Ordinance 3199CITY OF ALAMEDA ORDINANCE NO. 3199
New Series
AMENDING THE ALAMEDA MUNICIPAL CODE BY AMENDING
CHAPTER 30 (ZONING ORDINANCE) TO UPDATE AND IMPROVE
THE REGULATIONS GOVERNING THE PUBLIC ART ORDINANCE
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ALAMEDA DOES
ORDAIN AS FOLLOWS:
Section 1: Article VIII is hereby added to Chapter 30 of the Alameda Municipal Code to
read as follows:
30-98 - PUBLIC ART IN NEW COMMERCIAL, INDUSTRIAL, RESIDENTIAL AND
MUNICIPAL CONSTRUCTION.
[MOVED FROM THE SUBDIVISION SECTION (30-65) TO A STANDALONE SECTION
OF THE CODE (30-98)]
30-98.1 — Purposes.
30-98.2 - Definitions.
30-98.3 - Applicability and Exemptions.
30-98.4 - Contribution Requirements.
30.98.5 - Public Art Requirements.
30.98.6 - Application and Approval Procedures for Placing Public Art on Private
Property.
30-98.7 — Maintenance Obligations.
30-98.8 - Included and Excluded Expenses.
30-98.9 - Compliance.
30.98.10 - Alameda Public Art Fund.
30-98.1 - Purposes.
The City Council finds and declares:
a. Public art contributes to the public's understanding, enjoyment and experience of
cultural diversity, and helps to attract and anchor a large and diverse creative
sector, enriching the Alameda's cultural identity which is a key component of the
City's economic vitality.
b. The incorporation of public art into private and public development will create a
unique sense of community as well as public identity and enhance the visual and
aesthetic quality of such developments.
c. The incorporation of public art and cultural programs in private and public
development is in the public interest and enhances the general welfare of those
persons living and working in City of Alameda.
d. The provision of public art supports and implements General Plan policies. to
support and enhance the cultural and historic character of the community and
ensure high quality architectural and artistic design in all new development.
e. Cultural and artistic assets should be included in private development projects
because those projects diminish the availability of the community's resources for
those cultural and artistic features, and because it is important that those projects
contribute to the urbanization of private property in a manner that benefits the
public.
Cultural and artistic resources foster economic development and tourism,
revitalize urban areas, increase real property values, and improve the overall
business climate by creating a more desirable community within which to live and
work.
30-98.2 - Definitions.
For purposes of this Article, the following terms shall have the following meanings:
a. "Alameda Public Art Fund" shall mean a separate account into which all monies
generated under this Article or derived from gifts or donations for Public Art shall
be deposited.
b. "Applicant" shall mean the person or entity that is financially and legally responsible
for the planning, development, and construction of any development project
covered by this Article, who may, or may not, be the owner of the subject property.
c. "Artwork" shall mean art, including but not limited to, sculpture, painting, mosaics,
photography, crafts, mixed media, and electronic arts. Artwork as defined herein
may be permanent, fixed, temporary, or portable, may be an integral part of a
building, facility, or structure, and may be integrated with the work of other design
professionals.
d. "Artist" shall mean an individual generally recognized by critics and peers as a
professional practitioner of the visual, performing, media or literary arts as judged
by the quality of that professional practitioner's body of work, educational
background and experience, public performances, past public commissions, sale
of works, exhibition record, publications, and production of Artwork. The members
of the architectural, engineering, design, or landscaping firms retained for the
design and construction of a Development Project covered by this Article shall not
be considered Artists for the purposes of this Part.
e. "Building Development Costs" shall mean those construction costs as declared on
all building permit applications for new construction or rehabilitation, and as
accepted by the Chief Building Official, but shall not apply to costs solely
attributable to tenant improvements. Building permit applications shall include, but
not be limited to, all building, plumbing, mechanical and electrical permit
applications for the project.
f. "Cultural Arts and Arts Programming" shall mean: performance arts, including but
not limited to: theatre, dance, music; literary arts: poetry reading and storytelling;
film and video; screenings and installations; education; art lectures and
presentations; Special events: festivals and celebrations; and artist -in -residence
programs in the arts.
g. "Cultural Facility" shall mean a structure that houses, and has as its primary
purpose the presentation of one or more Public Art forms, and that is operated by
public entities or non-profit organizations dedicated to cultural activities available
to a broad public. Examples of acceptable facilities are museums, theaters, and
performing arts centers, and other similar facilities as determined appropriate by
the Public Art Commission. Facilities that do not meet this definition are churches,
schools, commercial movie theaters, gymnasiums or other sports facilities,
bookstores, buildings dedicated primarily to housing or administrative activities,
and for-profit facilities used for for-profit activities.
h. "Development Project" shall mean any development which requires the issuance
of a building permit by the City of Alameda.
i. "Maintenance" shall mean those activities required to conserve, repair, or preserve
the integrity of the Artwork and setting within which the Artwork is located. Routine
maintenance means the basic day-to-day care of the Artwork.
j. "Non-profit Organization" shall mean an organization organized under Internal
Revenue Code Section 501(c)(3), in good standing with the California Department
of Corporations and in compliance with any and all federal, state, and local
licensing, reporting, and tax requirements.
k. "On-site Artwork" shall mean Artwork that is provided on a development site in
conformance with this Article.
I. "Program Allocation" shall mean the value of the On-site Artwork required under
subsection 30-98.4.
m. "Public Art" shall mean art that is accessible to the public, including but not limited
to Artwork and Cultural Arts and Arts Programming.
n. "Public Art Commission" shall mean the City of Alameda commission which
advises the City Council on Public Art policies, procedures and expenditures from
the Alameda Public Art Fund.
o. "Public Art In -Lieu Contribution" shall mean a payment made to the Alameda Public
Art Fund in lieu of providing on-site Artwork required by Section 30-98.3.
30-98.3 — Applicability and Exemptions
a. Applicability:
1. Commercial, industrial and municipal Development Projects having a Building
Development Cost of $250,000 or greater shall be subject to the provisions of
this Article.
2. Residential Development Projects creating or rehabilitating five or more
residential units and having a Building Development Cost of $250,000 or
greater shall be subject to the provisions of this Article.
b. The following shall be exempt from the provisions of this Article:
1. Affordable housing Development Projects in which 100% of the units qualify
as units affordable to very low-, low- or moderate -income households.
2. Rehabilitation of designated City Monuments.
3. Development or rehabilitation of structures that house a Cultural Facility.
4. Municipal or Non -Profit Organization Development Projects, including parks,
may be exempted (fully or partially) from the provisions of this Article when the
City Council finds that, based upon the characteristics of the Project or the
Project budget, it is in the best interests of the Alameda community to do so.
30-98.4 — Contribution Requirements
a. Program Allocation: Development Projects subject to the provisions of this Article
shall make a contribution of not less than 1 % of Building Development Costs for
acquisition and installation of On-site Artwork. The contribution shall be referred to
as the Program Allocation. The specific Program Allocation for a project subject to
a Development Agreement or a Disposition and Development Agreement shall be
established in the project specific agreement as part of a negotiated
comprehensive public benefit package.
b. In lieu Payments: In lieu of acquisition and installation of On-site Artwork as
required under subsection a of this Section 30-98.4, the Applicant, at the
Applicant's discretion, may place a Public Art In -Lieu Contribution in an amount
equal to 100% of the Program Allocation into the Alameda Public Art Fund. Public
Art In -Lieu Contributions shall be paid prior to the issuance of a building permit for
the Development Project.
c. An Applicant may, at the Applicant's discretion, propose On-site Artwork that has
a value lower than 100% of the Program Allocation and pay a Public Art In -Lieu
Contribution to the Alameda Public Art Fund for the balance of the Program
Allocation.
30.98.5 Public Art Requirements
a. On-site Artwork shall be installed on the Development Project site in a location
that allows the Artwork to be visible from a public right-of-way or from other
publicly accessible property. Interactive art must be fully accessible to the public.
b. On-site Artwork shall be permanent in nature and shall be constructed of
materials that are appropriate for the proposed location.
c. On-site Artwork installations required by Section 30-98.4 may include:
i. Sculpture; such as in the round, bas-relief, mobile, fountain, kinetic,
electronic, or other, in any material or combination of materials;
ii. Painting: All media, including but not limited to, murals;
iii. Graphic and Multi -media: printmaking, drawing, calligraphy and
photography including digital, any combination of forms of electronic
media including sound, film, holographic, and video and other art forms
but only when on a large public scale;
iv. Mosaics;
V. Crafts: in clay, fiber and textiles, wood metal, plastics and other materials;
vi. Mixed Media: any combination of forms or media, including collage; and
vii. Any other Artwork determined by the Public Art Commission, or City
Council on appeal, to satisfy the intent of this section.
c. The following facilities and Artwork shall not be eligible to satisfy the requirements
for On-site Artwork:
i. Construction of indoor or outdoor stages or performance spaces.
ii. Cultural Arts and Arts Programming.
30-98.6 - Application and Approval Procedures for On-site Artwork.
a. An application for the installation of On-site Artwork shall be submitted to the
Community Development Department on forms furnished for that purpose and
shall include the following information, as applicable:
Landscape and/or site plans indicating the location and orientation of the
On-site Artwork that integrates the Artwork into the overall project
design;
ii. A sample, model, photograph or drawings of the proposed On-site
Artwork;
iii. Material samples and finishes if appropriate;
iv. The Artist's resume and portfolio of past work, which demonstrates
competency with the materials and forms proposed for the On-site
Artwork proposal;
V. A written statement by the Artist describing the On-site Artwork, as well
as a discussion of the manner in which the proposed On -Site Artwork
meets the findings established by subsection (e) of this Section 30-98.6;
vi. An itemized budget declaring the valuation of the On-site Artwork
pursuant to Section 30.98.8;
vii. A Maintenance plan for the Maintenance of the On-site Artwork; and
viii. Any such additional information or material as may be required by the
Community Development Director.
ix. Application processing fees set by City Council Resolution.
b. The application submitted pursuant to subsection (a) of this section 30-98.6 shall
be referred to the Community Development Director to determine whether the
application is complete and in accordance with the requirements of this Article. If
the Community Development Director fails to make a determination within 30 days,
the application shall be deemed complete. Once complete, the Community
Development Director shall transmit the application to the Public Art Commission
for review and decision.
c. The Public Art Commission shall review the permit application at a noticed public
hearing within 60 days of the application being deemed complete.
d. Public notice of the Public Art Commission meeting shall be given consistent with
the noticing requirements of Section 30-22.4 Notice of Public Hearing.
e. In order to approve an On-site Artwork application, the Public Art Commission must
make all of the following findings:
i. The Artist has demonstrated qualifications to complete the proposed
On-site Artwork with the highest professional standards.
ii. There is sufficient public visibility and accessibility to the On-site
Artwork, and the proposed On-site Artwork is compatible with and
harmonious with the Development Project and surrounding
environment.
iii. The proposed On-site Artwork is durable and cost effective to maintain
using ordinary methods of Maintenance.
iv. The budget for the proposed On-site Artwork and any in -lieu fees
proposed by the Applicant is equivalent to or exceeds the required
Program Allocation.
f. The Public Art Commission may conditionally approve an application subject to
such conditions that the Public Art Commission deems reasonably necessary to
conform to the findings for approval. Approvals of Public Art applications shall be
by resolution of the Public Art Commission. The resolution shall include the
findings required by this Article, any conditions of approval, and the Maintenance
obligations of the property owner on which the On-site Artwork is to be located.
g. Any final decision of the Public Art Commission may be appealed to the City
Council within 10 calendar days or may also be called for review by the City Council
pursuant to the call for review process in Section 30-25.1.
h. If the Public Art Commission is unable to act on an application within 60 calendar
days of receipt of a complete application, and an extended period mutually agreed
to by the Applicant and the Public Art Commission cannot be reached, the
application shall be noticed for review and decision at the next available regularly
scheduled meeting of the City of Alameda Planning Board. The Planning Board
shall act on the application pursuant to the requirements of this Article.
i. The application required by this Article shall be made, approval obtained and the
Artwork installed prior to final building inspection or issuance of the first certificate
of occupancy for Development Project. If installation prior to the date of first
occupancy is impracticable, as determined by the Community Development
Director, a certificate of occupancy may be approved for the Development Project
or portion thereof if the application submitted pursuant to this Article has been
approved, the Applicant has executed a written agreement with the City to install
the On-site Artwork, and the Applicant has filed security in an amount equal to the
Program Allocation or the value of the proposed On-site Artwork, whichever is
greater, and in a form acceptable to the City Attorney to guarantee installation.
j. The Community Development Director may prepare guidelines and policies for
application and review of On-site Artwork applications, and On-site Artwork
administration consistent with this Article.
30-98.7 — Maintenance Obligations
a. The property owner on which the On-site Artwork is located shall maintain, or
cause to be maintained, in good condition the On-site Artwork continuously after
its installation and shall perform necessary Maintenance thereto to the satisfaction
of the City. The Maintenance obligations of the property owner shall be
incorporated into the conditions of approval for the On-site Artwork shall be
reflected in an agreement between the City and the property owner on which the
On-site Artwork will be located and the agreement recorded against the property
by the property owner prior to issuance of the first certificate of occupancy for the
Development Project.
b. Should the property owner wish to remove the On-site Artwork, the City must be
notified in advance. The property owner shall replace the On-site Artwork with On-
site Artwork of equal or greater value, and consistent with the California
Preservation of Works of Art Act and the Federal Visual Artists' Rights Act and any
other relevant law.
30-98.8 - Included and Excluded Expenses.
a. The following expenses may be included in the budget for the Program Allocation for
On-site Artwork:
i. The On-site Artwork itself including the Artist's fee for design, structural
engineering and fabrication;
ii. Transportation and installation of the On-site Artwork at the Development
Project site;
iii. Identification signs; and
iv. Mountings, anchorages, containments, pedestals, bases, or materials
necessary for installation of the On-site Artwork art.
b. The following expenses shall not be included in the budget for the Program Allocation
for On-site Artwork:
The cost of locating the Artist(s);
ii. Architect and landscape architect fees;
iii. Land costs;
iv. Landscaping around the On-site Artwork not integral to its design;
V. Publicity, public relations, photographs or dedication ceremonies;
vi. Utility fees associated with activating the Artwork; and
vii. Illuminating the On-site Artwork if not integral to the design. _
30-98.9 - Compliance.
a. Compliance with the provisions of this Article shall be demonstrated by the Applicant,
as follows:
a. Payment of the Public Art In -Lieu Contribution prior to the issuance of building
permits; or
b. Installation of the On-site Artwork in accordance with section 30-98.6; or
c. Execution of an installation agreement, if necessary, and evidence that the
Maintenance agreement has been recorded against the property prior to the
issuance of the first certificate of occupancy.
30-98.10 - Alameda Public Art Fund.
a. There is hereby created the Alameda Public Art Fund to account for the Public Art
In -Lieu Contributions made pursuant to Section 30-98.4 and any and all gifts,
grants, donations, or other revenues appropriated or received for Public Art. The
revenues in the Alameda Public Art Fund shall be used solely as follows:
L Acquisition, commission, design, installation, improvement, and
insurance of Public Art;
ii. City acquisition of real property or improvement of public property for the
purpose of displaying Public Art, which has been or 'may be
subsequently approved by the City;
iii. Grants to non-profit arts/cultural organizations to provide publicly
accessible Cultural Arts and Arts Programming to benefit the Alameda
community.
iv. Other expenses associated with implementation of Public Art.
b. Public Art shall be located in a publicly accessible place on private property, on
land or in a building owned by the City of Alameda or on government-owned
publicly accessible property. Cultural Arts and Arts Programming shall be free of
charge to the public.
c. For Public Art, the property owner on which the Public Art is located shall maintain,
or cause to be maintained, in good condition the Public Art for its lifetime and shall
perform necessary Maintenance to the satisfaction of the City, as established in a
long-term Maintenance plan approved by the Public Art Commission and reflected
in a recorded Maintenance agreement.
d. Based on the Alameda Public Art Fund balance at the time a Request for
Proposals is released, no more than twenty-five (25%) of the Alameda Public Art
Fund shall be distributed for Cultural Arts and Arts Programming.
e. The Public Art Commission shall present biennially to the City Council
recommendations for the distribution of any portion of the Alameda Public Art
Fund.
f. The Alameda City Council shall authorize expenditures from the Alameda Public
Art Fund consistent with the purpose of this Article.
g. If real property purchased with monies from the Alameda Public Art Fund is
subsequently sold, the proceeds from the sale shall be returned to the Alameda
Public Art Fund.
Section 2: Severability. If any provision of this Ordinance is held by a court of
competent jurisdiction to be invalid, this invalidity shall not affect other provisions of
this Ordinance that can be given effect without the invalid provision and therefore the
provisions of this Ordinance are severable. The City Council declares that it would
have enacted each section, subsection, paragraph, subparagraph and sentence
notwithstanding the invalidity of any other section, subsection, paragraph,
subparagraph or sentence.
Section 3: This Ordinance shall be in full force and effect from and after the expiration
of thirty (30) days from the date of its final passage.
Presiding Officer of the City Council
Attest:
Lara Weisiger, Ci Jerk
I, the undersigned, hereby certify that the foregoing Ordinance was duly and
regularly adopted and passed by the Council of the City of Alameda on the 7th day of
November, 2017, by the following vote to wit:
AYES: Councilmembers Ezzy Ashcraft, Matarrese, Oddie, Vella and
Mayor Spencer — 5.
NOES: None.
ABSENT: None
ABSTENTIONS: None
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official
seal of said City this 81h day of November, 2017.
Lara Weisiger,it Clerk
City of Alameda
APPROVED AS TO FORM:
_, ZZ_7�7
Janet C. Kern, City Attorney
City of Alameda