1205 Diffley Rd - Access Agreement to Caponi Art Park>
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JOINT AND COOPERATIVE AGREEMENT
FOR ACCESS TO THE CAPONI ART PARK
1. Parties. This Aqreement is made this " day of m QrA ,
1993, by and between the City of Eagan,. a Minnesota municipal
corporation, hereinafter called the "City", and Anthony Caponi and
Cheryl Caponi, husband and wife, hereinafter called the "Owners". The
City maintains offices at 3830 Pilot Knob Road, Eagan, MN 55121, and
the Owners reside at 1215 County Road 30, Eagan, MN 55123.
2. The Propertv. The Owners are the fee owners of approximately
sixty acres of real estate which lies in the vicinity of 1215 Diffley
Road, Eagan, Minnesota, and which is legally described on Exhibit A
which is attached hereto and made a part hereof by reference (the
"Property"t).. The Owners have partially developed a portion of the
Property lying north of Diffley Road with a homestead and sculpture
gardens, while the portion of the Property lying south of Diffley
Road remains undeveloped except for fences, fieldroads and street
access points off Diffley Road.
3. Context of Aareement. Commencing in 1986, the Owners and the
City engaged in discussions and negotiations concerning the proposal
of the Owners to develop the entire Property as The Caponi Art Park,
a profile of the proposed development being depicted on Exhibit B,
which is attached hereto and made a part hereof by reference.
These discussions culminated in a Resolution adopted by the City
on November 8, 1990, entitled "Resolution To Create A Public Outdoor
Sculpture Park In The City Of Eaqan," the operative paragraphs of
said Resolution providing as follows:
"NOW THEREFORE, be it resolved by the Eagan City Council,
this 8th day of November, 1990, that the City of Egan shall
join in a formal working partnership with Mr. Caponi for the
sole purpose of creating a public sculpture garden and
studio, benefitting the citizens of today and the
generations yet to come, and
BE IT FURTHER RESOLVED that the City of Eagan shall take a
leadership role in the establishment of a public non-profit
foundation to oversee the acquisition, development, and
administration of the sculpture park in pursuit of the I
vision of Mr. Anthony Caponi."
On the 16th day of December, 1992, in furtherance of the Caponi
Art Park, the Owners created a non-profit corporation under Minnesota
Statutes Chapter 317A, in furtherance of the establishment,
construction and operation.of the Caponi Art Park.
The City and the Owners have continued to communicate and
cooperate in furtherance of the planning and design of a join£-and
cooperative effort to realize the goals set forth in the "Resolution
To Create A Public Outdoor Sculpture park In The City Of Eagan."
4. Proposed Construction. The City, and the County of Dakota,
have prepared plans and specifications for a street and utility
improvement on Diffley Road (Dakota County CSAH no. 30), the City's
project being described as City Project No. 607, which improvements
are contiguous to and bisect the Property. A part of City Project No.
607 provides for pedestrian access connecting the northerly.portion '
of the Property with the southerly portion of the Property by means •
of a tunnel under•Diffley Road (the "Pedestrian Access"). The purpose
of the Pedestrian Access is to provide the public with a walking,
hiking and biking trail connecting the north, with the south side of
Diffley Road as well as providing pedestrian and wheelchair access to
the north and south sides of Diffley Road for the utilization of the
Caponi Art Park. The original design of the tunnel under Diffley Road
as part of City Project No. 607, is hereinafter called the "Base
Pedestrian Access", the plans of which are attached hereto and made a
part hereof by reference as Exhibit C. On October 9, 1992,
representatives of the City met with the Owners and agreed upon the
design of an alternate tunnel, namely a conspan design which is 10
feet high and 16 feet wide with vertical sidewalls, hereinafter
called the "Alternate Pedestrian Access", the plans of which are
attached hereto and made a part hereof by reference as Exhibit D. The
Alternate Pedestrian Access design is to include a fence to segregate
the traffic flow within the Pedestrian Access, which fence is
contemplated to be installed as part of the construction of the
Alternate Pedestrian Access.
NOW THEREFORE, in order to insure the design, construction, and
completion of the Pedestrian Access, the parties agree as follows:
1. The parties agree that the Alternate Pedestrian Access as
described on Exhibit D, and prepared by Orr, Schelen,
Mayeron & Associates, Inc., is an appropriate and suitable
design which will meet the needs o£ both the City and the
Caponi Art Park.
_ 2. The City agrees to provide for the inclusion as alternate
bid items, the Base Pedestriari Acoess arid-the Alternate
Pedestrian Access, within the construction documents
? prepared for bidders by the County of Dakota, for City
Project No. 607.
3. The City agrees subject to the terms hereof to provide that
the County of Dakota include the design and construction of
the Alternate Pedestrian Access as a part of City Project
No. 607.
4. The Owners shall be responsible for and shall pay to the
City all costs described herein which are associated with
the construction of the Alternate Pedestrian Access. The
cost for the construction of the Alternate Pedestrian Access
shall be computed to include the following:
i.) The difference in bid prices between the Base
Pedestrian Access and the Alternate Pedestrian Access
as shown and noted on the bid submittal made by the
contractor engaged by the County of Dakota for the construction of City Project No. 607.
ii.) All costs charged to the City after October 1, 1992, by
outside consultants for engineering design and
administering the construction and assessment of the
Alternate Pedestrian Access, which would not have been
incurred if the base pedestrian access had been
constructed.
iii.) The amount of any change order to City Project No.
607, which is either directly or indirectly related to
the Alternate Pedestrian Access, and which would not
have been incurred if the base pedestrian access had
been constructed.
5. Prior to 8:15 a.m. on March 22, 1993, the Owner shall pay
in cash to the City an amount to be determined as follows:
a.) 50% of the difference between the bid prices of the
Alternate Pedestrian Access and the Base Pedestrian
Access as determined by the bid submittal of the
successful bidder; or
b.) If the amount determined by Paragraph 5(a) hereof is
in excess of $25,000.00, the Owner shall pay a sum
equal to $25,000.00 plus one-half of the amount as
determined under Paragraph 5(a) hereof, minus
$25,000.00.
EXAMPLE:
Alternate Bid: $130,000.00
Base Bid: $ 75,000.00
Cash Paid to City =$25,000.00 +(130 000 - 75,000) - 25,000
2
_ $25,000.00 = 55,000 - 25.000
2
_ $25,000.00 = $15,000.00
_ $40,000.00
6. All costs to be paid to the City by the Owner under this
Agreement, which exceed the amount paid to the City pursuant
to Paragraph 5 hereof, shall be assessed to the Owner as
part of City Project No. 607. Any such assessment shall be
amortized over a period of fifteen (15) years, at an
interest rate determined by the Eagan City Council, for City
Project No. 607. Contemporaneously with the execution of
this Agrement, the owner shall sign and deliver to the City
a Waiver of Assessment, a form of which is attached hereto
as Exhibit E.
7. The Owners acknowledge that in connection with the
construction of the Alternate Pedestrian Access, additional
drainage areas upon the Property will be required. The
Owners agree that they shall grant easements for the
installation of a culvert for drainage purposes and
additional easements for drainage upon their Property. The
extent of the easements shall be limited to what is
reasonably necessary to accommodate the drainage as
determined by the City. The easement as prepared by the City
shall include a graphic illustration and shall be executed
and delivered to the City prior to 8:15 a.m. on March 22,
1993.
8. The Owners do hereby agree to grant any additional
construction easements required by the City or County of
Dakota to provide for the construction of the Alternate
Pedestrian Access. All such easements shall be prepared by
the City Attorney, executed by the Owners and delivered to
the City prior to 8:15 a.m. on March 22, 1993.
9. Failure by the Owners to deliver to the City when due the
following:
a. The cash as set forth in Paragraph 5;
b. Easements as set forth in Paragraphs 7 and.8; and
c. The Waiver of Assessments as set forth in Paragraph 6,
Prior to 8:15 a.m. on March 22, 1993, shall result in the
deletion of the alternative bid for the construction of the
Alternative Pedestrian Access, and will result in the
construction of the Base Pedestrian Access.
10. Upon acceptance of City Project No. 607 by the City, the
Owner shall transfer ownership of the Pedestrian Access to
the City pursuant to a document prepared by the City
Attorney. Thereafter, the Pedestrian Access shall belong to
and be undar the control and ownership of the City and the
City hereby agrees to maintain the Pedestrian Access in a
physical condition which will accommodate the intended use
of both parties to this Agreement.
11. This Agreement may be amended only upon written agreement
signed by both parties.
12. This Agreement shall be goeerned by the laws of the State of
Minnesota.
IN WITNESS WHEREOF, the parties have hereunto set their hands as
of the date below:
Dated:
Dated: J ` 1/" 93
Dated: ?? (? -?3
Dated: S ' (6 ' Q;-
STATE OF MINNESOTA )
) ss.
COUNTY OF C?
l" ?t ' aponi
ojvq C!Vo--•
Cheryl poni
On this J&J4--day of 27?F 1993, before me a Notary
Public within and for said County, personally appeared ANTHONY CAPONI
and CHERYL CAPONI, husband and wife, to me personally known to be the
persons described in and who executed the foregoing instrument and
acknowledged that they executed the same as their free act and deed.
MNO RPtY UBIICC tdINMC?M??
Oly Com?b?IMCexWm ?
0
Y , r
, L rtAt ' G2 .
otary Public /
r
STATE OF MINNESOTA
COUNTY OF DAKOTA
ss.
On this day of 1993, before me a Notary
Public within and for said County, personally appeared THOMAS A. EGAN
and E. J. VanOVERBEKE to me personally known, who being each by me
duly sworn, each did say that they are respectively the Mayor and
Clerk of the City of Eagan, the municipality named in the foregoing
instrument, and that the seal affixed on behalf of said municipality
by authority of its City Council and said Mayor and Clerk
acknowledged said instrument to be the free act and deed of said
municipality.
MANIYN L WUCNERPFENMp
NOTAHY pUBLIC - MINMEppTA
UAKOTA COUNTY
1/y eomm4??on s?pkM 76N
APPROVED AS TO FORM:
4:/??Notary Public , ?
%.
!" ?, ,.? L.:._t?:? /f?L,?-`"?? ,•;`'L"
Public Works Department ?
Dated: 3 - / 9- i 0_
THIS INSTRUMENT WAS DRAFTED BY:
SEVERSON, WILCOX & SHELDON, P.A.
600 Midway National Bank Buildinq
7300 West 147th Street
Apple Valley, Minnesota 55124
(612) 432-3136
MGD
APPROVED AS TO CONTENT: