.1 cfs/acre, ahd 124.61 acres have a maximum discharge rate
of 0.25 cfs/acre.
8 Shakopee's percentage was rounded from 40.758% to 40.7% so the percentages add to 100%.
9 Prior Lake's percentage was rounded from 22.57% to 22.5% so the percentages add to 100%.
10 Shakopee's percentage was rounded from 48.71% to 48.8% so the percentages add to 100%.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure F-3
Exhibit G - Drainage Area
Change Recalculation Example
1. SCENARIO:
Shakopee obtains 80 acres of land originally in Prior Lake that is tributary to Outlet Channel
Segment 4. The purchase occurs after Construction of Segments 5 and 6 of the Outlet Channel
Restoration And Enhancement Project.
2. BACKGROUND INFORMATION:
Size of Drainage Area Change: 80 acres
Segment 5 Tributary Watershed: 8,188 acres (direct plus upstream)
Segment 5 Construction and Maintenance Costs $900,000
Segment 6 Tributary Watershed: 9,376 acres (direct plus upstream)
Segment 6 Construction and Maintenance Costs $400,000
3. How DRAINAGE AREA CHANGE Is ADDRESSED:
Step 1: The Watershed District recalculates the cost-share allocation according to the method
described in~, and applies the new cost-share allocation to all future costs.
Step 2: For each Outlet Channel segment that has been constructed prior to the drainage area
change, the Watershed District calculates the proportion of the Construction Costs and
Operation And Maintenance Costs attributable to the drainage area change based on the
size of the drainage area change relative to the size of the total drainage area.
Segment 5 costs = $900,000
Proportional costs = (80 acres/8188 acres) * $900,000 = $8,793
Segment 6 costs = $400,000
Proportional costs = (80 acres/9376 acres) * $400,000 = $3,413
Step 3: The Watershed District calculates the discharge attributable to the drainage area change
based on the Maximum Average Discharge Rate from lP A Table 2 for the Project
Cooperator with initial jurisdiction over the drainage area and the size of the drainage
area.
80 acres * 0.25 cfs/acre = 20 cfs
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure G-1
Step 4: Shakopee pays Prior Lake $12,206 ($8,793 + $3,413) to reimburse Prior Lake for the
share of the Outlet Channel Restoration And Enhancement Project Construction Costs
and Operation And Maintenance Costs Prior Lake has already paid that are attributable
to the drainage area that has changed jurisdictions.
Step 5: The Watershed District revises JP A Table 1 to reflect the revised tributary areas for
each Project Cooperator (i.e. Shakopee's tributary drainage area increases by 80 acres
in Segment 4, and Prior Lake's tributary drainage area decreases by 80 acres).
The Watershed District also revises JPA Table 2 to note that Shakopee may discharge
an additional 12 cfs (total) in Segment 4 as a result of the change in drainage area. This
is because Shakopee reimbursed Prior Lake an amount based on Prior Lake's 0.25
cfs/acre Maximum Average Discharge Rate, while Shakopee's Maximum Average
Discharge Rate is 0.1 cfs/acre. This gives Shakopee an additional 12 cfs in channel use
that they have paid for and can use in the future, as is illustrated below:
Prior Lake: 80 acres * 0.25 cfs/acre = 20 cfs
Shakopee: 80 acres * 0.1 cfs/acre = 8 cfs
Difference: 12 cfs capacity that shifts from Prior Lake to Shakopee
. that is, Shakopee may discharge the full 20 cfs originally
associated with the 80 acres that has changed jurisdictions.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure G-2
Exhibit H - 2006 Fund Payments
1. 2006 CONSTRUCTION COSTS
The following tables detail the costs incurred or projected for the Construction of the Outlet
Channel Restoration and Enhancement Project, by channel segment, from Janu 1,2004,
through December 31, 2006, based on the Construction schedule in
1
1.1 Table B-1: Segment 1
Activity Amount
Designl $ 70,885
Construction2 377,434
Construction observation, contract3 35,821
Construction observation by Watershed 9,400
District staff
Contingency 4 25,000
Subtotal $ 518,540
Grants5 71,700
Total $ 446,840
1 Costs since January 1,2004.
2 Actual Construction Costs from January 1, 2006, through December 31,
2006. Does not include bid for work between Fountain Hills Drive and
County Road 42, which has been postponed pending the completion of
the development plans.
3 Contract Construction observation costs.
4 For Construction change orders.
5 DNR Shoreland grant: $22,000; Met. Council Environmental
Partnership Grant: $49,700.
1.2 Table B-2: Segment 5
Activity Amount
Design 1 $ 82,500
Total $ 82,500
1 Contracted Design costs. Only the Design of Segment 5 is scheduled as
a 2006 cost. Construction is a 2007 cost accordin to
1 Prom January 1, 2004, through December 31, 2006, the Watershed District also incurred Design Costs for planning a
portion of Segment 4 amounting to $34,788.64 and Construction Costs for building a portion of Segment 5
amounting to $17,759.22. These costs will be credited to the Watershed District's fund payments in 2008 when
Segment 4 is scheduled for Design and in 2007 when Segment 5 is scheduled for Construction.
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure H-1
1.3 Table B-3: Segment 6
Activity Amount
Design and Construction Costs1 $ 194,245
Bank stabilization2 10,000
Total $ 204,245
1 Construction Costs provided by Shakopee; a detailed cost report is
available from Shakopee or the Watershed District. Design and
Construction Costs include planning, permitting, bidding, building work,
and Shakopee Construction observation (staff and contract engineer).
2 Estimate for live staking along bank from Dean Lake outlet structure to
Highway 169.
2. 2006 OPERATION AND MAINTENANCE COSTS
No Maintenance activities are scheduled for 2006 beyond those already included in the
Segment 1 construction contract. However, the Watershed District will inspect the Outlet
Channel twice in 2006 at a total cost of$800. And the Watershed District estimates a cost of
$5,000 to establish the three funds specified in the lP A, administer the lP A, and oversee the
Outlet Channel Operations in 2006. Thus the 2006 Operation And Maintenance Fund expenses
will total $5,800.
3. 2006 EMERGENCY MAINTENANCE COSTS
The 2006 Emergency Maintenance Fund Payments are based on each Project Cooperator's
proportional cost of the annual $50,000 total contribution to the Fund.
4. 2006 FUND PAYMENTS BY PROJECT COOPERATOR
4.1 Watershed District:
2006 Design And Construction Fund payment
Segment I Costs (88.8% of total) $ 396,794.00
Segment 5 Costs (38.2% of total) 31,515.00
Segment 6 Costs (40.9% of total) 83,536.00
Less costs already paid (Segments 1 and 5) ($ 431,734.42)1
Total payment $ 80,110.58
2006 Operation And Maintenance Fund payment
(52.5% of total) $ 3,045.00
2006 Emergency Maintenance Fund payment
(52.5% of total) $ 26,250.00
Total of all payments $109,405.58
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure H-2
Note for the Watershed District:
1. The Watershed District's actual costs for Segments 1 and 5 from January 1,2004, through
December 31, 2006, were as follows:
Segment 1 (Design, Construction, and Const. mgmt.) $ 488,605.27
Segment 5 (Design) 57,345.43
Less grants received for Segment 1 ($ 71,700.00)
Less cost reimbursement received from Prior Lake (42,516.28)
Total $ 431,734.42
The Watershed District's actual costs do not equal the costs in Tables H-1 and H-2 because not
all contracted segment costs were expended in 2006. This work is ongoing, and some of the
costs will be expended in 2007 and applied to the 2007 Project accounting.
4.2 Prior Lake:
2006 Design And Construction Fund payment
Segment I Costs (11.2% of total) $ 50,046.00
Segment 5 Costs (21.1% of total) 17,408.00
Segment 6 Costs (22.5% oftotal) 45,955.00
Less costs already paid (Segment 1 including
street sweeping) ($ 42,516.28)
Total payment $ 70,892.72
2006 Operation And Maintenance Fund payment
(19.3% of total) $ 1,119.00
2006 Emergency Maintenance Fund payment
(19.3% oftotal) $ 9,650.00
Total of all payments $ 81,661.72
4.3 Shakopee:
2006 Design And Construction Fund payment
Segment 1 Costs (0.0% of total) $ 0.00
Segment 5 Costs (40.7% of total) 33,578.00
Segment 6 Costs (36.6% oftotal) 74,754.00
Less costs already paid (Segment 6) ($ 194,245.00)
Total payment ($ 85,913.00)
2006 Operation And Maintenance Fund payment
(28.2% of total) $ 1,636.00
2006 Emergency Maintenance Fund payment
(28.2% of total) $ 14,100.00
Total of all payments ($ 70,177.00)
tb.us.1701175.03
Joint Powers Agreement For Construction, Use, Operation, And
Maintenance Of The Prior Lake Outlet Channel And Outlet Structure H-3