05-658Council File # � � J y
Resolution #
Green Sheet # �D �-� ° �0 �
�
Presented By
Referred to
Committee: Date
1 WHEREAS, in 1992, the Saint Paul Foundation commissioned the Artist (Cliff Garden Studio) to design,
2 fabricate and install a mixed media landscape arlwork (the "Garden") in the City's Kellogg Mall Park to
3 commemorate the people from diverse cultures who settled in and continue to build the City of Saint Paul;
4 and
5 WHEREAS, the parties intended the Garden to be a gift from the Foundation to the City to commemorate
6 the 150�' anniversary of the City's birth and
7 WHEREAS, the City approved the ArtisYs design of the Garden and the plan for its installation; and
8 WHEREAS, the Artist shaped the Garden landscape and fabricated and installed the multiple elements of
9 the Garden in 1992; and
10 WHEREAS, the City approved the completed Garden in 1992; and
11 WHEREAS, the parties desire that the Foundation complete the transfer of the Garden to the City and the
12 City desires to accept the Garden from the Foundation.
13 NOW, 7HEREFORE BE IT RESOLVED, in consideration of the above the City of Saint Paul accepts the
14 transfer of the Garden from the Saint Paul Foundation.
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Adopted by Council: Date:
Adoption
By:
By:
fied by Council
. Date:
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PAUL, MINNESOTA
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Requested by Division of Parks and
Recreation
BY= _l����< /J
� _ Form Approved by City
I By�
Approv Mayor for
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DepartrneMloffice/council: Date Initiated:
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PR -P���,a��„ o�.,��-05 Green Sheet NO: 3027263
Contac[ Person & Phone: � DeoartmeM Sent To Person InitiaVDate
BOb BiO�SCheid 0 ar an ecreati n
2 �� 09 ASSign 1 arks and Recreation De ar[ment Dir r�
Must Be on Council /�genda by (Date): Number 2 A e
For
Routing 3 or's Of6ce Ma or/ASSista t
� Order 4 oncil
5 ' Clerk CS Clerk
Totaf # of Signature Pages _(Clip All Locations fior Signature)
Action Requested:
Signatures on attached resolution authorizing City of Saint Paul to accept art design in Kellogg Mall Pazk from the Saint Paul
Foundation.
RecommendaLOns: Approve (A) or Rejed (R): Personal Service Contrecks Must Mswer the Following Questions:
Planning Commission 1. Has this person/firm ever worked under a contract for this department?
CIB Committee Yes No
Civil Service Commission 2. Has this person7firm ever been a city employee?
Yes No
- � 3. Dces this personffirm possess a skill not nortnally possessed by any
current city empioyee?
Yes No
� Facplain all yes answers on separete sheet antl attach to green sheet
Initiating Probiem, Issues, Opport�nity (Who, What, When, Where, Wh»:
Tn 1992, the Saint Paul Foundation commissioned the Artist (Cliff Gazden Studio) to design, fabricate and install a miYed media
landscape artwork'(the "Gazden") in the Cit}�s Kellogg Mall Park to'commemorate the people froxndiverse cultures who settled in and
continue to build the City of Saint Paul.
Advantages If Approvetl: � � � � � � � �
The City of Saint Paul will own the "Gazden" art work in Kellogg Mall Pazk.
JUL I1 2005
Disadvantapes If Approved: �'�„ I ���� � � ��
None + �
Disadvantages If Not Approved:
The City of Saint Paul will not own the "Gazden" art work in Kellogg Mall Pazk.
ToWI Amount of
Trensaction: CostlRevenue Budgeted: � ar'^ ^ �'"' �'�
�°,�?� �85� t
Punding Source: Activitv Number:
Financial lnformation: ���� � 2
(Explain) -
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ASSIGNMENT AND ACCEPTANCE AGREEMENT
Saint Paul Cultural Garden
THIS AGREEMENT is made and entered into as of the day of , 2005
by and among the City of Saint Paul ("City"), The Saint Paul Foundation ("Foundation") and Cliff
Garten Studio ("ArtisP').
RECITALS
WHEREAS, in 1992, the Foundation commissioned the Artist to design, fabricate and install
a mixed media landscape artwork (the "Garden") in the City's Kellogg Mall Park to commemorate
the people from diverse cultures who settled in and continue to build the City of Saint Paul; and
WHEREAS, the parties intended the Gazden to be a gift from the Foundation to the City
to commemorate the 150th anniversary of the City's birth; and
WHEREAS, the City approved the ArtisYs design of the Gazden and the plan for its
installation; and
WHEREAS,theArtistshapedtheGardenlandscape andfabricatedandinstalledthemultiple
elements of the Garden in 1992; and
WHEREAS, the City approved the completed Garden in 1992; and
WF3EREAS, the parties desire that the Foundation complete the transfer of the Garden to
the City and the City desires to accept the Garden from the Foundation.
NOW, THEREFORE, in consideration of the above recitals, the mutual 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, the FoundaUon does hereby convey, transfer and dedicate the Garden,
more specificaliy described in Exhibit B, attached hereto and made a part hereof, to the City, and by
executing this Agreement, the City does hereby accept the Garden from the Foundation.
IT. Warranties and Indemnification by the Artist
A. The Artist expressly warrants unto the City that:
1. The Garden is the origjnal work 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 Garden.
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2. The Garden is unique and the Artist has not authorized, and will not authorize, a duplicate
thereof for fabrication or construction elsewhere.
B. Artist Indemnifzcation of the City and the Foundation
The Artist shall defend, indemnify and hold the City, its officers, agents, and employees, and the
Foundation harmless against any and all claims or suits arising from any claim that the Garden
infringes on the copyright, patent or other proprietary rights of any third person.
III. City's Assumption of Liability
A. Assumption of the Liability of Foundation
From and after the date of this Agreement, the City hereby assumes all liability of the Foundation
in connection with the Gazden and its completed installation. The City shall defend, at its own cost
and expense, and hold the Foundation, its officers, directors, agents, and employees harmless from
any action, proceeding, or claim of any kind whatsoever, in law or in equity, which now exists or
may hereafter exist against the Foundation in any way relating to or arising in connection with the
Gazden or the real property on which it is located.
B. Indemnifications
1. It is acknowledged by all parties that the Garden is installed in a public place which is
accessible by members of the public. From and after the date of this Agreement, the City will take
responsibility for, and defend, indemnify and hold the Artist and the Foundation harmless against
any and all past or future claims or suits alleging personal injuries or property damage in any way
relating to or arising from the Garden, including, but not limited to, any claims for personal injury
or property damage.
2. The City agrees to defend, indemnify and hold the Foundation and the Artist hannless against
any and all claims or suits arising from the City's intentional or negligent breach of any of the terms
or provisions of this Agreement.
3. The Foundation agrees to defend, indemnify and hold the City and the Artist harmless against
any and all claims or suits arising from the Foundation's intentional or negligent breach of any of
the terms or provisions of this Agreement.
4. TheArtistagreestodefend,indemnifyandholdtheFoundationandtheCityharmlessagainst
any and all elaims or suits arising from the ArtisY s intentional or negligent breach of any of the terms
or provisions of this Agreement.
IV. Artist's Release
The Artist expressly consents to the assumption by the City of all obligations of the Foundation in
connection with the Garden, and hereby fully and finally releases and discharges forever the
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Foundation, its officers, directors, agents, and empioyees from any action, proceeding, or claim of
any kind whatsoever, in law or in equity, which exists or may exist against the Foundation relating
in any way to or arising from the Garden and its installation.
V. Ownership and Possession of Design Materials
All original plans, studies, drawings, mock-ups and other prototypes prepared and submitted in
connection with the planning, design, fabrication, and installation of the Garden (the "Design
Materials") are and shall remainthe property the Artist. Upon reasonable notice, the Artist agrees
to make such Design Materials available to the City free of charge but without expense to the Artist,
for purposes of on-going Garden maintenance and stewardship, at such times and for such periods
as the City and Artist shall agree.
VI. Copyright and License
The Artist expressly reserves the rights available to the Artist in common law or under the Federal
Copyright Act and all other rights in and to the Gazden Design. The Artist hereby unconditionally
grants to the City, the Foundation, and the Garden partners (listed in Exhibit B to this Agreement)
a full and irrevocable license, without charge, to reproduce images of the Garden, in whole or in part,
and to sell and dispiay such reproductions for purposes of documenting, promoting and marketing
the Garden; Kellogg Mall Park, and the City. All such reproductions aze to respect the integrity of
the Garden as a work of art and may not alter the Garden's image for any purpose whatsoever. All
such reproductions of the Garden by the Foundation, the City, and Gazden partners (other than those
contained in images showing general views of Kellogg Mall Park and the City) shall contain a credit
to the Artist in the following form: "Cliff Garten Studio 1992." All public showings of the Garden
design and/or reproductions of the Garden by the Artist shall contain the following credit: "Original owned
by the City of Saint Paul, Minnesota". The City, the Foundation, and the Garden partners may not
sell, transfer or assign the license to third parties.
VII. Maintenance
A. City's Obligation to Maintain the Garden
The City will be responsible for the ongoing maintenance of the Garden and shall insure that it is
maintained at a minimum at the level of all other parks facilities within the City parks and recreation
division and such maintenance shall include annual water washing of the railing and sculptural
elements in accordance with the specifications of a qualified conservator, and watering, mowing and
trimming or pruning of the lawn and plant materials. To the extent that a higher level of
maintenance is expected or required by other parties, the funding for such maintenance shall be the
subject of a separate agreement.
B. Repair of Damage to the Garden
Except for normal maintenance, before making any repairs to the Garden, the City agrees to consult
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with the Artist in all matters concerning repairs and restorations of the Garden. All repairs and
restorations shall be made in accordance with documented recommendations of a qualified art
conservator and with recognized principles of artwork conservation.
VIII. Alterations and Removal
A. Garden Alteration, Modification or Change
The City agrees that it shall not intentionally alter, modify, or change the Garden without
obtaining the prior written approval of the Artist. The City agrees to notify the Artist of any
proposed, necessary alterations of the Garden that would affect the intended character and
appeazance of the Garden and shall consult with the Artist in the planning and execution of any such
alteration and shall make a reasonable effort to maintain the integrity of the Garden. The Artists
prior written consent shall not be required in the event that the Gazden's structural integrity is
damaged by vandalism, an act of God, or a natural disaster, creating a hazazd to the public and
necessitating immediate repair, alteration or removal.
B. Garden Removal or Destruction
The City shall not remove or destroy the Garden without the prior written consent of the Artist and
the Foundation. Following the death of the Artist, only consent of the Foundation is necessary. Such prior
written consent shall not be required in the event that the Gazden's structural integrity is damaged by
vandalism, an act of God, or a natural disaster, creating a hazard to the public and necessitating immediate
repair, alteration or removal of an emergency nature. Notwithstanding the foregoing, if the City elects not
to restore the Garden following an act of vandalism, an act of God, or natural disaster, or determines
that a public purpose exists which necessitates the removal of the Garden and said consent cannot
be obtained then there shall be an amount of liquidated damages set at $350,000, which the City shall
pay to the Foundation.
IX. Notices
All notices to be given by any party to the other hereunder shall be in writing. The Artist and
the Foundation agree to notify the City of any changes of their respective 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 City
Division of Parks and Recreation
City of Saint Paul
300 City Hall Annex
25 North 4th Street, Room 300
St. Paul, MN 55101
Attention: Director of Pazks and Recreation
B. To the Artist:
Cliff Garten Studio
1315 Preston Way
Venice, CA 90291
Attention: Cliff Garten
C. To the Foundation
The Saint Paul Foundation
55 East Sth Street, Suite 600
St. Paul, MN 55101
Attention: John Couchman, Vice President of Grants
X. 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.
XI. Binding Effect
This Agreement will inure to the benefit of and bind the respective heirs, personal
representatives, successors, and permitted assigns of the parties hereto.
XII. Complete Agreement
This Agreement constitutes the entire and final agreement among the parties and there aze
no agreements, understandings, warranties, or representations among the parties with respect to
the subject matter hereof except as set forth in this Agreement.
IN WTTNESS WHEREOF, the parties hereto have executed this Agreement effective as of the
day and year first above written.
CTI'Y OF SAINT PAUL
Mayor
By
Directar, Parks and Recreation