Berkeley Municipal Code Ch. 23.316 Percentage for Public Art on Private Projects

The purpose of this chapter is to establish a public art requirement for private developments to provide the following benefits to the community:

A. Maintain Berkeley’s art and culture for generations.

B. Recognize the vital importance of the arts to the city as a whole.

C. Enhance the economic sustainability of artists and arts organizations as a key to the vitality of the city.

D. Make a lasting contribution to the intellectual, emotional and creative life of the community at large, and to create a more desirable community to live, work, and recreate. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Districts. This chapter applies in all districts in Berkeley.

B. Uses. This chapter applies to:

1. New multifamily residential projects of five or more dwelling units;

2. New commercial structures; and

3. New industrial structures.

C. Project Size. This chapter applies to all construction of building additions exceeding 10,000 square feet.

D. Exceptions. This chapter does not apply to the following project types:

1. Multifamily housing that has a regulatory agreement with a government agency restricting the rent and limiting tenancy to qualifying households not exceeding specified incomes for at least 60 percent of the units.

2. Buildings with religious assembly uses as defined in Chapter 23.502 (Glossary) and buildings with arts and cultural uses. For purposes of this section, "arts and cultural use" means buildings that have as their primary purpose the presentation of one or more cultural resources, and that are operated by public entities or nonprofit organizations dedicated to cultural activities available to a broad public.

3. Transitional housing. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Terms Defined. Terms used in this chapter are defined as follows:

1. Artist. An individual independent professional practitioner of the visual, performing, or literary arts, as judged by educational qualifications, a history of creating a body of public or publicly-displayed artwork, critical recognition in publications or online, a record of exhibitions and/or artwork sales. Members of the design team are not artists for on-site publicly accessible art projects. Individuals who have a conflict of interest, including a familial or financial relationship to the developer or design team, are not artists for on-site publicly accessible art projects.

2. Construction Cost. The amount determined by the Chief Building Official for purposes of setting the building permit fee in accordance with the most recent building valuation date specified in the building permit fees section of the resolution establishing fees and charges as adopted by the City Council.

3. Developer. A person or entity that is financially and legally responsible for the planning, development and construction, or maintenance and operation of any project subject to this chapter.

4. On-Site Publicly Accessible Art. An original work by an artist, including, but not limited to, functional art integrated into the building, landscape, or element of infrastructure, including sculpture, monument, mural, painting, drawing, photography, fountain, banner, mosaic, textile, art glass, digital media art, video, earthworks and multi-media installation, that is in a location that is accessible to and available for use by the general public during normal hours of business operation consistent with the operation and use of the premises.

5. Guidelines. The guidelines adopted by the City Council pursuant to Section 23.316.070 (Administrative Regulations (Guidelines)).

B. Terms Not Defined. Terms not defined in this section shall be interpreted to give this chapter its most reasonable meaning and application, consistent with applicable state and federal law. (Ord. 7787-NS § 2 (Exh. A), 2021)

Developers subject to this chapter shall do one of the following:

A. Include on-site publicly accessible art valued at 1.75 percent of the construction cost. If the value of on-site publicly accessible art as installed is less than 1.75 percent of the construction cost, an amount equal to 80 percent of the difference in value shall be paid to the City as an in-lieu fee.

B. Pay an in-lieu fee top the City of 0.80 percent of the construction cost. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Subject to Laws and Regulations. On-site publicly accessible art is subject to, and shall comply with, all applicable City ordinances and laws and regulations of other governmental agencies.

B. Permits Must Be Obtained.

1. Before construction, the applicant shall identify and secure all applicable permits from the Building and Safety Division, Public Works Department and other affected City divisions and departments.

2. The process for identifying and securing required permits shall be set forth in the Guidelines. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Alternative to On-Site Art. As an alternative to providing on-site publicly accessible art, the developer may elect to pay an in-lieu fee to the City as set forth in this section.

B. Use of Fees. Any in-lieu fees paid to the City pursuant to this chapter shall be used for art and cultural services as set forth in the Guidelines.

C. Amount of Fee. The in-lieu fee shall be 0.80 percent of the construction cost.

D. Time of Payment. The in-lieu fee shall be paid at the same time as other building permit fees. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Adoption of Guidelines. The Civic Arts Commission shall recommend and the Council, by resolution, shall adopt guidelines for the administration and implementation of this chapter.

B. Determining Compliance with Guidelines. The Civic Arts Commission shall be responsible for determining if On-Site Publicly Accessible Art complies with the Guidelines. (Ord. 7787-NS § 2 (Exh. A), 2021)