Desk Items 01-27-20 Desk Items
Fine Arts
Commission
1 - 27 - 2020
J
Public Art—Potential Policy Considerations / Commented]DLM1]:Erick—The purpose of this doc is
to help the FAC think about some of the implications of
Placement/Site Selection for Artwork: commissioning artwork.Some public agencies adopt formal
public art policies that address these and other topics,while
• whether the artwork can be properly installed,placed to be seen,and displayed with other public agencies follow a more informal process.We
patron safety in mind; offer them here in case you think they might be useful points
for consideration by the FAC.
• compatibility of design and location within unified design character or historical
character of site,preservation and integration of natural features;
• site design including landscaping,drainage,grading,lighting and seating considerations;
• environmental impacts such as noise,sound and light;
• public accessibility to the artwork,particularly handicapped areas;
• impact on adjacent property owner's views;and
• impact on operational functions of City.
Maintenance of Artwork:
• Maintenance of City-owned artwork is anticipated to be the responsibility of the City.
City should consider the maintenance requirements of an artwork before
conunissioning/accepting such artwork.
• City should retain sole discretion to decide whether to undertake maintenance activities
for artworks based on budget and other policy considerations.
• City should consider the condition of City-owned artwork each year in time for budget
preparation and make appropriate budget decisions regarding the estimated cost of
appropriate maintenance activities.
• Maintenance of loaned or leased artwork is anticipated to be the responsibility of the
person loaning or leasing the art to City.Prior to undertaking any such maintenance on
City property,the person loaning or leasing the art to the City should be required to
obtain the approval of City.
Removing(Deaccessioning)Artwork:
• Leased or loaned art should be removed at the end of the prescribed term,unless
determined that early removal is appropriate under specified criteria below.
• Removal of artwork should be a seldom-employed action that operates with a strong
presumption against moving works from public display.Nonetheless,City should retain
sole discretion to remove any artwork from public display if:
o the artwork's physical or structural condition poses a threat to public safety;
o the artwork requires excessive maintenance,has faulty design or workmanship,
and repair or remedy is impractical or unfeasible;
o the artwork has been damaged and repair or remedy is impractical or unfeasible;
o the condition or security of the artwork cannot be reasonably protected;
o significant changes in the use,character,or design of the site have occurred and
affect the integrity of the artwork;
o significant,adverse public reaction to artwork owned by City has continued
unabated over an extended period of time;
o the artwork violates the selection criteria of City;
o or removal is requested by the artist or donor.
• Where removal of the artwork may cause damage to it,City shall comply with sections
987 and 989 of the Civil Code.
Proposals/Selection of Artwork:
• Any person wishing to loan,lease,donate,or commission artwork to/for City should
be required to complete a public art application.The application and accompanying
materials should include the following:
o photo,plans,model or other representation of proposed artwork
o proposed location of the artwork
o statement of reason for donation,loan,lease,or commission
o description of the artwork,including dimensions,weight,finish,and color,
and system for mounting or displaying the artwork
o any special maintenance,mounting or display requirements
o artist biography
o statement of the approximate value of the artwork
o whether donation,lease,loan,or commission is proposed,and the length of
any proposed lease or loan
o language for signage/recognitions
• Commissions should typically be based on a competitive process with selection
criteria/guidelines identified in advance.
1194791.2
Art in Unexpected Places Program
Proposed Objective Guidelines / Commented[DLM11:Erick—The purpose of this doe is
to help identify the selection criteria for the artwork.They
are not intended to be overly rigid.FAC can adjust as
The City of Cupertino's Art in Unexpected Places Program is intended to beautify public spaces, appropriate.Once settled,we recommend that the FAC
surprise and delight passers-by,and encourage the communityto reflect on themes and imagerypublish the selection criteria as part of the procurement
g P Y gpackage.
that represent the heritage,natural beauty,diversity,and creativity of our City.
Under this Program,the City Fine Arts Commission intends to engage a competitive selection
process for artists to design and install mural wall art in two locations on City property.i The
City intends to apply the following guidelines in selecting artists/artworks for the Program:
• Theme:Artwork should address both the interests of the community and the context and
history of the site,and be directly responsive to and reflective of the themes selected for
the particular location:
o Blackberry Farm location:The natural habitat,flora and fauna.Local wildlife in
and near Blackberry Farm include:coyote,deer,raccoons,mountain lions,
squirrels,and many species of birds.Flora include sycamores,redwoods,oaks
and wild flowers.The artist is free to consider a montage or other visual approach
that reflects the diversity of flora and fauna.
o Cupertino Sports Center location:The diversity of children and adults,and the
sports in which they participate.Activities include tennis,racquetball,basketball,
volleyball and table tennis,and utilizing gym equipment and exercise classes.The
artist is free to consider a montage or other visual approach that reflects the
diversity of citizens and activities.
• Local Artists:Artists shall reside in Santa Clara County._ / Commented[DLM2]:Erick—We think the intention is to
limit to Santa Clara County artists?
• Media:Wall painting/murals consisting only of paint and no other media will be
considered for this program.' / Commented[DLM3]:Erick—We assume paint is the only
allowable material(e.g.,tile mosaic or other materials fixed
• Quality:Artwork shall be of lasting value and artistic merit and shall reflect the diverse, to the wall would not be allowed).
social,cultural,or historic values of the City.
• Audience:Artwork shall be suitable for display to a diverse audience including children
and employees.It should enhance its setting and help create a sense of place.The City
may not acquire public art that would,when displayed,create a hostile work environment
for public employees.
• Style:The artwork should be suitable in scale,materials,and form for its surroundings.
1 The City's intention with this Program is to create specific,limited public fora for the display
of artwork that meets the City's standards for artwork that is appropriate to be displayed in
the community,as set forth herein,particularly because such artwork will be viewed by
children and City employees.
• Condition&Permanence:The artwork will be of materials and method of construction
suitable to the setting.Artwork for outdoor exhibition will be resistant to theft,
vandalism,weathering and constructed to avoid extensive maintenance and repair.At the
time of acquisition,the artwork will be in good condition or worthy of restoration.
• Technical Feasibility:The City will consider for commissions only those artwork
proposals it finds likely to be completed according to design.Among other things,the
City will consider whether the artwork is sympathetic to the structural limitations of the
site,and the artist's level of experience in delivering an artwork of the type,size,and
scale contemplated for this Program.The proposal must be capable of being delivered /Commented[DLM4]:Erick—We tucked in a reference to
with the timeframe established by the City. experience here.But if the FAC rinds it desirable/important
to limit the program to only mature artists with a certain
lev• Fiscal Feasibility:The Citywill consider onlysuch artworks for which itpossesses direcltly
lyor typenits of experience,bullet.
that can be called out more
directly in own bullet.
adequate funding for appropriate display,maintenance,insurance,and safeguarding. An
estimate of installation costs and maintenance expenses associated with a proposed
artwork shall be presented with the proposal.The proposal must be responsive to and
consistent with the established budget for the installation,and the proposal must be
capable of being delivered consistent with the budget.
• Public Safety:The City will not consider works that the City determines may pose a
threat to public safety.
• Political/Religious/Other:Artwork shall not be religious iconography intended to be
perceived as government endorsement of religion in violation of the Establishment
Clause of the Federal and State Constitution.Artwork shall not contain political themes
intended to be perceived as government endorsement.Artwork shall not contain imagery
or other subject matter in violation of any City code or policy provision.
1194372.3
PUBLIC ARTWORK COMMISSION AGREEMENT
THIS AGREEMENT is made and entered into on[date]("Effective Date"),between the City
of Cupertino("City"),a municipal corporation,and[name]("Artist").
RECITALS
WHEREAS,pursuant to[ No. ]the City Fine Arts Commission
[adopted the"Art in Unexpected Places"pilot program in an effort to beautify public spaces,
surprise and delight passers-by,and encourage the community to reflect on themes and imagery
that represent the heritage,natural beauty,diversity,and creativity of the residents of the City];I, Commented[RG1]:Erick—Here we suggest inserting
some reference to the resolution/motion/other action of the
WHEREAS,following a competitive selection process,pursuant to[ No. City/FACd.We mahat instituted gg the program andetled o ease contract
award. made a suggestion in brackets but please edit as
]the City Fine Arts Commission[approved the selection of Artist to install mural wall appropriate.
art on City property at{insert area for display-Blackberry Farm/Cupertino Sports Center/other
location)and authorized acquisition by commission of the artwork described in this Agreement]; Also,we assume the approvals Councils happen at the FAC you leve but
if the program went to the for approval, could
insert that appropriate reference here.
NOW,THEREFORE,City and Artist agree as follows:
Also,if any other City legislative body had to take action to
allow the installation of the mural(like Parks&Rec
1. Purpose of Agreement Commission),that approval could be referenced here.
FArtist,as the sole owner and creator of the wall mural artwork entitled[title]("Artwork"), (governingovlly,ifthe City has a public artwork policy generallyf
things lace acquisition,care,deaccession of
hereby agrees to commission Artwork for City pursuant to the terms of this Agreement.The artwork),that could be referenced as the first recital here.
[proposal name and date]prepared by Artist,which describes the Artwork,is attached and Commented IDLM21:Erick-Here we suggest inserting
incorporated into this Agreement as Exhibit A. some reference to the resolution/motion/other action of the
City/FAC that approved the specific artist/artwork that is the
to commission the Artwork for City,Cityagrees to subject of this contract and specify the location for the
In consideration of Artist's agreement
Y �' artwork
publicly display the Artwork on City property at[insert area for display-Blackberry
Farm/Cupertino Sports Center/other location],consistent with the terms of this Agreement,and
to credit Artist for the Artwork.This Agreement is intended to implement and shall be
interpreted in accordance with the terms of all City ordinances,policies,rules,and regulations, Commented[DLM3]:Erick-lithe FAC intends the
which are incorporated herein bythis reference. mural to have a limited duration(e.g.,one year and then it
will be painted again with a new mural),then language
>referencing the duration should be inserted here.
2. Payments Commented[DLM4]:Erick—We suggested some
payment terms that we think are consistent with the FAC
In consideration of Artist's agreement to commission the Artwork for City,at the conclusion of expectation.Note that we suggested no payments to Artist
the installation of the Artwork and acceptance of the Artwork by City,City shall(a)compensate until the Artwork is theco artist,
But if thatisi a to led to be
too burdensome on artist,we could revise to allow some
Artist a commission fee in the amount of I ($ )]("Commission payment schedule based on benchmarks.
Fee"),and(b)reimburse Artist for actual cost of materials and equipment reasonably required to
Ninstall the Artwork,consistent with the budget set forth in Exhibit A and in an amount not to as evidencev also of thewe suggested cost ofm that artist hasC toy provide receipts
g as of materials and City would
exceed[ ($ )]("Materials Reimbursement").Artist shall submit reimburse based on that evidence.But if City thinks that
appropriate documentation(i.e.,receipts)to support the requested Materials Reimbursement / process would be too cumbersome,City could instead offer a
amount.The Materials Reimbursement amount is expected to be sufficient to cover Artist's full • flat stipend for materials and then artist has discretion about
p i how to use that stipend.
costs to install the Artwork;City is not expected to provide any additional funding to Artist for
the cost of materials and equipment necessary to complete the installation.L I Finally,we assume that the Artist proposal will be required
to have some kind of proposed materials budget and that that
budget can be cross-referenced here.
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3. Artist's Representations and Warranties
Artist represents and warrants the following to City:
a.Artist is the original and only creator of the Artwork.
b.Artist is the sole owner of the Artwork;the Artwork is free and clear of any liens and there are
no outstanding disputes in connection with property rights,intellectual property rights,or any
other rights in the Artwork or parts of the Artwork;and Artist is the sole owner of any and all
copyrights and other intellectual rights pertaining to the Artwork.
c.The Artwork will not pose a danger to public property,health,or safety in view of the
possibility of misuse,if such misuse is in a manner that was reasonably foreseeable at any time
during the term of this Agreement.
d.Foreseeable exposure to the elements and general wear and tear will cause the Artwork to
experience only minor,repairable damage and will not cause the Artwork to fall below an
acceptable standard of public display.
e.General routine maintenance and repair of the Artwork will maintain the Artwork within an
acceptable standard of public display.
4. Intellectual Property and Publicity Rights
a.Following acceptance of the Artwork by City,Artist shall not retain any intellectual property
or other rights relating to the Artwork.All such rights shall immediately transfer to and vest in
City.
b.City's Intellectual Property License.Artist grants to City,and to City's agents,authorized
contractors and assigns,an unlimited,non-exclusive and irrevocable license to do the following
with respect to the Artwork:
(1)Use and Display.City may use and display the Artwork.
(2)Reproduction and Distribution.City may make,display, distribute,and sell,and authorize
the making,display,distribution,and sale of,photographs and other two-dimensional
reproductions of the Artwork,including reproductions on three-dimensional goods(such as tote
bags and coffee mugs).City may use such reproductions for City-related purposes,including
advertising,educational and promotional materials,brochures,books,flyers,postcards,print,
broadcast,film,electronic and multimedia publicity,catalogues or similar publications,and
goods for sale.City shall ensure that such reproductions are made in a professional and tasteful
manner,in the sole and reasonable judgment of City.
c.Credit.On each City reproduction of the Artwork,Artist shall be acknowledged,using
designations provided by Artist,to be the artist of the Artwork.
2
d.Third Party Infringement.City is not responsible for any third party infringement of any
copyright to the Artwork held by Artist and is not responsible for protecting the intellectual
property rights of Artist.Artist understands and agrees that the Artwork will be displayed in a
public place and may be photographed,filmed,or otherwise recorded for any purpose without
any restriction by City.
e.Trademark.In the event that City's use of the Artwork creates trademark,service mark or trade
dress rights in connection with the Artwork,City shall have an exclusive and irrevocable right in
such trademark,service mark,or trade dress.
f.Alteration.If City alters the Artwork without Artist's consent in a manner that is prejudicial to
Artist's reputation,Artist retains the right to disclaim authorship of the Artwork.
g.Waiver.Artist hereby waives any and all claims,arising with respect to the Artwork at
anytime and under any circumstances,against City,its officers,agents,employees,successors
and assigns,arising under the federal Visual Artists Rights Act(16 U.S.C.§§ 106A and 113(d)),
the California Art Preservation Act(Cal.Civil Code§§987 et seq.),and similar laws.Artist shall
have no right to royalties or other compensation in the event City sells the Artwork in the future.
Artist shall have no right to any portion of funds that may be collected by City in connection
with the display and/or reproduction of the Artwork.
5. Damage to Artwork and Risk of Loss
City shall be under no obligation to insure the Artwork against damage and loss.City may,
however,choose to do so from time to time at its sole discretion.City shall not be liable to Artist
for any damages to the Artwork,regardless of cause.
6. Repair and Maintenance
City shall be under no obligation to repair and maintain the Artwork.City may however,choose
to do so from time to time at its sole discretion.City shall not be liable to Artist for any damage
to Artwork caused by maintenance or repairs or by the failure to undertake any such maintenance
or repairs.
7. Indemnification
Artist shall indemnify,protect,defend and hold harmless City,its officers,agents,employees,
successors and assigns from and against all liabilities,obligations,losses,damages,judgments,
costs or expenses(including legal fees and costs of investigation)(collectively"Losses")arising
from,in connection with or caused by:(a)any personal injury or property damage caused,
directly or indirectly,by any act or omission of Artist and/or Artist's agents,employees,or
assigns;(b)any infringement of patent,copyright,trademark,trade secret or other proprietary
right;or(c)any infringement of Artist's rights under 16 U.S.C. § 106A,16 U.S.C.§ 113,Civil
Code §§987 et seq.,or similar state,federal,or international law.
3
Notwithstanding the foregoing,Artist shall have no obligation under this Section with respect to
any Loss that is caused solely by the active gross negligence or willful misconduct of City and is
not contributed to by any act or omission(including any failure to perform any duty imposed by
law)by Artist.Artist acknowledges and agrees that its obligation to defend in this Section:(i)is
an immediate obligation,independent of its other obligations hereunder;(ii)applies to any Loss
which actually or potentially falls within the scope of this Section,regardless of whether the
applicable allegations are or may be groundless,false or fraudulent;and(iii)arises at and
continues after the time the Loss is tendered to Artist.
8. Termination of Agreement
City may decide to remove the Artwork from public display and terminate this Agreement at any
time in its sole discretion.City shall provide written notice of the intent to remove the Artwork
and terminate the Agreement to Artist at the address listed in Section 16 of this Agreement.
9. Installation and Removal of Artwork
City will have authority over the installation and removal of the Artwork.City and Artist have
jointly developed a plan for installation of the Artwork in a manner that is cost-effective as well
as protective of City property and the Artwork.That plan is attached to this Agreement as
Exhibit B.lArtist shall take all actions reasonably necessary to facilitate and permit Commented[DLM5]:Erick—mote that we assume
implementation of the plan described in Exhibit B,including making the Artwork available on a development of plan that will discuss things like:(1)dates
timely basis.Artist shall also be solely responsible for any and all activities identified in Exhibit and timesp cloths for installation, l cans),O wheree rsmate(like uee
i of drop or no aerosol (3) materials are to
B as being the responsibility of Artist.City shall be solely responsible for removal of the be stored overnight,etc.We provided some template text to
Artwork. get started but in can be modified as appropriate.
If the Artwork can be removed from public display without significant damage to the Artwork or
the site where the Artwork is installed,City shall take reasonable precautions to minimize
alteration of the Artwork during removal.If the Artwork cannot be removed from public display
without alteration of the Artwork(e.g.,it is a mural or is incorporated into a building),Artist
waives any and all such claims,and any rights granted under the Visual Artists Rights Act,the
California Art Preservation Act,or similar law,against City,its agents,officers and employees,
for alteration of the Artwork.
10.Choice of Law&Venue
This Agreement shall be governed by the laws of California.The venue for all litigation or other
disputes relative to this Agreement shall be the Superior Court for the County of Santa Clara.
11.Captions
Section headings are for reference only and shall not be used to interpret this Agreement.
12.Severability
4
If any provision hereof is found to be invalid or unenforceable,such fmding shall not affect the
validity of any other provision hereof;and such provision shall be enforced to the maximum
extent possible so as to effect the intent of the parties.
13.No Waiver
Any failure to enforce any right or to require performance of any provision of this Agreement
shall not be considered a waiver of such right or performance.
14.Entire Agreement
This Agreement,including the attachments,contains the entire agreement between the parties,
and supersedes all other oral or written provisions,conditions and/or covenants.
15.Modifications and Amendments
No amendment or modification to this Agreement shall be effective unless it is in writing and
signed by authorized representatives of each of the parties hereto.
16.Notices
Unless otherwise indicated in this Agreement,all written communications sent by the parties
may be made by U.S.Mail or e-mail,and shall be addressed as follows:
[City address] [Artist address]
17.Binding Effect
The provisions,covenants,and conditions in this Agreement shall inure to and bind the parties,
their legal heirs,representatives,successors,and assigns.
18.Enforcement
In the event of litigation between the parties arising out of this Agreement,the prevailing party
shall recover its costs of litigation,including attorney's fees.
19.Ownership of Artwork
Upon acceptance of the Artwork by City,title to the Artwork shall immediately transfer to and
vest in City.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the Effective
Date specified above by having their signatures affixed below.
5
City of Cupertino Artist
[name] [name]
City Manager Artist
6
Exhibit A: [insert Artist's proposal with description of artwork and budget]
7
•
Exhibit B:Plan for Installation and Removal of Artwork[To be completed]
Installation and de-installation(removal)of the Artwork will require the participation and
cooperation of Artist and City as follows:
Responsible Party
(check appropriate column)
Artist City
1. Transport to site from current location ( ) ( )
2. Transport from site to new location/storage ( ) ( )
3. Preparation of anchoring or support ( ) ( )
4. Placement of anchoring or support ( ) ( )
5. Removal of anchoring or support ( ) ( )
6. Movement of Artwork from transport vehicle to display site ( ) ( )
7. Movement of Artwork from display site to transport vehicle ( ) ( )
8. Other related costs for installation(specified below) ( ) ( )
9. Other related costs for de-installation(specified below) ( ) ( ) Commented[DLM6]:Erick—This is a suggested/example
list of activities.Obviously they are more appropriate to
Note:Those items identified as being the responsibility of City shall be arranged by City and the how tlat o reviof a sculpture se or add
tohis
list to nma.The ke it ppFA panec foraer
costs covered under the provisions of the Agreement.Those items identified as being the ,mural(e.g.,preparing the wall with base layer paint,setting
responsibility of Artist shall be arranged by Artist,in cooperation with City and its schedule,at tip scaffolding,laying down tarps,etc.)
no cost to City,except in accordance with the Materials Reimbursement provisions of this
Agreement.In accordance with the Agreement,any costs that result from Artist's deviations
from the responsibilities and schedules identified in this plan shall be borne by Artist.
Schedule for Installation
Installation(check all that apply)
O Artist will make the Artwork available for pick up at (address)
by the transporter retained by City beginning at (date/time).
O Artist will be at the display site to assist with installation at
(date/time).
O Artist will arrange in advance with City for a date and time to install the Artwork.
O Artist will ensure that the Artwork is ready for display no later than
(date),I Commented[DLM7]:Erick—Same here.This is an
example list to get you started in your thinking but should be
1194371.2 modified to make appropriate for this project.
8
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