PUBLIC ART PROCUREMENT GUIDELINES

PUBLIC ART PROCUREMENT GUIDELINES A. Preliminary A. In 1983, the Minnesota State Legislature enacted the law forming the basis for the Minnesota Percent for Art in Public Places program. This legislation states in part that for any building for which the appropriation is greater than $500,000 an appropriation for the construction or alteration of any state building may contain an amount not to one percent of the total appropriation for the building for the acquisition of works of art,... (Minnesota Statute 16B.35) B. The Minnesota State supports the Percent for Art program. Projects funded by the legislature for new buildings or major renovation / remodeling will normally include funds up to one percent of the budgeted construction contract amount. C. Under the Joint Powers Agreement between the Minnesota State Colleges and Universities (Minnesota State) and the Minnesota State Arts Board (Arts Board), a College/University (C/U) may request to manage the art acquisition process rather than the Arts Board. The request to use this procedure must be coordinated with the Minnesota State system office, Facilities Division prior to beginning any work. Under this agreement, the C/U is responsible for soliciting, selecting and contracting for Art under the Minnesota Percent for Art program and in conjunction with Minnesota State board policies, procedures and contract requirements. Art for a building on a public college or university campus shall be selected by the campus, in consultation with the Arts Board. Consideration of the artwork of faculty and students on that campus is encouraged. D. Percent for Art funds must be used only for art to be exhibited in areas of a building or its grounds accessible, on a regular basis, to members of the public. None of the funds may be expended by Minnesota State or the campus on administrative expenses. Individual campuses managing these projects will pay for administrative expenses from college or university funds and will not use any portion of the legislative appropriation for the acquisition of art to pay for administrative expenses. E. A C/U which desires to proceed with selecting and acquiring Art under this agreement must arrange a consultation meeting with representatives from the campus and the Minnesota Arts Board to review: 1. Factors to consider in selecting a location for art, 2. Factors inherent in providing open process for selection of art, (Note: The Arts Board has its own rules for selection of art and solicitation of proposals; those rules do not apply to Minnesota State institutions), 3. Factors to consider in selecting art genre for a particular location, 4. Ways to select art which possess timeless quality, 5. C/U responsibilities after art installation, 6. Contract issues regarding the Visual Artists Rights Act of 1990, and 7. List of previous Percent for Art projects on Minnesota State campuses. F. The Arts Board shall provide an electronic list of artists including contact information and artistic medium, but shall not provide access to its slide registry except to the extent a representative from ART.10 Page 1 of 5 10/18/16

the individual C/U comes to the office of the Arts Board in St. Paul to view the registry and the Arts Board has sufficient staff and resources to accommodate the request. II. Procedures for selecting an artist A. Decide upon proposed site and the type of artwork c/u desires: 1. Consider reviewing Arts Board s registry for ideas about different artistic genres, potential artists, etc. Registry is available for viewing upon request at the Arts Board s St. Paul office, subject to sufficient staffing and resources. 2. Conduct artist selection process in accordance with competitive solicitation statutes and Board Policies and Procedures. B. Solicitation Process There are three main solicitation processes for acquiring Art: 1. Purchases of Existing Artwork: The solicitation and purchasing process in Board Policy 5.14 and Procedure 5.14.5 apply. 2. Commissioning only: Board Policy 5.14 and Procedure 5.14.2 apply as described above for Design and Commission contracts. 3. Design and Commissioning: Board Policy 5.14 and Procedure 5.14.2 require the C/U to give public notice of Request for Proposals (RFP) if the total contract for an artist or artwork will exceed $50,000. a. A C/U may directly notify potential artists and solicit a response to the RFP no later than seven days before the RFP submission due date. b. The Arts Board has an electronic list of artists with contact information and artistic medium. III. Contracting with artist A. Contracting authority for acquiring artwork associated with a building project is typically included with the delegation of authority from the Vice Chancellor Chief Financial Officer to the C/U president to complete the project. B Contract forms: 1. If purchasing pre-existing art, use Art Purchase contract form. a. Ensure that the C/U creates and installs appropriate plaque or public notice to document the use of Percent for Art funding to acquire the artwork. 2. If accepting a pre-developed design, including a design that was submitted in response to an RFP, with no need for further design review or oversight, use Art Commission contract form + Budget/Timeline Worksheet (include as Exhibit A). 3. If entering into a contract for design and commissioning, use Art Design and Commission contract form + Artwork Statement Form (include as Exhibit A) + Budget/Timeline Worksheet (include as Exhibit B). a. Note: a c/u may execute more than one Design and Commission contract for the same project if it chooses to pay more than one artist to submit a design even though only one artist will be selected to proceed to Phase Two, the commission, portion of the agreement. All design fees and eventual commission fees are subject to the total Percent for Art budget for the project. C. The C/U is responsible to schedule and organize any lectures, public meetings, dedication ceremonies or other events associated with the project or artwork. Art contract forms do not ART.10 Page 2 of 5 10/18/16

include provisions requiring Artist to participate in any such events. Accordingly, a separate contract may be required. D. Send final acceptance letter to the Artist within 45 calendar days after (1) satisfactory completion and installation of the artwork, AND (2) the Artist has submitted all required documentation as set forth in Documentation and Records and Public Notice sections of the contract. Note: For purchases of pre-existing artwork, no final acceptance letter is required. E. Send final payment to the artist within 30 calendar days after final acceptance letter or final invoice from the Artist, whichever is later. Note: For purchases of pre-existing artwork, send final payment within 30 calendar days after satisfactory delivery and installation of the artwork and receipt of final invoice from the Artist/Vendor. IV. PREVAILING HOURS OF LABOR AND PREVAILING WAGES Contractor (the Artist) and all of its Subcontractor(s) shall comply with the Labor Standards and Wages requirements of Minnesota Statutes Chapter 177 as applicable. Minnesota Statutes Section 177.43, Subd. 3, requires the collection of payroll information, as further described below, for all Contracts or work under a work authorization, unless: the estimated total cost of completing the project is less than $2,500 and only one trade or occupation is required to complete it, or the estimated total cost of completing the project is less than $25,000 and more than one trade or occupation is required to complete it. The College/University shall incorporate into its proposals and all contracts the applicable wage determinations for the contract along with contract language provided by the commissioner of labor and industry to notify the contractor and all subcontractors of the applicability of sections 177.41 to 177.44. Failure to incorporate the determination or provided contract language into the contracts shall make the College/University liable for making whole the contractor or subcontractor for any increases in the wages paid, including employment taxes and reasonable administrative costs based on the appropriate prevailing wage due to the laborers or mechanics working on the project. The contract must also provide that the contracting agency shall demand, and the contractor and subcontractor shall furnish to the contracting agency, copies of any or all payrolls not more than 14 days after the end of each pay period. The payrolls must contain all the data required by section 177.30. The College/University shall review the applicable Prevailing Wage Rate Requirements to determine the applicable prevailing wage rates, prevailing hours of labor, and hourly basic rates of pay that are applicable to this project contract. A copy of the applicable Prevailing Wage Rate Determination Schedule, as published by Minnesota Department of Labor and Industry, can be found at the DOLI website for commercial construction at www.dli.mn.gov/ls/prevwagecomm.asp Colleges/Universities and the system office may choose to collect payroll information strictly in an electronic format or give contractors the option of paper or other media. Colleges/Universities and the system office should consider their capacity to handle records in both forms, and the anticipated ability of contractors to comply with an electronic record requirement. ART.10 Page 3 of 5 10/18/16

Incomplete Data. Colleges/Universities and the system office who are aware of missing, late or incomplete forms should contact the contractor (preferably in writing) and request follow-up by a specified date. The College/University shall maintain prevailing wage payroll information for a minimum of three years after final payment has been made on the project, or longer if required by your institution s records retention schedule. V. AFTER CONTRACT COMPLETED A. Final Accession Report: Within three months of completion of the contract, send a Final Accession Report to the Arts Board and a copy to the Minnesota State system office, Facilities Division which includes: 1. Copy of final acceptance letter to artist, 2. Completed Documentation Worksheet form including a written technical description of the Work, any blueprints regarding installation, any special installation instructions, such as suspension or foundation requirements, maintenance instructions or recommendations, and other related information, 3. Artist s updated resume, 4. Plaque information including explanation of artwork if provided, 5. Copy of contract with artist, 6. Visual depiction of final installed artwork Note: for purchases of pre-existing artwork, send as much information as is available. B. Visual Artists Rights Act (VARA): Artists have certain lifelong rights in any visual works of art, including pre-existing artwork, that fall within the scope of the Visual Artists Rights Act of 1990, 17 USC 101, et seq.: 1. Visual artwork covered by VARA: a. Paintings, drawings, prints, or sculpture existing in a single copy or in a limited edition of 200 or fewer copies that are signed and consecutively numbered by the artist. Enumerates certain rights for visual artists. b. Photographs if produced for exhibition purposes only and exist in a single copy signed by the author or in a limited edition of 200 or fewer copies that are signed and consecutively numbered by the artist. 2. Artwork, materials or items not covered by VARA: a. Posters, maps, globes, charts, technical drawings, diagrams, models, motion pictures or other audiovisual works, books, magazines, newspapers, periodicals, data bases, etc. Merchandising items or advertising, promotional, descriptive, covering or packing materials or containers, b. Applied art, which is generally defined as two- or three-dimensional decoration or ornamentation that is affixed to otherwise utilitarian objects (e.g., door handles, faucets, staircase railings), d. Unsigned or unnumbered copies or limited editions in excess of 200 copies. 3. Rights given to artists under VARA: a. To claim authorship of the work, b. To prevent the use of the artist s name as the author of any artwork that he/she did not create, c. To prevent the use of the artist s name as the author of any work if it has been distorted, mutilated, or otherwise modified in a way that would prejudice his/her honor or reputation, ART.10 Page 4 of 5 10/18/16

d. To prevent intentional distortion, mutilation or other modification of the work that would prejudice the artist s honor or reputation, and e. To prevent any destruction of a work of recognized stature. 4. Certain changes to artwork are not considered mutilation, distortion or other modifications under VARA: a. Modifications of an artwork resulting from the passage of time or the inherent nature of the materials, b. Modifications resulting from conservation efforts, c. Modifications resulting from the public presentation, including lighting and placement, and c. Reproductions, depictions, portrayals, etc. 5. Artist s rights last for life of Artist, which could extend beyond the term of the contract, 6. Artist s rights cannot be transferred, but can be waived in limited situations: a. Any waiver must be in writing and signed by artist, b. General, anticipatory or broad waivers might be considered unenforceable or invalid. C. Maintenance and Repair of Artwork: The C/U is responsible for maintaining the artwork, including providing security against damage, theft or loss, and repairing it as necessary and practical. Counsel before taking non-emergency actions to repair artwork. D. Reproductions: The c/u may reproduce artwork for educational or publicity purposes. The C/U is responsible for making reasonable efforts to ensure that any reproductions that prominently feature the artwork contain a credit to the artist. E. Destruction, Damage or Modification of Art or Plaque: The c/u cannot intentionally destroy, damage, alter, modify or change the artwork or plaque without Arts Board s consent. Also, see contract language for notice requirements to Artist and ability of Artist to request that his/her name no longer be identified with damaged, destroyed or modified artwork. Counsel before deciding to destroy, dispose of, damage, alter, modify, change or relocate artwork or the associated plaque or public notice. Counsel if the artwork or associated plaque or public notice suffers any intentional or unintentional destruction, damage, alteration, modification, vandalism, or change. F. Use of Artwork by Other Agencies: The C/U can make artwork available for temporary loan to other agencies or public institutions for purpose of exhibition to the public on its own initiative or upon request of the Arts Board. H. Art as Capital Asset: 1. Board Procedure 7.3.6, Part 3, paragraph 9 states that artwork generally has to be capitalized at its historical cost whether it is held as an individual item or in a collection. 2. Board Procedure 7.36, Part 5, C.8. contains other capital asset and depreciation procedures pertaining to works of art. ART.10 Page 5 of 5 10/18/16