Chapter 21. Art in Public Places Program*

*    Code reviser’s note: This Chapter, added as Chapter 20 of this title by Ordinance 456, was editorially renumbered to avoid duplication.

Sec. 10-21.101 Title.

This Chapter is known and to be cited as “the City of Hercules Art in Public Places Program Ordinance.” (Ord. 456 § 1 (part), 2010)

Sec. 10-21.102 Purpose.

The City Council hereby finds and declares:

(a) Artwork enhances the quality of life for individuals living in, working in, and visiting the City.

(b) Balanced development of artistic resources preserves and improves the quality of the urban environment and increases real property values.

(c) As development and revitalization of the real property within the City continue, the opportunities for creating cultural and artistic resources diminish. Simultaneously, development and revitalization will urbanize the community, increasing the need for cultural and artistic outlets to improve the environment, image, and character of the community.

(d) Development of cultural and artistic assets should be financed by those whose development and revitalization diminish the availability of the community’s resources for those opportunities and contribute to community urbanization.

(e) Establishment of this Art in Public Places Program (APPP) will promote the general welfare by providing cultural and artistic resources matched with the community’s physical growth and revitalization.

Therefore, as of the effective date of the ordinance codified in this Chapter, the City shall require that certain City-sponsored developments and certain private developments use a portion of building development funds for the acquisition of freely accessible works of art for placement on the development site or elsewhere in the City as a condition of project approval. (Ord. 456 § 1 (part), 2010)

Sec. 10-21.103 Definitions.

For purposes of this Chapter, the following definitions shall apply:

(a) “Artwork” means original creations of art, including, but not limited to, the following categories: sculpture, murals, mosaics, fountains, and paving designs. These categories may be realized through such media as steel, bronze, stained glass, concrete, wood, ceramic tile and stone, as well as other suitable materials.

(b) “Building development costs” shall mean those construction costs as declared on all building permit applications, and as accepted by the 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.

(c) “Freely available” shall mean that artwork is accessible to the public for viewing, in a direct line of sight, for a period of no less than ten (10) hours per day, seven (7) days per week, with the option of excluding national holidays.

(d) “Art in Public Places contribution” shall equal the percentage of building development costs required herein, or as set by resolution of the City Council. (Ord. 456 § 1 (part), 2010)

Sec. 10-21.104 Contribution Requirements.

(a) Private Developments. Private developments that require a building permit shall devote to the Art in Public Places Program an amount not less than one percent (1%) of building development costs, provided the development is either a:

(1) Nonresidential or live-work building development with building development costs in excess of one hundred thousand dollars ($100,000); or

(2) Residential-only building development of five (5) or more units with building development costs in excess of one hundred thousand dollars ($100,000).

At least forty percent (40%) of the Art in Public Places contribution must be deposited into the Hercules Art in Public Places Fund. Up to sixty percent (60%) of the Art in Public Places contribution may be spent, at the developer’s discretion but subject to City Council approval, on on-site artwork. If the developer does not choose to implement on-site artwork, the full obligation shall be allocated to the Hercules Art in Public Places Fund.

Contributions of funds or other involvement with the Redevelopment Agency shall not necessarily change the characterization of the project as a private development.

(b) Public Developments. For public building developments by the City of Hercules or Redevelopment Agency, with building development costs in excess of one hundred thousand dollars ($100,000) and that require a building permit, the City or Redevelopment Agency shall expend an amount not less than one percent (1%) of such costs for freely accessible art on the development site.

(c) Exceptions. The requirements of this Chapter shall not apply to projects and activities related to remodeling, repair, or reconstruction of structures that have been damaged by fire, flood, wind, earthquake, or other calamity.

The City Council may, by resolution, authorize exemptions from this Chapter for projects for which compliance would be unfeasible, cause undue hardship, or not be in the public interest. (Ord. 456 § 1 (part), 2010)

Sec. 10-21.105 Hercules Art in Public Places Fund.

(a) Establishment of Fund. There is hereby created a Hercules Art in Public Places Fund. All funds deposited into the Art in Public Places Fund shall be expended only for implementation of the Art in Public Places Program, including acquiring, placing, and maintaining freely available artwork throughout the City.

(b) Use of Fund. Expenditures of the fees collected in the Art in Public Places Fund may include the following:

(1) The cost of artwork, including its design, acquisition, commission, improvement, and installation;

(2) The cost to purchase, improve, or lease artwork sites;

(3) Waterworks, landscaping, lighting, and other objects and utilities that are an integral part of the artwork;

(4) Frames, mats, pedestals, and other objects necessary for the proper presentation of the artwork;

(5) Walls, pools, landscaping, or other architectural elements necessary for the proper aesthetic and structural placement of the artwork;

(6) Expenditures for maintenance, cleaning, and repair of artwork;

(7) Administrative expenses to otherwise implement any provision of this Chapter.

(c) Endowments. The Art in Public Places Fund shall also be used as a depository for endowments, bequests, grants, or donations. Such sums may be expended as set forth in subsection (b) of this Section.

(d) Replacement. Upon approval of the City Council, the City may sell or exchange artwork that has been purchased with moneys from the Art in Public Places Fund or donated to the City for replacement artwork. Any funds obtained from the sale of artwork shall be deposited to the Art in Public Places Fund. Artwork owned privately and on display by agreement may be exchanged with City Council approval. Any artwork installed pursuant to this Chapter may be replaced, provided all of the following requirements are met:

(1) The cost of the replacement shall be equal to, or greater than, the cost of the artwork to be removed;

(2) The location of the replacement shall be freely accessible;

(3) The replacement shall conform in every respect to all applicable standards adopted by the City Council;

(4) The replacement work, location, and installation shall not violate any other law, rule, regulation, policy, or ordinance.

(e) Temporary Removal. Any artwork required under this Chapter may be temporarily removed for up to one hundred eighty (180) days for purposes as required under this Chapter, including but not limited to maintenance, repair, and cleaning. Artwork may also be temporarily removed as needed to construct, maintain, repair, and clean other legally approved projects, as confirmed by the City Manager. (Ord. 456 § 1 (part), 2010)

Sec. 10-21.106 Implementation of the Art in Public Places Program.

(a) Guidelines. Guidelines and limitations for implementing the Public Art Program shall be approved by the City Council.

(b) Use and Maintenance of Artwork. Artwork acquired by expenditures from the Art in Public Places Fund shall be the property of and maintained by the City. The City may dispose of such artwork at its discretion, subject to any agreement with artists or otherwise relating to any specific artwork. The artwork acquired and installed by a project applicant as credit for the fee required by Section 10-21.104 shall be the property of and maintained by the project applicant and any successor owners of the subject property, except to the extent the City has rights in or to the artwork or the display thereof pursuant to an agreement with the project applicant. Alternatively, artwork acquired by the project applicant in lieu of the fee may be donated to the City to be maintained by the City. (Ord. 456 § 1 (part), 2010)

Sec. 10-21.107 Compliance.

Compliance with the provisions of this Chapter shall be demonstrated by the owner or developer at the time of filing of the building permit application by presenting written proof of: (a) money deposited into the Hercules Art in Public Places Fund, and (b) if applicable, a contractual agreement to commission or purchase and to install the artwork on the development site, as approved by the City Council. The sum of the deposit and (if applicable) the valuation of the on-site artwork (as validated by the City Council) shall be equal to, or greater than, the Art in Public Places contribution required by Section 10-21.104. The owner or developer shall provide the City with proof of installation of any requested artwork on the development site and proof of full payment of the required Art in Public Places contribution before issuance of the certificate of occupancy, unless the City has approved some other method of assuring compliance with the provisions of this Chapter. (Ord. 456 § 1 (part), 2010)

Sec. 10-21.108 Waiver of Conditions.

Any or all of the provisions of this Chapter may be waived pursuant to the exception provisions established in Section 10-21.104. (Ord. 456 § 1 (part), 2010)

Sec. 10-21.109 Violations of This Chapter.

In addition to other fines or penalties provided by state or municipal law, the City may revoke or suspend any discretionary permit granted to any owner or developer who violates the provisions of this Chapter. (Ord. 456 § 1 (part), 2010)