Chapter 2.58
FUNDING THE PUBLIC ART PROGRAM
Sections:
2.58.050 Funds for public art.
2.58.060 Funding exclusions from, and additions to, the public art program.
2.58.080 Approval for placement of public art on private nonresidential property.
2.58.090 Application procedure for acceptance of public art donated to the city.
2.58.100 Review of application for acceptance of public art donated to the city.
2.58.110 Certificate of occupancy.
2.58.120 Ownership of public art on private nonresidential property.
2.58.130 Removal or alteration of public art.
2.58.140 Program administration.
2.58.010 Purpose.
The city of Capitola wishes to enhance the cultural and aesthetic environment of the city, to encourage creativity, the appreciation of the arts and our cultural heritage. Through the establishment of a program of public art funded by private development, the city will promote the general welfare through balancing the community’s physical growth and revitalization with its cultural and artistic resources. (Ord. 869 § 1, 2004)
2.58.020 Definitions.
A. “Acquisition” means the acquirement of works of art by donation, purchase or commission.
B. “Public place” means city or privately owned land or buildings which are open to the general public on a regular basis.
C. “Eligible public construction project” means any capital improvement project of the city involving a public place as identified in the annual capital improvement budget of the city and which is paid for wholly or in part by city funds, nonresidential development project which exceeds a total building permit valuation of two hundred fifty thousand dollars as calculated by the city of Capitola building permit application.
EXCEPTION: “Eligible construction project” shall not include capital improvement projects for which the sources of funds are limited to a specified purpose, or for which the terms of a contract, federal or state grant, law, or regulation prohibit or restrict the expenditure of funds on works of art. However, it shall be the policy of the city that all city departments shall, from the effective date of this ordinance, include a request for public art funding in all grant applications or other funding support requests for capital improvement projects to any outside funding agencies.
D. “Eligible private construction project” means and includes any private nonresidential redevelopment project with a total building permit valuation of two hundred fifty thousand dollars or more as calculated by the city of Capitola building permit application.
EXCEPTION: “Eligible private construction project” shall not include projects which consist only of heating, ventilation, air-conditioning, reroofing, cosmetic work that does not affect items regulated by the model building codes, and equipment not considered to be part of the architecture of the building or area.
E. Professional Artist or Artwork. It is the policy of the art and cultural commission that all artworks commissioned or acquired under the public art plan be designed by professional visual artists. A “professional artist” is a person who has established a reputation of artistic excellence, as judged by peers, through a record of exhibitions, public commissions, sale of works, or educational attainment.
F. Artwork may include, but is not limited to, the following:
1. Sculpture: free-standing, wall supported or suspended; kinetic, electronic; in any material or combination of materials.
2. Murals or portable paintings: in any material or variety of materials, with or without collage or addition of nontraditional materials or means.
3. Earthworks, fiber works, neon glass mosaics, photographs, prints, calligraphy, any combination of forms of media including sound, literary elements, film holographic images, and video systems; hybrids of any media and new genres.
4. Furnishings or fixtures, including but not limited to gates, railings, streetlights, signs, seating, if artist-created as unique elements or limited editions.
5. Artistic or aesthetic elements of the overall architecture or landscape design if created by a professional artist or a design team that includes a professional visual artist.
6. Temporary artworks or installations, as such artworks serve the purpose of providing community and educational outreach.
7. The incremental costs of infrastructure elements, such as sound walls, utility structures, roadway elements and other items if designed by an artist or design team that included an artist as a co-designer.
Ineligible artworks:
1. Art objects which are mass produced or of standard manufacture, such as playground equipment, fountains or statuary elements, unless incorporated into an artwork by a project artist.
2. Reproductions, by mechanical or other means, of original works of art, except in cases of film, video, photography, printmaking or other media arts.
3. Decorative, ornamental, architectural or functional elements which are designed by the building architect, as opposed to the elements created by an artist commissioned for that purpose.
4. Landscape architecture and landscape gardening except where these elements are designed by a professional visual artist and/or are an integral part of the artwork.
5. Services or utilities necessary to operate and maintain an artwork over time.
G. “Total construction cost,” as used in this chapter, means the valuation of the proposed structures or improvements, as calculated by the city of Capitola building permit application.
H. “Nonresidential development” means the construction of commercial, residential/ commercial, office, industrial projects or other projects which are not intended for residential purposes.
I. “Artist selection panel” means an ad-hoc committee formed and charged by the art and cultural commission for a limited period of time to recommend artists for individual projects or groups of projects. (Ord. 892 § 1, 2005; Ord. 869 § 1, 2004)
2.58.030 Public art account.
There shall be a noninterest-bearing account designated for public art, into which shall be deposited all fees paid pursuant to this chapter. This account shall be maintained by the city finance director and shall only be used for the acquisition, installation, and improvement (see Program Administration Section 2.58.140) of public art in the city. (Ord. 869 § 1, 2004)
2.58.040 Applicability.
The program described in this chapter is a mandatory program, and the standards specified are minimum standards for compliance.
A. This chapter shall apply to all eligible public and private construction projects as defined by this ordinance having a total construction cost of two hundred and fifty thousand dollars or more, as calculated by the city of Capitola building permit application. The obligation to comply with this chapter shall not be evaded by performing a series of small construction projects if the project could have been performed as a single construction project with in a three-year period.
B. This chapter shall apply to all expansion of, remodeling of, or tenant improvements to existing eligible buildings when any such work has a total construction cost of two hundred fifty thousand dollars or more, as calculated by the city of Capitola building permit application. (Ord. 892 § 2, 2005; Ord. 869 § 1, 2004)
2.58.050 Funds for public art.
A. Private Project Applicant. The project applicant shall acquire and install public art recommended by an art selection panel, with review by the art and cultural commission and approval of the city council, in a public place on or in the vicinity of the development project site. The minimum cost of the public art, including installation, shall be determined by the following:
1. After the effective date of this chapter, if a private developer makes application for a permit to develop a nonresidential project with a total building permit valuation of at least two hundred fifty thousand dollars, excluding land acquisition, not less than two percent of the project budget shall be set aside for the acquisition of art for incorporation into the project or for placement in the general vicinity of the project.
2. The private developer may, with city council approval, in lieu of incorporating public art in their project, deposit an amount equal to one percent of the total building permit valuation with the city, to be used for public art elsewhere in the city. Deposits of funds for public art from the private developer or for the in-lieu payment shall be made to the city prior to the issuance of a building permit for the project.
B. City Projects.
1. The city council shall provide in the annual capital improvement budget for an amount of not less than two percent of the total amount budgeted for each “eligible construction project” to be set aside and identified as sources of funds to be appropriated and expended for acquisition of works of art in accordance with this section. Appropriations for purposes of acquiring works of art in order to carry out the provisions of this chapter shall be made in accordance with law and the budgeting procedures of the city.
2. Appropriations for works of art may be expended to acquire works of art for any public place if the terms of a contract, federal or state grant, law or regulation do not limit or restrict the funds so appropriated to use for a specific “eligible public or private construction project.” Appropriations for works of art shall only be expended for acquisition of works of art to be located on the premises of a specific “eligible public or private construction project” if the terms of a contract, federal or state grant, law, or regulation do limit or restrict the use of funds to a specific “eligible construction project” only.
3. Subject to applicable law, appropriations and expenditures for works of art may include, but are not limited to, the costs and expenses incurred in the process of selecting and installing works of public art and for design and planning services of artists, as well as program administration and project management.
4. The city council shall approve the acquisition of works of art to be funded under the capital improvement budget.
5. All artwork donated to the city shall become the property and responsibility of the city upon acceptance of the city council.
6. Other Public Agencies. If the city enters into an agreement with another public agency, whereby city or agency funds are transferred to such agency for the purpose of performing a capital improvement project which would otherwise be deemed an “eligible construction project” under this chapter, such agreement shall provide, whenever it is lawful or appropriate to do so, that the recipient agency or its successor in interest shall take appropriate measures to insure that not less than two percent of the city or agency funds so transferred are expended for acquisition of works of art. (Ord. 892 § 3, 2005; Ord. 869 § 1, 2004)
2.58.060 Funding exclusions from, and additions to, the public art program.
City manager responsibilities:
A. The city manager, in conjunction with the submission of the annual capital budgets of the city, and unless otherwise prohibited by law from doing so, may:
1. Propose funds to be added to the public art program, which funds may be utilized to place works of art in existing public places which do not otherwise qualify as “eligible public construction projects.”
2. Prior to the submission of the city’s proposed annual capital improvement project budget to the city council, the city manager shall notify the art and cultural commission of: (i) those capital improvement projects which are designated “eligible public construction projects” in the budget; and (ii) any proposed discretionary funds proposed for addition to the public art program.
3. The following provisions shall apply to the two percent minimum public art calculation only in those circumstances in which the city receives funds from persons, firms, organizations or other agencies which are restricted as to the use of such funds for works of art, or which such funds are otherwise restricted by law or regulation:
a. If the terms of a contract, federal or state grant, law or regulation prohibit the use of funds in connection with an “eligible public construction project” for expenditure upon works of art, then the basis on which the public art funding percentage is applied will exclude any funds which are so prohibited or restricted.
b. If the terms of a contract, federal or state grant, law or regulation provide that any additional expenditure by the city on works of art for an otherwise “eligible public construction project” shall reduce the amount of funds received by the city for the project, then the project may be wholly or partially exempted from the provisions of this chapter. (Ord. 892 § 3, (part), 2005; Ord. 869 § l (part), 2004)
2.58.070 Application procedures for placement of required public art on private nonresidential property.
An application for placement of public art on private nonresidential property shall be submitted to the community development director and shall include:
A. Preliminary sketches, photographs or other documentation of sufficient descriptive clarity to indicate the nature of the proposed public art;
B. An appraisal or other evidence of the value of the proposed public artwork, including acquisition and installation costs;
C. Preliminary plans containing such detailed information as may be required the art and cultural commission to adequately evaluate the location of the artwork in relation to the proposed development and its compatibility to the proposed development, including compatibility with the character of adjacent conforming developed parcels and existing neighborhoods;
D. A narrative statement to be submitted to the community development director to demonstrate that the public art will be displayed in an area open and freely available to the general public, or that public accessibility will be provided in an equivalent manner based on the characteristics of the artwork or its placement on the site. (Ord. 869 § 1, 2004)
2.58.080 Approval for placement of public art on private nonresidential property.
A. Applications completed in accordance with Section 2.58.070 shall be submitted to the art and cultural commission for review and recommendation to the city council of public art in accordance with this chapter.
B. The art and cultural commission upon receipt of a completed application shall convene an art selection panel to review the proposed public art using adopted public art evaluation criteria.
C. The recommended completed application shall be forwarded by the art and cultural commission to the city council, which shall have the sole authority to accept, reject or conditionally accept the project.
D. All approvals for placement of public art on private property shall be obtained prior issuance of a certificate of occupancy. (Ord. 892 § 4, 2005; Ord. 869 § 1, 2004)
2.58.090 Application procedure for acceptance of public art donated to the city.
An application for the donation of public art to the city shall be submitted to the art and cultural commission and shall include:
A. Preliminary sketches, photographs, models or other documentation of sufficient descriptive clarity to indicate the nature of the proposed public art;
B. An appraisal or other evidence of the value of the proposed public art, including acquisition and installation costs;
C. A written agreement executed by or on behalf of the artist who created the public art which expressly waives his or her rights under the California Art Preservation Act or other applicable law;
D. Other information as may be required by the art and cultural commission to adequately evaluate the proposed donation of public art. (Ord. 869 § 1, 2004)
2.58.100 Review of application for acceptance of public art donated to the city.
A. The art and cultural commission shall convene an art selection panel to review the proposed public art, using adopted public art evaluation criteria.
B. Upon recommendation of the art selection panel, the public art application shall be reviewed by the art and cultural commission.
C. Following the review, the art and cultural commission shall forward the public art application to the city council, which shall have the sole authority to accept, reject or conditionally accept the donation. (Ord. 869 § 1, 2004)
2.58.110 Certificate of occupancy.
The following requirements must be met prior to the city’s issuance of a certificate of occupancy:
A. Full compliance with one of the following:
1. The approved public art has been placed on the site of the approved project, in a manner satisfactory to the building official and the Capitola art and cultural commission; or
2. In-lieu art fees have been paid.
B. If public art has been placed on the site of the approved project, the applicant must execute and record with the county recorder covenants, conditions and restrictions (CC&Rs), which require the property owner, successor in interest and assigns to:
1. Maintain the public art in good condition as required by the city’s public art guidelines;
2. Indemnify, defend and hold the city and related parties harmless from any and all claims or liabilities from the public art, in a form acceptable to the city attorney;
3. Maintain liability insurance, including coverage and limits as may be specified by the city manager. (Ord. 892 § 5, 2005; Ord. 869 § 1, 2004)
2.58.120 Ownership of public art on private nonresidential property.
A. All public art placed on the site of an applicant’s project shall remain the property of the applicant; the obligation to provide all maintenance necessary to preserve the public art in good condition shall remain with the owner of the site.
B. Maintenance of public art, as used in this chapter, shall include without limitation, preservation of the artwork in good condition to the satisfaction of the city, protection of the public art against physical defacement, mutilation or alteration, and securing and maintaining fire and extended coverage insurance and vandalism coverage in an amount to be determined by the city manager. Prior to placement of approved public art, applicant and owner of the site shall execute and record a covenant, in a form approved by the city, requiring maintenance of the public art. Failure to maintain the public art as provided in this chapter is declared to be a public nuisance.
C. In addition to all other remedies provided by law, in the event the owner fails to maintain the public art, upon reasonable notice the city may perform all necessary repairs and maintenance or secure insurance, and the costs therefore shall become a lien against the real property.
D. All artwork donated to the city shall become the property and responsibility of the city upon acceptance by the city council. (Ord. 869 § 1, 2004)
2.58.130 Removal or alteration of public art.
A. Public art installed on or integrated into a construction project pursuant to the provisions of this chapter shall not be removed or altered without the approval of the city council.
B. If any public art provided on a development project pursuant to the provisions of this chapter is knowingly removed by the property owner without prior approval, the property owner shall contribute funds equal to the development project’s original public art requirement to the city’s public art in-lieu account, or replace the removed artwork with one which is of comparable value and approved by the city council. If this requirement is not met, the occupancy permit for the project may be revoked by the city council upon due notice and an opportunity to be heard. The city may, in addition, pursue any other available civil or criminal remedies or penalties. (Ord. 869 § 1, 2004)
2.58.140 Program administration.
A. Up to twenty percent of the percent for art allocations may be expended on program administration, project management and community outreach activities, including, but not limited to, staffing, artist selection, publicity, community education activities, project documentation, consultants, and other activities necessary for the administration of the program.
B. Maintenance. Proceeds of the percent for art program shall not be used for maintenance of the public art collection. Routine and preventive maintenance of works of art shall be funded by the city council and performed by the public works department, under the guidance of the art and cultural commission. The art and cultural commission as part of the annual budget process shall submit requests for non-routine and restorative maintenance, as well as other curatorial services. (Ord. 869 § l (part), 2004)