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Item 9ACITY OF SOUTH LAKE MEMORANDUM To: Shana Yelverton, City Manager From: Jim C. Blagg, Assistant City Manager/Director of Public Safety Subject: Approve policy for the display of art in public facilities Action Requested: Approve policy for the display of art in public facilities Background Information: In the last year the City has added a number of new facilities to its inventory. There has been a desire to ensure that the facilities were available to the public for its enjoyment and use. A facilities use policy was adopted by the City Council earlier this year. Interest has been expressed by City Council members and citizens about the use of facilities to display art. The City has allowed use of facilities for art displays on a few occasions, mostly related to special events or CISD related events. It became apparent that there were a number of art groups in the community who would like the opportunity to provide a range of art displays and performances in city facilities and these desires prompted the need to look at a comprehensive policy to accommodating these requests. The Southlake Arts Council reviewed the attached policy at its meeting in October 2010. The Arts Council made some minor changes related to allowing for extensions and how to deal with artists selling art while on display and fund raising events — all of which have been addressed in the document included for the Council's consideration. The policy governs every aspect of placing and performing art in all city facilities. It requires the artist to obtain a permit for the display, as well as, signing an art exhibit agreement for the protection of the City from liability. The policy governs temporary displays, as well as, donated art and also speaks to the placement of purchased art. Financial Considerations: N/A Strategic Link: This policy is linked to the City Council Focus Areas of Quality Development and Partnerships and Volunteerism. The policy also addresses the corporate objectives of providing attractive and unique spaces for enjoyment of personal interests and providing opportunities for partnerships and volunteer involvement. Citizen Input/ Board Review: Southlake Arts Council recommended this policy to the City Council on December 14, 2010 on a vote of 6-0. Legal Review: The policy and exhibit agreement are being reviewed by the City Attorney Alternatives: Approve no policy Make amendments to this policy Supporting Documents: Proposed Public Art Display policy, including Art Exhibit Agreement and Performance Use Permit Staff Recommendation: Approve policy for the display of art in public facilities Display of Public Art policy Placement of art exhibits at public facilities or other city property Planned Visual Art Exhibits, temporary - A duration of three and not to exceed six weeks to occur no more then 5 times per year. Two of which would be reserved for CISD student art. Southlake Arts Council would present up to 3 Call to Artists per annum and per the Call to Artist SOP would select the artist (s) to present during these planned periods. Dates for presentation will be determined by the Southlake Arts Council. Exhibits will be managed and maintained by City of Southlake staff liaison with the Southlake Arts Council. City department displays, events or programs will be available for Southlake Arts Council review, but not approval, all other applications will require Southlake Arts Council review and approval. Ad Hoc Visual Arts Exhibit, temporary — A duration of three and not to exceed 7 days to occur when space is determined by staff to be available. As opposed to the planned exhibits these would be initiated by the Public or City of Southlake staff. Facility Arts display/performance form will need to be submitted to staff Southlake Arts Council liaison at least 6 weeks in advance of the showing for scheduling purposes, and review by the Southlake Arts Council. Southlake Arts Council will review and approve or deny all applications in order to determine appropriateness of the application in a requested venue. Exhibits will be managed and maintained by City of Southlake staff liaison with the Southlake Arts Council. City department displays, events or programs will be available for Southlake Arts Council review, but not approval, all other applications will require Southlake Arts Council review and approval. Performing Arts Programs , temporary — Limited to single performances. Facility Arts display/performance form will need to be submitted to the Southlake Arts Council liaison at least 4 weeks in advance of the showing for scheduling purposes, and review/approval by the Southlake Arts Council. City sponsored performances in City facilities that are not generally used for programming will be the responsibility of the department or division sponsoring or providing the event. The sponsoring department or division is responsible for submitting proper forms to the Southlake Arts Council liaison. City department displays, events or programs will require Southlake Arts Council review, but not approval; all other applications will require Southlake Arts Council review and approval. Donated Art to be placed in public facilities - Will be reviewed by the Southlake Arts Council and a recommendation will be made to the City Council for placement of the Art in a city facility or on city property. Credence and a clear preference will be given to location indicated by donor, but the City Council will make any and all final determinations on placement. Purchased Public Art — The placement and purchasing process of the Southlake Arts Council will be followed. The Southlake Arts Council will recommend placement and art to the City Council who will make any and all final determinations on the said placement and the art/artists. Art Exhibit Agreement — Art displayed on a temporary basis will require that the artist and the City of Southlake sign an agreement that determines the length of time for displays. Key components are: Artwork and Agency: Artists agrees to at no cost to the city lend his/her artwork for temporary display Installation and Curatorship: Artist shall deliver the Artwork in a form that is ready for immediate display. Artist's assumption of Liability and Waiver removal of Artwork: Artist acknowledges and agrees that the City will not provide security for the exhibition, including without limitation, set up, operation and tear down of the exhibit, and City should not, for any reason, be liable for lost, stolen, or damaged Artwork and/or any related materials associated or used with the exhibit. Conflicting events: City will coordinate scheduling of exhibits. Should a conflict arise between the exhibit and a function by the City, the City's event and/or function would take precedence. Facility Arts display performance use permit: Form is based on the park use permit and is required to be filled out and processed by staff for the Southlake Arts Council review 6 weeks prior to display, with the exception of art displays or performances initiated by city departments or divisions, which will be coordinated with the Southlake Arts Council staff liaison for scheduling purposes. Extensions can be requested for both ad -hoc and planned art displays for a period to be determined by city staff that administer the arts program and will be based on but not limited to the following: Upcoming displays, City Manager's office requests and other staff determined administrative needs. Sales of displayed art work: Art work that is displayed can be made available for sale by the artist but the artist or their representative cannot actively solicit the sales of art other then passively indicating (discreetly) the price and the artists contact information on the art itself. The city will not be involved in any such transactions and will not solicit sales of items on behalf of an artist or their agents. Art displayed and sold for fundraising: Art can be displayed and sold as part of a fundraising event but the fundraising can only occur actively at specific events that need to be negotiated with the City. The art can be continuously displayed but city facilities will not be a site for continuous/ongoing fundraising. Fundraising events can only be for non-profit organizations Definitions: A. Arts in public places — Any art displayed, performed, or demonstrated in City parks, rights -of -ways, or the interior/exterior of any City facility. B. Artwork — Includes, but is not limited to, a sculpture, monument, mural, painting, fountain, or stained glass. C. Artist — A fractioned in the visual and/or performing arts, generally recognized by critics and peers as a professional of serious intent and recognized ability that produces fine works of arts. E. City — Shall mean the City of Southlake, Texas. F. Deaccensioning — The removal, relocation, selling, auctioning, or trading of artworks owned by the City. G. Donations (and Gifts) — Arts donated to the City from a private individual or institution and/or other outside sources. H. Loan — Works of arts provided to the City to display for a predetermined period of time and to be returned to the owner after the loan period has expired. I. Southlake Arts Council, a board appointed by the City Council that makes recommendations to the City Council regarding the public arts program. J. Permanent arts in public places - Any visual work of arts displayed in City parks, rights -of -ways, or the interior/exterior of any City facility. K. Donor - An individual, private company, community group, or other organization who places artwork in City parks, rights of ways, the interior or exterior of any City facility and/or private facilities and/or properties. L. Public Arts Collection — Consists of all City of Southlake owned or controlled fine works of arts. M. Art Exhibit Agreement — Agreement that will exist between the City of Southlake and artists who display temporary exhibits in city facilities or on city property O. Temporary arts in City facilities or property — any visual or performing work of art in city facilities or property. P. Facility Arts display performance use permit - Form is required to be filled out and processed by staff for Arts Council review 6 weeks prior to display, with the exception of art displays or performances initiated by city departments or divisions, which will be coordinated with the Southlake Arts Council staff liaison for scheduling purposes. Southlake Arts Council Public Art display and/or performance Facility and Property Use permit Please Note: All requests are taken on a first -come, first -served basis. Art Exhibit agreement is also required to be signed before any display or performance may occur. Extensions may be granted by staff. City Facility requested Personal Responsible: Cell Phone: Address: Zip Alternative Contact: Name: Phone Number: CONTACT INFORMATION Phone: E-Mail Address: City E-mail: DISPLAY or PERFORMANCE INFORMATION Requested Date: Type of Display or performance: Detailed Information about the display or performance, including planned activities or any equipment/special needs: Organization Represented: _ Non -Profit: Yes No State Is this display or performance to include a fund raiser? Yes No Note: Must provide at least 6 weeks notice and cannot be a continuous fundraising effort throughout the duration of the exhibit, but must occur in a specific event(s) If YES, please answer the following: Does your organization maintain a Southlake Mailing address or PO Box? Yes No _ Do a majority of your members, including officers, reside in Southlake? Yes No Will your event cause any impact on City Staff or City resources? Yes No ART EXHIBIT AGREEMENT BY AND BETWEEN THE CITY OF SOUTHLAKE, TEXAS, AND (Artist) This Art Exhibit Agreement ("Agreement") is made and entered into this day of by and between the City of Southlake, Texas ("City"), a Home - Rule Municipal Corporation and terms and conditions set forth below ("Artist") on the WHEREAS, the Exhibition is anticipated to be held from through and any additional dates agreed to in writing; and WHEREAS, the Exhibition will be located at a facility of the City of Southlake WHEREAS, in exchange for the promotion of the arts, Artist desires to lend, at no cost to City, his/her Artwork (hereinafter defined) for display at the Exhibition as set forth below; and WHEREAS, City has investigated and determined that it would be beneficial and in the best interests of the City and its citizens to allow the Artist to place the Artwork at City Hall to promote visual arts in the City on the terms and conditions set forth below. NOW, THEREFORE, for and in consideration of the premises and the mutual promises, covenants, and agreements hereinafter set forth, Artist and City agree as follows: 1. Artwork and Agency. Artist agrees to, at no cost to City, lend his/her Artwork, as more particularly described and/or depicted on Exhibit A, attached hereto and incorporated herein for all purposes, for display at the Exhibition ("Artwork"). All modifications or additions to Exhibit A shall be in writing, signed by both parties, and attached to this Agreement. Artist and City agree that City is not, under any circumstance, acting as Artist's agent, dealer and/or exclusive seller. The parties acknowledge and agree that the Exhibition is the sole and exclusive event of the City in its promotion of public art. 2. Delivery/Loan Period. Artist hereby agrees to loan the Artwork to City from through . Artist shall, at his/her sole cost and expense, be responsible for delivery and removal of the Artwork from the Exhibition, said removal to occur no later than ("Removal Date"). Artist acknowledges and agrees that space is limited in City Hall and that all artwork submitted for display during the Exhibition is subject to the review and approval of the Southlake Arts Council. 3. Installation and Curatorship. Artist shall deliver the Artwork in a form that is ready for immediate display. Two-dimensional ("2D") Artwork shall be wired for hanging and three dimensional ("3D") artwork must be ready for installation immediately upon delivery to the Exhibition. Artist shall tape the following information on the back of 2D pieces and attach temporarily to 3D pieces: Artist's name, title of piece, and medium. The Artwork must be approved, in its sole discretion, by the Southlake Arts Council. 4. Artist Assumption of Liability and Waiver/Removal of Artwork. Artist acknowledges and agrees that City will not provide any security for the Exhibition, including, without limitation, set up, operation and teardown of the Exhibition, and City shall not, for any reason, be liable for any lost, stolen and/or damaged Artwork and/or the related materials, equipment and/or any other items associated and/or used in conjunction with the Artwork and/or Exhibition. ARTIST HEREBY RELEASES CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES, FROM, AND WAIVES ANY AND ALL RIGHTS TO ANY AND ALL CLAIMS FOR DAMAGES, OR OTHERWISE, HE/SHE MAY HAVE WITH REGARD TO LOST, STOLEN AND/OR DAMAGED ARTWORK AND/OR RELATED MATERIALS, EQUIPMENT AND/OR ANY OTHER ITEMS ASSOCIATED AND/OR USED IN CONJUNCTION WITH THE ARTWORK AND/OR EXHIBITION. Should Artist fail to remove the Artwork by the Removal Date, City shall have the right to dispose of the Artwork and any other items related thereto in any manner deemed appropriate solely by City. Artist shall be responsible for any and all costs and expenses associated with City's removal of the Artwork and/or the related materials, equipment and/or any other items associated and/or used in conjunction with the Exhibition as provided in this Paragraph. ARTIST HEREBY RELEASES CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES, FROM, AND WAIVES ANY AND ALL RIGHTS TO ANY AND ALL CLAIMS FOR DAMAGES, OR OTHERWISE, HE/SHE MAY HAVE WITH REGARD TO, CITY'S REMOVAL OF THE ARTWORK AND/OR RELATED MATERIALS, EQUIPMENT AND/OR ANY OTHER ITEMS ASSOCIATED AND/OR USED IN CONJUNCTION WITH THE EXHIBITION AS PROVIDED IN THIS PARAGRAPH. 5. Photographic Rights. Artist hereby grants permission to City to photograph and/or videotape and/or to authorize others to photograph and/or videotape the Artwork and Exhibition for any non-commercial use, including but not limited to, installation documentation, publicity of the Artwork and/or Exhibition, record keeping and additional non-commercial purposes such as, among others, educational, public relations and promotion of the arts. 6. Representations and Warranties Regarding Copyright. Artist hereby warrants and represents that the Artwork is an original creation of Artist and will not infringe the copyright, trademark or other intangible rights of any third party. 7. Termination/Waiver of Damages. This Agreement may, at any time, be terminated for any reason or no reason at all. Should City terminate this Agreement, ARTIST HEREBY RELEASES CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, SERVANTS, REPRESENTATIVES AND EMPLOYEES, FROM, AND WAIVES ANY AND ALL RIGHTS TO ANY AND ALL CLAIMS FOR DAMAGES, OR OTHERWISE, HE/SHE MAY HAVE WITH REGARD TO CITY'S TERMINATION OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ACTUAL AND/OR CONSEQUENTIAL DAMAGES. 8. Conflicting Events. City will coordinate the scheduling of the Exhibition so as not to conflict with any event and/or function of the City. Should a conflict arise between the Exhibition and an event and/or function of the City, the City's event and/or function shall take precedence over the Exhibition. 9. No Security/Waiver of Damages/Liability. Artist acknowledges and agrees that City will not provide any security for the Exhibition, including, without limitation, set up, operation, viewing by the public and/or removal of the Artwork at the conclusion of the Exhibition, and City shall not be liable for any lost, stolen and/or damaged property, materials, equipment and/or the Artwork and any other items associated and/or used in conjunction with the Exhibition and/or Artwork. ARTIST HEREBY RELEASES CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES, FROM, AND WAIVES ANY AND ALL RIGHTS TO ANY AND ALL CLAIMS FOR DAMAGES, OR OTHERWISE, IT MAY HAVE WITH REGARD TO LOST, STOLEN AND/OR DAMAGED PROPERTY, MATERIALS, EQUIPMENT AND/OR THE ARTWORK AND ANY OTHER ITEMS ASSOCIATED AND/OR USED IN CONJUNCTION WITH THE EXHIBITION AND/OR ARTWORK. 10. Indemnification. ARTIST SHALL DEFEND, INDEMNIFY, SAVE HARMLESS, AND EXEMPT CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES, SERVANTS AND EMPLOYEES FROM AND AGAINST ALL LAWSUITS, ACTIONS, LEGAL PROCEEDINGS, CLAIMS, DEMANDS, DAMAGES, COSTS, EXPENSES, AND ATTORNEYS' FEES INCIDENT TO THE PERFORMANCE OF THIS AGREEMENT AND/OR THE SET UP, OPERATION, VIEWING BY THE PUBLIC AND/OR REMOVAL OF THE ARTWORK AND ARISING OUT OF A WILLFUL AND/OR NEGLIGENT ACT AND/OR OMISSION OF THE CITY AND/OR ARTIST, THEIR RESPECTIVE OWNERS, OFFICERS, PARTNERS, AGENTS, SERVANTS, REPRESENTATIVES, CONTRACTORS, SUBCONTRACTORS, VOLUNTEERS AND/OR EMPLOYEES. This Paragraph shall survive the termination of this Agreement. 11. Entirety of Agreement, Governing Jurisdiction and Mediation. This Agreement constitutes the entire Agreement between the parties. No modification will be enforceable except in writing and signed by both parties. This Agreement is governed by the laws of the State of Texas. In the event that any dispute arising under this Agreement results in litigation or mediation, such action or proceeding will be brought exclusively with the state court of Tarrant County, Texas. 12. Reference to Artist. When referring to Artist herein, this Agreement shall refer to and be binding upon Artist, his/her agents, representatives, servants, employees, volunteers and assigns. 13. Reference to City. When referring to City herein, this Agreement shall refer to and be binding upon the City of Southlake, its Council Members, officers, agents, representatives, servants, employees and assigns. 14. Compliance with Laws. Artist shall comply with any and all local, state and federal ordinances, rules, laws and regulations, as they currently exist, may be amended or in the future arising. 15. Default. In the event Artist fails to comply with any of the provisions of this Agreement, City shall have the following remedies, in addition to City's other rights and remedies: a. to immediately terminate this Agreement without any liability to City as previously provided herein; and/or b. to require the immediate cessation of the set up, operation and/or removal of the Artwork and/or Exhibition. 16. Miscellaneous Provisions. a. No Third Party Beneficiaries. Nothing in this Agreement shall be construed to create any right in any third party not a signatory to this Agreement, and the parties do not intend to create any third party beneficiaries by entering into this Agreement. b. Assignment. This Agreement is not assignable without the prior written consent of City. c. Notices. Any notice provided or permitted to be given under this Agreement must be in writing and may be served by depositing same in the United States Mail, addressed to the party to be notified, postage pre -paid and registered or certified with return receipt requested, or by delivering the same in person to such party via a hand -delivery service, Federal Express or any courier service that provides a return receipt showing the date of actual delivery of same to the addressee thereof. Notice given in accordance herewith shall be effective upon receipt at the address of the addressee. For purposes of notice, the addresses of the parties shall be as follows: If to Artist, to: Artist Attn: If to City, to: City of Southlake Attn: City of Southlake Public Arts Liaison 1400 Main Street # 130. Southlake, Texas 76092 d. Sovereign Immunity. The parties agree that City has not waived its sovereign immunity by entering into and performing its obligations under this Agreement. e. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the matters contained herein and may not be modified or terminated except upon the mutual written agreement of the parties hereto. f. Execution. This Agreement is executed by the parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is forever confessed. g. Counterparts. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. A facsimile signature will also be deemed to constitute an original if properly executed. h. Authority to Execute. The individuals executing this Agreement on behalf of the respective parties below represent to each other and to others that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date hereof. i. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns, as allowed herein. j. Savings/Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. k. Miscellaneous Representations. Each signatory represents this Agreement has been read by the party for which this Agreement is executed and that such party has had an opportunity to confer with its counsel. I. Miscellaneous Drafting Provision. This Agreement shall be deemed drafted equally by all parties hereto. The language of all parts of this Agreement shall be construed as a whole according to its fair meaning, and any presumption or principle that the language herein is to be construed against any party shall not apply. Headings in this Agreement are for the convenience of the parties and are not intended to be used in construing this document. m. Waiver. Waiver by either party of any breach of this Agreement, or the failure of either party to enforce any of the provisions of this Agreement, at any time, shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance. IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective on the latest day as reflected by the signatures below. CITY: The City of Southlake , Texas 6101 Southlake Square Blvd. Southlake , Texas 75034 972.292.5100 ARTIST: