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1205 Diffley Rd - Access Agreement to Caponi Art Park> . 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: