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99-904Council File # 19` !�-{ OR�G!lUAL Presented By Referred to Committee: Date 1 2 3 4 5 6 WHEREAS, the City of Saint Paul has recently redeveloped Ecolab Plaza, located at Fifth Street and Wabasha Street, and WHEREAS, the City, Ecolab Inc. and Public Art Saint Paul have together planned and designed a sculpture to be installed on the southwest corner of the Plaza, and WHEREAS, Public Art Saint Paul has the knowledge, skills and abilities, and the resources necessary to complete the fabrication and installation of said sculpture, 7 NOW THEREFORE BE IT RESOLVED, that the Council of the City of Saint Paul 8 hereby authorizes and directs the proper City officials to enterinto a sculpture 9 development agreement with Public Art Saint Paul for the complete fabrication and 10 installation of the Ecolab Plaza sculpture, and 11 FURTHER RESOLVED, that upon satisfactory completion of sculpture fabrication and 12 installation, including restoration of plaza areas affected by the installation, the proper City 13 officials are hereby further authorized to execute an assignment and acceptance 14 agreement; accepting the Ecolab Piaza Sculpture from Pubiic Art Saint Paul. Yeas Nays Absent Benanav �� Blakey_ _�/ Bostrom �G Coleman ,/ Harris � Lantry � Reiter � � b p Adopted by Council: Date ��__�.aa \R — °1`�T - 1 Adoption Certified by Council Secretary BY � � � �..�- Approved by Mayor: Date: Z� ��QLn ( By: � 6 RESOLUTION OF,SAINT PAU�, MINNESOTA Green Sheet # 10015 d� Requested by: Divisip�i of Parks and By: L� � Form Approved by Cit�1 Attorney �9-9 � DATEINITIATED GREEN SHEET � S1 NO. 10015 DEPARTME NT/OFFICE/COUNQL Parks and Recreation July 28, 1999 LONTAGT PEflSON AND PHONE INITIAL)pAiE INRIAUDATE John Wirka 266-6411 � DEPARTMENTDIRECTOR 7 �} ClNCAUNCIL ASSIGN N�M6ER FO Z CITV ATTORNEY � CIN CLERK MUST � ON COUNqI AGENDA 6Y IDATEI ��NU FINANqAL SERVICES DIP. FINANCIAL SEftV/ACCTG OFDER _ NA 3 MAYOR �OR ASSISTA B Parks and Recreation TOTALNOFSIGNATUREPAGES � (CI.IPALLLOCATIONSFOPSIGNATUHEI ACTION REQUESiED: Approval of Council Resolution authorizing agreements between the City and Public Art Saint Paul for the Ecolab Plaza Sculpture project. RECOMMENDATIONS: Approve (A) or Reject IRI PEfl50NAL SERVICE CONTRFCTS MUST qNSWEfl THE FOLLOWING QUESTIONS: _PLANNING COMMISSION _GIVIL SERVICE COMMISSION �. Has ffiis persoNfirm ever worked untler a contract for [his department> CIB COMMITTEE _. VES NO A STAFF 2. Has this persoNfirm ever been a ciry employee> DISTRICTCOUNQL —' VES NO — — � 3. Does chis persoNfirm passess a skill not norma0y possessetl by any arren[ city employee? SUPPORTS WHICH COUNGIL O&1ECTIVEt YES NO Erylain all yes answers on separate sheet and attach ta green sheet. INITIATING PROBLEM, ISSUE, OPPORTUNIN IWho, Whac, When, Where, Whyl: Parks and Recreation, Ecolab Inc. and Public Art Saint Paul have worked together to design a sculpture for the new Ecolab Plaza. Agreements provide for Public Art Saint Paul to (a) complete fabrication and installation of sculpture on the Plaza site and (b) the city's acceptance of the sculpture upon completion. ADVANTAGESIFAPPROVED: Sculpture fabrication and installation can proceed, with instal�ation to take place spring 2000. DISADVANTAGES IF APPROVED: � None � � �$�� 9 ' iC�[� +.FS.� . a__ �ISADVANTAGES IF NOT APPROVED: �'�}-`�.''_ i`!i'� r' ` s w:.i Sculpture project cannot proceed. �� `�`=" �" TOTAL AMOUNT OF TftANSACTION S COSTlREVENUE eU�GETED (CIRCLE ON� VES NO RINOINOSOURCE NA qCTIVITYNUMBER FINANCIAL INFORMATION: lEXPLAINI �[ ,� ��328CCt1 e;8�1�eP SEP 15 1999 99 •904 SCULPTURE DEVELOPMENT AGREEMENT T`his ab eement (the "Agreement") is made ef£ective .1999, by and between: The City of Saint Paztl, a municipal corporation of the State of Minnesota, (the "Ci " and �� Public Art Saint Paul, a non-profit corporation, of 46 East 4th Street, Minnesota��ld� iggg Suite 828, Saint Paul, Muulesota, 55101 ("PASP"). � &�nFGREAT 0!�' RECITALS A. The City of Saint Paul (the "City") has recently redeveloped Ecolab Plaza (the "Plaza°), a public park in the center of downtown Saint Paul; and B. the Plaza is located at the entrance to the world headquarters of Ecolab, Inc., a Forhule 500 Company; and C. the Plaza has been designed to feature a landmark sculpture (the "Sculprixre") that will be visible from some distance and distinguish this major public place on the Plaza's southwest corner (the "Site"); and D. PASP provided consulting services to the City in selection of R. M. Fischer Artwork, Inc. (the "ArtisY') to design and create the Sculphzre and in working with the Artist to develop the schematic design for the Sculpture; and E. Upon the City's approval of the Artist's schematic design for the Sculpture and Ecolab Foundation's provision of design phase funding, PASP engaged the Ariist to complete design development of the Sculpture through a Project Services Agreement dated August 1, 1998 (the "Desib Agreement"); and F. fihe ?.rtist has iulfilled his obligarions under the Design Agreement, desigiwi.g a Sculphue that will be illuminated and serve as a gateway to the Plaza, allow for and frame views of the Plaza, and encourage entry into the space; and G. the Artist prepared and submitted a complete set of Design Doctunents (the "Design") for the proposed Sculpture, illustrating the location, size, and character of the Sculpture from mL�ltiple perspectives as well as its site accommodation and infrastnuture requirements; and H. the Artist prepared and submitted a statement about the Sculpture, including details regarding materials, dimensions, weight, and finish; and I. the Artist prepared and submitted preliininary specifications from which the Sculpture will be fabricated, and made prelimnlary maintenance recommendations; and J. the ArHst caused his project engineer to prepare and the Artist submitted preliminary recommendations regarding Site preparation, including preliminary engineenng drawings of the infrastruchtre required for the Sculpture's stnxctural support and describing the concept for its illumination; and K. the Artist prepared and submitted a description of the proposed production and installation processes and a budget and timeline for production and installaHon of the Sttilpture; and SCULPTURE DEVELOPMENT AGREEMENT Page 1 of 12 Ecolab Plnza Sculpture 99-904 L. the Artist presented the Design and its supporting materiaLs to PASP, the City, and funders for their review and approval; and M. the Artist's Design for the Sculpture has been reviewed by PASP, the City, and funders and the Design has been approved for implementation; and N. PASP has worked with the City and a construction management firm ("CPMI") to explore, specify and estimate the cost of preparing the site for installation of the Sculpture ("Site Preparation') and for repairing the Site following installation of the Sculpture ("Site Repair'); and O. PASP has secured funding from private and public sources for the ArtisYs constnxction documentarion, fabrication, and installation of the Sculph�re; and P. PASP has entered into an Agreement (the "Project Services Agreement", attached as E�ibit A hereto) with the Artist for the final construction documentation, fabrication and installation of the Sculpture at the Site; and Q. According to the terms of the Project Services Agreement, the Artist will cause the Sculphxre to be fabricated off of the Site and will cause the transportation of the Sculpture to the Site for assembly and installation; and R. PASP has secured public and private funding to support Site Preparation and Site Repair; and S. PASP has engaged the services of CPMI (the "Construction Management Agreement") to specify the requirements for Site Preparation and Site Repair and to manage the process of Site Pxeparation and Site Repair; and T. With the advice of CPMI, PASP intends to enter into agreements with service providers for Site Preparation for installation of the Sculphzre and for Site Repair following installation of the Sculpture; and U. PASP and the City now wish to execute an Agreement to allow for Site Preparation, installation of the Sculpture, and Site Repair following installation of the Sculpttxre and to specify the terms and conditions therefor. TERMS OF AGREEMENT For good and valuable considerarion, acknowledged to be sufficient, the parties heieby agsee as follows: I. Grant of Permission The City hereby grants PASP permission to install the Sculpture on the Site under the terms and conditions set out in this Agreement. II. Sculpiure Installation Under the terms of this Agreement, PASP will prepare the Site for installation of the Sculpture, 11lC tall the Sculpture in the Site, and repair the Site following installation of the Sculphire (°The Sculpture InstallaHon Process '). A. Specificntions for the Sculpture Installntion Process. Upon receipt of the Construction Documents called for in PASP's Project Services Agreement with the Artist and the Site Preparation and Site Repair specitications required SCULPTURE DEVELOPMENT AGREEMENT Page 2 of 12 Ecolab Plnza Sculpture 99�9o'f in PASP's Construction Management Agreement with CPMI (Exhibit B hereto), PASP will propose and recommend to the City a specific process, budget and schedule for The SculptureInstallation Process. B. Implementntion of the Sculpture Installation Process. Upon the City's approval of the Sculpiure Installation Process recommended in Section A above, PASP will implement the Sculpture Installation Process, such process to include: l. photob aphic and narrative documentation of the condition of the Plaza prior to the Sculpture Installation Process; 2. securing the necessary permits for the Sculpture Installation Process on the Plaza; 3. removal of paving and other Plaza elements, as necessary, to accommodate the pouring of footings to support the Sculpture on the Site, to access the Plaza's electrical infrasiruciure, and to set the Sculphire into the footings; 4. storage of Plaza elements removed during Site Preparation in a secure location; 5. pouring of footings to support the Sct�lpture; 6. installing the Sculpture in its Plaza Site; 7. making the required electrical connections; 8. replacing the Plaza elements removed during Site Preparation and repairing the Plaza to its original condition. C. Sculpta�re Installation Process Management Through its sub-contractor CPMI, PASP will woxd'xnate and oversee all aspects of the Sculpture Installation Process including: 1. engaging qualified contractors for Site Preparation and Site Repair and for electrical connection of the Sculptuxe's illumination elements; 2. arranging for the storage of Plaza materials; 3. inspecting the Site Preparation prior to delivery, assembly, and installaHon of the Sculpture; 4. inspecting the Sculpture upon delivery, to ensure that its safe delivery and readiness for assembly and installation; 5. being on the Site during the process of Sculpture assembly and installaHon by the Artist; 6. inspecting and docusnenting the assembly and installation of the Sculpture; 7. inspecting and documenting the electrical connection and Site Repair following installation of the Sculpture; presenting the completed Sculpture Installation Process to the City for its approval. III. Provision of materials and labor PASP will provide all materials and labor to complete the Sculpture Installarion Process, including those reqtured for Site Preparation, Sculpture installation, and Site Repair. It is understood that PASP wIll utilize the services of subcontractors, at its own expense, in connection with Sci�ipture Installarion Process. SCiJLPTURE DEVELOPMENT AGREEMENT Page 3 of 12 Ecolab Plaza Sculpture 91-9�`� IV. City Support for the Sculpture Installation Process In support of the Sculpture Installation Process, the City will assume the following responsibilities: A. Plaza Design and Construction Adaisor. The City will designate a lmowledgeable representative to provide information and advice regarding the Plaza's design and infrastructure in order to facilitate PASP's Sculpture Installation Process. B. Approvals. The City will not unreasonably withhold or delay its approval of the Sculpture Installation Process. C. Participation. The City will facilitate the process of securing the necessary perntits for the Sculpture Installation Process and will waive all fees associated with such permits. V. Schedule, Installation Acceptance, and Expenses A. Schedule. The schedule for the Sculpture Installarion Process is set in Exhibit B to this Agreement. PASP will use its best efforts to achieve the milestones and target complefion dates set out in that schedule. B. Acceptnnce. When PASP has completed the Sculpture Installation Process and presented it to the City, PASP may request a final written approval by the City of the Sculpture Installation Process. T'he City will not unreasonably withhold its approval and will, within 15 business days after the request, either provide such approval or a written statement detailing its reasons for withholding the approval. PASP will promptly remedy any deficiencies properly identified by the City and then request a final written approval, which will not be iuu�easonably withheld or delayed. C. Expenses. Except as otherwise specifically stated herein or as agreed in writing by the City, all expenses incurred by PASP in the Sculpture Installation Process will be the responsibility of PASP. VI. Warranties, Risk of Loss, Indemnities and Insurance A. Wnrrnnties. 1. PASP represents and warrants that: a. it has all necessary authorities to enter into this Agreement; b. it is not a party to any pre-existing agreement which would be the cause for any breach of this Agreement or render this Agreement impracticable by PASP; c. as of the date of this Agreement, PASP is not aware of any threatened or pending claims or suits alleging facts inconsistent with the foregoing PASP representations. 2. PASP further warrants that the Sculphire Installation Process it develops (either directly or through sub-contractors) will be kee from defects in materials and workmanship. This warranty will not include conditions which arise out of SCULPTURE DEVELOPMENT AGREEMENT Page 4 of 12 Ecolab Plaza Sculpture q9-9o'# vandalism or misuse. In the event of breach of this warranty, PASP's sole liability will be the workmanlike repair ar replacement of the affected portions of the Installation with conformulg elements. 3.. The City represents and warrants that: a. it has all necessary authorities to enter into this Agreement; b. it is not a party to any pre-existing agreement which would be the cause for any breach of this Agseement or xender this Agreement impracticable by the City. B. Risk of Loss and Indemnities 1. The risk of loss or damage to the Site will remain with the City excepC to the extent the loss or damage is attributable to the negligent or intentional acts of PASP or its sub-contractors in connection with the Sculphire Installation Process. Once the Sculprizre Installation Process has been approved by the City (per Section V.B, above), the total risk of loss or damage to the Site will be with the City. 2. It is recognized that PASP's Project Services Agreement with the Artist provides that the risk of loss or damage to the Sculpture and to the Site during the process of Sculpture installation will remain with the Artist, except to the extent that loss or damage is directly due to the negligent ar intentional acts of (1) PASP or its subcontractors in connection with the Site Pxeparation and Site Repaix ox (2) the City in connection with the on-going maintenance of the Site. 3. It is recognized that the agreements which PASP wIll execute with the providers of Site Preparation and Site Repair services will provide that the risk of loss or damage to the Sculpture and to the Site during the processes of Site Preparation and Site Repair will remain with the service providers, except to the extent that loss or damage is directly due to the negligent or intentional acts of (1) PASP or its sub- contractars in connection with the installation of the Sculpture or (2) the City in connection with the on-going maintenance of the Site. 4. It is acknowledged by both parries that the Sculpture will be installed in a public place and will be accessible by members of the public. During the course of the Sculptuxe Installation Process, the City will take xesponsibility for, and defend, indemnify and hold PASP (as well as PASP's agents, employees and sub- contractors) harxnless against any and all claisns or suits alleging personal injuries or property damage arising out of accidents associated with the Sculpture Installafion Process, except to the extent that the accident is attributable to negligent acts or omissions in connecrion with the desib , fabrication or installation of the Sci�lpture or negligent acts or omissions in connection with the Sculpiure InstallaHon Process, in which case the Project Services Agreement with the Artist and the agreements to be executed with providers of Site Prepararion and Site Repair services wIll apply to make PASP's sub-contractors responsible. For all other claims and suits relating to the Sculpture Installarion Process and the Sculpture during the course of the Sculpture Installation Process: a. Artist Indemnities. It is rec a�nized that PASP's Project Services Agreement with the Artist obligates the Artist to defend, indemnify and hold PASP and the City (as a third party beneficiary) harmless against various clauns and suits, including those relating to intellechial properties, mechanics liens, and intentional and negligent acts and omissions. b. Service Provider Indemnities. It is xecognized that the agreements to be executed with providers of Site Preparation and Site Repair services will obligate the seroice providers to defend, indemnify and hold PASP and the City (as a third party beneficiary) harmless against various claims and suits, including those SCL'LPTURE DEVELOPMEl�T AGREEMENT Page 5 of 12 Ecolab Plazn Sculpture gq-9o4 relating to intellectual properties, mechanics liens, and intentional and negligent acts and omissions. c. PASP Indemnities. During the course of the Sculpture Installation Process, PASP agrees to defend, indeuuiify and hold the City (and its officers, agents and employees) harmless against any and all claims or suits arising from (a) any mechanics ot material supplier liens arising out of the Installation, (b) the intentional or negligent acts or omissions of PASP or its officers, agents, employees or subcontractors in connection with the Installation of an Exhibition or in the performance of this Ab eement, or (c) PASP's material breach of any of the terms or provisions of this Agreement. This indemnity will not apply to the extent the claun ar cause of action arises out of the negligence or intentional acts or omissions of the City or its officers, agents or employees. d. Cit� Indemnities. (1) During the course of the Sculpture Installation Process, the City agrees to defend, indeinnify and hold PASP, the Artist (and his agents, employees and subcontractors), and the providers of Site Preparation and Site Repair services harmless against any and all clauns ar stuts arising from the intentional or negligent acts or omissions of.the City or its officers, agents, employees or subcontractors in connection with the maintenance of the Site or the performance of this Agreement. T'his indemnity will not apply to the extent the claim or cause of acrion arises out of the negligence or intentional acts ar omissions of the party seeking indemnity or its officers, agents or employees. (2) The City recognizes and agrees that the Artist and PASP's Site Preparation and Site Repair subcontractors are third party beneficiaries of the indemnity provisions of this Section. The parties further acknowledge that the City is a third party beneficiary of the indemniries granted by the Artist and such sub- contractors in their respective agreements with PASP. C. Insurance 1. PASP agrees that in order to protect itself as well as the City under the indemnity provisions contained in Section 12 above, it will obtain and keep in force, at its expense, during the term of this Agreement a policy of general liability instuance of not less than $750,000 per occurrence and will not exclude explosion, collapse, and tmdergro�md property damage, and not contain an aggregate policy limit. On or after January 1, 2000, general liability of $1,000,000 per occurrence will apply. 2. The general liability coverage will contain an endorsement naming the City as additional named insured as to acts conunitted by PASP for which the City coLild be held responsible. 3. PASP will furnish a Certificate of Insurance evidencing compliance with this Section (Exhibit D to this Agreement). The insurance policy will contain a provision requiring thirty (30) days notice of cancellation or change of the policy. 4. PASP will require the Artist and its Site Preparation and Site Repair subcontractors, during the term of their agreements with PASP, to (1) obtain and keep in force policies of general liability insurance idenfical to those required for PASP under this Section and (2) upon the City's request, furnish Certificates of Insurance evidencing compliance with this Section. SCULPTURE DEVELOPMENT AGREEMENT Page 6 of 12 Ecolab Ptaza Sculptaire q9-1oy VII. Coordination and Relationship A. Coordination. 1. The City of Saint Paul, Division of Parks and Recreation, is designated to administer this Agreement, and all approvaLs, notices to proceed and other written directions required will be given by the Superintendent of Pazks and Recreation or his desia ee. 2. PASP designates its President to admulister this Agreement, and all notices and other communications required will by given by the President. B. Relntionship. Fox the purpose of this Agreement, PASP will be deemed an independent contractor and not an employee or agent of the City. Any and all employees, subcontractors, or agents of PASP will not be considered employees or agents of the City. VIII. Other Provisions A. Term nnd Termittation. 1. T`his Agreement will have a term of two yeazs. 2. Either party may termulate this Agreement for cause in the event the other party fails to cure a material breach of any obligation hereunder more than 30 days after written notice of such breach. 3. This Agreement may be termixiated iminediately by PASP upon written notice to the City in the event the Sculpture Installation Process is prevented or materially altered by actions beyond the reasonable control of PASP. 4. Upon tennulation of this Agreement, PASP will promptly arrange the orderly removal of any Sculpture Installation Process materials from the Site. In the event this Agreement is tennutated for cause by PASP or without cause by the City, the City will bear the reasonable costs of removal. In any other case of temunation, such costs will be borne by PASP. 5. All provisions which are by their nature continuing will survive termination of thas Agreement. B. Assignment. Any assib°nments of this Agreement by one party without the express written muriial consent of the other party will be void. C. Entire Agreement. This Agreement represents the entire agreement between the parties and the provisions of this Agreement will supersede all prior oral and written coirunitments, contracts and understandings with respect to the subject matter hereof. The recitals at the begisuung of this Agreement are incorporated herein by reference. D. Amendments. This Agreement may be amended only by an instrument in writing executed by all parties hereto. E. Governing Lnw. This Agreement is aclalowledged to have been made in and will be construed in accordance with the laws of the State of Mirulesota. Any action to enforce the obligations created by this Agreement will be brought before a court of competent jurisdiction within the State of Minnesota, Ramsey County. The prevailing party in any such action will be entitled to recover its costs and expenses thereo£, including reasonable attorneys' fees. F. Construction. Shoi�ld any paragraph, sentence, or any portion of a paragraph or sentence of this Agreement be judicially held to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of such sentence, paragraph or the Agreement. SCULPTURE DEVELOPMENT AGREEMENT Page 7 of 12 Ecolnb Plnza Sct�lpture qY-9ey IN 4VITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the day and year first above written. PUBLIC ART SAINT PAUL By ("PASP") Mayor by BY Thomas Eggiml, Boazd Chair Director, Parks and Recreation by Peter Kramer, Vice Chair by (:hristine M. Podas-Larson, President By Director,Financial Services Approved as to form by: SCULPTURE DEVELOPMENT AGREEMENT Page 8 of 12 Ecolab Plaza Sculpture 9 q.9oy Exhibit A Proj ect Services Agreement between PASP and the Artist SCLTLPTURE DEVELOPMENT AGREEMENT Page 9 of 12 Ecolab Plaza Sculpture �9-9�y Exhibit B Site Preparation and Site Repair Specifications SCiJLPTURE DEVELOPMENT AGREEMENT Page 10 of 12 Ecolab Plaza Sculpture 99 - 9'�y E�ibit C Sculpture Installation Process Schedule Action Condition Estimated Date of Completion Start of Agreement Execurion of Ab eement. 1999 Submission of Final Presentarion of Final September 20, 1999 Construction Documents to Construction Documents PASP by the Artist Completion and acceptance of Review and acceptance of March 15, 2000 the fabrication of the Sculphzre the fabricated Sculpture by PASP Demolition of the site to allow To begin at the eaxliest April 15, 2000 for pouring of Sculphxre opporttuuty after grotmd footings; pouring and curing of thaw, estimated to be in footings March. Completion of the installation Review and acceptance of May 1, 2000 of the Sculpture by the Ariist. the installation of Sculpture by PASP Repair of the Site following Installation of the May 10, 2000 installation of the Sculpture Sculpture Formal Dedication of the Repair of the Site May 20, 2000 Sculprixre to lead off Saint following installation of Paul's millennial seasons of the Sculphzre. celebration. SCULPTURE DEVELOPMENT AGREEMENT Page 11 of 12 Eco(ab Plaza Sculpture ��-9°y E�ibit D Certificate of Insurance SCULPTURE DEVELOPMENT AGREEMENT Page 12 of 12 Ecolab Plaza Sculpture 9�i-9o`t ASSIGNMENT AND ACCEPTANCE AGREEMENT '"�� Ecolab Plaza Sculpture �� '9 �' � �� THIS AGREEMENT, is made and entered into as of the day of� �9�� 2000 by and among the City of Saint Paul (°City), Public Art Saint Paul ("PASI�'�F'yyari� � R M. Fischer Artcvoik, Inc. ("Artist"). �O_�cP RECITALS A. PASP has secured from public and private resources fiulding far the desi�, fabrication and installation of a large scale sculpture (the "Sculpture") for Ecolab Plaza; and B. the City has approved the ArtisYs design of the Sculpture (the "Design°); and C. PASP executed a Project Services Agreement (the "Services Agreement"), dated July _, 1999, with the Artist to design, fabricate and install the Sculpture; and D. the City executed Council Resolution , agreeing to accept the transfer of the Sculpture to the City from PASP and to enter into this Assigiunent and Acceptance Agreement at the time of transfer; and E. the City has granted permission to PASP to install the Sculpture on City property, including the preparation of the Site for installation of the Sculpture ("Site Preparation°) and the repair of the Site following installation ("Site Repair"); and F. PASP has caused the Site Preparation; and G. the Sculpture has been installed in southwest comer of Ecolab Plaza (the "Site'); and H. PASP has caused the Site Repair; and I. the parties desire that PASP transfer the Sculpture to the City and the City desires to accept the Sculpture from PASP. NOW, THEIZEFORE, in consideration of the above recitals, the muhial covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows: I. Transfer and Acceptance By executing this Agreement, PASP does hereby transfer and dedicate the Sculpture to the City, and by executing this Agreement, the City does hereby accept the Sculpture from PASP. II. Warranties and Indemnification of the Artist A. The Artist expressl� wnrrants a�nto the Cit� thnt: 1.. The Sculpture is the original product of the Artist's own creative effort and the Artist owns all rights in and to all studies, drawings, mock-ups and other prototypes used in the creation of the Sculpture. ASSIGNMENT AND ACCEPTANCE AGILEEMENT Page 1 of 10 Ecolab Plaza Sculpture 99 -90'�1 The Sculphue is unique and that the Artist has not authorized, and will not authorize, a duplicate thereof for fabrication or construction elsewhere. The Artist is not a pazty to any pre-existing ab eement which would be the cause for any breach of this Agreement ox render this Agreement impracticable by the Artist. 4. T'he Sculpture will, at the time of installation, be &ee and clear from all liens, including those from material suppliers and subcontractors. 5. As of the date of this Agreement, the Artist is not aware of any threatened or pending claims or suits alleging (a) facts inconsistent with the foregoing Artist representations or (b) that the Sculpture or its Design ulfrutges any copyright, patent or other proprietary rights or a third party. 6. The Sculpture will, for a period of 2 years after installation and acceptance, be free from material defects which cause or accelerate its destniction or deterioration. This warranty will not include condirions which arise out of vandalism, misuse, or improper maintenance of the Sculpture in accordance with Artist's reasonable maintenance instructions. In the event of breach of this warranty, Artist's sole liability shall be the worlanazllike repair or replacement of the affected portions of the Sculpture with confoxming elements at the ArtisYs expense. 7. Reasonable maintenance of the Sculpture will not require procedures substantially in excess of those described in the maintenance recommendations set forth in E�ibit A attached hereto. B. Artist's Indemnifications of the City 1.The Artist shall defend, indenulify and hold the City, its officers, agents, and employees harmless against any and all claims or suits arising from (a) any claixn that the Sculpture infiinges on the copyright, patent or other proprietary rights of any third person, or (b) any mechanics or material supplier liens against the Sculpture. The Artist shall, for a period of one year following the City's acceptance of the Sculpture, defend, indenulify and hold the City, its o£ficers, agents, and employees harmless against any and all claims or suits arising from any negligent act or omission of the Artist or the Artist's employees or sub- contractors in the perfonnance of the Project Services Agreement or of this Agreement. This indemnity shall not apply to the extent the claun or cause of action arises out of the negligence of the City, its officers, agents, employees, or contractors. In the event of joint negligence of both the Artist and the City, responsibility, if any, shall be apportioned comparatively in accardance with the laws of the State of Minnesota. The provisions of th'ts paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. III. Warrantv of PASP PASP expressly warrants unto the City that the Site Preparation and Site Repair will, for a period of 1 year after installation and acceptance, be free from material defects which cause or accelerate its destruction or deterioration. This warrant5• will not include ASSIGNMEIVT AND ACCEPTANCE AGREEMENT Page 2 of 10 Ecolab Plaza Sca�lpture 99-qa� condiHons which arise out of vandalism, misuse, or improper maintenance of the Sculpture in accordance with Artist's reasonable maintenance instructions. In the event of breach of this wananty, PASP's sole liability shall be the wor1m1u11ike repair or replacement of the affected portions of the Sculpture with conforming elements at PASP's expense. IV. Cit�s Assumption of Liability � Assumption of the Liability of PASP From and after the date of this Agreement, the City shall assume all liability of PASP in connection with: 1. � the Sculpture and its completed installation; Site Preparation and Site Repair. � The City shall defend, at its own cost and expense, and hold PASP, its officers, directors, funders, agents, employees and sub-contractors harmless from any action proceeding, or claim of any kind whatsoever, in 1aw or in equity, which exists or may exist against PASP that relate in any way to or arise in connection with the Sculpture or the real property on which it is located, except as set forth in paragraph II.B. Cit�'s Indemnification of the Artist and PASP It is acknowledged by all parties that the Sculpture is installed in a public place and will be accessible by members of the public. From and after the date of this Agreement, the City will take responsibility for, and defend, indeiruZify and hoid the Artist (as well as the Artist's agents, employees and sub-contractors) and PASP (as well as PASP's agents, employees and sub- contractors) harmless against any and all clauns or suits alleging personal injuries or property damage arising out of accidents associated with the Sculpture, except to the extent that the accident is attributable to: a. negligent acts or omissions of the Artist in connection with the design, fabrication or installation of the Sculpttxre, in which case the Artist will, for a period of one year following the City's acceptance of the Sculpture, defend, indeirulify and hold the City (as well as its officers, agents, employees and subcontractors) harmless against any and all such claims or suits; or b. negligent acts or omissions of PASP in connection with the Site Preparation and Site Repair, in which case PASP will defend, indeirutify and hold the City (as well as its officers, agents, employees and sub- contractars) harmless against any and all such claims or suits. intentional or negligent breach of any of the terms or Agreement, or (2) by any other negligent act ar omissio City's officers, agents, employees or sub-contractors in this Agreement. This indemnity shall not apply to the cause of action arises out of the negligence of the PASP, agents, employees, or sub-contractors. The City agrees to defend, indenulify and hold the PASP and the Artist harmless against any and all claims or suits arising from (1) the City's provisions of this n of the City of the the performance of extent the claim or the Artist or their ASSIGNNIENT AND ACCEPTANCE AGREEMENT Page 3 of 10 Ecolab Plaza Sczilpture q9 -9oy V. Artist's Release The Artist expressly consents to the assumption by the City of all obligations of PASP in connection with the Sculpture, and hereby fully and tinally releases and discharges forever PASP, its officers, directors, agents, employees, and funders from any action, proceeding, or claim of any kind whatsoever, in law or in equity, which exists or may exist against PASP that relate in any way to ar arise in connection with the Sculphue and its installation or with the Project Services Agreement between the Artist and PASP, dated August 31,1999, under which the Sculpture's final Constnzction Dociunents were developed and the Sculpture was fabricated and installed. VI. Possession of Design Materials All original plans, studies, drawings, mock-ups and other prototypes prepared and submitted in connection with the plamting, design, fabrication, and installation of the Sculpture (the "Design Materials") shall belong to the Artist. The Artist agrees to make such Design Materials available to the City at no expense to the Artist, for educational displays of the Sculpture and for such promorional activities at such times and for such periods as the City and Artist shall agree. VII. Copyright The Artist expressly reserves the right available to the Artist in common law or under the Federal Copyright Act and all othex rights in and to the Sculpture Design. The Artist hereby grants to the City, PASP, and Sculpture fimders, (listed in E�ibit B to this Agreement) a license, without charge, to reproduce unages of the Sculpture, in whole or in part, and to sell and display such reproductions for non-commercial purposes of docuxnenting, promoting and marketing the Sci�ipture and the Plaza. All such reproducHons are to respect the integrity of the Sculpture as a work of art and may not alter the Sculpture`s image for any purpose whatsoever. All such reproductions of the Sci�lpture by PASP, the City, and Sculpture funders (other than those contained in unages showing general views of the Plaza) shall contain a credit to the Arfist in the following form: "R. M. Fischer Artwork, Inc. �O 2000." All public showings ar reproductions of the Sculpture by the Artist shall contain the following credit: "Original owned by the City of Saint Paul, Minnesota'. VIII. Maintenance A. Regadar Maintenance of the Sculphrre The City recognizes that maintenance of the Sculpture on a regtalar basis will be essential to the long term integrity of the Sculpture. From and after the date of this Agreement, the City shall , at its sole cost and expense and to the best of its ability, maintain and protect the Sculpture against the ravages of time, vandalism, and the elements, including without limitation, the obligation to maintain the structural integrity of the Sculpture, the utility services, if any, required by the Sculpiure, and the overall appearance of the Sculpture. The City shall use its best efforts to maintain the Sculphzre in accordance with the Artist`s instrucrions for maintenance and preservation of the Sculpture set forth in Exhibit A attached hereto. ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 4 of 10 Ecolnb Plaza Sculpture c�q , 9 0 `l B. Repazr of Damage to the Sculpture Before maldng any repairs to the Sculpture, the City agrees to consult with the Artist in all matters conceming repairs and restorations of the Sculpture. Lhu�ing his lifetime, the Artist shall be given the opporhinity to make or personally supervise repairs and restorations and shall be paid a reasonable fee for any such services, provided that the City and the Artist agree in advance and in writing upon the fee for such seroices. All repairs and restorations shall be made m accordance with recogivzed principles of conservation (atEached as E�ibit C hereto). IX. Alterations and Removal A. Sculpture Alteration, Modification or Change The City agrees that it shall not intenHonally alter, modify, or chazlge the ScL�ipiure without obtauting the prior written approval of the �tist. The City agrees to notify the Artist of any proposed, necessary alterations of the Sculpture that would affect the intended character and appearance of the Sculprixre and shall consult with the Artist in the plaiming and execution of any such alteration and shall make a reasonable effort to maintain the integrity of the Sculpture. B. Scadpture Removnl or Destruction The City shall not remove or destroy the Sculpture without the prior written consent of the Artist, of if the Artist is deceased, without the prior written consent of PASP. In the event that the Sculpture`s shuctural integrity is damaged, creaiing a hazard to the public and necessitating urunediate alteration or removal of an emergency nature, the ArtisYs and PASP's prior written consent shall not be reqiured. X. Notices All notices to be given by any party to the other hereunder shall be in writing. The Artist and PASP agree to notify the City of any chulges of their addresses within ninety days of such changes. Subject to change by notice from the party charged with such notice, all notices shall be addressed as follows: A. To The Cihj of Saint Paul Division of Parks and Recreation 300 City Hall Annex 25 North 4th Street, Room 300 St. Paul, MN 55101 Attention: Director of Parks and Recreation B. To the Artist: R. M. Fischer Artwark, Inc. 12 Warren Street New York, New York Attention: R. M. Fischer ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 5 of 10 Ecolab Plaza Sculpture qq.9oy C. To Public Art Saint Paul Minnesota Building, Suite 828 46 East 4th Street St. Paul, MN 55101 Attention: President XI. Amendments Any alteration, change, or modification of the terms of this Agreement shall be valid only when made in writing and signed by all parties hereto. XII. Binding Effect This Agreement will inure to the benefit of and bind the respective heirs, personal representatives, successars, and permitted assigns of the parties hereto. XIII. Complete Agreement This Agreement constitutes the entire and final agreement among the parties and there are no agreements, understandings, warranties, or representations among the parties with respect to the subject matter hereof except as set forth in this Agreement. ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 6 of 10 Ecolab Plaza Scidpture 99-9 IN WITNESS WI�EREOF, the pazties hereto have executed this Agreement effeciive as of the day and year first above written. CIT'1' OF SAINT PAUL � � Mayor Director, Parks and Recreation � Director, Financial Services Approved as to form by: PUBLIC ART SAINT PAUL by Christine M. Podas-Larson, President R. M. Fischer, President R. M. FISCHER ARTWORK, INC. by Tom Eggum, Board Chair by Peter Kramer, Vice Chair ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 7 of 10 Ecolab Plnza Sculpture q9-9o'! EXHIBIT A SCULPTURE MAINTENANCE RECOMMENDATIONS (SEE ATTACHED) ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 8 of 10 Ecolab Plaza Sculpture 99- EXHIBIT B Directory of PASP, City, and Sculpture funders The following named are granted a license by the Artist to reproduce images of the Sculpture, in whole or in part, and to sell and display such reproductions for non- commercial purposes of documenting, promoting and marketing the Sculpture and the Plaza, according to the terms ouflined in Section XIII. B. of this Agreement. Public Art Saint Paul 46 East 4th Street, #828 Saint Paul, MN 55101 The City of Saint Paul Division of Parks and Recreation 300 City Hall Annex 25 West 4th Street Saint Paul, Minnesota 55102 The City of Saint Paui Cultural STAR Program 1300 City Hall Annex Saint Paul, MN 551Q1 Ecolab, Inc. 370 Wabasha Street Saint Paul, MN 55102 Capital City Partnership 2400 Minnesota World Trade Center Saint Paul, MN 55101 The Saint Paul Foundation 600 Norwest Center 55 East 5th Street Saint Paul, MN 55101 The F. R. Bigelow Foundation 600 Norwest Center 55 East 5th Street Saint Paul, MN 55101 Saint Paul Riverfront Corporation 25 West 6th Street Saint Paul, MN 55101 ASSIGNMENT AND ACCEPTANCE AGItEEMENT Page 9 of 10 Ecolab Plaza Sculpture q9-q°y EXHIBIT C Principles of Conservation ASSIGNMENT AND ACCEPTANCE AGREEMENT Pnge 10 of 10 Ecolab Plnza Sculpture Council File # 19` !�-{ OR�G!lUAL Presented By Referred to Committee: Date 1 2 3 4 5 6 WHEREAS, the City of Saint Paul has recently redeveloped Ecolab Plaza, located at Fifth Street and Wabasha Street, and WHEREAS, the City, Ecolab Inc. and Public Art Saint Paul have together planned and designed a sculpture to be installed on the southwest corner of the Plaza, and WHEREAS, Public Art Saint Paul has the knowledge, skills and abilities, and the resources necessary to complete the fabrication and installation of said sculpture, 7 NOW THEREFORE BE IT RESOLVED, that the Council of the City of Saint Paul 8 hereby authorizes and directs the proper City officials to enterinto a sculpture 9 development agreement with Public Art Saint Paul for the complete fabrication and 10 installation of the Ecolab Plaza sculpture, and 11 FURTHER RESOLVED, that upon satisfactory completion of sculpture fabrication and 12 installation, including restoration of plaza areas affected by the installation, the proper City 13 officials are hereby further authorized to execute an assignment and acceptance 14 agreement; accepting the Ecolab Piaza Sculpture from Pubiic Art Saint Paul. Yeas Nays Absent Benanav �� Blakey_ _�/ Bostrom �G Coleman ,/ Harris � Lantry � Reiter � � b p Adopted by Council: Date ��__�.aa \R — °1`�T - 1 Adoption Certified by Council Secretary BY � � � �..�- Approved by Mayor: Date: Z� ��QLn ( By: � 6 RESOLUTION OF,SAINT PAU�, MINNESOTA Green Sheet # 10015 d� Requested by: Divisip�i of Parks and By: L� � Form Approved by Cit�1 Attorney �9-9 � DATEINITIATED GREEN SHEET � S1 NO. 10015 DEPARTME NT/OFFICE/COUNQL Parks and Recreation July 28, 1999 LONTAGT PEflSON AND PHONE INITIAL)pAiE INRIAUDATE John Wirka 266-6411 � DEPARTMENTDIRECTOR 7 �} ClNCAUNCIL ASSIGN N�M6ER FO Z CITV ATTORNEY � CIN CLERK MUST � ON COUNqI AGENDA 6Y IDATEI ��NU FINANqAL SERVICES DIP. FINANCIAL SEftV/ACCTG OFDER _ NA 3 MAYOR �OR ASSISTA B Parks and Recreation TOTALNOFSIGNATUREPAGES � (CI.IPALLLOCATIONSFOPSIGNATUHEI ACTION REQUESiED: Approval of Council Resolution authorizing agreements between the City and Public Art Saint Paul for the Ecolab Plaza Sculpture project. RECOMMENDATIONS: Approve (A) or Reject IRI PEfl50NAL SERVICE CONTRFCTS MUST qNSWEfl THE FOLLOWING QUESTIONS: _PLANNING COMMISSION _GIVIL SERVICE COMMISSION �. Has ffiis persoNfirm ever worked untler a contract for [his department> CIB COMMITTEE _. VES NO A STAFF 2. Has this persoNfirm ever been a ciry employee> DISTRICTCOUNQL —' VES NO — — � 3. Does chis persoNfirm passess a skill not norma0y possessetl by any arren[ city employee? SUPPORTS WHICH COUNGIL O&1ECTIVEt YES NO Erylain all yes answers on separate sheet and attach ta green sheet. INITIATING PROBLEM, ISSUE, OPPORTUNIN IWho, Whac, When, Where, Whyl: Parks and Recreation, Ecolab Inc. and Public Art Saint Paul have worked together to design a sculpture for the new Ecolab Plaza. Agreements provide for Public Art Saint Paul to (a) complete fabrication and installation of sculpture on the Plaza site and (b) the city's acceptance of the sculpture upon completion. ADVANTAGESIFAPPROVED: Sculpture fabrication and installation can proceed, with instal�ation to take place spring 2000. DISADVANTAGES IF APPROVED: � None � � �$�� 9 ' iC�[� +.FS.� . a__ �ISADVANTAGES IF NOT APPROVED: �'�}-`�.''_ i`!i'� r' ` s w:.i Sculpture project cannot proceed. �� `�`=" �" TOTAL AMOUNT OF TftANSACTION S COSTlREVENUE eU�GETED (CIRCLE ON� VES NO RINOINOSOURCE NA qCTIVITYNUMBER FINANCIAL INFORMATION: lEXPLAINI �[ ,� ��328CCt1 e;8�1�eP SEP 15 1999 99 •904 SCULPTURE DEVELOPMENT AGREEMENT T`his ab eement (the "Agreement") is made ef£ective .1999, by and between: The City of Saint Paztl, a municipal corporation of the State of Minnesota, (the "Ci " and �� Public Art Saint Paul, a non-profit corporation, of 46 East 4th Street, Minnesota��ld� iggg Suite 828, Saint Paul, Muulesota, 55101 ("PASP"). � &�nFGREAT 0!�' RECITALS A. The City of Saint Paul (the "City") has recently redeveloped Ecolab Plaza (the "Plaza°), a public park in the center of downtown Saint Paul; and B. the Plaza is located at the entrance to the world headquarters of Ecolab, Inc., a Forhule 500 Company; and C. the Plaza has been designed to feature a landmark sculpture (the "Sculprixre") that will be visible from some distance and distinguish this major public place on the Plaza's southwest corner (the "Site"); and D. PASP provided consulting services to the City in selection of R. M. Fischer Artwork, Inc. (the "ArtisY') to design and create the Sculphzre and in working with the Artist to develop the schematic design for the Sculpture; and E. Upon the City's approval of the Artist's schematic design for the Sculpture and Ecolab Foundation's provision of design phase funding, PASP engaged the Ariist to complete design development of the Sculpture through a Project Services Agreement dated August 1, 1998 (the "Desib Agreement"); and F. fihe ?.rtist has iulfilled his obligarions under the Design Agreement, desigiwi.g a Sculphue that will be illuminated and serve as a gateway to the Plaza, allow for and frame views of the Plaza, and encourage entry into the space; and G. the Artist prepared and submitted a complete set of Design Doctunents (the "Design") for the proposed Sculpture, illustrating the location, size, and character of the Sculpture from mL�ltiple perspectives as well as its site accommodation and infrastnuture requirements; and H. the Artist prepared and submitted a statement about the Sculpture, including details regarding materials, dimensions, weight, and finish; and I. the Artist prepared and submitted preliininary specifications from which the Sculpture will be fabricated, and made prelimnlary maintenance recommendations; and J. the ArHst caused his project engineer to prepare and the Artist submitted preliminary recommendations regarding Site preparation, including preliminary engineenng drawings of the infrastruchtre required for the Sculpture's stnxctural support and describing the concept for its illumination; and K. the Artist prepared and submitted a description of the proposed production and installation processes and a budget and timeline for production and installaHon of the Sttilpture; and SCULPTURE DEVELOPMENT AGREEMENT Page 1 of 12 Ecolab Plnza Sculpture 99-904 L. the Artist presented the Design and its supporting materiaLs to PASP, the City, and funders for their review and approval; and M. the Artist's Design for the Sculpture has been reviewed by PASP, the City, and funders and the Design has been approved for implementation; and N. PASP has worked with the City and a construction management firm ("CPMI") to explore, specify and estimate the cost of preparing the site for installation of the Sculpture ("Site Preparation') and for repairing the Site following installation of the Sculpture ("Site Repair'); and O. PASP has secured funding from private and public sources for the ArtisYs constnxction documentarion, fabrication, and installation of the Sculph�re; and P. PASP has entered into an Agreement (the "Project Services Agreement", attached as E�ibit A hereto) with the Artist for the final construction documentation, fabrication and installation of the Sculpture at the Site; and Q. According to the terms of the Project Services Agreement, the Artist will cause the Sculphxre to be fabricated off of the Site and will cause the transportation of the Sculpture to the Site for assembly and installation; and R. PASP has secured public and private funding to support Site Preparation and Site Repair; and S. PASP has engaged the services of CPMI (the "Construction Management Agreement") to specify the requirements for Site Preparation and Site Repair and to manage the process of Site Pxeparation and Site Repair; and T. With the advice of CPMI, PASP intends to enter into agreements with service providers for Site Preparation for installation of the Sculphzre and for Site Repair following installation of the Sculpture; and U. PASP and the City now wish to execute an Agreement to allow for Site Preparation, installation of the Sculpture, and Site Repair following installation of the Sculpttxre and to specify the terms and conditions therefor. TERMS OF AGREEMENT For good and valuable considerarion, acknowledged to be sufficient, the parties heieby agsee as follows: I. Grant of Permission The City hereby grants PASP permission to install the Sculpture on the Site under the terms and conditions set out in this Agreement. II. Sculpiure Installation Under the terms of this Agreement, PASP will prepare the Site for installation of the Sculpture, 11lC tall the Sculpture in the Site, and repair the Site following installation of the Sculphire (°The Sculpture InstallaHon Process '). A. Specificntions for the Sculpture Installntion Process. Upon receipt of the Construction Documents called for in PASP's Project Services Agreement with the Artist and the Site Preparation and Site Repair specitications required SCULPTURE DEVELOPMENT AGREEMENT Page 2 of 12 Ecolab Plnza Sculpture 99�9o'f in PASP's Construction Management Agreement with CPMI (Exhibit B hereto), PASP will propose and recommend to the City a specific process, budget and schedule for The SculptureInstallation Process. B. Implementntion of the Sculpture Installation Process. Upon the City's approval of the Sculpiure Installation Process recommended in Section A above, PASP will implement the Sculpture Installation Process, such process to include: l. photob aphic and narrative documentation of the condition of the Plaza prior to the Sculpture Installation Process; 2. securing the necessary permits for the Sculpture Installation Process on the Plaza; 3. removal of paving and other Plaza elements, as necessary, to accommodate the pouring of footings to support the Sculpture on the Site, to access the Plaza's electrical infrasiruciure, and to set the Sculphire into the footings; 4. storage of Plaza elements removed during Site Preparation in a secure location; 5. pouring of footings to support the Sct�lpture; 6. installing the Sculpture in its Plaza Site; 7. making the required electrical connections; 8. replacing the Plaza elements removed during Site Preparation and repairing the Plaza to its original condition. C. Sculpta�re Installation Process Management Through its sub-contractor CPMI, PASP will woxd'xnate and oversee all aspects of the Sculpture Installation Process including: 1. engaging qualified contractors for Site Preparation and Site Repair and for electrical connection of the Sculptuxe's illumination elements; 2. arranging for the storage of Plaza materials; 3. inspecting the Site Preparation prior to delivery, assembly, and installaHon of the Sculpture; 4. inspecting the Sculpture upon delivery, to ensure that its safe delivery and readiness for assembly and installation; 5. being on the Site during the process of Sculpture assembly and installaHon by the Artist; 6. inspecting and docusnenting the assembly and installation of the Sculpture; 7. inspecting and documenting the electrical connection and Site Repair following installation of the Sculpture; presenting the completed Sculpture Installation Process to the City for its approval. III. Provision of materials and labor PASP will provide all materials and labor to complete the Sculpture Installarion Process, including those reqtured for Site Preparation, Sculpture installation, and Site Repair. It is understood that PASP wIll utilize the services of subcontractors, at its own expense, in connection with Sci�ipture Installarion Process. SCiJLPTURE DEVELOPMENT AGREEMENT Page 3 of 12 Ecolab Plaza Sculpture 91-9�`� IV. City Support for the Sculpture Installation Process In support of the Sculpture Installation Process, the City will assume the following responsibilities: A. Plaza Design and Construction Adaisor. The City will designate a lmowledgeable representative to provide information and advice regarding the Plaza's design and infrastructure in order to facilitate PASP's Sculpture Installation Process. B. Approvals. The City will not unreasonably withhold or delay its approval of the Sculpture Installation Process. C. Participation. The City will facilitate the process of securing the necessary perntits for the Sculpture Installation Process and will waive all fees associated with such permits. V. Schedule, Installation Acceptance, and Expenses A. Schedule. The schedule for the Sculpture Installarion Process is set in Exhibit B to this Agreement. PASP will use its best efforts to achieve the milestones and target complefion dates set out in that schedule. B. Acceptnnce. When PASP has completed the Sculpture Installation Process and presented it to the City, PASP may request a final written approval by the City of the Sculpture Installation Process. T'he City will not unreasonably withhold its approval and will, within 15 business days after the request, either provide such approval or a written statement detailing its reasons for withholding the approval. PASP will promptly remedy any deficiencies properly identified by the City and then request a final written approval, which will not be iuu�easonably withheld or delayed. C. Expenses. Except as otherwise specifically stated herein or as agreed in writing by the City, all expenses incurred by PASP in the Sculpture Installation Process will be the responsibility of PASP. VI. Warranties, Risk of Loss, Indemnities and Insurance A. Wnrrnnties. 1. PASP represents and warrants that: a. it has all necessary authorities to enter into this Agreement; b. it is not a party to any pre-existing agreement which would be the cause for any breach of this Agreement or render this Agreement impracticable by PASP; c. as of the date of this Agreement, PASP is not aware of any threatened or pending claims or suits alleging facts inconsistent with the foregoing PASP representations. 2. PASP further warrants that the Sculphire Installation Process it develops (either directly or through sub-contractors) will be kee from defects in materials and workmanship. This warranty will not include conditions which arise out of SCULPTURE DEVELOPMENT AGREEMENT Page 4 of 12 Ecolab Plaza Sculpture q9-9o'# vandalism or misuse. In the event of breach of this warranty, PASP's sole liability will be the workmanlike repair ar replacement of the affected portions of the Installation with conformulg elements. 3.. The City represents and warrants that: a. it has all necessary authorities to enter into this Agreement; b. it is not a party to any pre-existing agreement which would be the cause for any breach of this Agseement or xender this Agreement impracticable by the City. B. Risk of Loss and Indemnities 1. The risk of loss or damage to the Site will remain with the City excepC to the extent the loss or damage is attributable to the negligent or intentional acts of PASP or its sub-contractors in connection with the Sculphire Installation Process. Once the Sculprizre Installation Process has been approved by the City (per Section V.B, above), the total risk of loss or damage to the Site will be with the City. 2. It is recognized that PASP's Project Services Agreement with the Artist provides that the risk of loss or damage to the Sculpture and to the Site during the process of Sculpture installation will remain with the Artist, except to the extent that loss or damage is directly due to the negligent ar intentional acts of (1) PASP or its subcontractors in connection with the Site Pxeparation and Site Repaix ox (2) the City in connection with the on-going maintenance of the Site. 3. It is recognized that the agreements which PASP wIll execute with the providers of Site Preparation and Site Repair services will provide that the risk of loss or damage to the Sculpture and to the Site during the processes of Site Preparation and Site Repair will remain with the service providers, except to the extent that loss or damage is directly due to the negligent or intentional acts of (1) PASP or its sub- contractars in connection with the installation of the Sculpture or (2) the City in connection with the on-going maintenance of the Site. 4. It is acknowledged by both parries that the Sculpture will be installed in a public place and will be accessible by members of the public. During the course of the Sculptuxe Installation Process, the City will take xesponsibility for, and defend, indemnify and hold PASP (as well as PASP's agents, employees and sub- contractors) harxnless against any and all claisns or suits alleging personal injuries or property damage arising out of accidents associated with the Sculpture Installafion Process, except to the extent that the accident is attributable to negligent acts or omissions in connecrion with the desib , fabrication or installation of the Sci�lpture or negligent acts or omissions in connection with the Sculpiure InstallaHon Process, in which case the Project Services Agreement with the Artist and the agreements to be executed with providers of Site Prepararion and Site Repair services wIll apply to make PASP's sub-contractors responsible. For all other claims and suits relating to the Sculpture Installarion Process and the Sculpture during the course of the Sculpture Installation Process: a. Artist Indemnities. It is rec a�nized that PASP's Project Services Agreement with the Artist obligates the Artist to defend, indemnify and hold PASP and the City (as a third party beneficiary) harmless against various clauns and suits, including those relating to intellechial properties, mechanics liens, and intentional and negligent acts and omissions. b. Service Provider Indemnities. It is xecognized that the agreements to be executed with providers of Site Preparation and Site Repair services will obligate the seroice providers to defend, indemnify and hold PASP and the City (as a third party beneficiary) harmless against various claims and suits, including those SCL'LPTURE DEVELOPMEl�T AGREEMENT Page 5 of 12 Ecolab Plazn Sculpture gq-9o4 relating to intellectual properties, mechanics liens, and intentional and negligent acts and omissions. c. PASP Indemnities. During the course of the Sculpture Installation Process, PASP agrees to defend, indeuuiify and hold the City (and its officers, agents and employees) harmless against any and all claims or suits arising from (a) any mechanics ot material supplier liens arising out of the Installation, (b) the intentional or negligent acts or omissions of PASP or its officers, agents, employees or subcontractors in connection with the Installation of an Exhibition or in the performance of this Ab eement, or (c) PASP's material breach of any of the terms or provisions of this Agreement. This indemnity will not apply to the extent the claun ar cause of action arises out of the negligence or intentional acts or omissions of the City or its officers, agents or employees. d. Cit� Indemnities. (1) During the course of the Sculpture Installation Process, the City agrees to defend, indeinnify and hold PASP, the Artist (and his agents, employees and subcontractors), and the providers of Site Preparation and Site Repair services harmless against any and all clauns ar stuts arising from the intentional or negligent acts or omissions of.the City or its officers, agents, employees or subcontractors in connection with the maintenance of the Site or the performance of this Agreement. T'his indemnity will not apply to the extent the claim or cause of acrion arises out of the negligence or intentional acts ar omissions of the party seeking indemnity or its officers, agents or employees. (2) The City recognizes and agrees that the Artist and PASP's Site Preparation and Site Repair subcontractors are third party beneficiaries of the indemnity provisions of this Section. The parties further acknowledge that the City is a third party beneficiary of the indemniries granted by the Artist and such sub- contractors in their respective agreements with PASP. C. Insurance 1. PASP agrees that in order to protect itself as well as the City under the indemnity provisions contained in Section 12 above, it will obtain and keep in force, at its expense, during the term of this Agreement a policy of general liability instuance of not less than $750,000 per occurrence and will not exclude explosion, collapse, and tmdergro�md property damage, and not contain an aggregate policy limit. On or after January 1, 2000, general liability of $1,000,000 per occurrence will apply. 2. The general liability coverage will contain an endorsement naming the City as additional named insured as to acts conunitted by PASP for which the City coLild be held responsible. 3. PASP will furnish a Certificate of Insurance evidencing compliance with this Section (Exhibit D to this Agreement). The insurance policy will contain a provision requiring thirty (30) days notice of cancellation or change of the policy. 4. PASP will require the Artist and its Site Preparation and Site Repair subcontractors, during the term of their agreements with PASP, to (1) obtain and keep in force policies of general liability insurance idenfical to those required for PASP under this Section and (2) upon the City's request, furnish Certificates of Insurance evidencing compliance with this Section. SCULPTURE DEVELOPMENT AGREEMENT Page 6 of 12 Ecolab Ptaza Sculptaire q9-1oy VII. Coordination and Relationship A. Coordination. 1. The City of Saint Paul, Division of Parks and Recreation, is designated to administer this Agreement, and all approvaLs, notices to proceed and other written directions required will be given by the Superintendent of Pazks and Recreation or his desia ee. 2. PASP designates its President to admulister this Agreement, and all notices and other communications required will by given by the President. B. Relntionship. Fox the purpose of this Agreement, PASP will be deemed an independent contractor and not an employee or agent of the City. Any and all employees, subcontractors, or agents of PASP will not be considered employees or agents of the City. VIII. Other Provisions A. Term nnd Termittation. 1. T`his Agreement will have a term of two yeazs. 2. Either party may termulate this Agreement for cause in the event the other party fails to cure a material breach of any obligation hereunder more than 30 days after written notice of such breach. 3. This Agreement may be termixiated iminediately by PASP upon written notice to the City in the event the Sculpture Installation Process is prevented or materially altered by actions beyond the reasonable control of PASP. 4. Upon tennulation of this Agreement, PASP will promptly arrange the orderly removal of any Sculpture Installation Process materials from the Site. In the event this Agreement is tennutated for cause by PASP or without cause by the City, the City will bear the reasonable costs of removal. In any other case of temunation, such costs will be borne by PASP. 5. All provisions which are by their nature continuing will survive termination of thas Agreement. B. Assignment. Any assib°nments of this Agreement by one party without the express written muriial consent of the other party will be void. C. Entire Agreement. This Agreement represents the entire agreement between the parties and the provisions of this Agreement will supersede all prior oral and written coirunitments, contracts and understandings with respect to the subject matter hereof. The recitals at the begisuung of this Agreement are incorporated herein by reference. D. Amendments. This Agreement may be amended only by an instrument in writing executed by all parties hereto. E. Governing Lnw. This Agreement is aclalowledged to have been made in and will be construed in accordance with the laws of the State of Mirulesota. Any action to enforce the obligations created by this Agreement will be brought before a court of competent jurisdiction within the State of Minnesota, Ramsey County. The prevailing party in any such action will be entitled to recover its costs and expenses thereo£, including reasonable attorneys' fees. F. Construction. Shoi�ld any paragraph, sentence, or any portion of a paragraph or sentence of this Agreement be judicially held to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of such sentence, paragraph or the Agreement. SCULPTURE DEVELOPMENT AGREEMENT Page 7 of 12 Ecolnb Plnza Sct�lpture qY-9ey IN 4VITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the day and year first above written. PUBLIC ART SAINT PAUL By ("PASP") Mayor by BY Thomas Eggiml, Boazd Chair Director, Parks and Recreation by Peter Kramer, Vice Chair by (:hristine M. Podas-Larson, President By Director,Financial Services Approved as to form by: SCULPTURE DEVELOPMENT AGREEMENT Page 8 of 12 Ecolab Plaza Sculpture 9 q.9oy Exhibit A Proj ect Services Agreement between PASP and the Artist SCLTLPTURE DEVELOPMENT AGREEMENT Page 9 of 12 Ecolab Plaza Sculpture �9-9�y Exhibit B Site Preparation and Site Repair Specifications SCiJLPTURE DEVELOPMENT AGREEMENT Page 10 of 12 Ecolab Plaza Sculpture 99 - 9'�y E�ibit C Sculpture Installation Process Schedule Action Condition Estimated Date of Completion Start of Agreement Execurion of Ab eement. 1999 Submission of Final Presentarion of Final September 20, 1999 Construction Documents to Construction Documents PASP by the Artist Completion and acceptance of Review and acceptance of March 15, 2000 the fabrication of the Sculphzre the fabricated Sculpture by PASP Demolition of the site to allow To begin at the eaxliest April 15, 2000 for pouring of Sculphxre opporttuuty after grotmd footings; pouring and curing of thaw, estimated to be in footings March. Completion of the installation Review and acceptance of May 1, 2000 of the Sculpture by the Ariist. the installation of Sculpture by PASP Repair of the Site following Installation of the May 10, 2000 installation of the Sculpture Sculpture Formal Dedication of the Repair of the Site May 20, 2000 Sculprixre to lead off Saint following installation of Paul's millennial seasons of the Sculphzre. celebration. SCULPTURE DEVELOPMENT AGREEMENT Page 11 of 12 Eco(ab Plaza Sculpture ��-9°y E�ibit D Certificate of Insurance SCULPTURE DEVELOPMENT AGREEMENT Page 12 of 12 Ecolab Plaza Sculpture 9�i-9o`t ASSIGNMENT AND ACCEPTANCE AGREEMENT '"�� Ecolab Plaza Sculpture �� '9 �' � �� THIS AGREEMENT, is made and entered into as of the day of� �9�� 2000 by and among the City of Saint Paul (°City), Public Art Saint Paul ("PASI�'�F'yyari� � R M. Fischer Artcvoik, Inc. ("Artist"). �O_�cP RECITALS A. PASP has secured from public and private resources fiulding far the desi�, fabrication and installation of a large scale sculpture (the "Sculpture") for Ecolab Plaza; and B. the City has approved the ArtisYs design of the Sculpture (the "Design°); and C. PASP executed a Project Services Agreement (the "Services Agreement"), dated July _, 1999, with the Artist to design, fabricate and install the Sculpture; and D. the City executed Council Resolution , agreeing to accept the transfer of the Sculpture to the City from PASP and to enter into this Assigiunent and Acceptance Agreement at the time of transfer; and E. the City has granted permission to PASP to install the Sculpture on City property, including the preparation of the Site for installation of the Sculpture ("Site Preparation°) and the repair of the Site following installation ("Site Repair"); and F. PASP has caused the Site Preparation; and G. the Sculpture has been installed in southwest comer of Ecolab Plaza (the "Site'); and H. PASP has caused the Site Repair; and I. the parties desire that PASP transfer the Sculpture to the City and the City desires to accept the Sculpture from PASP. NOW, THEIZEFORE, in consideration of the above recitals, the muhial covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows: I. Transfer and Acceptance By executing this Agreement, PASP does hereby transfer and dedicate the Sculpture to the City, and by executing this Agreement, the City does hereby accept the Sculpture from PASP. II. Warranties and Indemnification of the Artist A. The Artist expressl� wnrrants a�nto the Cit� thnt: 1.. The Sculpture is the original product of the Artist's own creative effort and the Artist owns all rights in and to all studies, drawings, mock-ups and other prototypes used in the creation of the Sculpture. ASSIGNMENT AND ACCEPTANCE AGILEEMENT Page 1 of 10 Ecolab Plaza Sculpture 99 -90'�1 The Sculphue is unique and that the Artist has not authorized, and will not authorize, a duplicate thereof for fabrication or construction elsewhere. The Artist is not a pazty to any pre-existing ab eement which would be the cause for any breach of this Agreement ox render this Agreement impracticable by the Artist. 4. T'he Sculpture will, at the time of installation, be &ee and clear from all liens, including those from material suppliers and subcontractors. 5. As of the date of this Agreement, the Artist is not aware of any threatened or pending claims or suits alleging (a) facts inconsistent with the foregoing Artist representations or (b) that the Sculpture or its Design ulfrutges any copyright, patent or other proprietary rights or a third party. 6. The Sculpture will, for a period of 2 years after installation and acceptance, be free from material defects which cause or accelerate its destniction or deterioration. This warranty will not include condirions which arise out of vandalism, misuse, or improper maintenance of the Sculpture in accordance with Artist's reasonable maintenance instructions. In the event of breach of this warranty, Artist's sole liability shall be the worlanazllike repair or replacement of the affected portions of the Sculpture with confoxming elements at the ArtisYs expense. 7. Reasonable maintenance of the Sculpture will not require procedures substantially in excess of those described in the maintenance recommendations set forth in E�ibit A attached hereto. B. Artist's Indemnifications of the City 1.The Artist shall defend, indenulify and hold the City, its officers, agents, and employees harmless against any and all claims or suits arising from (a) any claixn that the Sculpture infiinges on the copyright, patent or other proprietary rights of any third person, or (b) any mechanics or material supplier liens against the Sculpture. The Artist shall, for a period of one year following the City's acceptance of the Sculpture, defend, indenulify and hold the City, its o£ficers, agents, and employees harmless against any and all claims or suits arising from any negligent act or omission of the Artist or the Artist's employees or sub- contractors in the perfonnance of the Project Services Agreement or of this Agreement. This indemnity shall not apply to the extent the claun or cause of action arises out of the negligence of the City, its officers, agents, employees, or contractors. In the event of joint negligence of both the Artist and the City, responsibility, if any, shall be apportioned comparatively in accardance with the laws of the State of Minnesota. The provisions of th'ts paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. III. Warrantv of PASP PASP expressly warrants unto the City that the Site Preparation and Site Repair will, for a period of 1 year after installation and acceptance, be free from material defects which cause or accelerate its destruction or deterioration. This warrant5• will not include ASSIGNMEIVT AND ACCEPTANCE AGREEMENT Page 2 of 10 Ecolab Plaza Sca�lpture 99-qa� condiHons which arise out of vandalism, misuse, or improper maintenance of the Sculpture in accordance with Artist's reasonable maintenance instructions. In the event of breach of this wananty, PASP's sole liability shall be the wor1m1u11ike repair or replacement of the affected portions of the Sculpture with conforming elements at PASP's expense. IV. Cit�s Assumption of Liability � Assumption of the Liability of PASP From and after the date of this Agreement, the City shall assume all liability of PASP in connection with: 1. � the Sculpture and its completed installation; Site Preparation and Site Repair. � The City shall defend, at its own cost and expense, and hold PASP, its officers, directors, funders, agents, employees and sub-contractors harmless from any action proceeding, or claim of any kind whatsoever, in 1aw or in equity, which exists or may exist against PASP that relate in any way to or arise in connection with the Sculpture or the real property on which it is located, except as set forth in paragraph II.B. Cit�'s Indemnification of the Artist and PASP It is acknowledged by all parties that the Sculpture is installed in a public place and will be accessible by members of the public. From and after the date of this Agreement, the City will take responsibility for, and defend, indeiruZify and hoid the Artist (as well as the Artist's agents, employees and sub-contractors) and PASP (as well as PASP's agents, employees and sub- contractors) harmless against any and all clauns or suits alleging personal injuries or property damage arising out of accidents associated with the Sculpture, except to the extent that the accident is attributable to: a. negligent acts or omissions of the Artist in connection with the design, fabrication or installation of the Sculpttxre, in which case the Artist will, for a period of one year following the City's acceptance of the Sculpture, defend, indeirulify and hold the City (as well as its officers, agents, employees and subcontractors) harmless against any and all such claims or suits; or b. negligent acts or omissions of PASP in connection with the Site Preparation and Site Repair, in which case PASP will defend, indeirutify and hold the City (as well as its officers, agents, employees and sub- contractars) harmless against any and all such claims or suits. intentional or negligent breach of any of the terms or Agreement, or (2) by any other negligent act ar omissio City's officers, agents, employees or sub-contractors in this Agreement. This indemnity shall not apply to the cause of action arises out of the negligence of the PASP, agents, employees, or sub-contractors. The City agrees to defend, indenulify and hold the PASP and the Artist harmless against any and all claims or suits arising from (1) the City's provisions of this n of the City of the the performance of extent the claim or the Artist or their ASSIGNNIENT AND ACCEPTANCE AGREEMENT Page 3 of 10 Ecolab Plaza Sczilpture q9 -9oy V. Artist's Release The Artist expressly consents to the assumption by the City of all obligations of PASP in connection with the Sculpture, and hereby fully and tinally releases and discharges forever PASP, its officers, directors, agents, employees, and funders from any action, proceeding, or claim of any kind whatsoever, in law or in equity, which exists or may exist against PASP that relate in any way to ar arise in connection with the Sculphue and its installation or with the Project Services Agreement between the Artist and PASP, dated August 31,1999, under which the Sculpture's final Constnzction Dociunents were developed and the Sculpture was fabricated and installed. VI. Possession of Design Materials All original plans, studies, drawings, mock-ups and other prototypes prepared and submitted in connection with the plamting, design, fabrication, and installation of the Sculpture (the "Design Materials") shall belong to the Artist. The Artist agrees to make such Design Materials available to the City at no expense to the Artist, for educational displays of the Sculpture and for such promorional activities at such times and for such periods as the City and Artist shall agree. VII. Copyright The Artist expressly reserves the right available to the Artist in common law or under the Federal Copyright Act and all othex rights in and to the Sculpture Design. The Artist hereby grants to the City, PASP, and Sculpture fimders, (listed in E�ibit B to this Agreement) a license, without charge, to reproduce unages of the Sculpture, in whole or in part, and to sell and display such reproductions for non-commercial purposes of docuxnenting, promoting and marketing the Sci�ipture and the Plaza. All such reproducHons are to respect the integrity of the Sculpture as a work of art and may not alter the Sculpture`s image for any purpose whatsoever. All such reproductions of the Sci�lpture by PASP, the City, and Sculpture funders (other than those contained in unages showing general views of the Plaza) shall contain a credit to the Arfist in the following form: "R. M. Fischer Artwork, Inc. �O 2000." All public showings ar reproductions of the Sculpture by the Artist shall contain the following credit: "Original owned by the City of Saint Paul, Minnesota'. VIII. Maintenance A. Regadar Maintenance of the Sculphrre The City recognizes that maintenance of the Sculpture on a regtalar basis will be essential to the long term integrity of the Sculpture. From and after the date of this Agreement, the City shall , at its sole cost and expense and to the best of its ability, maintain and protect the Sculpture against the ravages of time, vandalism, and the elements, including without limitation, the obligation to maintain the structural integrity of the Sculpture, the utility services, if any, required by the Sculpiure, and the overall appearance of the Sculpture. The City shall use its best efforts to maintain the Sculphzre in accordance with the Artist`s instrucrions for maintenance and preservation of the Sculpture set forth in Exhibit A attached hereto. ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 4 of 10 Ecolnb Plaza Sculpture c�q , 9 0 `l B. Repazr of Damage to the Sculpture Before maldng any repairs to the Sculpture, the City agrees to consult with the Artist in all matters conceming repairs and restorations of the Sculpture. Lhu�ing his lifetime, the Artist shall be given the opporhinity to make or personally supervise repairs and restorations and shall be paid a reasonable fee for any such services, provided that the City and the Artist agree in advance and in writing upon the fee for such seroices. All repairs and restorations shall be made m accordance with recogivzed principles of conservation (atEached as E�ibit C hereto). IX. Alterations and Removal A. Sculpture Alteration, Modification or Change The City agrees that it shall not intenHonally alter, modify, or chazlge the ScL�ipiure without obtauting the prior written approval of the �tist. The City agrees to notify the Artist of any proposed, necessary alterations of the Sculpture that would affect the intended character and appearance of the Sculprixre and shall consult with the Artist in the plaiming and execution of any such alteration and shall make a reasonable effort to maintain the integrity of the Sculpture. B. Scadpture Removnl or Destruction The City shall not remove or destroy the Sculpture without the prior written consent of the Artist, of if the Artist is deceased, without the prior written consent of PASP. In the event that the Sculpture`s shuctural integrity is damaged, creaiing a hazard to the public and necessitating urunediate alteration or removal of an emergency nature, the ArtisYs and PASP's prior written consent shall not be reqiured. X. Notices All notices to be given by any party to the other hereunder shall be in writing. The Artist and PASP agree to notify the City of any chulges of their addresses within ninety days of such changes. Subject to change by notice from the party charged with such notice, all notices shall be addressed as follows: A. To The Cihj of Saint Paul Division of Parks and Recreation 300 City Hall Annex 25 North 4th Street, Room 300 St. Paul, MN 55101 Attention: Director of Parks and Recreation B. To the Artist: R. M. Fischer Artwark, Inc. 12 Warren Street New York, New York Attention: R. M. Fischer ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 5 of 10 Ecolab Plaza Sculpture qq.9oy C. To Public Art Saint Paul Minnesota Building, Suite 828 46 East 4th Street St. Paul, MN 55101 Attention: President XI. Amendments Any alteration, change, or modification of the terms of this Agreement shall be valid only when made in writing and signed by all parties hereto. XII. Binding Effect This Agreement will inure to the benefit of and bind the respective heirs, personal representatives, successars, and permitted assigns of the parties hereto. XIII. Complete Agreement This Agreement constitutes the entire and final agreement among the parties and there are no agreements, understandings, warranties, or representations among the parties with respect to the subject matter hereof except as set forth in this Agreement. ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 6 of 10 Ecolab Plaza Scidpture 99-9 IN WITNESS WI�EREOF, the pazties hereto have executed this Agreement effeciive as of the day and year first above written. CIT'1' OF SAINT PAUL � � Mayor Director, Parks and Recreation � Director, Financial Services Approved as to form by: PUBLIC ART SAINT PAUL by Christine M. Podas-Larson, President R. M. Fischer, President R. M. FISCHER ARTWORK, INC. by Tom Eggum, Board Chair by Peter Kramer, Vice Chair ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 7 of 10 Ecolab Plnza Sculpture q9-9o'! EXHIBIT A SCULPTURE MAINTENANCE RECOMMENDATIONS (SEE ATTACHED) ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 8 of 10 Ecolab Plaza Sculpture 99- EXHIBIT B Directory of PASP, City, and Sculpture funders The following named are granted a license by the Artist to reproduce images of the Sculpture, in whole or in part, and to sell and display such reproductions for non- commercial purposes of documenting, promoting and marketing the Sculpture and the Plaza, according to the terms ouflined in Section XIII. B. of this Agreement. Public Art Saint Paul 46 East 4th Street, #828 Saint Paul, MN 55101 The City of Saint Paul Division of Parks and Recreation 300 City Hall Annex 25 West 4th Street Saint Paul, Minnesota 55102 The City of Saint Paui Cultural STAR Program 1300 City Hall Annex Saint Paul, MN 551Q1 Ecolab, Inc. 370 Wabasha Street Saint Paul, MN 55102 Capital City Partnership 2400 Minnesota World Trade Center Saint Paul, MN 55101 The Saint Paul Foundation 600 Norwest Center 55 East 5th Street Saint Paul, MN 55101 The F. R. Bigelow Foundation 600 Norwest Center 55 East 5th Street Saint Paul, MN 55101 Saint Paul Riverfront Corporation 25 West 6th Street Saint Paul, MN 55101 ASSIGNMENT AND ACCEPTANCE AGItEEMENT Page 9 of 10 Ecolab Plaza Sculpture q9-q°y EXHIBIT C Principles of Conservation ASSIGNMENT AND ACCEPTANCE AGREEMENT Pnge 10 of 10 Ecolab Plnza Sculpture Council File # 19` !�-{ OR�G!lUAL Presented By Referred to Committee: Date 1 2 3 4 5 6 WHEREAS, the City of Saint Paul has recently redeveloped Ecolab Plaza, located at Fifth Street and Wabasha Street, and WHEREAS, the City, Ecolab Inc. and Public Art Saint Paul have together planned and designed a sculpture to be installed on the southwest corner of the Plaza, and WHEREAS, Public Art Saint Paul has the knowledge, skills and abilities, and the resources necessary to complete the fabrication and installation of said sculpture, 7 NOW THEREFORE BE IT RESOLVED, that the Council of the City of Saint Paul 8 hereby authorizes and directs the proper City officials to enterinto a sculpture 9 development agreement with Public Art Saint Paul for the complete fabrication and 10 installation of the Ecolab Plaza sculpture, and 11 FURTHER RESOLVED, that upon satisfactory completion of sculpture fabrication and 12 installation, including restoration of plaza areas affected by the installation, the proper City 13 officials are hereby further authorized to execute an assignment and acceptance 14 agreement; accepting the Ecolab Piaza Sculpture from Pubiic Art Saint Paul. Yeas Nays Absent Benanav �� Blakey_ _�/ Bostrom �G Coleman ,/ Harris � Lantry � Reiter � � b p Adopted by Council: Date ��__�.aa \R — °1`�T - 1 Adoption Certified by Council Secretary BY � � � �..�- Approved by Mayor: Date: Z� ��QLn ( By: � 6 RESOLUTION OF,SAINT PAU�, MINNESOTA Green Sheet # 10015 d� Requested by: Divisip�i of Parks and By: L� � Form Approved by Cit�1 Attorney �9-9 � DATEINITIATED GREEN SHEET � S1 NO. 10015 DEPARTME NT/OFFICE/COUNQL Parks and Recreation July 28, 1999 LONTAGT PEflSON AND PHONE INITIAL)pAiE INRIAUDATE John Wirka 266-6411 � DEPARTMENTDIRECTOR 7 �} ClNCAUNCIL ASSIGN N�M6ER FO Z CITV ATTORNEY � CIN CLERK MUST � ON COUNqI AGENDA 6Y IDATEI ��NU FINANqAL SERVICES DIP. FINANCIAL SEftV/ACCTG OFDER _ NA 3 MAYOR �OR ASSISTA B Parks and Recreation TOTALNOFSIGNATUREPAGES � (CI.IPALLLOCATIONSFOPSIGNATUHEI ACTION REQUESiED: Approval of Council Resolution authorizing agreements between the City and Public Art Saint Paul for the Ecolab Plaza Sculpture project. RECOMMENDATIONS: Approve (A) or Reject IRI PEfl50NAL SERVICE CONTRFCTS MUST qNSWEfl THE FOLLOWING QUESTIONS: _PLANNING COMMISSION _GIVIL SERVICE COMMISSION �. Has ffiis persoNfirm ever worked untler a contract for [his department> CIB COMMITTEE _. VES NO A STAFF 2. Has this persoNfirm ever been a ciry employee> DISTRICTCOUNQL —' VES NO — — � 3. Does chis persoNfirm passess a skill not norma0y possessetl by any arren[ city employee? SUPPORTS WHICH COUNGIL O&1ECTIVEt YES NO Erylain all yes answers on separate sheet and attach ta green sheet. INITIATING PROBLEM, ISSUE, OPPORTUNIN IWho, Whac, When, Where, Whyl: Parks and Recreation, Ecolab Inc. and Public Art Saint Paul have worked together to design a sculpture for the new Ecolab Plaza. Agreements provide for Public Art Saint Paul to (a) complete fabrication and installation of sculpture on the Plaza site and (b) the city's acceptance of the sculpture upon completion. ADVANTAGESIFAPPROVED: Sculpture fabrication and installation can proceed, with instal�ation to take place spring 2000. DISADVANTAGES IF APPROVED: � None � � �$�� 9 ' iC�[� +.FS.� . a__ �ISADVANTAGES IF NOT APPROVED: �'�}-`�.''_ i`!i'� r' ` s w:.i Sculpture project cannot proceed. �� `�`=" �" TOTAL AMOUNT OF TftANSACTION S COSTlREVENUE eU�GETED (CIRCLE ON� VES NO RINOINOSOURCE NA qCTIVITYNUMBER FINANCIAL INFORMATION: lEXPLAINI �[ ,� ��328CCt1 e;8�1�eP SEP 15 1999 99 •904 SCULPTURE DEVELOPMENT AGREEMENT T`his ab eement (the "Agreement") is made ef£ective .1999, by and between: The City of Saint Paztl, a municipal corporation of the State of Minnesota, (the "Ci " and �� Public Art Saint Paul, a non-profit corporation, of 46 East 4th Street, Minnesota��ld� iggg Suite 828, Saint Paul, Muulesota, 55101 ("PASP"). � &�nFGREAT 0!�' RECITALS A. The City of Saint Paul (the "City") has recently redeveloped Ecolab Plaza (the "Plaza°), a public park in the center of downtown Saint Paul; and B. the Plaza is located at the entrance to the world headquarters of Ecolab, Inc., a Forhule 500 Company; and C. the Plaza has been designed to feature a landmark sculpture (the "Sculprixre") that will be visible from some distance and distinguish this major public place on the Plaza's southwest corner (the "Site"); and D. PASP provided consulting services to the City in selection of R. M. Fischer Artwork, Inc. (the "ArtisY') to design and create the Sculphzre and in working with the Artist to develop the schematic design for the Sculpture; and E. Upon the City's approval of the Artist's schematic design for the Sculpture and Ecolab Foundation's provision of design phase funding, PASP engaged the Ariist to complete design development of the Sculpture through a Project Services Agreement dated August 1, 1998 (the "Desib Agreement"); and F. fihe ?.rtist has iulfilled his obligarions under the Design Agreement, desigiwi.g a Sculphue that will be illuminated and serve as a gateway to the Plaza, allow for and frame views of the Plaza, and encourage entry into the space; and G. the Artist prepared and submitted a complete set of Design Doctunents (the "Design") for the proposed Sculpture, illustrating the location, size, and character of the Sculpture from mL�ltiple perspectives as well as its site accommodation and infrastnuture requirements; and H. the Artist prepared and submitted a statement about the Sculpture, including details regarding materials, dimensions, weight, and finish; and I. the Artist prepared and submitted preliininary specifications from which the Sculpture will be fabricated, and made prelimnlary maintenance recommendations; and J. the ArHst caused his project engineer to prepare and the Artist submitted preliminary recommendations regarding Site preparation, including preliminary engineenng drawings of the infrastruchtre required for the Sculpture's stnxctural support and describing the concept for its illumination; and K. the Artist prepared and submitted a description of the proposed production and installation processes and a budget and timeline for production and installaHon of the Sttilpture; and SCULPTURE DEVELOPMENT AGREEMENT Page 1 of 12 Ecolab Plnza Sculpture 99-904 L. the Artist presented the Design and its supporting materiaLs to PASP, the City, and funders for their review and approval; and M. the Artist's Design for the Sculpture has been reviewed by PASP, the City, and funders and the Design has been approved for implementation; and N. PASP has worked with the City and a construction management firm ("CPMI") to explore, specify and estimate the cost of preparing the site for installation of the Sculpture ("Site Preparation') and for repairing the Site following installation of the Sculpture ("Site Repair'); and O. PASP has secured funding from private and public sources for the ArtisYs constnxction documentarion, fabrication, and installation of the Sculph�re; and P. PASP has entered into an Agreement (the "Project Services Agreement", attached as E�ibit A hereto) with the Artist for the final construction documentation, fabrication and installation of the Sculpture at the Site; and Q. According to the terms of the Project Services Agreement, the Artist will cause the Sculphxre to be fabricated off of the Site and will cause the transportation of the Sculpture to the Site for assembly and installation; and R. PASP has secured public and private funding to support Site Preparation and Site Repair; and S. PASP has engaged the services of CPMI (the "Construction Management Agreement") to specify the requirements for Site Preparation and Site Repair and to manage the process of Site Pxeparation and Site Repair; and T. With the advice of CPMI, PASP intends to enter into agreements with service providers for Site Preparation for installation of the Sculphzre and for Site Repair following installation of the Sculpture; and U. PASP and the City now wish to execute an Agreement to allow for Site Preparation, installation of the Sculpture, and Site Repair following installation of the Sculpttxre and to specify the terms and conditions therefor. TERMS OF AGREEMENT For good and valuable considerarion, acknowledged to be sufficient, the parties heieby agsee as follows: I. Grant of Permission The City hereby grants PASP permission to install the Sculpture on the Site under the terms and conditions set out in this Agreement. II. Sculpiure Installation Under the terms of this Agreement, PASP will prepare the Site for installation of the Sculpture, 11lC tall the Sculpture in the Site, and repair the Site following installation of the Sculphire (°The Sculpture InstallaHon Process '). A. Specificntions for the Sculpture Installntion Process. Upon receipt of the Construction Documents called for in PASP's Project Services Agreement with the Artist and the Site Preparation and Site Repair specitications required SCULPTURE DEVELOPMENT AGREEMENT Page 2 of 12 Ecolab Plnza Sculpture 99�9o'f in PASP's Construction Management Agreement with CPMI (Exhibit B hereto), PASP will propose and recommend to the City a specific process, budget and schedule for The SculptureInstallation Process. B. Implementntion of the Sculpture Installation Process. Upon the City's approval of the Sculpiure Installation Process recommended in Section A above, PASP will implement the Sculpture Installation Process, such process to include: l. photob aphic and narrative documentation of the condition of the Plaza prior to the Sculpture Installation Process; 2. securing the necessary permits for the Sculpture Installation Process on the Plaza; 3. removal of paving and other Plaza elements, as necessary, to accommodate the pouring of footings to support the Sculpture on the Site, to access the Plaza's electrical infrasiruciure, and to set the Sculphire into the footings; 4. storage of Plaza elements removed during Site Preparation in a secure location; 5. pouring of footings to support the Sct�lpture; 6. installing the Sculpture in its Plaza Site; 7. making the required electrical connections; 8. replacing the Plaza elements removed during Site Preparation and repairing the Plaza to its original condition. C. Sculpta�re Installation Process Management Through its sub-contractor CPMI, PASP will woxd'xnate and oversee all aspects of the Sculpture Installation Process including: 1. engaging qualified contractors for Site Preparation and Site Repair and for electrical connection of the Sculptuxe's illumination elements; 2. arranging for the storage of Plaza materials; 3. inspecting the Site Preparation prior to delivery, assembly, and installaHon of the Sculpture; 4. inspecting the Sculpture upon delivery, to ensure that its safe delivery and readiness for assembly and installation; 5. being on the Site during the process of Sculpture assembly and installaHon by the Artist; 6. inspecting and docusnenting the assembly and installation of the Sculpture; 7. inspecting and documenting the electrical connection and Site Repair following installation of the Sculpture; presenting the completed Sculpture Installation Process to the City for its approval. III. Provision of materials and labor PASP will provide all materials and labor to complete the Sculpture Installarion Process, including those reqtured for Site Preparation, Sculpture installation, and Site Repair. It is understood that PASP wIll utilize the services of subcontractors, at its own expense, in connection with Sci�ipture Installarion Process. SCiJLPTURE DEVELOPMENT AGREEMENT Page 3 of 12 Ecolab Plaza Sculpture 91-9�`� IV. City Support for the Sculpture Installation Process In support of the Sculpture Installation Process, the City will assume the following responsibilities: A. Plaza Design and Construction Adaisor. The City will designate a lmowledgeable representative to provide information and advice regarding the Plaza's design and infrastructure in order to facilitate PASP's Sculpture Installation Process. B. Approvals. The City will not unreasonably withhold or delay its approval of the Sculpture Installation Process. C. Participation. The City will facilitate the process of securing the necessary perntits for the Sculpture Installation Process and will waive all fees associated with such permits. V. Schedule, Installation Acceptance, and Expenses A. Schedule. The schedule for the Sculpture Installarion Process is set in Exhibit B to this Agreement. PASP will use its best efforts to achieve the milestones and target complefion dates set out in that schedule. B. Acceptnnce. When PASP has completed the Sculpture Installation Process and presented it to the City, PASP may request a final written approval by the City of the Sculpture Installation Process. T'he City will not unreasonably withhold its approval and will, within 15 business days after the request, either provide such approval or a written statement detailing its reasons for withholding the approval. PASP will promptly remedy any deficiencies properly identified by the City and then request a final written approval, which will not be iuu�easonably withheld or delayed. C. Expenses. Except as otherwise specifically stated herein or as agreed in writing by the City, all expenses incurred by PASP in the Sculpture Installation Process will be the responsibility of PASP. VI. Warranties, Risk of Loss, Indemnities and Insurance A. Wnrrnnties. 1. PASP represents and warrants that: a. it has all necessary authorities to enter into this Agreement; b. it is not a party to any pre-existing agreement which would be the cause for any breach of this Agreement or render this Agreement impracticable by PASP; c. as of the date of this Agreement, PASP is not aware of any threatened or pending claims or suits alleging facts inconsistent with the foregoing PASP representations. 2. PASP further warrants that the Sculphire Installation Process it develops (either directly or through sub-contractors) will be kee from defects in materials and workmanship. This warranty will not include conditions which arise out of SCULPTURE DEVELOPMENT AGREEMENT Page 4 of 12 Ecolab Plaza Sculpture q9-9o'# vandalism or misuse. In the event of breach of this warranty, PASP's sole liability will be the workmanlike repair ar replacement of the affected portions of the Installation with conformulg elements. 3.. The City represents and warrants that: a. it has all necessary authorities to enter into this Agreement; b. it is not a party to any pre-existing agreement which would be the cause for any breach of this Agseement or xender this Agreement impracticable by the City. B. Risk of Loss and Indemnities 1. The risk of loss or damage to the Site will remain with the City excepC to the extent the loss or damage is attributable to the negligent or intentional acts of PASP or its sub-contractors in connection with the Sculphire Installation Process. Once the Sculprizre Installation Process has been approved by the City (per Section V.B, above), the total risk of loss or damage to the Site will be with the City. 2. It is recognized that PASP's Project Services Agreement with the Artist provides that the risk of loss or damage to the Sculpture and to the Site during the process of Sculpture installation will remain with the Artist, except to the extent that loss or damage is directly due to the negligent ar intentional acts of (1) PASP or its subcontractors in connection with the Site Pxeparation and Site Repaix ox (2) the City in connection with the on-going maintenance of the Site. 3. It is recognized that the agreements which PASP wIll execute with the providers of Site Preparation and Site Repair services will provide that the risk of loss or damage to the Sculpture and to the Site during the processes of Site Preparation and Site Repair will remain with the service providers, except to the extent that loss or damage is directly due to the negligent or intentional acts of (1) PASP or its sub- contractars in connection with the installation of the Sculpture or (2) the City in connection with the on-going maintenance of the Site. 4. It is acknowledged by both parries that the Sculpture will be installed in a public place and will be accessible by members of the public. During the course of the Sculptuxe Installation Process, the City will take xesponsibility for, and defend, indemnify and hold PASP (as well as PASP's agents, employees and sub- contractors) harxnless against any and all claisns or suits alleging personal injuries or property damage arising out of accidents associated with the Sculpture Installafion Process, except to the extent that the accident is attributable to negligent acts or omissions in connecrion with the desib , fabrication or installation of the Sci�lpture or negligent acts or omissions in connection with the Sculpiure InstallaHon Process, in which case the Project Services Agreement with the Artist and the agreements to be executed with providers of Site Prepararion and Site Repair services wIll apply to make PASP's sub-contractors responsible. For all other claims and suits relating to the Sculpture Installarion Process and the Sculpture during the course of the Sculpture Installation Process: a. Artist Indemnities. It is rec a�nized that PASP's Project Services Agreement with the Artist obligates the Artist to defend, indemnify and hold PASP and the City (as a third party beneficiary) harmless against various clauns and suits, including those relating to intellechial properties, mechanics liens, and intentional and negligent acts and omissions. b. Service Provider Indemnities. It is xecognized that the agreements to be executed with providers of Site Preparation and Site Repair services will obligate the seroice providers to defend, indemnify and hold PASP and the City (as a third party beneficiary) harmless against various claims and suits, including those SCL'LPTURE DEVELOPMEl�T AGREEMENT Page 5 of 12 Ecolab Plazn Sculpture gq-9o4 relating to intellectual properties, mechanics liens, and intentional and negligent acts and omissions. c. PASP Indemnities. During the course of the Sculpture Installation Process, PASP agrees to defend, indeuuiify and hold the City (and its officers, agents and employees) harmless against any and all claims or suits arising from (a) any mechanics ot material supplier liens arising out of the Installation, (b) the intentional or negligent acts or omissions of PASP or its officers, agents, employees or subcontractors in connection with the Installation of an Exhibition or in the performance of this Ab eement, or (c) PASP's material breach of any of the terms or provisions of this Agreement. This indemnity will not apply to the extent the claun ar cause of action arises out of the negligence or intentional acts or omissions of the City or its officers, agents or employees. d. Cit� Indemnities. (1) During the course of the Sculpture Installation Process, the City agrees to defend, indeinnify and hold PASP, the Artist (and his agents, employees and subcontractors), and the providers of Site Preparation and Site Repair services harmless against any and all clauns ar stuts arising from the intentional or negligent acts or omissions of.the City or its officers, agents, employees or subcontractors in connection with the maintenance of the Site or the performance of this Agreement. T'his indemnity will not apply to the extent the claim or cause of acrion arises out of the negligence or intentional acts ar omissions of the party seeking indemnity or its officers, agents or employees. (2) The City recognizes and agrees that the Artist and PASP's Site Preparation and Site Repair subcontractors are third party beneficiaries of the indemnity provisions of this Section. The parties further acknowledge that the City is a third party beneficiary of the indemniries granted by the Artist and such sub- contractors in their respective agreements with PASP. C. Insurance 1. PASP agrees that in order to protect itself as well as the City under the indemnity provisions contained in Section 12 above, it will obtain and keep in force, at its expense, during the term of this Agreement a policy of general liability instuance of not less than $750,000 per occurrence and will not exclude explosion, collapse, and tmdergro�md property damage, and not contain an aggregate policy limit. On or after January 1, 2000, general liability of $1,000,000 per occurrence will apply. 2. The general liability coverage will contain an endorsement naming the City as additional named insured as to acts conunitted by PASP for which the City coLild be held responsible. 3. PASP will furnish a Certificate of Insurance evidencing compliance with this Section (Exhibit D to this Agreement). The insurance policy will contain a provision requiring thirty (30) days notice of cancellation or change of the policy. 4. PASP will require the Artist and its Site Preparation and Site Repair subcontractors, during the term of their agreements with PASP, to (1) obtain and keep in force policies of general liability insurance idenfical to those required for PASP under this Section and (2) upon the City's request, furnish Certificates of Insurance evidencing compliance with this Section. SCULPTURE DEVELOPMENT AGREEMENT Page 6 of 12 Ecolab Ptaza Sculptaire q9-1oy VII. Coordination and Relationship A. Coordination. 1. The City of Saint Paul, Division of Parks and Recreation, is designated to administer this Agreement, and all approvaLs, notices to proceed and other written directions required will be given by the Superintendent of Pazks and Recreation or his desia ee. 2. PASP designates its President to admulister this Agreement, and all notices and other communications required will by given by the President. B. Relntionship. Fox the purpose of this Agreement, PASP will be deemed an independent contractor and not an employee or agent of the City. Any and all employees, subcontractors, or agents of PASP will not be considered employees or agents of the City. VIII. Other Provisions A. Term nnd Termittation. 1. T`his Agreement will have a term of two yeazs. 2. Either party may termulate this Agreement for cause in the event the other party fails to cure a material breach of any obligation hereunder more than 30 days after written notice of such breach. 3. This Agreement may be termixiated iminediately by PASP upon written notice to the City in the event the Sculpture Installation Process is prevented or materially altered by actions beyond the reasonable control of PASP. 4. Upon tennulation of this Agreement, PASP will promptly arrange the orderly removal of any Sculpture Installation Process materials from the Site. In the event this Agreement is tennutated for cause by PASP or without cause by the City, the City will bear the reasonable costs of removal. In any other case of temunation, such costs will be borne by PASP. 5. All provisions which are by their nature continuing will survive termination of thas Agreement. B. Assignment. Any assib°nments of this Agreement by one party without the express written muriial consent of the other party will be void. C. Entire Agreement. This Agreement represents the entire agreement between the parties and the provisions of this Agreement will supersede all prior oral and written coirunitments, contracts and understandings with respect to the subject matter hereof. The recitals at the begisuung of this Agreement are incorporated herein by reference. D. Amendments. This Agreement may be amended only by an instrument in writing executed by all parties hereto. E. Governing Lnw. This Agreement is aclalowledged to have been made in and will be construed in accordance with the laws of the State of Mirulesota. Any action to enforce the obligations created by this Agreement will be brought before a court of competent jurisdiction within the State of Minnesota, Ramsey County. The prevailing party in any such action will be entitled to recover its costs and expenses thereo£, including reasonable attorneys' fees. F. Construction. Shoi�ld any paragraph, sentence, or any portion of a paragraph or sentence of this Agreement be judicially held to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of such sentence, paragraph or the Agreement. SCULPTURE DEVELOPMENT AGREEMENT Page 7 of 12 Ecolnb Plnza Sct�lpture qY-9ey IN 4VITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the day and year first above written. PUBLIC ART SAINT PAUL By ("PASP") Mayor by BY Thomas Eggiml, Boazd Chair Director, Parks and Recreation by Peter Kramer, Vice Chair by (:hristine M. Podas-Larson, President By Director,Financial Services Approved as to form by: SCULPTURE DEVELOPMENT AGREEMENT Page 8 of 12 Ecolab Plaza Sculpture 9 q.9oy Exhibit A Proj ect Services Agreement between PASP and the Artist SCLTLPTURE DEVELOPMENT AGREEMENT Page 9 of 12 Ecolab Plaza Sculpture �9-9�y Exhibit B Site Preparation and Site Repair Specifications SCiJLPTURE DEVELOPMENT AGREEMENT Page 10 of 12 Ecolab Plaza Sculpture 99 - 9'�y E�ibit C Sculpture Installation Process Schedule Action Condition Estimated Date of Completion Start of Agreement Execurion of Ab eement. 1999 Submission of Final Presentarion of Final September 20, 1999 Construction Documents to Construction Documents PASP by the Artist Completion and acceptance of Review and acceptance of March 15, 2000 the fabrication of the Sculphzre the fabricated Sculpture by PASP Demolition of the site to allow To begin at the eaxliest April 15, 2000 for pouring of Sculphxre opporttuuty after grotmd footings; pouring and curing of thaw, estimated to be in footings March. Completion of the installation Review and acceptance of May 1, 2000 of the Sculpture by the Ariist. the installation of Sculpture by PASP Repair of the Site following Installation of the May 10, 2000 installation of the Sculpture Sculpture Formal Dedication of the Repair of the Site May 20, 2000 Sculprixre to lead off Saint following installation of Paul's millennial seasons of the Sculphzre. celebration. SCULPTURE DEVELOPMENT AGREEMENT Page 11 of 12 Eco(ab Plaza Sculpture ��-9°y E�ibit D Certificate of Insurance SCULPTURE DEVELOPMENT AGREEMENT Page 12 of 12 Ecolab Plaza Sculpture 9�i-9o`t ASSIGNMENT AND ACCEPTANCE AGREEMENT '"�� Ecolab Plaza Sculpture �� '9 �' � �� THIS AGREEMENT, is made and entered into as of the day of� �9�� 2000 by and among the City of Saint Paul (°City), Public Art Saint Paul ("PASI�'�F'yyari� � R M. Fischer Artcvoik, Inc. ("Artist"). �O_�cP RECITALS A. PASP has secured from public and private resources fiulding far the desi�, fabrication and installation of a large scale sculpture (the "Sculpture") for Ecolab Plaza; and B. the City has approved the ArtisYs design of the Sculpture (the "Design°); and C. PASP executed a Project Services Agreement (the "Services Agreement"), dated July _, 1999, with the Artist to design, fabricate and install the Sculpture; and D. the City executed Council Resolution , agreeing to accept the transfer of the Sculpture to the City from PASP and to enter into this Assigiunent and Acceptance Agreement at the time of transfer; and E. the City has granted permission to PASP to install the Sculpture on City property, including the preparation of the Site for installation of the Sculpture ("Site Preparation°) and the repair of the Site following installation ("Site Repair"); and F. PASP has caused the Site Preparation; and G. the Sculpture has been installed in southwest comer of Ecolab Plaza (the "Site'); and H. PASP has caused the Site Repair; and I. the parties desire that PASP transfer the Sculpture to the City and the City desires to accept the Sculpture from PASP. NOW, THEIZEFORE, in consideration of the above recitals, the muhial covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows: I. Transfer and Acceptance By executing this Agreement, PASP does hereby transfer and dedicate the Sculpture to the City, and by executing this Agreement, the City does hereby accept the Sculpture from PASP. II. Warranties and Indemnification of the Artist A. The Artist expressl� wnrrants a�nto the Cit� thnt: 1.. The Sculpture is the original product of the Artist's own creative effort and the Artist owns all rights in and to all studies, drawings, mock-ups and other prototypes used in the creation of the Sculpture. ASSIGNMENT AND ACCEPTANCE AGILEEMENT Page 1 of 10 Ecolab Plaza Sculpture 99 -90'�1 The Sculphue is unique and that the Artist has not authorized, and will not authorize, a duplicate thereof for fabrication or construction elsewhere. The Artist is not a pazty to any pre-existing ab eement which would be the cause for any breach of this Agreement ox render this Agreement impracticable by the Artist. 4. T'he Sculpture will, at the time of installation, be &ee and clear from all liens, including those from material suppliers and subcontractors. 5. As of the date of this Agreement, the Artist is not aware of any threatened or pending claims or suits alleging (a) facts inconsistent with the foregoing Artist representations or (b) that the Sculpture or its Design ulfrutges any copyright, patent or other proprietary rights or a third party. 6. The Sculpture will, for a period of 2 years after installation and acceptance, be free from material defects which cause or accelerate its destniction or deterioration. This warranty will not include condirions which arise out of vandalism, misuse, or improper maintenance of the Sculpture in accordance with Artist's reasonable maintenance instructions. In the event of breach of this warranty, Artist's sole liability shall be the worlanazllike repair or replacement of the affected portions of the Sculpture with confoxming elements at the ArtisYs expense. 7. Reasonable maintenance of the Sculpture will not require procedures substantially in excess of those described in the maintenance recommendations set forth in E�ibit A attached hereto. B. Artist's Indemnifications of the City 1.The Artist shall defend, indenulify and hold the City, its officers, agents, and employees harmless against any and all claims or suits arising from (a) any claixn that the Sculpture infiinges on the copyright, patent or other proprietary rights of any third person, or (b) any mechanics or material supplier liens against the Sculpture. The Artist shall, for a period of one year following the City's acceptance of the Sculpture, defend, indenulify and hold the City, its o£ficers, agents, and employees harmless against any and all claims or suits arising from any negligent act or omission of the Artist or the Artist's employees or sub- contractors in the perfonnance of the Project Services Agreement or of this Agreement. This indemnity shall not apply to the extent the claun or cause of action arises out of the negligence of the City, its officers, agents, employees, or contractors. In the event of joint negligence of both the Artist and the City, responsibility, if any, shall be apportioned comparatively in accardance with the laws of the State of Minnesota. The provisions of th'ts paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. III. Warrantv of PASP PASP expressly warrants unto the City that the Site Preparation and Site Repair will, for a period of 1 year after installation and acceptance, be free from material defects which cause or accelerate its destruction or deterioration. This warrant5• will not include ASSIGNMEIVT AND ACCEPTANCE AGREEMENT Page 2 of 10 Ecolab Plaza Sca�lpture 99-qa� condiHons which arise out of vandalism, misuse, or improper maintenance of the Sculpture in accordance with Artist's reasonable maintenance instructions. In the event of breach of this wananty, PASP's sole liability shall be the wor1m1u11ike repair or replacement of the affected portions of the Sculpture with conforming elements at PASP's expense. IV. Cit�s Assumption of Liability � Assumption of the Liability of PASP From and after the date of this Agreement, the City shall assume all liability of PASP in connection with: 1. � the Sculpture and its completed installation; Site Preparation and Site Repair. � The City shall defend, at its own cost and expense, and hold PASP, its officers, directors, funders, agents, employees and sub-contractors harmless from any action proceeding, or claim of any kind whatsoever, in 1aw or in equity, which exists or may exist against PASP that relate in any way to or arise in connection with the Sculpture or the real property on which it is located, except as set forth in paragraph II.B. Cit�'s Indemnification of the Artist and PASP It is acknowledged by all parties that the Sculpture is installed in a public place and will be accessible by members of the public. From and after the date of this Agreement, the City will take responsibility for, and defend, indeiruZify and hoid the Artist (as well as the Artist's agents, employees and sub-contractors) and PASP (as well as PASP's agents, employees and sub- contractors) harmless against any and all clauns or suits alleging personal injuries or property damage arising out of accidents associated with the Sculpture, except to the extent that the accident is attributable to: a. negligent acts or omissions of the Artist in connection with the design, fabrication or installation of the Sculpttxre, in which case the Artist will, for a period of one year following the City's acceptance of the Sculpture, defend, indeirulify and hold the City (as well as its officers, agents, employees and subcontractors) harmless against any and all such claims or suits; or b. negligent acts or omissions of PASP in connection with the Site Preparation and Site Repair, in which case PASP will defend, indeirutify and hold the City (as well as its officers, agents, employees and sub- contractars) harmless against any and all such claims or suits. intentional or negligent breach of any of the terms or Agreement, or (2) by any other negligent act ar omissio City's officers, agents, employees or sub-contractors in this Agreement. This indemnity shall not apply to the cause of action arises out of the negligence of the PASP, agents, employees, or sub-contractors. The City agrees to defend, indenulify and hold the PASP and the Artist harmless against any and all claims or suits arising from (1) the City's provisions of this n of the City of the the performance of extent the claim or the Artist or their ASSIGNNIENT AND ACCEPTANCE AGREEMENT Page 3 of 10 Ecolab Plaza Sczilpture q9 -9oy V. Artist's Release The Artist expressly consents to the assumption by the City of all obligations of PASP in connection with the Sculpture, and hereby fully and tinally releases and discharges forever PASP, its officers, directors, agents, employees, and funders from any action, proceeding, or claim of any kind whatsoever, in law or in equity, which exists or may exist against PASP that relate in any way to ar arise in connection with the Sculphue and its installation or with the Project Services Agreement between the Artist and PASP, dated August 31,1999, under which the Sculpture's final Constnzction Dociunents were developed and the Sculpture was fabricated and installed. VI. Possession of Design Materials All original plans, studies, drawings, mock-ups and other prototypes prepared and submitted in connection with the plamting, design, fabrication, and installation of the Sculpture (the "Design Materials") shall belong to the Artist. The Artist agrees to make such Design Materials available to the City at no expense to the Artist, for educational displays of the Sculpture and for such promorional activities at such times and for such periods as the City and Artist shall agree. VII. Copyright The Artist expressly reserves the right available to the Artist in common law or under the Federal Copyright Act and all othex rights in and to the Sculpture Design. The Artist hereby grants to the City, PASP, and Sculpture fimders, (listed in E�ibit B to this Agreement) a license, without charge, to reproduce unages of the Sculpture, in whole or in part, and to sell and display such reproductions for non-commercial purposes of docuxnenting, promoting and marketing the Sci�ipture and the Plaza. All such reproducHons are to respect the integrity of the Sculpture as a work of art and may not alter the Sculpture`s image for any purpose whatsoever. All such reproductions of the Sci�lpture by PASP, the City, and Sculpture funders (other than those contained in unages showing general views of the Plaza) shall contain a credit to the Arfist in the following form: "R. M. Fischer Artwork, Inc. �O 2000." All public showings ar reproductions of the Sculpture by the Artist shall contain the following credit: "Original owned by the City of Saint Paul, Minnesota'. VIII. Maintenance A. Regadar Maintenance of the Sculphrre The City recognizes that maintenance of the Sculpture on a regtalar basis will be essential to the long term integrity of the Sculpture. From and after the date of this Agreement, the City shall , at its sole cost and expense and to the best of its ability, maintain and protect the Sculpture against the ravages of time, vandalism, and the elements, including without limitation, the obligation to maintain the structural integrity of the Sculpture, the utility services, if any, required by the Sculpiure, and the overall appearance of the Sculpture. The City shall use its best efforts to maintain the Sculphzre in accordance with the Artist`s instrucrions for maintenance and preservation of the Sculpture set forth in Exhibit A attached hereto. ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 4 of 10 Ecolnb Plaza Sculpture c�q , 9 0 `l B. Repazr of Damage to the Sculpture Before maldng any repairs to the Sculpture, the City agrees to consult with the Artist in all matters conceming repairs and restorations of the Sculpture. Lhu�ing his lifetime, the Artist shall be given the opporhinity to make or personally supervise repairs and restorations and shall be paid a reasonable fee for any such services, provided that the City and the Artist agree in advance and in writing upon the fee for such seroices. All repairs and restorations shall be made m accordance with recogivzed principles of conservation (atEached as E�ibit C hereto). IX. Alterations and Removal A. Sculpture Alteration, Modification or Change The City agrees that it shall not intenHonally alter, modify, or chazlge the ScL�ipiure without obtauting the prior written approval of the �tist. The City agrees to notify the Artist of any proposed, necessary alterations of the Sculpture that would affect the intended character and appearance of the Sculprixre and shall consult with the Artist in the plaiming and execution of any such alteration and shall make a reasonable effort to maintain the integrity of the Sculpture. B. Scadpture Removnl or Destruction The City shall not remove or destroy the Sculpture without the prior written consent of the Artist, of if the Artist is deceased, without the prior written consent of PASP. In the event that the Sculpture`s shuctural integrity is damaged, creaiing a hazard to the public and necessitating urunediate alteration or removal of an emergency nature, the ArtisYs and PASP's prior written consent shall not be reqiured. X. Notices All notices to be given by any party to the other hereunder shall be in writing. The Artist and PASP agree to notify the City of any chulges of their addresses within ninety days of such changes. Subject to change by notice from the party charged with such notice, all notices shall be addressed as follows: A. To The Cihj of Saint Paul Division of Parks and Recreation 300 City Hall Annex 25 North 4th Street, Room 300 St. Paul, MN 55101 Attention: Director of Parks and Recreation B. To the Artist: R. M. Fischer Artwark, Inc. 12 Warren Street New York, New York Attention: R. M. Fischer ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 5 of 10 Ecolab Plaza Sculpture qq.9oy C. To Public Art Saint Paul Minnesota Building, Suite 828 46 East 4th Street St. Paul, MN 55101 Attention: President XI. Amendments Any alteration, change, or modification of the terms of this Agreement shall be valid only when made in writing and signed by all parties hereto. XII. Binding Effect This Agreement will inure to the benefit of and bind the respective heirs, personal representatives, successars, and permitted assigns of the parties hereto. XIII. Complete Agreement This Agreement constitutes the entire and final agreement among the parties and there are no agreements, understandings, warranties, or representations among the parties with respect to the subject matter hereof except as set forth in this Agreement. ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 6 of 10 Ecolab Plaza Scidpture 99-9 IN WITNESS WI�EREOF, the pazties hereto have executed this Agreement effeciive as of the day and year first above written. CIT'1' OF SAINT PAUL � � Mayor Director, Parks and Recreation � Director, Financial Services Approved as to form by: PUBLIC ART SAINT PAUL by Christine M. Podas-Larson, President R. M. Fischer, President R. M. FISCHER ARTWORK, INC. by Tom Eggum, Board Chair by Peter Kramer, Vice Chair ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 7 of 10 Ecolab Plnza Sculpture q9-9o'! EXHIBIT A SCULPTURE MAINTENANCE RECOMMENDATIONS (SEE ATTACHED) ASSIGNMENT AND ACCEPTANCE AGREEMENT Page 8 of 10 Ecolab Plaza Sculpture 99- EXHIBIT B Directory of PASP, City, and Sculpture funders The following named are granted a license by the Artist to reproduce images of the Sculpture, in whole or in part, and to sell and display such reproductions for non- commercial purposes of documenting, promoting and marketing the Sculpture and the Plaza, according to the terms ouflined in Section XIII. B. of this Agreement. Public Art Saint Paul 46 East 4th Street, #828 Saint Paul, MN 55101 The City of Saint Paul Division of Parks and Recreation 300 City Hall Annex 25 West 4th Street Saint Paul, Minnesota 55102 The City of Saint Paui Cultural STAR Program 1300 City Hall Annex Saint Paul, MN 551Q1 Ecolab, Inc. 370 Wabasha Street Saint Paul, MN 55102 Capital City Partnership 2400 Minnesota World Trade Center Saint Paul, MN 55101 The Saint Paul Foundation 600 Norwest Center 55 East 5th Street Saint Paul, MN 55101 The F. R. Bigelow Foundation 600 Norwest Center 55 East 5th Street Saint Paul, MN 55101 Saint Paul Riverfront Corporation 25 West 6th Street Saint Paul, MN 55101 ASSIGNMENT AND ACCEPTANCE AGItEEMENT Page 9 of 10 Ecolab Plaza Sculpture q9-q°y EXHIBIT C Principles of Conservation ASSIGNMENT AND ACCEPTANCE AGREEMENT Pnge 10 of 10 Ecolab Plnza Sculpture