June 22, 2011 Mr. Thomas K.

Sorel Commissioner of Transportation Minnesota Department of Transportation 395 John Ireland Boulevard, Mailstop 100 St. Paul, MN 55155-1899 Dear Commissioner Sorel: For the past several months, the city of Minnetonka has been working in partnership with the Minnesota Department of Transportation on the Bren Road interchange project on TH 169. This innovative project has received widespread recognition and several awards for the publicprivate partnership and unique financing structure that allowed the concept to become a reality, and model for future infrastructure development throughout the state and nation. Unfortunately, this project is now in jeopardy, perhaps the potential victim of political maneuvering seemingly more designed to inflict as much pain as possible during the looming state shutdown, rather than to responsibly address actual administrative or engineering issues. Regardless of the motivation, a MnDOT decision to unilaterally rescind its prior approvals and unnecessarily delay the 169/Bren Road project would irresponsibly cost the taxpayers we both serve an additional $2.75 to $3.10 million dollars, a 20 percent increase on this $15 million project. Although this locally planned and managed project is already fully funded from multiple public and private sources, and all state administrative approvals have already been received, your staff has indicated that MnDOT intends to exercise a little known, and rarely invoked, contractual clause that would prohibit the use of state right-of-way during construction. Although unsupported by any administrative, financial or engineering rationale, such an irresponsible action to rescind your prior commitments would effectively stop work on this important project, which is already well underway. I am writing to implore you to recognize that the 169/Bren Road project, which the city of Minnetonka and its private partners entered into as a good faith funding partnership with MnDOT, is not dependent on any legislative or administrative action, and is wholly independent of and unaffected by any state shutdown. While we fully appreciate the difficult position in which MnDOT finds itself during these uncertain times, your agency has little if any remaining role on this particular project, which can, and should, responsibly proceed as planned to avoid any unnecessary impacts on the residents and businesses we both serve. The decision to proceed is yours alone, and we are asking that you do the right thing by allowing this project to continue.

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Like all cities and counties, the city of Minnetonka recently received a general notice from your staff advising that projects involving state funding should be suspended if there is a state shutdown. The notice was based on the potential lack of state appropriations to fund ongoing and future projects. However, the 169/Bren Road project has multiple funding sources, and the states share of the funding has already been appropriated and paid. As a result, our city attorney and the League of Minnesota Cities determined that the cited funding criteria clearly do not apply to this project. The 169/Bren Road project is comparable with the Central Corridor LRT project, which has already received approval to proceed as planned. State funding for both projects has already been appropriated, and in the case of the Minnetonka project, already disbursed by the state and received by the city. With funding from multiple sources, neither project is dependent on, nor subject to the impact of a possible state shutdown. The potential lack of appropriated funding is clearly not a valid reason for MnDOT to order a shutdown of the project. Perhaps more importantly, the 169/Bren Road project is a locally contracted and managed project. Unlike state highway projects, the city of Minnetonka is fully administering all phases of construction, including inspection and testing, and has already received all necessary project approvals from MnDOT. This leaves a very limited role for MnDOT during the actual construction phase, which is now well underway. In short, the Minnetonka project is not dependent on any legislative or administrative action, and is wholly independent of and unaffected by any state shutdown. Construction can clearly proceed according to the already authorized schedule and standards, whether or not MnDOT is fully or partially staffed. Given these facts, the city of Minnetonka logically assumed that the possible state shutdown should not impact the 169/Bren road project, and was responsibly planning to proceed with the project. The next major step is the scheduled June 24 demolition of the Bren Road bridge, which as you know, is a process that takes weeks of planning and preparation on the part of the city, the contractor and many subcontractors. As is always the case, MnDOT was fully apprised of these plans during recent weeks. I hope you appreciate how troubling it was to be informed by your staff on June 21 just yesterday, and only a few days before scheduled demolition of the Bren Road bridge that MnDOT is unreasonably exercising a little-known clause in the state contract, and forbidding the city from using state right-of-way for this project during a state shutdown. Your staff gave no reason for why they are exercising this right. Given the limited amount of space in which contractors have to work on this project, it would be all but impossible for work to continue without utilizing the state right-of-way. We are not aware that this provision has ever been used for non-engineering issues, and hope you can appreciate how inappropriate it would be, and how petty it would appear to the public and their elected legislative representatives, for MnDOT to consider such an action for purely political reasons. While we fully understand and sympathize with the difficult position in which MnDOT finds itself as a result of the state budget impasse, shutting down the 169/Bren Road project is completely unrelated to the shutdown and utterly unnecessary. By irrationally prohibiting the use of state right-of-way, it seems as though MnDOT staff is going out of its way to ensure the project is stopped, with absolutely no real financial, administrative or engineering rationale to support such a stoppage.

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As the chair of MnDOTs Public-Private Transportation Partnership Policy Task Force, I find it especially disturbing that your agency should be taking such an unnecessary and irrational position on the very type of project we are all attempting to promote. The city of Minnetonka has been proud to partner with MnDOT on this innovative project, and has willingly assumed management responsibility for overall planning and construction. I hope you understand what a violation of our good faith partnership it would be for MnDOT to order a work stoppage on this project for no logical financial, administrative or engineering reason. I hope you can also appreciate what a corrosive message such an unfounded action would send to all your potential future private sector and local government partners throughout the state. While we can accept the limitations of funding authorization and availability based on political stalemates, we cannot understand a purely administrative decision by MnDOT that would irrationally impose unnecessary costs upon the taxpayers we all serve. Such an action would raise legitimate questions about MnDOTs commitment to be a responsible and reliable partner in any future public-private venture. Given these last-minute developments, we have delayed the scheduled bridge demolition by two weeks to permit an opportunity for these issues to be responsibly resolved. This move alone will result in additional, unnecessary expense to the city and its taxpayers, and I want to emphasize that we have only delayed the demolition not cancelled it entirely because we are still hopeful that everyone involved will do the right thing and allow this project to continue, regardless of the state shutdown. At this point, every day we delay is costing our taxpayers additional money and they must be our foremost concern. Aside from the legal and practical rationale that supports continuing the project, we hope you agree that the public interest would be far better served by maintaining the current schedule: y A delay in interchange construction would needlessly delay the opening of the UnitedHealth Group Phase II headquarters, with its associated expansion of permanent jobs. The 169/Bren Road interchange is not merely a road construction project that generates construction jobs. It is an economic development project, which the Minnesota Department of Employment and Economic Development (DEED) joined in partnership because it will bring 1,400 permanent jobs to our state. Delaying project construction would unnecessarily delay the creation of these critical jobs by a year. Overall project costs would increase substantially due to required renegotiation of both permanent and temporary easements. Additionally, unnecessarily delaying the project would undermine the performance incentives the city of Minnetonka responsibly negotiated into this contract. With built-in contractual incentives and penalties for timely performance, delays caused solely by MnDOTs decision would result in requests for additional compensation for a variety of items, most of which would fall upon the city of Minnetonka to pay. Any significant delay in the project would result in the contractor pulling off the job and moving on to another project, with no guarantee of returning in a timely fashion once the work stoppage has ended. This demobilization/remobilization would have substantial and unnecessary traffic and cost implications for the residents and businesses we both serve.

The public private partnership established for this project was made possible through the use of innovative trip generation fees, which insure that businesses that benefit from the infrastructure improvements are responsible for funding an appropriate share of those improvements. Since trip generation fees are based on total project costs, unnecessarily higher project costs would increase those fees, negatively affecting or delaying the redevelopment this infrastructure improvement was designed to attract and support.

I want to assure you that we fully appreciate and empathize with the challenges faced by our dedicated state public servants and partners. We join in your hope that the current budget impasse is resolved quickly so that we can all return to our jobs of serving the residents and businesses of our state. While considerable uncertainty exists with the looming state shutdown, the 169/Bren Road project is already fully funded, and as a locally contracted and managed project, requires little or no involvement from MnDOT at this point, so it is one highway project that can logically and responsibly proceed as planned. There is absolutely no reason for this project and our taxpayers to incur a 20 percent cost increase, since there is no conceivable reason for MnDOT to shut this project down. The Minnetonka project is not dependent on any legislative or administrative action and is wholly independent of and unaffected by any state shutdown. The decision to allow this project to continue is purely MnDOTs alone to make, and that decision has nothing to do with funding availability or construction management or engineering factors or administrative oversight, since those considerations are all in place. There is simply no rationale to justify shutting down this high profile and widely recognized project, and the impacts of arbitrarily doing so would reverberate for years to come. Your decision to allow the 169/Bren Road project to continue is all about doing the right thing for our taxpayers, for our business economy and for your partners in the private sector and local government. Your decision to allow this project to continue is an opportunity to demonstrate to the public and to their legislative representatives what government can accomplish when we decide to do what makes sense. We strongly encourage you to embrace that opportunity and do the right thing by allowing the 169/Bren Road project to move forward. Thank you for your thoughtful consideration of this request. We would respectfully ask that you respond to our request no later than 12 p.m. noon Monday, June 27, 2011, to allow us time to determine our next steps prior to July 1. Sincerely,

John Gunyou City Manager cc: Governor Mark Dayton