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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. IBenanav II ✓ IL_ Bostrom �C Harris OC Helgen �� Lantxy �� Montgomezy �� Thune OC G Adopted by Council: Date: Adoption By: By: fied by Council . Date: � ���_ -� PAUL, MINNESOTA 2S Requested by Division of Parks and Recreation BY= _l����< /J � _ Form Approved by City I By� Approv Mayor for ecretary Counc' gy: � G/G�L.�crk'✓ s / f � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � n�C_ .1_�S� DepartrneMloffice/council: Date Initiated: �J� ��.. 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) - �- (�5g 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. 05 � 5 � 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 os-�58 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 D5-�,58 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