ACTION:
____________________________
Clerk/Secretary
Department: Recreation & Community Services Item No: C12 Prepared by: Mike Pacheco, Director Meeting Date: June 10, 2025 Approved by: John Conley, City Manager Agenda Location: Consent Calendar S
UBJECT: INVITA HEAD SPA MURAL
RE
COMMENDATION: Adopt City Council Resolution No. 2025- , approving the Public Arts Commission recommended mural at Invita Head Spa, in accordance with Vista City Council Policy 400-04, Artworks in Public Places.
CO
RRELATION TO CITY COUNCIL GOALS: Parks & Recreation.
P
RIOR ACTION: None.
PR
IOR PUBLIC ARTS COMMISSION ACTION: On May 6, 2025, recommended the mural by MyThun Dic-Du to be installed at Invita Head Spa located at 150 E. Broadway Vista, CA, 92084 within the public right-of-way (Vote: 5-0, May-Fitzgerald and Winchester absent).
S
TATEMENT ON THE SUBJECT: In April 2025, the City received a public arts proposal from Invita Head Spa to install a mural by MyThun Dic-Du on the west side of the business located at 150 E. Broadway.
The proposed art is described by the artist as a light grey/white, three-dimensional drawing, bringing to life the transformative "Invita Experience" at Invita Head Spa. It features a woman whose hair radiates and beams, showcasing the spectacular results of her one-of-a-kind head spa treatment. The three- dimensional effects of this art will span the entire wall, which is approximately 18 feet (5.5 meters) by 48.5 feet (14.8 meters).
P
ublic Notice was posted from May 7, 2025 to June 7, 2025. No public comments were received. The Public Notice is included as Exhibit 2. On May 6, 2025, the Public Arts Commission reviewed the proposed mural and recommends the approval of City Council.
F
ISCAL IMPACT: There is no direct fiscal impact associated with the staff recommendation. The mural is privately funded, and the property owner will maintain the mural at their expense.
E
XHIBITS:
1. City Council Resolution No. 2025- , approving the Public Arts Commission recommended mural at Invita Head Spa, in accordance with Vista City Council Policy 400-04, Artworks in Public Places
2. Public Notice
3. Covenant Agreement for the Installation of a Mural
4. Public Art Proposal Form
5. City Council Policy 400-04, Artworks in Public Places AGENDA
REPORT
CITY COUNCIL
COMMUNITY DEVELOPMENT COMMISSION
SUCCESSOR AGENCY
BUENA SANITATION DISTRICT
JOINT POWERS FINANCING AUTHORITY
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00029213 7
RESOLUTION NO. 2025-
A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF
VISTA, CALIFORNIA, APPROVING THE PUBLIC ARTS COMMISSION
RECOMMENDED MURAL AT INVITA HEAD SPA, IN ACCORDANCE WITH VISTA CITY COUNTIL POLICY 400-04, ARTWORKS IN PUBLIC PLACES The City Council of the City of Vista does resolve as follows:
1. Findings. The City Council hereby finds and declares the following:
A. In April 2025, the City received a public arts proposal from Invita Head Spa to install a mural on the west side of the business located at 150 E. Broadway.
B. On May 6, 2025, the Public Arts Commission reviewed, discussed, and voted on the proposal and recommended the City Council approve it for installation and display (Vote: 5- 0, May-Fitzgerald and Winchester absent).
2. Action.
A. The Invita Head Spa mural by MyThun Dic-Du recommended by the Public Arts Commission is approved for display, and the Mayor is authorized to execute the Covenant Agreement for installation.
3. Adoption. PASSED AND ADOPTED at a meeting of the City Council of the City of Vista held on June 10, 2025, by the following vote:
AYES:
NOES:
ABSTAIN:
APPROVED AS TO FORM:
WALTER CHUNG, CITY ATTORNEY
By:
APPROVED
Walter C. Chung
20250602134744
JOHN B. FRANKLIN, MAYOR
ATTEST:
KATHY VALDEZ, CITY CLERK
By:
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EXHIBIT 1
NOTICE OF PROPOSED PLACEMENT OF PUBLIC ART
The City of Vista’s Public Arts Commission is seeking public input on submissions for a mural to be installed at Invita Head Spa located at 150 E. Broadway Vista, CA. 92084.
Name of Artist: MyThun Dic-Du Title: Invita Experience 5 .5 meters by 14.8 meters paint sealant. Light grey/white finish w/3 dimensional effects.
Drawings colored to withstand elements and last for 5+ years. Owner will maintain as needed Initial stenciling of mural will occur before final paint and installation. Three-dimensional drawing of a woman with spectacular hair shining and beaming from her one -of-a-kind head spa treatment at Invita Head Spa “The Invite Experience”.
I
ndividuals are encouraged to view and comment on the proposed sculptures during the public viewing period which will occur from May 7, 2025 to June 7, 2025.
To c
omment on the proposed mural, please email [email protected] or send a letter to arrive by June 7, 2025 to:
City of Vista, Attn: Public Arts Commission
200 Civic Center Drive
Vista, CA 92084
Please include in your letter your name, physical (street) address, e-mail address, and phone number, along with comments about the proposed mural.
For more information about public art, call (760) 643-5261. 06/10/2025
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EXHIBIT 2
00039297 6
RECORDING REQUESTED BY:
CITY OF VISTA
AFTER RECORDING, PLEASE
MAIL THIS INSTRUMENT TO:
CITY OF VISTA
200 CIVIC CENTER DRIVE
VISTA, CA 92084
ATTN: CITY CLERK
_________________________________________________________________________________ APN: 1752763400
DTT: $0.00; R&TC § 11922, Conveyance to Government Agency; Signed:
CO
VENANT AGREEMENT FOR THE INSTALLATION OF A MURAL BY AND BETWEEN
THE CITY OF VISTA AND KATI LE
This Agreement is made and entered into as of June 10, 2025 (“Reference Date”), by and between the City of Vista, a chartered municipal corporation (“City”), and Kati Le, an individual, owner of the real property at 150 E. Broadway (“Owner”).
RECITALS
A. The City of Vista is interested in promoting public art and entering into arrangements for the display of art as part of its public art program.
B. A mural at 150 E. Broadway, Vista, California (“Address”) would be a valuable aesthetic contribution to the City of Vista, deter vandal activity and would serve the interests of City.
C. City officials and Owner viewed a large-scale color representation of a mural depicting a woman whose hair radiates and beams, showcasing the spectacular results of her one-of-a-kind head spa treatment. That mural depiction was approved on May 6, 2025, by the Public Arts Commission of the City of Vista (“Mural Representation”). The Mural Representation is on file with the City Clerk and is incorporated herein by this reference.
D. City is interested in facilitating the display of a mural which will consist of the images, colors, and other characteristics presented in the Mural Representation and more particularly described in section 3 below, (“Mural”).
E. The Owner wishes to participate in City’s public art program and is prepared to have the Mural displayed, in accordance with the terms of this Agreement, at the Address, which is legally described in Exhibit A, attached hereto and incorporated herein by this reference (“Property”).
F. The Mural would be displayed on the west wall of the building located on the Property in the location specifically designated in Exhibit B, which is attached hereto and incorporated herein by this reference (“Designated Location”).
G. MyThun Dic-Du (“Artist”) has or will enter into a contract with Owner to paint the Mural on the Property.
H. All actions to be taken by the parties to this Agreement are intended to be taken only after honoring all Artist Rights, as defined, in section 8 below.
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EXHIBIT 3
COVENANT AGREEMENT FOR THE INSTALLATION OF A MURAL
APN: 1752763400
00039297 6
NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, the parties hereto agree as follows:
1. PURPOSE; EFFECTIVE DATE
The purpose of this Agreement is to facilitate the installation and display of the Mural at Designated Location on the Property. The effective date (“Effective Date”) for this Agreement shall be the date this Agreement is fully executed and an Artist Agreement (as defined in paragraph 3), with the provisions required by this Agreement, has been fully executed by Owner and Artist.
2. DISPLAY OF MURAL
Owner agrees that the Mural may be displayed on Property in the Designated Location, and maintained as provided herein, so that the Mural will be available for public viewing. The display shall occur and remain for a minimum of three (3) years from the Effective Date (“Display Period”). The Mural shall be an original product of the Artist’s own creative efforts and shall be an edition of one.
3. PAINTING AND INSTALLING MURAL
(A) Owner agrees to cause the Mural to be painted by Artist at the Designated Location pursuant to an agreement (“Artist Agreement”) which has been or shall be executed by Artist and Owner. Owner hereby grants the Artist all rights and access to the Designated Location as may be reasonably required to accomplish the actions described in this section provided that reasonable advance notice is first provide to Owner. (B) The Mural shall be consistent with the images, colors, and design contained in the Mural Representation. Painting, or additional painting or preparation for the Mural on the Property shall not occur until this Agreement is signed by City. The painting and installation of the Mural shall be completed by Artist within a reasonable period following the execution of this Agreement. All paints and materials used in the Mural shall be of a nature suited to outdoor murals on surfaces comprised of the materials found on wall constituting the Designated Location, with a special emphasis on the durability and weather resistance of the paint. The painting shall be of a high professional caliber and shall be generally equal to the quality of recent work completed by Artist. The Mural shall be treated with a graffiti coat or other treatment to protect the Mural from vandalism and the elements, unless other arrangements for the protection and repair of the Mural are made which are satisfactory to both City and Owner. The Mural may not deviate from the appearance, colors, or images found in the Mural Representation. City shall have no responsibility or liability to pay any costs for the materials, labor, design, or painting of the Mural.
4. FAILURE TO TIMELY COMPLETE MURAL
Owner agrees that City may provide written notice to Owner if the Mural is not completed in accordance with the terms of this Agreement by December 1, 2025. Sixty (60) days following mailing or other delivery of that notice, Owner shall cause the Mural to be completed as required by this Agreement or shall remove the Mural
5. PROTECTION OF MURAL
Owner shall not take any deliberate action to damage or alter the Mural during the Display Period.
6. MAINTENANCE OF MURAL
(A) During the Term of this Agreement, the Owner will cause the Mural to be maintained, including any required restoration, in a first-class manner and shall not be allowed to deteriorate during the Display Period and for any period thereafter during which the Mural is displayed. Owner represents that pursuant to the terms of the Artist Agreement: (1) Artist has agreed to use the Artist’s best efforts to promptly restore and maintain the Mural in the event that it is damaged; (2) if the repair or restoration is not promptly completed, Owner may engage another person or may use its own forces to perform or complete the repair or restoration; and 06/10/2025
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APN: 1752763400
00039297 6
(3) Artist has consented to such repair or restoration and waives any claim for damages or degradation that may occur to the Mural during the course of such attempted repair or restoration. Owner hereby grants Artist all rights and access to the Designated Location as may be reasonably required to accomplish the actions described in this section provided that reasonable advance notice is first provide to Owner. (B) If there has been a material breach of the Agreement which remains uncured for thirty (30) days following written notice to Owner, Owner herby grants to City access to the Designated Location for the purposes of taking any reasonable and/or necessary action permitted by this Agreement (including, without limitation, the actions described in sections 3, 4 or 6) for purposes of painting, maintaining, repairing, or removing the Mural. Under no circumstances, however, shall City be required to take any such action.
7. COMPLIANCE WITH LAWS
In fulfilling its obligation under the Agreement and Owner, their respective employees, and respective agents shall comply with all Federal, State and City laws, ordinances, regulations and requirements that in any way affect the actions required by this Agreement. Without limitation, this requirement extends to any permits or approvals that may be required under the Vista Municipal Code.
8. ARTIST AGREEMENT AND ARTIST’S RIGHTS
Owner shall execute an Artist Agreement with the Artist to paint the Mural. Execution of an Artist Agreement conforming to this section is a precondition to the effectiveness of this Agreement and no painting of the Mural shall commence until such an Artist Agreement is executed. The Artist Agreement shall be drafted to be consistent with this Agreement and to include the following provisions, or provisions substantially similar in effect to the following:
• The Artist shall represent that the Mural will be an original product of the Artist’s own creative efforts and shall be an edition of one.
• The Artist Agreement shall either provide for a graffiti coat or provide for other affordable and effective methods for protecting the Mural.
• The Agreement shall provide that Artist shall repair all damage to the Mural within twenty (20) days of its occurrence or within such other period of time as may be set forth in the Artist Agreement and be approved by City. If the repairs are not performed within twenty (20) days, Owner shall be authorized to undertake the repairs directly or through an agent. Alternatively, other arrangements for the repair of the Mural may be authorized in the Artist Agreement if the arrangements are first approved by City. • The Artist Agreement shall include provisions which allow for maintenance, repair and removal of the Mural in accordance with the requirements of this Agreement, although the Agreement may require that advance notice be given to the Artist, including an opportunity to make any required repairs. • The Artist Agreement shall include the following waiver or a substantially similar waiver, unless the City Manager determines that the waiver is not required:
“Artist hereby acknowledges and agrees that Artist is familiar with the "California Art Preservation Act" (Cal. Civil Code Section 987 et seq.), and the "Visual Artists' Rights Act of 1990" (17 U: S.C. Section 101 et seq.) (together, “Statutory Rights”). Those Acts require that a waiver of their provisions be expressly made in writing, and being fully informed, the Artist and the Artist’s agents, heirs, successors, and assigns hereby waive any and all rights they may have under the provisions of these Acts, except to the extent otherwise called for under this agreement. The Artist, and the Artist’s agents, heirs, successors and assigns further agree not 06/10/2025
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APN: 1752763400
00039297 6
to attempt to defeat this waiver by cooperating, encouraging or assisting any organization or individual which seeks to bring an action under these Acts.” • The Artist Agreement shall include such other provisions that the City may reasonably request, including, insurance, indemnification, and guarantees regarding materials, assurances regarding the originality of the Mural, and assurances regarding the timely completion of the Mural.
This Agreement is not intended to violate any un-waived statutory rights retained by Artist (“Artist Rights”), and Owner shall assure that all actions taken in the implementation of this Agreement occur without violation of those retained Artist Rights.
9. INDEMNIFICATION
During all phases of this Agreement, Owner agrees to defend, indemnify and save harmless City, its officers, agents, and employees from and against any and all claims, demands, losses, defense costs, or liability of any kind or nature which City, its officers, agents, and employees may sustain or incur or which may be imposed upon them for injury to or death of persons, damage to property, or violation of Artist Rights or Statutory Rights, including copyright, and as a result of, arising out of, or in any manner connected with Owner’s performance under the terms of this Agreement, excepting only liability arising out of the sole negligence or willful misconduct of City.
10. RELATIONSHIP OF PARTIES
Owner shall perform the actions required by this Agreement in its own way and as an independent contractor.
The employees and agents of Owner are not under the direction and control of City staff. This Agreement is not intended to create the relationship of partnership, joint venture, or association between City and Owner.
11. RECORDATION
This Agreement shall be acknowledged and recorded by each of the parties in the official records of San Diego County. Owner shall pay the costs of recording.
12. COVENANTS TO RUN WITH THE LAND
City and Owner hereby declare their express intent that the covenants and restrictions set forth in this Agreement shall run with the land and shall bind all successors in title to the Property. Each and every contract, deed or other instrument hereafter executed covering or conveying the Property or any portion thereof shall be held conclusively to have been executed, delivered and accepted subject to such covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument.
13. TERMINATION
This Agreement shall continue in effect for term that is the longer of: (1) the Display Period; or (2) until Owner removes the Mural from the Property.
14. COMMON UNDERSTANDINGS
The parties to this contract agree that the recitals set forth in this Agreement are true and correct.
15. GOVERNING LAW
This Agreement shall be interpreted and construed according to the laws of the State of California. 06/10/2025
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APN: 1752763400
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16. WAIVER; SEVERABILITY
No waiver or failure to object to any breach or violation of the terms and conditions hereof by either party shall be deemed a waiver of such or any future breach or violation.
17. EXHIBITS
The following Exhibits are attached and incorporated herein by this reference:
Exhibit A Legal Description of Property
Exhibit B Designated Location for Mural
18. EXECUTION
The parties have executed this Agreement as of the Reference Date. “CITY”
CITY OF VISTA, a chartered municipal corporation
“OWNER”
Kati Le, an individual
By:
JOHN FRANKLIN, MA YOR
By:
NAME/TITLE
BY:
Name/Title
(W hen signing as Corporation necessary signatures are
President OR Vice President AND Secretary OR
Assistant Secretary.)
NO
TE: A CALIFORNIA ALL PURPOSE NOTARY ACKNOWLEDGMENT MUST BE ATTACHED FOR ALL SIGNATURES ABOVE ATTEST:
KATHY VALDEZ, CITY CLERK
By:
A
PPROVED AS TO FORM:
WALTER CHUNG, CITY ATTORNEY
By:
APPROVED
Walter C. Chung
20250604082230
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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EXHIBIT B
DESIGNATED LOCATION FOR MURAL
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EXHIBIT 4
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Vista City Council Policy
400 - 04 ARTWORKS IN PUBLIC PLACES
PURPOSE
To develop and upgrade City's collection of artworks for display in public areas.
GENERALLY
No acquisition or placement of public art shall occur until a Public Art Proposal Form has been submitted, reviewed, and approved as provided in this policy.
DEFINITIONS
1. " Acquisition" or " Placement of Public Art" shall mean the following, but shall not include the acquisition or placement of exempted artworks:
a. A decision to place artwork that is currently owned by the City in a public area.
b. A decision to relocate artwork that is currently owned by the City from one public area to a new public area.
C. A decision to accept a gift or donation of artwork when the acceptance requires the City to display the artwork in a public area.
In that event, the initial location for the display of artwork must be specified in the Public Art Proposal Form.
d. A decision to acquire an easement, covenant, contractual right, license, or other entitlement which will enable the City to display artwork on privately owned land, walls, or property for the purpose of public viewing and enjoyment, including, without limitation, murals.
2. " Artwork" shall mean a form of art, including without limitation, murals, sculptures, monuments, lighting, frescoes, fountains, paintings, ceramics, or other artistic installations.
3. " Commission" shall mean the Public Arts Commission of the City of Vista.
4. " Director" shall mean the Assistant to the City Manager or such other City employee as shall be designated in writing by the City Manager.
5. " Exempted Artworks" shall include:
a. Artwork which will be displayed for a period of less than three weeks;
400- 04( l)
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b. Artwork which has a value of less than $ 1,000 if the City, in its absolute discretion, can permanently remove the artwork without penalty, cost, or the prior approval of another party; or C. Any artwork located in a public area pursuant to a public art component of a Land Use Entitlement or condition which provides a specific location for a specific artwork.
6. " Land Use Entitlement or Condition" shall mean:
a. An approved Site Development Plan under Chapter 18. 64 of the Vista Municipal Code;
b. An approved Special Use Permit under Chapter 18. 66 of the Vista Municipal Code;
C. A Specific Plan;
d. A Development Agreement under the California Government Code; e. A Disposition and Development Agreement or Owner Participation Agreement pursuant to the Community Redevelopment Law
Health and Safety Code Sections 33000 et seq.); or
Any other agreement for the purchase or commission of artwork approved by the City Council.
7. " Public Area" shall mean the exterior of any City -owned or maintained facility, or an open and outdoor City controlled area, which may include public parks, public rights of way, or the exterior of privately owned buildings or privately owned grounds on which the City has acquired an easement or other contractual right to display an artwork for public enjoyment.
8. " Public Art" shall mean any artwork to be displayed in a public area.
9. " Public Art Proposal Form" shall mean a form, prepared by the City, used to obtain approval for an acquisition or placement of public art.
USE AND CONTENT OF PUBLIC ART PROPOSAL FORM
The Public Art Proposal Form shall be used by: ( 1) a City employee or official proposing to place or relocate an artwork in a public area; or (2) a member of the public seeking to donate an artwork to the City for display in a public area. 400- 04( 2)
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The form shall include the following information and materials:
A copy of the work, if available, and either a photograph, videotape, slide, drawing, model, or other representation of the artwork.
2. The proposed location for the artwork with photographs, videotapes, slides, or drawings, models, or other representations of the area immediately surrounding the location at which the artwork will be placed.
3. A description of the materials comprising the artwork, its approximate dimensions, its approximate weight, its finish, its color, and any special treatments, coatings, or protective coatings applied to the artwork.
4. A description of the method for mounting or displaying the artwork, with a description of the materials and appearance of the base, fixtures, or other physical features used to display the artwork, if visible.
5. The anticipated life of the artwork in the proposed location.
6. A description of how the artwork might change appearance over time.
7. The methods and techniques to maintain the artwork, including a plan for such maintenance, the estimated cost of such maintenance, and how the maintenance will be financed.
8. A description of rights that will be waived or retained by the artist with respect to the artwork and any future removal of the artwork from the designated public area to be used for display of the artwork. In general, the rights shall be allocated between the City and interested parties in accordance with the contractual guidelines set forth below.
9. Consent of any property owner who intends to display an artwork on private property as part of a public art program, with a description of the proposed terms under which the display will occur. These terms, in general, shall conform to the contractual guidelines set forth below.
10. A description of any proposed assistance sought from the City or other public agencies or donors in connection with the fabrication, development, installation, or maintenance of the artwork.
REVIEW CRITERIA
The following criteria shall be considered in reviewing a Public Art Proposal Form:
The aesthetic or historical significance of the artwork. 400- 04( 3)
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2. The artwork' s physical condition and whether the object is of exhibition quality.
3. Whether the City already owns sufficient examples or better examples of this type of artwork by a particular artist in a particular style.
4. Whether the City has the facilities necessary to properly care for and keep the artwork safe. If there are any special costs or special methods associated with maintaining or storing the artwork, such costs and methods must be made known to the City prior to a decision to acquire or accept the artwork.
5. Signage for the artwork to be displayed on public area shall be limited to the artist' s name, title and date of work, and where appropriate, a dedication. The name of the donor or lender may be part of the installation. For murals along the Sprinter Corridor, signage area shall be limited to an area two feet by ten feet ( 2'x 10') and may include a donor' s logo, if any, no greater than two feet by two feet ( 2' x 2') within the two foot by ten foot ( 2' x 10') signage area.
6. Appropriateness of the site (working well within the scale and nature of the site).
7. Whether the artwork is appropriate for the general public.
8. Whether the Commission has been advised that the artist and donor are prepared to execute a contract or other document, which, in the estimation of the City Attorney and City Manager, protects and serves the fiscal and other interests of the City in connection with the acquisition or donation of the artwork proposed for display in a public area.
9. Applications for murals proposed for the Sprinter Corridor shall be screened by the Planning Department to ensure compliance with the City's sign code prior to review by the Public Arts Commission.
10. Sponsors shall not be solicited from companies that are adult themed, produce alcoholic beverages, tobacco products, or from political organizations.
PUBLIC REVIEW PERIOD FOR PROPOSED ACQUISITION OR LOCATION OF
PUBLIC ART
There shall be a minimum 30 -day review period for an artwork before the Commission acts on a Public Art Proposal Form. During the public review period, the work itself, a copy of the work, or a photograph, videotape, slide, drawing, model or other representation of the artwork must be available for 400- 04( 4)
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inspection by the public during regular hours at City Hall or at a place reasonably close to City Hall. In addition to any other method, notice of the public review period shall be published in the local newspaper at least 15 days prior to the conclusion of the review period. Any interested person may request to be notified of any agenda item before the Commission or City Council scheduled for consideration of an acquisition or placement of public art as set forth in a Public Art Proposal Form. However, failure of the requesting party to receive notice or failure to provide notice as provided in this policy shall in no way invalidate any action taken by the City.
REVIEW BY THE COMMISSION
The Commission, at a regular or special meeting, shall consider the artwork, its proposed location, the content of the Public Art Proposal Form and public testimony. The artwork shall be approved for a public area pursuant to a majority vote of a quorum of the Commission. Such approval may include any reasonable conditions required by the Commission. Unless appealed within 30 days of the date of the Commission' s action, the decision of the Commission shall become final.
NOTICE OF ACTION BY THE COMMISSION
The Director, within five business days of any action by the Commission on a Public Arts Proposal Form, shall notify the Mayor, the Councilmembers, and the City Manager of the Commission' s action and provide the following materials and information to each such person: ( 1) the vote of each member of the Commission, and the action taken; ( 2) the staff reports presented to the Commission; ( 3) photographs or other images of the proposed artwork; and ( 4) other information deemed relevant by the Director, or requested by the City Council.
APPEAL TO THE CITY COUNCIL
Prior to the end of the appeal period, which is the conclusion of business on the 30th day following the Commission' s vote, any interested party may appeal that determination to the City Council, including the Mayor, any Councilmember, the City Manager, the Director, or any other concerned party. An appeal shall be made on a form provided by the City and shall briefly describe the basis on which the appeal is made. A reasonable fee may be charged for processing the appeal, as set by City Council resolution. However, that fee shall not be charged to any City official or employee acting in his or her capacity as an employee or official of the City.
ACTION BY THE CITY COUNCIL
On appeal, the Public Art Proposal Form and the proposed acquisition or placement of public art shall be considered de novo by the City Council. The 400- 04( 5)
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artwork shall be approved for a public area or conditionally approved for a public area only upon a majority vote of a quorum of the City Council.
CONTRACTUAL GUIDELINES
When appropriate, a contract for the acquisition of an artwork or a document accepting a donation of artwork shall be prepared by the City Attorney in advance of any consideration of the Public Art Proposal Form by the Commission. The contract or document, for purposes of information, shall be included with the materials that are presented to the Commission. The Commission, if it chooses, may make
recommendations regarding changes in the contract or documentation which will be considered by the City Attorney, City Manager, and potentially the City Council. The contract or document shall substantially conform to the following guidelines:
a. The seller or donor shall represent that the artwork is an original artwork that is exclusively owned by the seller or donor and is free of all liens or encumbrances.
b. No rights of reproduction of the artwork shall be retained by the artist or donor except those specifically allowed by agreement with the City.
C. The artist and donor shall agree to waive the provisions of the California Art Preservation Act and the Visual Artist' s Rights Act of 1990 unless the City determines that the waiver is unnecessary or inadvisable.
d. The City shall retain the ability to move, transfer, and dispose of the artwork unless the City determines that there is cause to limit that right.
e. The contract or document shall contain such additional terms as the City Manager and City Attorney determine to be necessary to protect the City' s interests.
2. The following provisions shall be included in an agreement or evidence of donation where the artwork is located on private property to be visible to the public and where the display of the artwork is part of a public art program:
a. The City shall acquire rights guaranteeing the public display of the artwork for a minimum period of time.
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b. The agreement shall include provisions to guarantee the ongoing maintenance of the artwork and protect the artwork against alteration or damage.
C. The agreement will address the contribution, if any, that shall be made by the City toward the artwork. In the case of murals or other artwork located on walls, the City will consider providing a contribution in the form of obtaining a graffiti coat for the artwork or contributing to the purchase of paint.
d. The agreement shall include appropriate protection for the City, including hold harmless and similar provisions.
3. Prior to consideration of the Public Art Proposal Form, the artist and donor shall inform the City of any provisions of the proposed contract or the evidence of donation which the artist or donor seeks to modify so that the issue may be addressed in advance of a formal review of the proposal by the Commission.
PROCEDURES FOR PURCHASE OF ARTWORK AND ACCEPTANCE OF
DONATIONS OF ARTWORK
Pursuant to this policy, the Commission' s role is to consider and identify appropriate locations for the public display of artwork and whether a particular artwork is suited to that location. The authority to approve and execute contracts for the acquisition of personal property, including artwork, remains with the City Council and City Manager as provided in Chapter 3.08 of the Municipal Code.
Likewise, donations of artwork shall be accepted by the City Council as provided by Section 37354 of the Government Code or by the City Manager pursuant to authority delegated to him or her by the City Council. The approval of a Public Art Proposal Form by the Commission only indicates that the proposed site for the artwork is considered appropriate. It does not obligate the City Council or City Manager to execute any contract or document for the purchase or acceptance of an artwork unless and until the City Manager or City Council determine that the contract or document is fiscally warranted and includes all terms required to protect the City's interests, as determined at the sole discretion of the City Council or City Manager.
HISTORY
Adopted September 28, 1993.
Replaced July 9, 2002, Resolution No. 2002 -189
Amended May 27, 2003, Resolution No. 2003 -121
Amended November 18, 2008, Resolution No. 2008 - 233
400- 04( 7)
06/10/2025
C12
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