Lafayette Municipal Code Ch. 6-26 Public Art

Footnotes:

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Editor's note— Ord. No. 687, § 3(Exh. B), adopted Oct. 23, 2023, repealed the former Ch. 6-26, §§ 6-2601—6-2612, and enacted a new Ch. 6-26 as set out herein. The former Ch. 6-26 pertained to similar subject matter and derived from Ord. No. 632, § 4(exh. A), adopted Nov. 10, 2014; and Ord. No. 658, § 2(exh. A), adopted Oct. 23, 2017.

The purpose of this chapter is to:

(a) Establish a public art program and its administration.

(b) Establish the City of Lafayette public art collection.

(c) Contribute to the cultural enrichment of the community by adding public art that is of the highest quality, visually stimulating and of enduring value.

(d) Ensure that public art is incorporated into project planning at the earliest possible stage.

(e) Ensure the value of public art is proportional to the true value of a project.

(f) Establish public art gift policies and procedures.

(Ord. No. 687, § 3(Exh. B), 10-23-2023)

(a) "Artist" means a person who has an established reputation of artistic excellence in the visual, performance, literary and/or media arts, as judged by peers, through a record of exhibitions, public commissions, sale of artworks, and/or educational attainment.

(b) "Artwork" means all forms of art created by an artist and conceived in any discipline or medium, including visual, performance, literary, media and temporary works.

(c) "City of Lafayette public art collection" or "city collection" means all artworks owned by the City of Lafayette or installed on city-owned property.

(d) "Construction" means new construction resulting in a building of 5,000 square feet or more of gross floor area.

(e) "Alteration" means the rehabilitation, renovation, remodeling, addition or improvement of 5,000 square feet or more of an existing building also requiring significant exterior modifications including changes to rooflines, trim and materials.

(f) "Preliminary construction or alteration cost" means the estimated cost of construction or alteration cost as demonstrated by a preliminary general contract agreement between an architect, contractor and/or property owner. In no case shall the valuation be less than that determined by the Contra Costa Building Inspection Department.

(g) "Cost of artwork" means the total cost of design, manufacture, and installation. In the case of an artwork installed on city-owned property, the cost of artwork will include an endowment for the long-term maintenance of the artwork. An artist's attendance at committee meetings and transportation of the art are excluded from this calculation.

(h) "Deaccession" means the procedure for the removal of an artwork. "Donor" means an individual, group, organization, or business that proposes a public artwork for donation and placement or installation on city-owned property. When applicable, a donor is the artist(s) who created the proposed gift.

(i) "Final construction or alteration cost" means the actual cost to build a new structure or alter an existing structure as demonstrated by the final project cost accounting or "guaranteed maximum price" in a general contract agreement between an architect, contractor and property owner including any change orders, modifications or amendments at the end of a project. The final construction costs will be verified with a declaration and signatures from all parties stating the amount is accurate.

(j) "Gift" means an existing or proposed artwork offered as a donation to the city for placement or installation on city-owned property. Alternatively, a gift is monetary for the purpose of acquiring public art for the city.

(k) "Maintenance" means actions taken to retard or prevent damage to artwork by control of the environment and/or treatment of the artwork on a routine and long-term basis.

(l) "Public art" means artworks of sculpture, murals, photography, and original works of graphic art, waterworks, fiber works, neon, glass, mosaics, or any combination of forms of visual media, furnishing or fixtures permanently or temporarily affixed to a structure or its grounds, or a combination thereof displayed at a public place, including temporary works of art and performative art, such as dance, spoken work, light and video installation.

(m) "Public art committee" or "committee" means the committee appointed by the city council pursuant to Section 6-2604.

(n) "Public art for projects" means semi-permanent artworks of sculpture, murals, photography, and original works of graphic art, waterworks, fiber works, neon, glass, mosaics, or any combination of forms of visual media, furnishing or fixtures affixed to a structure or its grounds, or a combination thereof displayed at a public place.

(o) "Public place" means any exterior area on public or private property that is easily accessible and clearly visible to the general public. If located on private property, the area will be clearly visible from adjacent city-owned property, such as a street, sidewalk, park or plaza.

(p) "City-owned property" means property, including right-of-way, owned and/or under the jurisdiction of the city or other public agency.

(Ord. No. 687, § 3(Exh. B), 10-23-2023)

(a) Public art for projects will be installed as a project requirement for the construction or alteration, as defined in this chapter, of a building located in a commercial or multi-family residential zoning district within the boundaries of the downtown specific plan. The installation shall be on the project site. The installation may be at an off-site public place, if requested by the project applicant, and the request is reviewed by the committee and approved by the city council. The cost of artwork will be an amount not less than one percent of the final construction or alteration cost. In the case of installation of artwork on city-owned property, the cost of artwork will include an endowment towards the long-term maintenance of the artwork.

(b) When an application, subject to the public art requirement, is approved by the appropriate hearing authority the property owner shall submit a security deposit prior to the issuance of the building permit. The amount of the security shall be calculated as one-half of one percent of a project's preliminary construction or alteration costs. The security deposit will be held until the final construction or alteration costs are submitted and, as provided in this chapter, any may be used by the applicant to pay any in-lieu fee. In addition, applicants may utilize the security deposit to pay for any additional art required under subsection 6-2605(g). The city manager or designee may require reasonable documentation of the costs of any additional art prior to releasing security deposit funds. The deposit or its remaining balance will be refunded without the payment of any interest at the completion of the project upon demonstration that the public art for projects provided meets the requirement in subsection 6-2603(a).

(c) In lieu of meeting the requirement in subsection 6-2603(a), the city council may allow a project applicant to pay a fee equal to one percent of the final construction or alteration cost when it is found that location, siting or scale makes the provision of public art for projects inappropriate or infeasible, or the council agrees with the applicant's reasons for not integrating public art for projects into the project. In-lieu fees will be placed in the city's public art for projects fund and shall be used for public art for projects.

(d) The public art requirement will not apply to the following activities:

(1) Underground public works projects;

(2) Street or sidewalk repairs;

(3) Tree planting or median landscaping;

(4) Remodeling, repair or reconstruction of a structure damaged by fire, flooding, wind, earthquake or other calamity;

(5) Affordable housing construction or alteration projects or the portion of a market-rate project designated for affordable housing;

(6) Interior tenant improvements where there is no significant exterior modification; and/or

(7) Exterior modifications that consist of only storefront opening changes, painting, signage or awnings.

(Ord. No. 687, § 3(Exh. B), 10-23-2023)

A public art committee will be appointed by the city council. This committee will be composed of no less than five members and no more than nine members as determined by the city council. A majority of the committee shall be Lafayette residents. All committee members shall live or work in Lafayette except two members. A quorum of the committee shall consist of the majority of the membership (i.e. if there are five members, quorum shall be three members, if there are eight members quorum shall be five members). All committee members shall have demonstrated knowledge of and interest in the visual arts by experience, training, education, occupation or avocation. The committee will advise the city council in matters pertaining to the City's public art program and administration, public art for projects, acquisitions and gifts, artwork maintenance, and, when necessary, art work deaccession. The committee will serve as steward of the city collection.

(Ord. No. 687, § 3(Exh. B), 10-23-2023)

(a) Application. An applicant seeking approval of a project subject to the requirements of Section 6-2603 will submit a public art application and fee, as established by the city council, to the planning department as a condition of approval of other required project applications. The application will include the preliminary construction and alteration cost of the project, a description of the proposed public art for projects, budget for design, fabrication, transportation, and installation, resume of the artist, and a maintenance program and budget for the public art for projects.

(b) Committee Review. The committee will consider the public art for projects. The committee will consider the public art for projects proposal based on the criteria in Section 6-2607 or an in-lieu request for public art for projects, and make a recommendation to the city council.

(c) Council Review. Upon receipt of the committee's recommendation, the city council will consider the public art for projects proposal based on the criteria in Section 6-2607 or an in-lieu request for public art for projects, and will approve or deny the proposal or request.

(d) Agreement. If the city council approves the proposed public art for projects on city-owned property, a formal agreement will be executed between the city and the project applicant. This agreement will include the costs, responsibilities, and schedule of all aspects of the project, including project funding, fabrication, site preparation, installation, maintenance budget and requirements, transfer of title, applicant's and/or artist's rights, project supervision, documentation, an identification plaque, city's rights (including deaccessioning), and other requirements established by the city.

(e) Installation. Approved public art for projects will be installed prior to a certificate of occupancy being issued for the project.

(f) In-lieu Fee. An in-lieu fee for public art for projects will be paid to the public art fund prior to final inspection of the project based on the final construction or alteration cost.

(g) Final Costs. Final construction and alteration costs as well as the actual cost of artwork will be provided to the city. If the cost of the artwork is less than one percent of the final construction and alteration costs, additional art will be installed to meet the one percent requirement, prior to the city's final inspection, otherwise an in-lieu fee will be paid for public art for projects. The new art will follow the same review procedure as described in this section. Payment of the in-lieu fee for public art for projects does not require review by the public art committee or the city council, but may be authorized by the city manager or designee.

(h) Deaccession. The alteration or removal of public art or public art for projects that was installed as a requirement of this chapter will be subject to Section 6-2609.

(Ord. No. 687, § 3(Exh. B), 10-23-2023)

(a) Gifts of Artwork Considered.

(1) The city will consider a donor's offer of an existing artwork, commission of an artwork by a specific artist or artists, or to commission an artwork through a competitive public process.

(2) Donors will be required to provide a maintenance program for the proposed gift, including estimated maintenance costs. Excessive maintenance costs may be grounds for rejection of the gift.

(b) Review Process.

(1) All proposed gifts to the city will be referred to the committee. The committee's recommendation on the acceptance or rejection of proposed gifts will be referred to the city council for final action.

(2) If the city council approves the acceptance of a gift, a formal agreement will be executed between the city and the donor and/or artist. This agreement will include the costs, responsibilities, and schedule of all aspects of the project, including project funding, fabrication, site preparation, installation, maintenance and budget requirements, transfer of title, donor's and/or artist's rights, project supervision, documentation, an identification plaque, city's rights (including deaccessioning), and other requirements established by the city.

(c) Review criteria; Standards for Acceptance.

(1) Criteria. The proposed artwork will be reviewed based on the criteria listed in Section 6-2607.

(2) Budget. Consideration will include an evaluation of the donor's proposed budget and the artist's ability to successfully complete the project within the proposed budget, and review to assess realistic estimates and comprehensiveness of the budget as it address all costs of the proposal.

(3) Unrestricted Gifts. Proposed gifts to the city will be clear and unrestricted.

(4) Unique artworks. Only one-of-a-kind artworks will be considered, with the exception of prints, photographs or other limited-edition artworks of high quality.

(5) Cost of Artwork. Acceptance may be contingent upon receipt by the city of payment from the donor for costs associated with the gift that not covered by the donor directly, such as transportation and installation.

(d) Alterations to Proposed Artwork Design. Any significant change to the design or concept made by the artist or donor after approval of the gift proposal must be reviewed and recommended by the committee and approved by the city council.

(e) Review of Fabrication and Installation. Artworks accepted from maquettes or drawings will be subject to city review throughout fabrication and installation. Specific plans for site design, installation, maintenance and protection will be submitted to the city for approval.

(Ord. No. 687, § 3(Exh. B), 10-23-2023)

(a) In order to approve public art and public art for projects, the public art committee and the city council shall at a minimum consider the criteria listed below:

(1) Aesthetic Quality. The foremost consideration will be the quality of the proposed artwork as assessed by the critical review of the public art committee. The provenance, reputation and/or promise of the artist may also be key considerations.

(2) Relationship to the Collection and to the Community. The proposed artwork will be analyzed for its potential relationship to the city's present collection, the requirements of this chapter, and whether it will enhance the aesthetic quality of the community.

(3) Compatibility. Conceptual compatibility and appropriateness of the proposed artwork to the surrounding built and/or natural environment will be factors for consideration, and will include scale, form, content and design.

(4) Materials, Fabrication and Installation. The committee will evaluate the existing artwork's material or the artist's proposed materials and their appropriateness as regards structural and surface integrity, protection against theft, vandalism, public safety, and weathering, and an analysis of long-term maintenance needs. The committee will also evaluate the proposed method of installation and an evaluation of safety and structural factors involved in the installation.

(b) The following items will not be considered as public art or public art for projects:

(1) Art objects which are mass-produced from a standard design;

(2) Reproductions of original artworks;

(3) Decorative, ornamental or functional elements including details and fenestration of a building which are designed by the project architect as opposed to an artist commissioned for the purpose of creating the artwork; or

(4) Landscape architecture and landscape.

(Ord. No. 687, § 3(Exh. B), 10-23-2023)

(a) Ownership. If the artwork is installed on private property as part of an approved project, the property owner will own the artwork. Artwork installed on city-owned property will be owned by the city as part of its collection.

(b) Maintenance. For artwork installed on private property as part of an approved project, the property owner will be responsible for maintenance for the life of the artwork. The city will be responsible for maintenance of the artwork in the city collection, except when the artwork is deaccessioned pursuant to Section 6-2609.

(Ord. No. 687, § 3(Exh. B), 10-23-2023)

(a) Public Art on Private Property. Public art for projects that was installed as a requirement of this chapter will not be removed or altered unless the replacement or alteration is reviewed by the committee and approved by the city council pursuant to Section 6-2605.

(b) Public Art in the City Collection. In accepting an artwork into its collection, the city will not be bound by any agreement with a project applicant or donor of artwork that restricts its ability to act in the city's best interests. Nothing in the acceptance of an artwork will prevent the city from approving subsequent disposal (removal, relocation, and/or sale) of such artwork if it serves the city's best interest to do so. When disposal is proposed, the committee will review the proposal and make a recommendation to the city council for final action. The city will deaccession and sell or otherwise dispose of artworks in its collection in accordance with the limitations of the California Preservation Act (Civil Code 987) and the Visual Artists Rights Act of 1990 (17 U.S.C. 106A and 113(d)).

(Ord. No. 687, § 3(Exh. B), 10-23-2023)

(a) In-lieu fees for public art for projects and maintenance endowments for public art for projects will be placed into a public art for projects fund maintained by the city. The public art for projects fund will be used exclusively to:

(1) Acquire or install public art for projects;

(2) Commission public art for projects for a specific site; and/or

(3) Maintain public art for projects.

(b) The committee will recommend to the city council how the public art for projects fund should be expended.

(c) A separate fund may be established for other funds designated for public art, such as awards and gifts, and used for the city's public art program, its administration, and the city's public art collection, including city sponsored public art.

(Ord. No. 687, § 3(Exh. B), 10-23-2023)

An applicant may submit a request and fee, as established by the city council, to the public art committee for an exception to modify Section 6-2603(a) and Section 6-2607(b). The public art committee shall review the request and make the finding that an unusual or compelling circumstance exists allowing an exception to be made. The city council shall be the final hearing authority on all exception requests.

(Ord. No. 687, § 3(Exh. B), 10-23-2023)

Notwithstanding any other section in the Code, the city may, subject to the criteria requirements set forth in Section 6-2607, approve the installation of murals funded or sponsored by the city on public or private property.

(Ord. No. 687, § 3(Exh. B), 10-23-2023)