Berkeley Municipal Code Ch. 6.13 Appropriation for Public Art for Municipal Capital Improvement Projects

The City of Berkeley believes that the cultivation and development of a livable city is enhanced by the presence of public art and creative expressions available for the enjoyment of all members of the community. Public art enhances community vitality, fosters a sense of belonging, and provides opportunities to meaningfully involve community members in the design of their environment. Furthermore, public art provides professional opportunities for artists, which contributes to the economic sustainability of the arts community. The City of Berkeley is committed to strengthening its municipal public art program by enhancing the funds available for public art and ensuring flexibility to provide equitable public art experiences in the City of Berkeley that are timely, meaningful, and relevant. Therefore, it is the purpose of this Chapter and the policy of this City to provide for the allocation of one and three quarters percent (1.75%) of the estimated cost of construction associated with municipal capital improvement projects to be paid into the Public Art Fund, which shall be used for art and cultural enrichment of public buildings, parks, streets, and other public spaces in the City of Berkeley. (Ord. 7812-NS § 1, 2022)

a. It shall be City policy to set aside one and three quarters percent (1.75%) of its estimated capital improvement project (CIP) budgets, as defined in this section, for the purpose of providing public art. Except as provided in this section, all CIP projects shall be subject to this policy, including but not limited to buildings, shelters, parking garages and lots, restrooms, small structures, parks, medians, landscaping, plazas, gateways, bridges, walls, tunnels, street and road construction. CIP projects include new construction, as well as renovations and alterations. Salaries and benefits of public employees supporting CIP projects shall not be included in the CIP budget subject to this ordinance. This policy shall apply to all capital improvement projects included in the annual capital improvement program (CIP) budget, as well as capital improvement projects funded through any amendment to the annual appropriation ordinance.

b. The following CIP projects are excluded from this policy:

i. ADA compliance projects (not including projects where ADA compliance is a portion of a larger project).

ii. Emergency repair projects.

iii. Cyclical replacement and repair of trails, outdoor furnishings, or fencing (not including projects where these are a portion of a larger project).

iv. Studies and environmental review.

v. Roof replacement (not including projects where roof replacement is a portion of a larger project).

vi. Mechanical, security, A/V equipment, and HVAC, upgrades and repairs (not including projects where these are a portion of a larger project).

vii. Utilities projects, except where the project includes construction or reconstruction of a building.

viii. Vehicle repair and replacement.

ix. IT purchases and installations.

x. Seismic upgrades and waterproofing (not including projects where these are a portion of a larger project).

xi. Projects where the majority (more than 50%) of the cost is allocated to elements located underground.

xii. Projects where prohibited by federal or state law, including projects or portions of projects funded by grants from non-city sources that prohibit expenditure of funds for art. (Ord. 7812-NS § 1, 2022)

a. City staff shall use reasonable efforts to obtain appropriate approvals from any funding source for any capital improvement project, to allow use of one and three quarters percent (1.75%) of such funds for the acquisition of public art as provided in this title. Such efforts shall include, without limitation, identifying public art in grant applications for capital improvement projects, efforts to include expenditures for public art in developer funded infrastructure projects, and efforts to allocate for public art in developer-constructed infrastructure and public facilities.

b. If the city enters into an agreement with another public entity, whereby city funds are transferred to such other public entity for the capital improvement project that would otherwise be deemed subject to the public art requirements under this title, city staff shall use reasonable efforts to include in such agreement, whenever it is lawful to do so, a requirement that the recipient entity or its successor in interest shall take appropriate measures to insure that not less than one and three quarters percent (1.75%) of the city funds so transferred are expended for acquisition of public art.

c. Before proposing a bond issue or making a request for an appropriation for the construction of any of the projects set forth in this Chapter, the officer, board or commission concerned shall add thereto for the Public Art allocation associated with the proposed CIP project, one and three quarters percent (1.75%) of the gross estimated construction cost. Where funding eligibility is limited by law or funding agency rules, the Public Art allocation shall be based upon one and three quarters percent (1.75%) of eligible construction costs. For any public bond raising funds for capital percentage, the designated Public Art allocation percentage will be stated in the bond language presented to voters.

d. Nothing in this section is intended to prohibit the city council from adopting an ordinance or resolution establishing a public art contribution for any project otherwise excluded from this policy or setting the public art contribution for any project at greater than one and three quarters percent (1.75%) of the CIP budget.

e. Aggregation of Funds. Funds shall be deposited into the Public Art Fund. Per BMC Chapter 6.14, the Civic Art Commission shall determine public or publicly-accessible sites for art funded by the one and three quarters percent (1.75%) for art policy. Funds may be expended on public art at any appropriate site within the city. Funds from two or more CIP projects may be pooled to fund a single work of art. Funds may be used for permanent or temporary public art.

f. The Civic Arts Commission shall recommend and the Council, by resolution, shall adopt guidelines for the administration and implementation of this chapter. (Ord. 7812-NS § 1, 2022)

For purposes of this Section:

•"Alteration" of a building, aboveground structure, or transportation improvement project shall include substantial changes to elements such as walls, partitions, or ceilings on 2/3 or more of the total floor space, excluding basements. "Substantial changes" shall include additions to, renovation of, removal of, and modification of such elements.

•"Construction cost" shall mean the total estimated construction contract award amount, including the costs of all built-in fixtures, unless otherwise agreed to by the Civic Arts Commission. "Construction cost" shall not include movable or personal property or construction cost contingency.

•"Public Art" shall mean the acquisition and installation of original works of art (including limited editions), or temporary installation, display, or presentation of the same, on City property for aesthetic and cultural enhancement of public buildings and public spaces and engagement of the public with the creative work of artists, as approved by the Civic Arts Commission.

•"Public Art Collection" shall mean the various artworks owned by the City under the jurisdiction of the Civic Arts Commission that are accessioned by action of the Commission into the Public Art Collection.

•"Transportation improvement project" refers to Public Works projects which include both aboveground and below-ground transportation-related projects; boarding ramps; transit platforms; terminals and transportation systems with their attendant passenger amenities, such as shelters, seating, lighting, landscaping, and signage; transportation-related structures such as maintenance and operating facilities; power substations; and street/highway-related transit improvements such as bridges and overpasses. (Ord. 7812-NS § 1, 2022)

The Civic Arts Commission shall supervise and control the expenditure of all funds appropriated for public art and shall allocate up to twenty percent (20%) of said funds for all necessary and reasonable administrative costs incurred in connection therewith unless such administrative fee is limited or prohibited by the funding source. (Ord. 7812-NS § 1, 2022)

The Civic Arts Commission may set aside and expend up to ten percent (10%) of the total public art allocation for each project for maintenance and conservation of artworks in the Public Art Collection. When permitted by the funding source, funds set aside pursuant to this Section shall be invested in an interest-bearing account when the total of such funds set aside exceeds $10,000. (Ord. 7812-NS § 1, 2022)

a. Construction and installation of public art shall comply with the requirements of all applicable building codes, laws, ordinances, rules and regulations.

b. Nothing in this Section shall be construed to limit or abridge the jurisdiction of the officer, board or commission of the participating City department to supervise and control the expenditure of project funds other than the one and three quarters percent (1.75%) allocation for public art.

c. This ordinance shall not be applied retroactively to projects for which a public art allocation previously would not have been required, nor to those projects for which project funding has been approved by prior voter action but not yet appropriated or expended. Nor shall this ordinance be construed to allow for an increase in the total public art allocation for a project that is already underway or for which the public art allocation has already been established.

d. Ownership. All art acquired pursuant to this chapter shall be acquired in the name of the City of Berkeley as part of the Public Art Collection and title shall vest in the City of Berkeley. (Ord. 7812-NS § 1, 2022)

The ordinance codified in this chapter shall supersede and supplant Resolution No. 60,048-N.S. adopted by City Council on June 1, 1999. (Ord. 7812-NS § 1, 2022)