Modesto Municipal Code Ch. 22 Public Art

The City Council adopts this chapter, also known as the "Public Art Ordinance," to guide the City of Modesto in the selection, installation, maintenance, and removal of displayed works of art in public places in order to make the City a more beautiful and enjoyable place for people to live, work, or visit.

This Public Art Ordinance is also adopted to achieve the following goals:

(a) Goal 1: Establish a Public Art Ordinance that serves the people of Modesto by making the City a more aesthetically pleasing and enjoyable place to live that reflects the City's diverse culture, history, future, and geography;

(b) Goal 2: Institutionalize the Public Art Ordinance within the City's Municipal Code to ensure the long-term life of the Ordinance and the art collection; and

(c) Goal 3: Develop a broad base of community and institutional participation and support for the Public Art Ordinance and cultivate new audiences and participants, including youth through public schools, art organizations, local tourist and visitor groups, as well as people who live and work near public art sites.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)

The following definitions shall apply to this chapter, and all other words used herein shall have their ordinary meaning:

(a) "Art Director" shall mean the Director of Community and Economic Development or other person designated by the City Manager.

(b) "Art Project" shall mean a work of artistic value that is unique, but may also be functional, and is acquired by the City independent of the design review process for a new development or existing building or site.

(c) "Temporary Art Project" shall mean an Art Project that is built in place but designed so that its usable life will be two (2) or fewer years.

(d) "Traveling Art Project" shall mean an Art Project that is acquired by the City, is designed to be mobile, and will only be displayed in the City for two (2) or fewer years.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)

(a) Administration. The Art Director shall administer this Public Art Ordinance. The Art Director's authority and specific duties to administer this Public Art Ordinance are enumerated in the applicable sections below.

(b) Staff Support for the Culture Commission. The Art Director shall serve as the professional staff support for the Culture Commission and shall be available to provide objective, professional recommendations on the merits of each Art Project submitted for the Culture Commission's consideration and other advice and support as needed.

(c) City's Art Program Facilitator. The Art Director shall also act as a creative and visionary contributor to the City's long-term development goals of acquiring public art and securing on-going sources of funding for acquisition and maintenance of public art.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)

The City of Modesto's Culture Commission, as created by Section 1110 of the City of Modesto City Charter, shall have the authority to do the following:

(a) Review and Approve/Deny Art Project Proposals. The Culture Commission shall have the sole authority to review and either approve or deny Art Project proposals submitted by outside parties. The Culture Commission shall only approve Art Project Proposals that (1) are fully funded (for creation and maintenance) according to the requirements of Section 4-22.07 entitled "Funding" below; (2) will fulfill the purpose of this chapter by making the City a more beautiful and enjoyable place to live, work, or visit; and (3) that will enhance and/or harmonize with other approved Art Projects in the City.

Section 4-22.05 below sets forth the procedure for the Culture Commission's review and determination of Art Project proposals by outside parties.

(b) Acquire or Commission Works of Art On Its Own Motion. The Culture Commission may on its own motion, acquire or commission an Art Project for installation or placement at a location of its choosing within the City, provided that (1) the Culture Commission is able to secure the necessary funding required by Section 4-22.07, below; (2) the Art Project will fulfill the purpose of this chapter by making the City a more beautiful and enjoyable place to live, work, or visit; and (3) the Art Project will enhance and/or harmonize with other approved Art Projects in the City.

The Culture Commission may secure funding either through an outside source or through City funding when funds are approved and designated by the City Council to be used for acquisition of City-owned public art. Nothing in this chapter is intended to give the Culture Commission the authority to spend General Fund money or other City funds without expressed, prior authorization of the City Council.

Section 4-22.06 below sets forth the procedure for the Culture Commission to select Art Projects on its own motion.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)

Any person or party may propose an Art Project, which shall be submitted on a form developed by the Art Director. The proposal must contain all of the items the Art Director deems necessary to constitute a full and complete submittal in a form that will facilitate Culture Commission review. At a minimum, proposals for Art Projects shall identify the artist, design details, proposed location and funding source(s). The Art Director shall review all proposals to determine whether they contain the required information. If the Art Director deems a proposal complete, he or she shall forward the proposal to the Culture Commission along with his or her written report analyzing whether the Art Project proposed will meet the goals of this chapter and whether the Art Project will enhance and/or harmonize with other approved Art Projects in the City. In determining this, the Art Director shall use the criteria identified in Section 4-22.06, below, wherever applicable.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)

When the Culture Commission decides by its own motion to acquire a Public Art Project or to commission the creation of an Art Project, it shall follow the following procedures:

(a) Methods of Selecting Artists or Designers. The Culture Commission shall determine the method of selection of the artist or designer, based on the circumstances surrounding the work it wishes to commission. Methods of selection include one (1) of the following:

(1) Limited competition: The Culture Commission invites artists and designers to submit proposals. This method may be appropriate where there are time constraints or for unique applications or where there is a very limited population of practitioners.

(2) Open competition: Any artist may apply, subject to qualifications and limitations established by the Culture Commission.

(b) Criteria for Selection of Artists or Designers. Regardless of the method employed for selecting the artist or designer, the Culture Commission shall use the following criteria when choosing an artist or designer for a proposed Art Project:

(1) The artist or designer's qualifications as demonstrated by past work;

(2) Appropriateness of the artist or designer's proposal to the particular project;

(3) The artist or designer's probability of successful completion; and

(4) Any specific criteria recommended by the Art Director for the particular Art Project proposed.

Selection of artists and designers will be without regard to race, color, creed, national origin, sexual orientation, or gender.

(c) Criteria for Selecting Art Works. The Culture Commission shall select art works based on the following criteria:

(1) Quality: Of highest priority are design capabilities of the artist/designer and the inherent quality of the art work(s).

(2) Media: All visual art forms may be considered, subject to limitations set by the Culture Commission.

(3) Style: Art works of all schools, styles, and tastes should be considered for the City collection.

(4) Nature and Context: Art works should be appropriate in scale, material, form, and content for the immediate, general, social, and physical environments with which they are to relate.

(5) Permanence: Consideration should be given to structural and surface integrity, permanence, and protection against theft, vandalism, weathering, excessive maintenance, and repair costs.

(6) Elements of Design: Consideration should take into account that public art, in addition to meeting aesthetic requirements, also may serve to establish focal points; modify, enhance, or define specific spaces; or establish identity.

(7) Public Liability: Art works should be examined for unsafe conditions or factors that may bear on public liability, including constitutional limitations on the content of the Art Project.

(8) No Selection of Art Project with a Disruptive Impact: It should be noted that the City is not creating a public forum by designating a site appropriate for the Art Project, so the Culture Commission may decline to select a work of art that it reasonably believes may provoke disturbance and offend workers and visitors including parents and children (e.g., display of sculpture of genitalia). (See e.g., Swim v. City of Austin, 105 F.3d. 655 (1996).) The Culture Commission's choice to reject such a submission for display shall be based on the potential impact of the disruptive effect of displaying the art and not because the Culture Commission disagrees with the artist's viewpoint or the message communicated by the work of art.

(9) Diversity: Art Projects in Modesto should reflect diversity of style, scale, media, and artists— including ethnicity and gender— and equitable distribution of art works throughout the City.

(10) Artist or designer work style: In general, artists or designers who have experience working successfully on design teams and working with the public are preferred.

(d) Criteria for Site Selection. If a specific site for display of an Art Project has not been predetermined by the proposal for an Art Project, the Culture Commission will review publically accessible City-owned sites for suitability, and shall select the City-owned property best suited to display the proposed Art Project. Criteria that would make a site "suitable" shall include the following:

(1) The public's ability to view the art;

(2) The site's size, location, color, and other characteristics which make it appropriate for the Art Project's scale, size, color, materials used, etc.;

(3) Ease of access to art work for maintenance;

(4) The location is the type that would allow for security measures to be implemented, if necessary, to minimize the likelihood of vandalism and/or the addition of the Art Project to the location would not increase the likelihood of vandalism to the Art Project or other City property;

(5) Display of art at the site will not disrupt employees or the public;

(6) Display of art at the site will not permanently damage City property; and

(7) Display of art at the site will not pose a threat to public safety.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)

(a) Funding for Art Projects, including approved in-kind material and labor costs, may come from City appropriations, grant-making foundations, individuals, and/or from local businesses and organizations.

(b) All funds secured for publicly displayed Art Projects shall be deposited into a public art account and shall be used solely for public art. In the case where financial contributions are designated for a specific Art Project, surplus funds shall be returned to the funder when the project is complete or in the case of funds originating from the City's general fund or other designated City account, surplus funds shall be returned to the general fund or the other designated City account.

(c) A contractual commitment for the contribution of qualified artistic and professional services and materials may be considered in lieu of cash funding for up to ninety (90) percent of the cash funding necessary for each Art Project. However, at least ten (10) percent of the funding for each Art Project must be provided in cash to provide for the maintenance of the Art Project.

(d) All costs associated with installation, maintenance, security, insurance, and removal of a temporary Art Project or a traveling Art Project, as well as repair and restoration of walls and other property at the City-owned installation site will be funded by the individual, group, business or government agency that proposed the acquisition of the temporary or traveling Art Project and provided funded for the acquisition. If a City department proposed acquisition of the temporary or traveling Art Project, funding for these costs shall be provided by that City department, unless the City Council determines that the funds should come from the City's general fund or some other source of City funding.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)

(a) Use of Funds for Design, Construction, and Installation. At least seventy-five (75) percent of the funds set aside for each Art Project must be spent for:

(1) Artist's or designer's fees including travel expenses, conceptual development, and proposals.

(2) Artist's or designer's selection processes, including jury selection costs and model or design fees.

(3) Semi-finalist proposals and travel expenses.

(4) Design work which can include, but is not limited to:

(i) Outdoor space design elements in areas such as plazas, arcades, and pedestrian passageways;

(ii) Artistic design of roadways, parkways, pedestrian or bicycle paths, transit system improvements, water and wastewater facilities;

(iii) Sites with historic, archeological, and unique geological features; and

(iv) Collaborative projects, i.e., artists as members of design teams working with architects, landscape architects, engineers, etc.

(v) The work of art itself, which can be, but is not limited to:

a. Major three-dimensional art works; as landmarks, focal points, gateways, fountains, architectural embellishment, and site-specific sculptures;

b. Other major art work or craftwork; paintings, collages, ceramics, textiles, neon and light, architectural and decorative glass, reliefs, murals, enamels, and photo works;

c. Objects and artifacts to create a sense of place: more modest, small scale interventions by artists such a paving markers, milestones;

d. New technologies such as LED displays, websites, video, and projections;

e. Street furniture;

f. Interior structural works: flooring, frescos, lighting, wall coverings, windows;

g. Commemorative works, including statues and inscriptions; and

h. 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 includes an artist.

(vi) Related expenses, including:

a. Gallery fees;

b. City required permits;

c. Labor and materials;

d. Operating costs;

e. Project related travel;

f. Transportation of the work to the site; and

g. Installation.

(vii) Frames, mats, mounting, anchorage, pedestals, cases or other materials necessary for the installation and/or security of the work.

(viii) Slides and other documentation.

(ix) Insurance.

(x) Fees for consultants for work related to the design, construction, or installation of Art Projects.

(xi) Structures designed specifically for the display of art works.

(xii) Repair, maintenance, surveys, curatorial services, and other conservation work necessary to keep all art works in the City collection in standard condition.

(xiii) Artists' and craftspersons' budget which can include but is not limited to the following:

a. Professional fees;

b. Labor and other contracted services;

c. Insurance costs related to the project;

d. Studio overhead/operating costs relevant to the project;

e. Dealers/agents fees;

f. Travel and transportation costs;

g. Site preparation and installation costs;

h. Project documentation and promotion; and

i. Fees required for community liaison, education etc.

(b) Use of Funds for Administration and Related Activities. No more than fifteen (15) percent of the funds set aside for each Art Project may be spent on:

(1) Administration;

(2) Education activities;

(3) Collection management of public art;

(4) Dedications and publicity; and

(5) Identification plaques and labels.

(c) Use of Funds for Maintenance. At least ten (10) percent of the funds set aside for each Art Project shall be spent on maintenance.

(d) Exclusions:

Public art funds shall not be spent for:

(1) Reproductions of original art works (whether by mechanical means or otherwise) except in the case of video, photography, printmaking, or other media-based art.

(2) Objects which are mass produced of standard design, such as playground equipment, benches, decorative lighting, or fountains.

(3) Directional elements such as signs, maps, color coding, unless designed and/or executed by an artist or designer.

(4) Provision of services or utilities necessary to operate or maintain a work of art over time. Specific elements that are deemed part of the work, e.g., motors, pumps, lights etc., are eligible.

(5) Industrial and other artifacts except when incorporated into an original work of art by an artist or designer.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)

Artists and designers who create Art Projects under this chapter shall have the following rights under this chapter:

(a) Art Projects and art concepts cannot be altered, modified, removed, or moved from a site which is integral to the concept of the work without the artist's written permission. If a work, nevertheless, has been significantly altered, the artist/designer shall have the right to disclaim authorship. If the City's best and reasonable efforts to contact the artist/designer and receive written permission have failed, the City may proceed with its plans to alter, modify, remove, or move an Art Project from its site.

(b) Maintenance of Art Projects shall be the responsibility of the City, not the artist or designer.

(c) Repairs and restorations shall be the responsibility of the City. The City shall notify the artist or designer before repairs or restoration in order to provide an opportunity for comment. If that which needs care is art work separate from a building or not integral to the architecture, the City may offer the artist or collaborative team the right to do the work or to supervise it. The City shall reserve the right to make minor and/or emergency repairs without consulting the artist or designer so long as those repairs are done according to the "Materials and Care" instructions that the artist/designer must provide at the time of acquisition.

(d) The artists/designers are entitled to pay according to the current national rate, unless otherwise agreed upon by the artist.

(e) Copyright of public art works and art concepts shall belong to the creator(s), but the City must be granted the right to make two-dimensional reproductions for noncommercial purposes in the contract.

(f) An artist or designer involved with creating an art work, or act concept shall have rights to supervise construction, fabrication, and/or application of ideas when done by third parties for the purposes of quality and design control.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)

(a) An artist/designer who desires to be selected by the City to create art for the City shall:

(1) Submit credentials, proposals, and/or materials as directed for the consideration by the Culture Commission;

(2) Conduct necessary research, including attending project orientations and touring project sites and meetings with the public, when possible;

(3) When selected, execute and complete the work, or transfer title of an existing work, in a timely and professional manner;

(4) Work closely with the project manager and/or other design professionals on commissioned projects;

(5) Submit to the Culture Commission for review and approval any significant change in the scope of the project, color, material, design, or setting of the work;

(6) Be responsible for all phases of the project as stipulated in the contract;

(7) If required by contract, make a public presentation, conduct a community education workshop, or do a residency at an appropriate time and appropriate forum in the community where the art work will be placed or the project will occur; and

(8) Be responsible for the timely and safe delivery of Art Project to appropriate destinations as determined by the Art Director.

(b) The following warranties should be provided by artists or designers contracted by the City:

(1) The art work or art concept is the result of the artistic efforts of the artist/designer except in the case of design collaboration;

(2) The art is unique and original and does not infringe upon any copyright;

(3) The art or a duplicate has not been accepted for sale elsewhere;

(4) The art is free and clear of any liens;

(5) The execution and fabrication of the art will be performed in a professional manner in keeping with the laws of the State of California especially regarding safety and environmental issues;

(6) The art as fabricated and installed will be free of defects in material and craftsmanship, including any defects consisting qualities which cause or accelerate deterioration;

(7) Reasonable maintenance of the art will not require procedures substantially in excess of those described in the maintenance instructions submitted by the artist; and

(8) The artist/designer maintains a valid business license and conducts business according to the laws of the state of California.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)

The Art Director shall review all requests to gift art to the City, and shall recommend to the Culture Commission to accept or decline any art works donated to the City.

(a) The Culture Commission shall consider the following criteria in determining whether to accept a gift of art to the City:

(1) Aesthetic considerations to assure art works of the highest quality, based on a detailed written proposal and concept drawing for the project, photographs of the art work, if existing, and documentation of the artist's professional qualifications.

(2) Financial considerations based on cost of implementation, sources of funding, a maintenance agreement between the City and the donor, and estimated cost to the City over the life of the art work.

(3) All donations of art works must have a guaranteed source of funding for maintenance.

(4) Liability based on susceptibility of the art work to wear and vandalism, potential danger to the public and special insurance requirements.

(5) Environmental considerations based on physical appropriateness to the site and scale of the art work.

(6) The project does not create any public safety or security issues.

(b) The Culture Commission may accept gifts of art that do meet these criteria in the following situations:

(1) Gifts of state presented to the City of Modesto by foreign governments—municipal, state, or national —which may be accepted by the Mayor, the City Council, or the City Manager on behalf of the City.

(2) Art work or exhibitions loaned for display on City property for two (2) years or less. Review and approval shall be the responsibility of the Art Director, the owners of the art, and the agency or department with jurisdiction over the space involved.

(3) Displays at City cultural centers and museums.

(c) The Culture Commission shall consider the following additional criteria in determining whether to accept memorial gifts:

(1) A person memorialized must have been deceased for a minimum of three (3) years or an event memorialized must have occurred at least three (3) years ago;

(2) The memorial has timeless qualities and makes a statement of significance to future generations;

(3) The memorial represents a person or event deemed significant to the community's history;

(4) Ramifications to the proposed site are considered including the possibility of diminishing public access or limiting use; and

(5) Alternative sites on private property were considered and determined inappropriate.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)

(a) The City shall retain the right to remove any work of art in the City's collection regardless of the funding source for that work; however, removing the items from the collection should be a deliberate and seldom-used procedure. It is the chapter of the City not to dispose of works simply because they are not currently in fashion and not to dispose of works whose worth might not yet be recognized.

(b) Art work may be considered for removal if one (1) or more of the following conditions apply:

(1) It has received consistent adverse public reaction for more than a five (5)-year period from a measurably large number of individuals and/or organizations.

(2) Removal has been requested by the agency that displays the work.

(3) It is found to be fraudulent or not authentic.

(4) It possesses faults of design or workmanship.

(5) It causes excessive or unreasonable maintenance.

(6) It is damaged irreparably, or to an extent where repair is unreasonable or impractical.

(7) It represents a physical threat to public safety.

(8) A suitable place for display no longer exists.

(9) The work is not, or is rarely, displayed.

(10) A written request from the artist has been received.

(11) The work has resulted in litigation or, in the determination of the City Attorney, significant risk of legal exposure that cannot readily be addressed by means other than removal.

(c) Requests to remove Art Project shall be directed to the Art Director. The Art Director shall make a recommendation to the Culture Commission whether to approve or deny requests to remove Art Projects from the City. The Culture Commission has the authority to approve or deny requests to remove Art Projects from the City, which decision shall be based on the criteria set forth in Section 4-22.12(B) above.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)

Requests to borrow an Art Project from the City shall be granted or denied by the Culture Commission. In considering whether to loan an Art Project from the City's collection, the Culture Commission shall consider the following criteria:

(a) The organization or party borrowing the art work and the purpose for borrowing it;

(b) Duration of loan;

(c) Amount and provider of insurance;

(d) Any expense to the City; and

(e) Any payment for use to the City, and how the City will be credited in any printed or verbal messages about the Art Project.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)

(a) In accordance with the standards and procedures set forth by the Art Director pursuant to his/her authority under this chapter, each City department shall designate an individual to maintain and conserve Art Projects in that City department's public spaces.

(b) Regular maintenance of Art Projects (i.e. cleaning) shall be the responsibility of the department that maintains and cleans the area or building in which the work is located, in consultation with the Community and Economic Development Department.

(c) For all non-routine maintenance, City departments shall not execute or cause to be executed any maintenance or repairs to Art Projects without consent and guidance of the Art Director.

(d) City departments shall not move any Art Project from the site for which it was selected, nor remove it from display without the consent of the Art Director.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)

This Public Art Ordinance may only be amended through ordinance of the City Council.

(Ord. No. 3617-C.S., § 1, effective 6-12-15)