Ordinance 3303CITY OF ALAMEDA ORDINANCE NO. 3303
New Series
AMENDING THE ALAMEDA MUNICIPAL CODE BY AMENDING
CHAPTER 30 (ZONING REGULATIONS) TO MODIFY PUBLIC ART
REQUIREMENTS, AS RECOMMENDED BY THE PLANNING BOARD
WHEREAS, in 2003, the City of Alameda (City) adopted public art requirements
for new commercial, industrial, residential and municipal construction; and
WHEREAS, in 2017, the City amended the public art requirements to remove the
$150,000 cap on the maximum public art allocation, remove the requirement that public
art focus on Alameda's historic and maritime traditions, and remove staff administrative
and maintenance costs as an allowable use of the Alameda Public Art Fund; and
WHEREAS, the City finds that the integral and early incorporation of public art into
private and public development enhances the visual and aesthetic quality of such
developments; and
WHEREAS, the City finds that the care of public artwork over its usable lifetime,
including maintenance, preservation and deaccession, is critical to the responsible and
cost-effective development of a municipal public art collection; and
WHEREAS, the City finds that improved flexibility to distribute public art funds will
allow the Public Art Commission to develop innovative and responsive opportunities for
public art funding in Alameda; and
WHEREAS, adoption of this Ordinance is in compliance with the California
Environmental Quality Act, Public Resources Code sections 21000 et seq. (CEQA); and
WHEREAS, the proposed amendments to the zoning regulations were considered
at regular, duly noticed public hearings of the Planning Board on April 26 and May 24,
2021, and the Planning Board recommended that the City Council adopt the proposed
amendments; and
WHEREAS, this Ordinance was considered at a regular, duly noticed public
hearing of the City Council on July 20, 2021, and all interested parties were provided an
ample opportunity to participate in said hearing and express their views.
BE IT ORDAINED by the City Council of the City of Alameda:
Section 1. Findings. In enacting this Section, the City Council finds as follows:
1. The amendments maintain the integrity of the General Plan. The proposed
amendments are consistent with the City of Alameda General Plan polices to ensure
high quality architectural and artistic design in all new development and to support
and enhance the cultural resources of the community.
2. The amendments will support the general welfare of the community. The
proposed amendments support the general welfare of the community by allowing for
the rigorous care and stewardship of the City's public art collection, better aligning
the public art program with regional best practices, and allowing improved flexibility
to distribute public art funds.
3. The amendments are equitable. The proposed amendments are equitable because
they will allow public art funding to be available to a wider range of artists and
organizations, including emerging artists. In addition, they revise the application
process to encourage all new developments to take a thoughtful and integrated
approach to on-site artwork.
4. The amendments are exempt from CEQA. The proposed amendments are exempt
CEQA pursuant to CEQA guidelines section 15061(b)(3), where it can be seen with
certainty that the proposed zoning text amendments will not have a significant effect
on the environment, and section 15303, new construction or conversion of small
structures, each of which provides a separate and independent basis for CEQA
clearance and when viewed collectively provide an overall basis for CEQA clearance.
Section 2. Section 30-98 of the Alameda Municipal Code is hereby amended as follows:
30-98 - PUBLIC ART IN NEW COMMERCIAL, INDUSTRIAL, RESIDENTIAL AND
MUNICIPAL CONSTRUCTION.
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 City'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 the 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.
f. 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:
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.
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.
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.
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.
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.
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.
Cultural facility shall mean a structure that houses, and has as its primary purpose
the presentation of one (1) 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.
Development project shall mean any development which requires the issuance of a
building permit by the City of Alameda.
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.
Nonprofit 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.
On-site artwork shall mean artwork that is provided on a development site in
conformance with this article.
Program allocation shall mean the value of the on-site artwork required under
subsection 30-98.4.
Public art shall mean art that is accessible to the public, including but not limited to
artwork and cultural arts and arts programming.
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.
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 two hundred fifty thousand ($250,000.00) dollars or greater
shall be subject to the provisions of this article.
2. Residential development projects creating or rehabilitating five (5) or more
residential units and having a building development cost of two hundred fifty
thousand ($250,000.00) dollars 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 one hundred (100%) percent
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
expend not less than one percent of building development costs acquiring and
installing on-site artwork. This expenditure shall be referred to as the program
allocation. Notwithstanding the foregoing, 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 acquiring and installing on-site artwork as required under
subsection a of this Section 30-98.4, the applicant, at the applicant's discretion, may
pay into the Alameda Public Art Fund a public art in -lieu contribution in an amount
equal to one hundred (100%) percent of the program allocation. If an applicant
chooses to make the public art in -lieu payment, the applicant must make that choice
prior to final approval of the development project application and fully pay the public
art in -lieu payment to the City prior to the City's issuing the first building permit for the
development project for which the contribution is required.
c. If the applicant chooses to acquire and install on-site artwork, and the value of the
on-site artwork is less than 100% of the program allocation, the applicant shall pay
into the Alameda Public Art Fund the difference between 100% of the program
allocation and the value of the on-site artwork.
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:
1. Sculpture; such as in the round, bas-relief, mobile, fountain, kinetic, electronic, or
other, in any material or combination of materials;
2. Painting: All media, including but not limited to, murals;
3. 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 Targe public
scale;
4. Mosaics;
5. Crafts: In clay, fiber and textiles, wood metal, plastics and other materials;
6. Mixed Media: Any combination of forms or media, including collage; and
7. Any other artwork determined by the Public Art Commission, or City Council on
appeal, to satisfy the intent of this section.
d. The following facilities and artwork shall not be eligible to satisfy the requirements for
on-site artwork:
1. Construction of indoor or outdoor stages or performance spaces.
2. Cultural arts and arts programming.
30-98.6 - Application and Approval Procedures for On-site Artwork.
a. Projects subject to the Public Art requirement shall declare their intention to install
public art on-site or to contribute to the in -lieu fund as part of the initial discretionary
permit for the project, or the submission of building permits, if no discretionary
permits are required for the project. If an applicant chooses to install public art on-
site, the applicant shall identify the proposed location(s) of the on-site public art on
the submitted plans.
b. 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:
1 Landscape and/or site plans indicating the location and orientation of
the on-site artwork that integrates the artwork into the overall project
design;
2. A sample, model, photograph or drawings of the proposed on-site
artwork;
3. Material samples and finishes if appropriate;
4. The artist's resume and portfolio of past work, which demonstrates
competency with the materials and forms proposed for the on-site
artwork proposal;
5. 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;
6. An itemized budget declaring the valuation of the on-site artwork
pursuant to Section 30.98.8;
7. A Maintenance plan for the maintenance of the on-site artwork; and
8. Any such additional information or material as may be required by the
Community Development Director.
9. Application processing fees set by City Council Resolution.
c. 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 thirty
(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.
d. The Public Art Commission shall review the permit application at a noticed public
hearing within sixty (60) days of the application being deemed complete.
e. 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.
f. In order to approve an on-site artwork application, the Public Art Commission must
make all of the following findings:
1 The artist has demonstrated qualifications to complete the proposed on-site
artwork with the highest professional standards.
2. 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.
3. The proposed on-site artwork is durable and cost effective to maintain using
ordinary methods of maintenance.
4. 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.
g 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. Any
substantial changes to the approved artwork or location after Public Art
Commission approval shall be subject to further review and approval by the Public
Art Commission. The Community Development Director, in the Director's
discretion, may make a determination regarding the substantiality of any changes.
h. Any final decision of the Public Art Commission may be appealed to the City
Council within ten (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.
i. If the Public Art Commission is unable to act on an application within sixty (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.
j. 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.
k. The Community Development Director may adopt administrative regulations to
implement this Ordinance and the Public Art Fund.
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 and shall be reflected in an agreement between the City and
the owner of the property on which the on-site art work shall be located and
the agreement shall be recorded against the property 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:
1. The on-site artwork itself including the artist's fee for design, structural
engineering and fabrication;
2. Transportation and installation of the on-site artwork at the development project
site;
3. Identification signs; and
4. 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:
1. The cost of locating the artist(s);
2. Architect and landscape architect fees;
3. Land costs;
4. Landscaping around the on-site artwork not integral to its design;
5. Publicity, public relations, photographs or dedication ceremonies;
6. Utility fees associated with activating the artwork; and
7. 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:
1. Satisfaction of the contribution requirements of Section 30-98.4; and
2. If applicable, installation of the on-site artwork, or the execution of an agreement
to install the on-site artwork, in accordance with Section 30-98.6; and
3. If applicable, execution of maintenance agreement in accordance with Section 30-
98.7 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:
1. Acquisition, commission, design, installation, improvement, and insurance of
public art;
2. 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;
3. Grants to provide publicly accessible cultural arts and arts programming to benefit
the Alameda community.
4. Other expenses associated with implementation, conservation, maintenance, or
deaccession of public art. Funds for conservation, maintenance or deaccession
of public art shall be prioritized for public art on public property.
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%) percent 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, except that the City Manager shall be
authorized to approve expenditures within the City Manager's spending authority. All
requisitions and purchases shall be authorized consistent with approval
authorizations in the City of Alameda Purchasing Policy. The City Manager shall
notify the Council of any expenditure approved by the City Manager for any new art
work or project. Any two Members of the Council may call the City Manager's
decision for review within ten days of the City Manager's notification. If no call for
review is timely perfected, the City Manager's decision shall become final and
effective.
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 3. 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 4. Implied Repeal. Any provision of the Alameda Municipal Code inconsistent
with the provisions of this Ordinance, to the extent of such inconsistencies and no further,
is hereby repealed or modified to the extent necessary to effect the provisions of this
Ordinance.
Section 5. Effective Date. 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.
Section 6. Authority. This Ordinance is enacted pursuant to the City of Alameda's general
police powers and Article XI of the California Constitution.
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Attest:
Lara Weisiger, City Clerk
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- the City Cbu✓ncil
I, the undersigned, hereby certify that the foregoing Ordinance was duly and
regularly adopted and passed by the Council of the City of Alameda in a continued
regular meeting assembled on the 7t11 day of September, 2021 by the following vote to
wit:
AYES: Councilmembers Daysog, Herrera Spencer, Knox White,
Vella and Mayor Ezzy Ashcraft — 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 8th day of September, 2021.
Lara Weisiger, City
Clerk City of Alameda
APPROVED AS TO FORM:
Yibin Shen, City Attorney
City of Alameda