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City of Alameda Amendment Updating the Public Art Ordinance. The Planning Board will consider modifications to update and improve the regulations governing the Public Art Ordinance. The proposed amendment is categorically exempt from further environmental review pursuant to State CEQA Guidelines 15305 Minor Alterations to Land Use Limitations
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CITY OF ALAMEDA
Memorandum
To: Honorable President and
Members of the Planning Board
From: Lois Butler
Economic Development Manager
Date: March 13, 2017
RE: City of Alameda Amendment Updating the Public Art Ordinance. The Planning Board will consider modifications to update and improve the regulations governing the Public Art Ordinance. The proposed amendment is categorically exempt from further environmental review pursuant to State CEQA Guidelines 15305 Minor Alterations to Land Use Limitations.
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BACKGROUND
Alameda Municipal Code Section 30-65 Public Art in New Commercial, Industrial, Residential and Municipal Construction (the "Ordinance,”) was adopted in 2003, to require that major development projects include on-site public art. The Ordinance also allows an applicant to pay a fee in-lieu of providing the art on-site. Any in-lieu fees collected are deposited in the dedicated Public Art Fund (the "Fund"). The Fund can then only be used by the City to provide or support public art. Staff is requesting that the Planning Board recommend approval of the amended Public Art Ordinance to the City Council. While the staff report also discusses the Public Art Commission’s (PAC’s) action on the Request for Proposals (RFP) for disbursing Public Art Fund monies, staff is not requesting any action from the Planning Board on that issue.
Since 2003, eleven public art installations have been completed on-site or are in progress at various private and municipal developments. Because many developers have chosen to install art on-site, annual in-lieu contributions to the Fund have been minimal, and the fund balance remained relatively low. Historically, the small size of the Fund made dispersal of funds a challenge: from fiscal years 2003-04 to 2014-15, the average Fund balance was $62,649, with a maximum balance of $83,807. To date, the Fund was used for a consultant study, described below, and to cover City costs to administer the program. Only in the last year has the Fund increased significantly due to in-lieu payments from two large developments. As of January 2017, the Public Art Fund’s accumulated available balance was $374,065.
In January 2011, the City Council authorized a study to review, assess and update the City art program. Synergy: Public Art for Alameda (the “Synergy Report”) was completed in November 2014. (The Synergy Report is available on the City website at: <http://alamedaca.gov/sites/default/files/department-files/2014-10-29/synergy_public_art_report_-final.pdf>.)
In November 2014, the City hosted a community meeting to discuss recommendations in the consultant report for changes to the Ordinance, in order to facilitate the City’s ability to disperse funds, based on recommendations in the consultant’s report. On February 18, 2015, the PAC recommended that the City Council approve the proposed amendments to the Ordinance, and on November 23, 2015, the Planning Board recommended that the amendments be forwarded to the City Council for adoption.
At the October 4, 2016 City Council meeting, staff introduced the proposed Ordinance amendments and recommended that $200,000 be appropriated for the design and installation of public art, and for cultural arts and arts programming through a public RFP process in the City of Alameda. Discussion of the item was continued to the October 18, 2016 Council meeting. A supplemental staff report was prepared for the October 18th Council meeting recommending that the level of funding to be appropriated be increased from $200,000 to $350,000 to reflect additional fees received in October of 2016. The staff recommendation for appropriation of funds was as follows:
• $100,000 for the design and installation of public art in the Jean Sweeney Open Space Park,
• $162,500 for citywide physical public art installation(s), and
• $87,500 for citywide cultural arts and arts programming.
Consistent with the Ordinance, this proposed appropriation of funds allocated 25% of funds to cultural arts and arts programming, and 75% of funds for the installation of physical public art.
At the October 18, 2016 meeting, based on testimony received at the public hearings, the City Council requested that the proposed amendments to the Ordinance be returned to the PAC for review and recommendation. The Council directed staff to present the following topics to the PAC for review and recommendation. Because the Public Art Ordinance is part of the Zoning Ordinance, staff is requesting that the Planning Board review the proposed changes to the Public Art Ordinance and provide its recommendation on the topics below:
• Removing staff administrative costs as an allowable use of the Fund
• Removing maintenance costs as an allowable use of the Fund
• Preserving or removing the public art focus on Alameda’s historic and maritime traditions
• Increasing or removing the cap on developer contributions
• Increasing the required public art contribution from 1% to 1.5% of project valuation
• Lowering the cap on administrative costs for third-party grantee organizations
• Ensuring cultural arts and arts programming funded by the Fund be free of charge to the general public
• Maintaining or changing the requirement that 25% of funds be allocated to cultural arts and arts programming, and 75% of funds be allocated for the design and installation of physical public art.
The topics listed above are discussed in more detail in the following section. A compilation of the previous staff reports and analysis is provided in Exhibit 1.
A January 18, 2017 special meeting of the PAC was scheduled to discuss the proposed changes to the Ordinance. The meeting was subsequently canceled due to lack of a quorum. Instead, a community meeting was held in lieu of the PAC meeting. Staff gave a presentation, followed by questions and comments from community members. A full summary of public comments is provided in Exhibit 2, but general comments included:
• Concerns and ideas about how to replenish and sustain the Public Art Fund once the current balance has been distributed.
• Suggestions to improve administration and marketing of the Public Art Program, including improvements to the website, public art tours, and an updated directory of Alameda-based artists for developers providing on-site public art.
• A desire for diversity of public art in Alameda, including support for removing the requirement that public art focus on historic or maritime themes.
• In general, support for the recommendations assembled in the PAC staff reports.
On February 15, 2017, the PAC reviewed and recommended that the City Council approve a series of amendments to the Ordinance. Those amendments are discussed below. The PAC also reviewed and recommended changes to a draft RFP for public art.
The discussion at the February 15, 2017 PAC Meeting was primarily supportive of the recommendations made by staff, particularly the recommendation to remove the requirement that public art have a historic or maritime theme. In addition, the PAC requested several changes be made to the draft RFP, including changing the evaluation criteria to include a greater weight for local preference, and to add a new criterion evaluating the artwork’s association with Alameda’s community and traditions. The PAC also requested that durability and suitability of materials be included in the evaluation process. Finally, the PAC made a recommendation to adopt staff’s recommendations, with those modifications, and to ask Council to find ways to supplement the public art program with the General Fund.
DISCUSSION
Staff is seeking Planning Board review of the recommended changes to the Ordinance outlined below. These recommendations include the topics referred by the City Council (see above), as well as recommendations from the Synergy report. All of the recommended changes outlined below are reflected in the proposed revised Ordinance (Exhibits 3 and 4).
I. Clarify and strengthen the purposes of the Ordinance to better connect the vision, values and strategies for public art to the broader ambitions of the City.
The proposed purposes, recommended in the Synergy report, are intended to strengthen the understanding of the City’s goals in establishing a public art ordinance.
II. Clarify ordinance exemptions.
The proposed amendments clarify the list of exempt developments to include:
• Affordable housing (100% affordable),
• Designated historic landmarks, and
• Cultural facilities, and
• Public and non-profit projects, including parks, that the City Council finds it is in the best interest of the Alameda community to exempt.
III. Clarify the requirements and options for physical, on-site public art.
The proposed amendment includes a more specific list of appropriate physical art forms to meet the on-site public art requirement for private and municipal development. The proposed on-site list specifically excludes temporary cultural events, performances, and construction of stages, outdoor performance spaces, and other physical structures that may support the arts but are not themselves forms of art.
IV. Clarify the application and review process for on-site public art applications.
The proposed amendment clarifies the application and permit approval process and timeline for private applications for on-site public art. The revisions better reflect the City’s review process for public art.
V. Remove maintenance costs as an allowable use of the Public Art Fund.
Maintenance costs for public art include the cost of regular cleaning and service, as well as repairs, restoration and conservation of the artwork. The existing Ordinance allows the Fund to be used to maintain public art, and the Synergy Report recommends that 10% of the public art funding allocation for each city project be set aside for the preservation and maintenance of artwork on public property.
Removing maintenance costs as an allowable use of the Fund will ensure that the maximum share of Fund monies are used for the design and installation of public art. Maintenance costs for art on public property shall the responsibility of the public entity accepting the public art. Maintenance of public art on private property shall continue to be funded by the private property owners.
VI. Remove City staff administrative costs as an allowable use of the Public Art Fund.
Staff administrative costs associated with the Ordinance include processing and facilitating approval of on-site public art applications by private developers, reporting to PAC and City Council, and releasing and administering any future Requests for Proposals for public art, among other costs. The existing Ordinance currently states that no more than 25% of the Fund can be used for City administrative costs, and the Synergy report recommends lowering the cap on City administrative costs from 25% to 20% of the Fund.
Removing City administrative costs as an allowable use of the Fund will ensure that the maximum share of Fund monies are used for the design and installation of public art, or for cultural arts and arts programming. For artwork funded by the Public Art Fund, City administrative costs shall be budgeted from the General Fund as part of the regular budgeting cycle. For on-site public art, staff recommends, as part of the permit fee, a processing fee for private development based on actual time and material costs.
Removing City staff administrative costs as an allowable use of the Public Art Fund does not preclude the use of grant funding for third-party administrative costs associated with cultural arts and arts programming (see Item XIV).
VII. Expand the list of allowable uses of the Fund to include grants to non-profit arts and cultural organizations.
Local non-profit arts organizations, cultural organizations, and/or educational organizations may be well-positioned to use Public Art Fund grants to provide publicly accessible cultural arts performances, events, and/or arts education.
VIII. Require that all cultural arts and arts programming funded by the Fund be free of charge to the general public.
To be considered public art, it is important that cultural arts and arts programming be as publicly accessible as possible. The requirement that all cultural arts and arts programming be free of charge will ensure that all public art generated by the Ordinance is accessible to the general public.
IX. Change annual planning requirements and fund balance reporting to coincide with the City’s biennial budget cycle.
The proposed amendment changes the requirement to develop a plan for the use of the Public Art Fund from annual to biennial, to better coincide with the City’s biennial budget cycle. This change also minimizes administrative costs associated with the Public Art Fund.
Staff is seeking Planning Board input and recommendation on the issues outlined below, which include additional topics referred to the PAC and Planning Board by the City Council.
X. Shall the requirement for public art to focus on Alameda’s historic and maritime traditions be removed or preserved?
The current Ordinance contains a requirement that public art relate to historic or maritime traditions. Preserving this requirement would ensure that public art consistently adhere to historic or maritime themes. Removing or modifying this requirement would allow for a diversity of public art in Alameda and provide the PAC maximum flexibility in approving the design and installation of public art. Council discussion on this topic was mixed, with several Councilmembers in favor of preserving the focus on historic and maritime traditions, and others in favor of removing it.
In the draft Ordinance recommended by staff, and supported by the PAC, the historic and maritime tradition requirement is removed in order to provide for maximum diversity of public art, and flexibility for the PAC in approving public art.
XI. Shall the cap on the maximum public art contribution be maintained, increased, or removed?
All projects with a development cost over $250,000 are currently required to spend 1% of the development cost on public art or pay an in-lieu fee, up to a maximum of $150,000. Historically, the City has negotiated higher public art requirements for larger projects such as Alameda Landing and Alameda Point Site A. Other northern California cities that staff researched do not include any cap on contributions through their Public Art ordinances (Exhibit 5).
The Planning Board can recommend to preserve the maximum contribution, increase it, or remove it altogether. Preserving the $150,000 maximum cap would limit future contributions to the Fund, while maintaining current fees for new development. An increase in the maximum, with annual adjustments tied to the San Francisco Area Consumer Price Index, or removal of the maximum altogether would bring the City of Alameda ordinance into closer alignment with other California public art ordinances. It would also eliminate the need to negotiate individual caps for large projects through the Development Agreement process. Although increasing or removing the cap may result in greater contributions to the Fund, it may increase development costs for some projects, and therefore should be given careful consideration.
At the February 2015 meeting, the PAC recommended inclusion of an amendment that would encourage developers to contribute their 1% directly to the Fund if the development project is valued between $250,000 and $1,000,000; and to split the money 80% for physical on-site art and 20% to the Fund if the development project is valued over $1,000,000. This amendment is not being recommended because legally the Ordinance must allow developers the option of installing the art themselves or providing in-lieu funds. If developers are required to pay in-lieu funds, the Ordinance may be subject to the Mitigation Fee Act (Government Code 66000-66025) and would require a nexus study to justify the fee amount.
In the draft Ordinance recommended by staff, and supported by the PAC, the cap is removed in order to bring the Ordinance into closer alignment with other California public art ordinances and eliminate the need for individual negotiations. This change would not impact existing, legally binding agreements for recent or forthcoming developments.
XII. Shall the required public art contribution be increased from 1% to 1.5% of development costs?
All projects with a development value over $250,000 are currently required to spend 1% of the development cost on public art or pay an in-lieu fee, up to a maximum of $150,000. During the public comment period at the October 18 City Council meeting, community members asked whether the required contribution of 1% could be increased.
Supplementary research conducted by staff found that the 1% requirement is consistent with Public Art ordinances in many other Bay Area cities (Exhibit 5). Similar to increasing or removing the cap on the maximum public art contribution described above, increasing the required contribution from 1% to 1.5% may result in greater contributions to the fund, but would also increase development costs for most projects.
In order to keep the City’s development fees and requirements comparable to and competitive with those of other Bay Area cities, the draft Ordinance recommended by staff, and supported by the PAC, maintains the required contribution at 1%.
XIII. Should the current requirement that 75% of funds be allocated for the design and installation of physical public art and 25% to cultural arts and arts programming be maintained or changed?
Maintaining the current distribution requirement would ensure that Fund monies contribute to cultural arts and arts programming in the City of Alameda. Changing or removing the current distribution requirement would provide the PAC more flexibility to allocate funds in response to changing priorities within the arts and culture community.
In the draft Ordinance recommended by staff, and supported by the PAC, the requirement is changed to specify that no more than 25% of funds be allocated to cultural arts and arts programming, in order to allow the PAC maximum flexibility to allocate funds, particularly in years with a low Fund balance.
XIV. For grants to third-party organizations, should there be a cap on the maximum share of budget that can be used by grantee organizations for administrative costs, and if so, what should it be?
The proposed revisions to the Ordinance include allowing grants to non-profit and cultural institutions. Restricting the maximum share of the budget that can be used by third-party providers for administrative costs would ensure that the maximum amount of funding goes to the provision of public art. Standard caps on administrative costs for arts grants range from 10% to 20%, depending on how administrative costs are defined.
However, staff research suggests that many public and philanthropic arts grant programs are moving away from set caps on administrative costs (Exhibit 6). Proponents of this approach say that appropriate administrative costs can vary by organization and type of programming, and programs such as gallery exhibits, dance concerts and film festivals can have much higher appropriate administrative costs (up to 50%). In programs without a set cap on administrative costs, the PAC would need to evaluate each application on a case-by-case basis, as part of the RFP process.
In the draft Ordinance recommended by staff, and supported by the PAC, there is no set cap on third-party administrative costs. Rather, it is recommended that these costs be evaluated on a case-by-case basis as part of the application process.
In conclusion, staff recommends that the Planning Board hold a public hearing and approve the following recommended changes to the Public Art Ordinance, these changes were previously recommended for approval by the PAC:
1. Clarify and strengthen the purposes of the Ordinance to better connect the vision, values and strategies for public art to the broader ambitions of the City.
2. Clarify ordinance exemptions.
3. Clarify the requirements and options for physical, on-site public art.
4. Clarify the application and review process for on-site public art applications.
5. Remove maintenance costs as an allowable use of the Public Art Fund.
6. Remove City staff administrative costs as an allowable use of the Public Art Fund.
7. Expand the list of allowable uses for the Fund to include grants to non-profit arts and cultural organizations.
8. Require that all cultural arts and arts programming funded by the Fund be free of charge to the general public.
9. Change annual planning requirements and fund balance reporting to coincide with the City’s biennial budget cycle.
10. Remove the requirement for public art to focus on Alameda’s historic and maritime traditions.
11. Remove the cap on the maximum public art contribution.
12. Maintain the current public art contribution at 1%.
13. Specify that no more than 25% of funds can be allocated to cultural arts and arts programming.
14. Do not set a cap on the maximum share of budget that can be used by grantee organizations for administrative costs.
ENVIRONMENTAL REVIEW
The proposed amendments to the Zoning Ordinance regarding public art are categorically exempt under California Environmental Quality Act (CEQA) Section 15305 - Minor Amendments to Land Use Limitations.
PUBLIC NOTICE AND COMMENTS
A public hearing was advertised in the newspaper and posted on the City website.
RECOMMENDATION
Staff recommends that the Planning Board hold a public hearing and approve the recommended changes to the regulations governing the Public Art Ordinance and recommend adoption by City Council.
Respectfully Submitted,
Amanda Gehrke
Management Analyst
Exhibits:
1. Background Information (Current ordinance and previous staff reports)
2. Public Art Community Meeting, Summarized Public Comments, 1-18-2017
3. Proposed Changes to Ordinance (Strike-out/underline version)
4. Proposed Changes to the Ordinance (Clean version)
5. Summary of Public Art Requirements
6. Summary of Administrative Caps for Arts and Cultural Grants Programs