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04-278Council File # (/ ' ��g Crreen Sheet # 10 4 0 8 0 RESOLUTION CITY OF SAINT PAUL, NIINNESOTA Presented By Referred To � Coxnmittee: Date 1 2 3 4 5 6 7 BE IT RESOLVED, that the proper City officers aze hereby authorized and directed to execute and file a Stipulation and Order for Final Judgment, Settlement and Release of Claims, and Assignxnent and Acceptance of Contract for Sculpture Cleaning in the form attached, in full settlement of the claims brought by the City of Saint Paul v. R.M. Fischer Artwork, Inc., A.S.M. Inc, d/b/a American Structural Metals, Inc. as more fully set forth in the Summons and Complaint served by the City on defendants in June of 2002, Ramsey County District Court, Court File No. 62-CO-02-8121. Requested by Department of: By: Form Appr ' y Atto By: Cf�fJ+^ App}�dved by Mayor fo Submission to Council I��I��/���� �� ��� � � � � / __� rf� Adoption Certi£}�d by Council Secretary oy -a�� City Attorney's O£fice Eric Larson (266-8728) � •i.'`ial ���� GREEN SHEET No 1 � '' �� 0 Nnnuo,n uumuoaro mr�ra.ec.oR rn.cau� � �erort arc�nouEr annmc ❑wurcYr.aFaueFSOw. ❑wuw��a ��WYORWRAi9ifN11) ❑ TOTAL # OF SIGNATURE PAGES 1 (CLIP ALL LOCATIONS FOR SIGNATURE) Approve settlement between the City of St. Paul and R. M. Fischer Artwork, Inc., A.S.M. Inc., d/b/a American Structural Metals,Inc. PLANNING COMMISSION CIB CAMMITTEE CML SERVICE CAMMISSION Citv Attornev's Of£ice RSONpL SERVICE CON7RAGIS MUST ANSWER 1HE FOLLAWiN6 Q FIBS th15 P�IIII�N9(k¢d u1M¢f d COf1118Cf (M NI& AEp9M1¢MZ YES Fies this perawJfirm ew been a cdy anpbyeeT YES � Do� this P� D� a sldN nd normalb0� M anY wrreM city emCbyee? � � la Mis peisoMrm a �arpeled vercbYt YES � The Skygate/EcoLab sculpture began rnsting soon after its installation. The City initiated a lawsuit in June of 2002 against, the artisUsculptor and the fabricator of the sculpture to have the sculpture repaired. The settlement requires the payment of $55,000 to the City of Saint Paul by the defendanu and for the defendants to contract with Swanson & Youngdale, Inc. for the repau of the sculphue. The conhact will be assigned to the City and the City will make payment upon complerion of the repair. The lawsuit will be settled, removal of the rust and restoration of the sculphue will result, and the uncertainties and expense of a tdal will be avoided. 4WANTAGES IFAPPROVED The issue of rust and discolorarion has been fully and fmally resolved and the City will be precluded from re-lirigating this issue with the defendants. the payment of twice the contracted amount of the estixnated repair costs. The settlement proceeds provides the City more the sufficient monetary cover should additional repair work be required if ever in the future. The settlement reflecu an anticipated good result should oFrwwsacnous 55, 000. 00 SOURCE COST/REVplUE BUDfiEiED (GRCLE ON� 0.CTNIiY NUMBER ��� (IXPWN) oy -a�� STATE OF MINNESOTA CO[INTY OF RAMSEY DISTRICT COURT SECOND NDICIAL DISTRICT Case Type: Contract, Other Ciry of St. Paul, Plaintiffs, ►�� R.M. Fischer Artwork, Inc., ASM, Inc., d/b/a American Structural Metals, Inc., Defendants, �1 R.M. Fischer Artwork, Inc. and ASM., Inc., d/b/a American Shuctural Metals, Inc., Defendants and Third-Party Plaintiffs, v. Vincent Metal Goods, Third-Party Defendant, Counterclaimant and Crossclaimant. Judge: Judge Lindman Court File No. 62-CO-02-8121 SETTLEMENT AND RELEASE OF CLAIMS This Settlement Agreement and Release (the "Release") is made and entered into by and between: (1) Plaintiff City of St. Paul ("Piaintiff'); (2) Defendant R.M. Fischer Artwork, Inc. ("Fischer") and its insurer, CNA Insurance Companies ("CNA"); and (3) A.S.M. Inc., d/b/a 1 v�- a�� American Shuctural Metals, Ina (ASM) (collectively refened to as the "Parties"1). WIiE12EAS, Plaintiffhas commenced the above-captioned lawsuit for claims arising out of the alleged services, materials, and representations of defendants Fischer and ASM concerning the "Skygate" Sculpture located at the Ecolab Plaza in St. Paul (the "Sculpture) and Fischer and ASM have asserted cross-ciauns against each other seeking contribution and indemnification (the "LawsuiY') WHEREAS, the defendants Fischer and ASM have denied and continue to deny any wrongdoing and all liability. WHEREAS, the Parties desire by this Release to resolve and release all claims and disputes arising out of or related to the Sculpture and the Lawsuit. WHEREAS, the Parties have executed an Assignment and Acceptance of Contract for Sculpture Cleaning, attached as Exhibit A(the "Assi�unent"); NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. Contemporaneous with the Parties' execution of tlus Release and the Assignment, the Defendants will pay Plaintiff Fifly-Five Thousand Dollars ($55,000.00) (the "PaymenY'}. Subject to the provisions below, the Payment shall be in fixll settlement and satisfaction of all Plaintiffls claims against Fischer, CNA, and ASM. Defendants Fischer and ASM shall be responsible for the Payment as follows: a. Fischer and CNA shall pay Plaintiff $30,000. b. ASM shall pay Plaintiff $25,000. 1 Thud-Party Defendant, Vincent Mecal Goods, was dismissed from this matte2 pursuant to an OLdec signed by Judge Finley. Thus, Vincent Metal Goods has not participated in the negoriarions leading to this Agreement and will not be si o�in g this Release. 2 o�l - a�g 2. The Parties intend to fixlly and finaily settle all matters and causes of action arising out of the facts and claixns as set forth in the Lawsuit. Conditioned upon receipt of the Payment and subject to the provisions of this Release and the Assignment, the Parties hereby waive and release Fischer, ASM, and CNA from all claims and counterclaims, and any and all Irnown and unlmown liens, claims, actions, and the causes of acrion, demands, rights, damages, costs or expenses which any of the Parties now have or which may hereinafter accrue, arise out of, or related to any alleged rust or discoloration or such other change in the condition of the Sculpture or the facts and claims as set forth in the Lawsuit. The Parties' waiver and release also extends to the Parties' heirs, executors, administrators, representatives, agents and assigns, successors in interest, employees, principles, officers, directors, and insurers. The Payment and this Release shall operate as full satisfaction and release of the claims and cross-claims in the Lawsuit and any such fiuther claims by Plaintiff against ASM, Fischer, and/or their insurers, or by the defendants ASM and Fischer against Plaintiff or each other, and/or their insurers, arising out of or related to any alleged rust or discoloration or such other change in the condition of the Sculpture or this Lawsuit. The Parties represent and warrant that, as of the date of this Release, the Parties are unaware of any claims or threatened claims against the City, Fischer, and/or ASM that arise out of or relate to the Sculpture and, to the extent that the Parties know or should reasonably lrnow of such claims ar threatened claims, such clanns are expressly waived and precluded under this Release. Subj ect to the provisions of this Release, the Contract for Sculpture Cleaning, and the Assignment, the Parties do not intend to otherwise modify or amend the rights, responsibilities, warranties or obligarions of the Parties as set forth in the Assignment and Acceptance Agreement entered into among Plaintiff, PASP and Fischer on June 7, 2000. 3 oY-a�� 3. Plaintiff understands and agrees that, subject to the provisions of this Release, the Assignment, and the Contract for Sculpture Cleaning ("Cieaning Contract"), Defendants' sole obligation to the Plaintiff is for the Payment. Plaintiff understands and aclrnowledges that Defendants ASM, Fischer and its insurer, CNA, expressly disclaim all warranties and guarantees as to the performance or results of any work under the Cleaning Contract, including but not limited to, the success of the cleaning method, the number of cleanings that may be necessary to clean the Scuipture and/or whether the Sculpture may require any such additional cleanings at any point in the future. This Release represents the entire agreement of the Parties with respect to its subject matter, may only be amended in a writing signed by the Parties, and shall be binding upon, and inure to the benefit of, the Parties and their respective successors in interest. 4. The Parties represent and wan that, in entering into tYus Release, they have not relied upon any representations, disclosures, non-disciosures, or collateral agreements beyond what is contained in the written terms of this Release and the Parties hereby disclaim any such reliance on such representations. Plaintiffunderstands and aclrnowledges that Fischer, ASM, and CNA have made no representations of any kind relating to the Sculpture, its condition, or the likely success of any cleaning or remediation procedures performed ar to be performed in the future. Plaintiff expressiy disavows any reliance on any expert advice not provided by experts employed by Plaintiff. 5. In making this Release, Plaintiff further understands and agrees that it relies completely upon its own judgment, belief and laiowledge as to the nature, extent and duration of the Scuipture's condition and any alleged damages related thereto. Piaintiff has not been influenced whatsoever in making this Release by any representations or statements regarding the damages ar cleaning method that may have been made by any of the persons, firms or corporations released 0 a�-a7g through this Release, or by anyone representing them, nor the experts Defendants have retained in this matter. 6. The Parties wairant that they have consulted with legal counsel of their choice with respect to this Release, and that each of their counsel has reviewed this Release. The Parties further warrant that they have consulted with professional experts of their choice with respect to the Sculpture and that each of their experts has reviewed and accepted the cleaning regime outlined in the Cleaning Contract. The Parties fiirther warrant that they are entering this Release freely and voluntarily, and that they are fully capable of doing so. 7. Dismissal of Complaint and Crossclaims with Prejudice: The Parties stipulate to the dismissal with prejudice of all claims, including crossclaims, filed in City of St. Paul v. R.M. Fischer Artworl� Inc., A.SM. Inc., d/b/a American Structural Metals, Inc., State of Minnesota, County of Ramsey, Second Judicial District, Court File No. 62-CO-02-008121. The Parties agree to execute the necessary Stipulations of Dismissal with Prejudice and any other documents necessary or appropriate to effect the terxns and intent of this Release. 8. Non-AdmissionNenial of Liability: The Parties hereto recognize, understand and agree that this Release is a compromise of a doubtful and disputed claim; and, that the payments made pursuant to this Release aze not to be construed as an admission by Defendants of any wrongdoing, liability, or violation of any federal, state or local statute or principle of common law; and, that liability is expressly denied by ASM, Fischer, and its insurer CNA. 9. Communications. If any party is contacted andlor otherwise asked to comment regazding this litigation or matters raised in this litigation they may respond to such inquires by indicating that "the case has been mutually and satisfactorily resolved with no admission of liability E o�- a�g by Defendants." Plainriff agrees to distribute copies of the Release to each and every City employee identified in Plaintiffs Answers to Interrogatories and/or otherwise having lmowledge or information regazding the Sculpture. These persons will be instructed to follow the spirit and language of this Communications paragraph. City employee, Tim Agness of the Parks and Recreation deparhnent, will utilize his best efforts to inform Parks department employees who may now or in the future have any duries or responsibilities regarding the Sculpture or the terms contained in this Communications paragraph. Plaintiff fiuther agrees to provide Pubiic Art Saint Paul ("PASP") and Christine Podas- Larson with a copy of this Settlement and Release of Claims and to request, in writing, that PASP and Christine Podas Larson act according to the letter and spirit of this communications provision. Plaintiff shall provide ASM and Fischer's counsel with a copy of its written request to PASP and Christine Podas-Larson. 10. Attorneys' Fees, Disbursements and Expenses. The Parties shall be responsible for their own attorneys' fees, costs, and disbursements related in any way to the Lawsuit or the execution of this Release, the Assignment, and Cleaning Contract. 11. Governing Law. This Release will be conshued and enforced in accordance with the laws of the State of Minnesota. 12. THE UNDERSIGNED HAVE READ THE FOREGOING RELEASE AND FULLY LINDERSTAND IT AND KNOW THAT IT IS INTENDED TO BE, AND IS A COMPLETE BAR TO ANY F[JTLJRE CLAIM, ACTION OR DEMAND FOR DAMAGES OF ANY KIND AGAINST THE DEFENDANTS (ASM, FISCHER, t1ND ITS INSURER, CNA) OR THE PLAINTIFF RESULTING OR RELATED TO THE SCULPTLJRE OR THE FACTS OF THE LAWSUIT, EXCEPT AS MAY BE NECESSARY TO ENFORCE THE THIS RELEASE. o�/- a� g IN WITNESS WHEREOF, the Parties have executed this Release on the respective dates set forth below: Subscribed and sworn before me this day of , 2004. Notary Public Dated: Subscribed and sworn before me this day of , 2004. Notary Public CI'TY OF ST. PAUL I� Its: APPROVED AS TO FORM AND CONTENT BY ERIC D. LARSON, Assistant City Attomey, City Attomey's Office, 550 City Hall, St. Paul, MN 55102: : ERIC D. LARSON RM. FISCHER ARTWORK, INC. � Ron Fischer, President APPROVED AS TO FORM AND CONTENT BY TAMARA L. NOVOTNY, Cousineau, McGuire & Anderson, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416-5318: Dated: By: TAMARA L. NOVOTNY 7 oy-a�� ASM DIB/A AMERICAN STRUCTURAL METALS, INC. � Fred Riermann, President Subscribed and sworn before me this day of , 2004. Notary Public Dated: APPROVED AS TO FORM AND CONTENT BY THEODORE V. ROBERTS, Fabyanske, Westra & Hart, P.A., 800 LaSalle Ave., Suite 1900, Minneapolis, MN 55402: : THEODORE V. ROBERTS ::1� F� oy- a�g CONTRACT FOR SCULPTURE CLEANING This Contract (the "Cleaning AgreemenY� is made as of the day of , 200� between Swanson & Younedale, Inc., ("Contractor") and American Structural Metals. Inc. and R.M. Fischer, Inc. (the "Purchasers"). Hereinafter, Contractor and Purchasers will at times be collectively referred to as the "Parties." Purchasers and Contractor hereby agree as follows: 1. The Proiect The Contractor agrees to furnish all materials and labor necessary to compiete the work idenrified in Michael Dvorak's letter to Contractor, dated November 19, 2002; Theodore V. Roberts' letter to Doug Rynda, dated July 28, 2003; and Contractor's letter, dated July 30, 2003, copies of which are attached to and incorporated by reference into this Cleaning Agreement (the "Work"). 2. Contractor's Responsibilities Contractor agrees to fiunish all materials and labor necessary to complete the Work as described: Matereals. Materials include, but are not limited to, scaffolding, protecti`ve clothing or materials, sufficient quanrifies of hydrochloric acid solution and Citrisurf 2210 gei coating. Phase I. Contractor shall apply to all stainless steel surfaces of the Sculpture a mixture of 6N hydrochloric acid solution mixed with 2 grams of inethenamine (hexamethylenetetramine) per liter of solution. This acid solution shall be wiped or brushed onto the steel surfaces rather than sprayed on so as to avoid any excess spray from entering into the environment and/or coming into contact with the pubiic. The acid solution shall be promptly and tharoughly rinsed off with water. The Contractor shall take a11 steps necessary to avoid any prolonged contact of the acid solution on the pavement and plaque below the Sculpture so as to avoid any damage or discoloration to the underlying pavement and plaque. Phase II. Contractor shall apply one coat of citric acid gel product, Citrisurf 2210, to all stainless steel surfaces of the Sculpture. The Citrisurf 2210 shall be applied using a paint brush. This passivating solution shall be promptly and thoroughly rinsed off with water. The Contractor shall take all steps necessary to avoid any prolonged contact of the passivating solution on the pavement and piaque below the Sculpture so as to avoid any damage or discoloration to the underlying pavement and plaque. The Work shall be completed according to this Cleaning Agreement and in a workmanlike manner consistent with applicable codes and indush standards. Contractor shall take reasonable steps necessary to ensure that any persons employed to perform the Work are sufficiently trained in the use and handling of hazardous materials used in the Work and are otherwise provided with the proper and necessary safety equipment to ensure their safety as well as the safety of the public. Contractor shall comply with all safety data sheets, n:\pl�cll�f'orms�Purohasers-C Contract � aZ�7� wamings or instructions as to use, application, and disposal that may be provided by the suppliers of the materials used in performing the Work. 3. Date of Commencement and Complefion Contractor shall commence the Work on or before , 200� and shall complete the Work no later than , 200 4. Contract Sum This is a fixed-price contract. Purchasers shall pay Contractor the amount of Twenty- Seven Thousand Five Hundred Dollazs exactly ($27,500) for the Work. The Parties agree that under no circumstances shall there be changes or adjushnents in the price of the Work. Contractor expressly assumes the risk of any increased costs whatsoever by any reason. Payment for the Work shall be due thirty days from the completion of the Work and written request of the Contractor. 5. Subcontractors Contractor represents that it will self-perform all Work uniess otherwise agreed to by the Parties in writing. The Contractor shall be solely responsible for all subcontractors and suppliers hired to perform services relating to the completion of the Work and wiil collect all necessary lien waivers from ali such subcontractors and suppliers. 6. Warranties Contractor warrants to Purchasers that the Work shall be of good quality and new, shall be free from all defects in material and workmanship, shall conform to the requirements of the Cleaning Agreement, and shall conform to all applicable building codes, permits, laws, ordinances, rules and regulations. Subject to the warranries above, Contractor expressly disclaims all warranties or guarantees related to the performance of the Work in cleaning and/or protecting the Sculpture. 7. Indemnification Contractor shall defend, indemnify and hold harmless Purchasers and Purchasers' insurers, sureties, representatives, agents and employees from any loss or damage caused in whole or in part by any breach of the Contractor's warranties or the Contractor's negligence. These warranties exclude any defects or damages caused by abuse, by improper use, maintenance or operation of the Work, or by normal wear, tear or usage of the Work. 8. Assignment, Assumption, and Delesation It is understood that the Purchasers will assign this Cleaning Agreement to the City of St. Paul (the "City") and upon such assignment and the assumption of Purchasers' obligations under the Cleaning Agreement by the City, Purchasers shall be released from all obligations hereunder. Contractor consents to the City's assumprion of the Purchasers' duties and obligations under this n:\pl\c1l�fortns�Purchasers-C Contract 2 oy- a�g Cleaning Agreement including, without limitation, Purchasers' payment obligations. Upon the City's assumption of Purchasers' obligations under this Cleaning Agreement, Contractor waives and releases ASM and Fischer from all fiirther obligations and liabilities under this Cleaning Agreement. Contractor agrees that its sole remedies under this Cleaning Agreement, if any, shall be against the City and not Purchasers. 9. Permits, Fees and Notices Contractor shall secure and pay for any pernuts and governmental fees, licenses and inspections necessary for proper execurion and completion of the Work. Coniractor shall comply with and give notices required by any permits, laws, ordinances, building codes, rules, regulations and lawful orders of public authorities applicable to the Work. These include, without limitation, the payment for and receipt of all permits or approvals needed for any sidewalk or street closings and the "hooding" of any surrounding pazking meters. 10. CleaninE Up Contractor shall keep the premises and surrounding area free from the accumulation of waste materiais or rubbish caused by the Work. Contractor shall not unreasonably encumber the site with materials or equipment. Upon completion of the Work, Contractor shall remove from the Project site and the surrounding azea any waste materials, nzbbish, equipment and surpius materials. 11. Intearation Clause Contractor represents and warrants that, in entering into this Cleaning Agreement, it has not relied on any claimed disclosure, non-disclosure, or express or implied warranty by Purchasers or any third-parties in regazd to the Work including, but not limited to, suggested quantities and price estimates. There are no collateral Contracts between the parties and the written terms of this Cleaning Agreement constitute the entire and integrated contract between the parties. No modification or change to the terms of this Cleaning Agreement shall be binding unless it is reduced to writing and executed by an authorized representative of each party. Dated: , 200_ SWANSON & YOUNGDALE, INC. By: Its: Dated: , 200_ RM. F'ISCHER, INC. n:\pl�cll�f'orms�Purchuers-C Contract 3 o�sl- a�g By: Its: n:\pl\cl]�fortns�Purchasers-C Contract 4 o�sl- a �'� Dated: , 200_ AMERICAN STRUCTURAL METALS, INC. By: Its: n:\pl\cll�f'orms�Purchasers-C Contrac[ �- a�8 STATE OF MINNESOTA COLJNTY OF RAMSEY DISTRICT COURT SECOND NDICIAL DISTRICT Civil Division City of St. Paul, Plaintiff, ►�w R.M. Fischer Artwork, Inc., A.S.M. Inc., d/b/a American Structural Metals, Inc., Defendants, and R.M. Fischer Ariwork, Inc., Defendant and Third-Party Plaintiff, v. Vincent Meta1 Goods, Third-Party Defendant, Counterclaimant and Crossclaimant. ASSIGNMENT AND ACCEPTANCE OF CONTRACT FOR SCULPTURE CLEANING This Assignment and Acceptance Agreement (hereafter "AgreemenY') is made effective , 2004, by and between: City of St. Paul, City Attorney's Office, 550 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102, (hereafter "Cit}�'); and ASM d/b/a American Struetural Metais, Inc., 15152 Freeland Avenue North, Box 45, Hugo, MN 55038, (hereafter "ASM"); and oy- a�� RM. Fischer Artwork, Inc., 390 Wythe Ave. #101, Brooklyn, NY 11211, {hereafter "Fischer") (City, ASM, and Fischer will be collectively referred to as the "Parties")�. WHEREAS, the City has filed the above-entitled lawsuit against ASM and Fischer (and ASM and Fischer have filed cross-claims against each other) conceming the stainless steel sculpture located on the Ecolab Plaza at Wabasha Street and 5�' Street East in St. Paul, Minnesota (the "Scuipture"); and WHEREAS, the Parties have, as part of their settlement of the Lawsuit and release of claims, agreed that the Sculpture shall be cleaned by Swanson & Youngdale; and WHEREAS, A5M and Fischer, as Purchasers, have jointly contracted with Swanson & Youngdale for the cleaning of the Sculpture (the "Cleaning Contract"). A copy of the executed Cleaning Contract is attached as Exhibit 1; and WHEREAS, ASM and Fischer, as Purchasers under the Cleaning Contract; intend to assign and delegate, and the City intends to accept and assume, all rights and obligarions under the Cleaning Contract. NOW THEREFORE, in consideration of the mutual promises, covenants, oblagations, agreements, and other undertakings set forth herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acl�owiedged, the Parties agree as follows: 1. Assignment, Acceptance, and Assumption of the Cleaning Contract ASM and Fischer, as Purchasers under the Cleaning Contract, hereby assign any and all rights, duties, responsibilities and obligations under the Cleaning Contract. The City does hereby immediately accept and assume all of ASM and Fischer's rights, responsibilities, and obligations �T7ilrd-Pariy Defendant, Vincent Metal Goods, was dismissed from this mattet pursuant to an Order signed by Judge Pinley. Thus, Vincent Metal Goods is a parry to this agreement. 2 o'�/- a� under the Cleaning Contract including, without limitation, all payment obligations. The City understands and agrees that the Cleaning Contract sets forth fully and completely the cleaning method, materiais and specificarions agreed upon by the Parties and that will be performed or used on the Sculpture. Subject to the terms of the Settlement Agreement and Release between the Parties and this Assignment Agreement, the City expressly waives and releases ASM and Fischer from any and ail obligations related in any way to Cleaning Contract. 2. Warranties/Guaranties ASM and Fischer disclaim all warranties and guaranties, express or implied, to the fullest extent of the law conceming the Sculpture and any fizture work or maintenance performed on the Sculpture, remedial or otherwise, including work performed under the Cleaning Contract. The City understands, agrees and accepts that ASM, Fischer and its insurer, CNA Insurance Companies, make no promises, warranties or guarantees whatsoever as to the work performed under the Cleaning Contract. IN WITNESS WHEI2EOF, the Parties have hereto executed this Assignment and Acceptance Agreement as of the day and year first written above. CITY OF ST. PAUL : RM. FISCHER ARTWORK, INC. : Ron Fischer, President Its: ASM DB/A AMERICAN STRUCTURAI. METALS, INC. � Fred Riermann, President 3