SR-400-005-24 (2)
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City Council Report
City Council Meeting: November 28,2006
Agenda Item: 16
To:
Mayor and City Council
From:
Eileen Fogarty, Director, Planning & Community Development
Subject:
Introduction and First Reading of an Ordinance Adding Part 9.04.10.20 et
seq. to Chapter 9.04 of the Santa Monica Municipal Code to Establish a
Private Developer Cultural Arts Requirement and Adoption of a Resolution
to Establish a Fee to Satisfy the Private Developer Cultural Arts
Requirement.
Recommended Action
Staff recommends that the City Council:
1. Introduce for first reading the proposed Ordinance adding Part 9.04.10.20 et seq.
to Chapter 9.04 to the Santa Monica Municipal Code to establish a Private
Developer Cultural Arts Requirement, and
2. Adopt a Resolution establishing the fee required to satisfy the On-site
Participation or In-lieu Contribution Requirements.
Executive Summary
On April 11. 2006, the City Council conducted a public hearing and considered a study
prepared by Keyser Marston Associates which evaluated measures for obligating
private developers to make a contribution to arts and culture in Santa Monica.
Following discussion of the study and staff recommendations, the Council directed staff
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to prepare an ordinance requiring new commercial and multi-unit residential
development to incorporate art and cultural resources or to make an in-lieu payment to
support art and cultural resources Citywide. This report presents a proposed Private
Developer Cultural Arts Requirement Ordinance and the related process for
implementing the ordinance, and a Resolution to establish a fee to satisfy the
requirement.
Discussion
BackQround
The experience of public art and cultural resources makes the public areas of buildings
and their grounds more welcoming, and promotes the general health and welfare of its
citizens by making the City more livable, and visually and aesthetically pleasing.
As properties develop within the City, land values rise and cultural venues and
environments can rarely compete for facilities as the prices for rent or purchase
increase. The opportunities for artistic resources become diminished and the City's
physical environment is impacted.
The City commissioned Keyser Marston Associates (KMA) to analyze opportunities to
promote art and cultural resources in concert with new development. The KMA study
determined that several cities impose a Percent for Art or Art in Public Places
requirement, expressly having concluded that their programs are not subject to detailed
nexus analysis requirements. This conclusion is supported by Ehrlich v. City of Culver
City (1996) 12 Cal.4th 854 in which the California Supreme Court upheld an art in public
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places ordinance. The exact extent of cities' powers under Ehrlich is unclear,
particularly with regard to offsite cultural amenities. Nonetheless, the court determined
that this type of fee was not a development exaction, but was more of a traditional
aesthetic land use regulation like other design and landscape requirements imposed by
cities.
"The requirement of providing art in an area of the project reasonably
accessible to the public is, like other design and landscaping
requirements, a kind of aesthetic control well within the authority of the city
to impose." (Ehrlich at 886.)
Based on this distinction, the Developer Arts Contribution is a cash equivalent that is not
subject to the Mitigation Fee Act, but may be imposed under the city's zoning authority.
As a result, the study and staff recommended that art be supported by a percent for art
ordinance, rather than by an impact fee such as the Child Care Linkage Fee.
Proposed Ordinance
The ordinance was prepared in response to key direction provided by Council at its April
2006 hearing. The proposed ordinance contains the following provisions:
. Contribution Amount: A percentage contribution of 2 percent for on-site art and
1 percent for an in-lieu contribution. [Section 9.04.10.20.110 and 9.04.10.20.120]
. Applicability: The ordinance contains specific definitions developed for the purposes
of identifying applicable Development Projects, Artist, and Art Work, Average per
Square Foot Cost of Construction. Percentage of construction cost will be
determined by a per square foot amount adopted by separate resolution as
authorized by this Ordinance. [Section 9.04.10.20.060] .
. Thresholds: Establishes a square foot threshold of 7500 for commercial projects,
includes remodels and tenant improvements exceeding 25,000 square feet and
requiring Architectural Review Board approval, and includes all new residential
projects of five units or more. [Section 9.04.10.20.020].
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. Historic Resource Reduction: The developer may reduce the requirement through
equivalent expenditures on the rehabilitation, renovation, preservation or restoration
of an historic resource per the Secretary of Interior Standards as verified by the
Landmarks Commission or Landmarks Commission Secretary. [Section
9.04.10.20.040]
. On-Site Art Option: Provides a detailed description of the process for developing on-
site art, including criteria for eligible artist and art work [Section 9.04.10.20.050],
eligible expenditures [Section 9.04.10.20.080], application and review procedures
and ownership and maintenance of Art Work [Section 9.04.10.20.090].
. On-Site Cultural Facility: Provides the process for satisfying the ordinance
requirement by including in the primary development an on-site cultural facility such
as a museum, gallery or performance space. This approval process would require
joint approval by the Arts Commission and the approving body for the larger
development project. [Section 9.04.10.20.110]
. In-lieu Contribution: Allows the developer to make a cash payment prior to certificate
of occupancy equivalent to one percent of construction cost in-lieu of providing on-
site art. The amount of the payment is determined at the time of building permit
issuance. [Section 9.04.10.20.120]
. Use of Funds: Establishes a City Cultural Arts Trust Fund for design, acquisition,
improvement, repair, conservation and insurance of an Art Work, sponsor or support
cultural facilities, or for other equivalent artistic and cultural uses approved by the
Arts Commission. The Cultural Arts Trust Fund will provide annual budget reporting
in keeping with the community and cultural priorities established in the adopted
Cultural Master Plan. [Section 9.04.10.20.150]
Proposed Resolution
The proposed resolution will establish the developer contribution necessary to satisfy
the on-site participation or in-lieu contribution requirements. In order to facilitate the
collection and evaluation of the arts obligation, the on-site or in-lieu contribution is
proposed to be based on an assumed per square foot construction cost (2% of building
cost for on-site contribution; 1 % of building cost for in-lieu contribution) as described in
the Resolution (Attachment B). This method of assessment is consistent with existing
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building permit procedures and calculations of developer costs at the time of permit
Issuance.
The 2003 KMA analysis estimated construction costs at that time. Evaluating escalation
since the KMA analysis as well as construction cost estimates for private and City
sponsored projects being bid for construction today the following current per square foot
average construction casts are proposed in the resolution.
Residential and Commercial $200/square foot
Tenant Improvements $50/square foot
The proposed resolution would establish the initial per square foot contribution, which
would be adjusted each year based on the appropriate Engineering Construction Cost
Index.
Use of Funds
In-lieu contributions will be held in a separate account to be dispersed for the support of
cultural resources as prioritized in the Community Cultural Plan. Prior to the effective
date of the ordinance, staff will prepare administrative instructions for implementing the
ordinance to be included in Planning and Community Development application
materials. The instructions will describe in detail the criteria for how art is evaluated if
the on-site option is chosen, and the processes for approval of either on-site art or
facilities construction. In addition, during the initial period of ordinance implementation,
staff will assess the city resources required to process and evaluate applications for on-
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site art and culture. On the basis of that initial assessment, staff will prepare application
fees for consideration as part of the fiscal year 06/07 budget adoption.
Alternatives
In crafting the recommendations, staff considered a number of alternative ways of
structuring such a requirement, including using the same percent ratio between on-site
art and the in-lieu option. However, in analyzing each of the alternatives in light of the
results of existing programs and the specific circumstances in Santa Monica, staff
believes this approach is the most appropriate to:
. Ensure that developers allocate adequate funding for high quality cultural and
artistic elements that significantly enhance the public realm in keeping with the
existing high aesthetic standards;
. Encourage developers that are not committed to developing site-specific artistic
or cultural components of their projects to contribute to established community
cultural priorities by providing a significant discount for the in-lieu option;
. Balance the higher staff costs associated with administering the on-site
requirement with the more limited staff impact of managing a trust fund; and
. Allow for the flexibility and community specific nature that are the hallmarks of
such requirements in other cities that are acknowledged to have successful
programs.
Arts Commission/Public Art Committee and Planninq Commission Action
The Arts Commission and its Public Art Committee considered the percent for art
program at a special joint meeting on October 17, 2005. The Arts Commission and
Public Art Committee recommended approval. The Planning Commission unanimously
recommended approval at its December 7, 2005 meeting.
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Environmental Analvsis
In accordance with CEQA Guidelines Sections 15060-15061, staff conducted a
preliminary review and determined that adoption of a Private Developer Cultural Arts
Requirement is exempt from CEQA pursuant to CEQA Guideline ~15378 (b)(3) which
provides that creation of governmental funding mechanisms or other governmental
fiscal activities which do not involve commitment to any specific project which may
result in a potentially significant physical impact on the environment is not a project
subject to CEQA. The Private Developer Cultural Arts Requirement created by the
proposed Ordinance is a governmental funding mechanism and is not a project as
defined in CEQA Guideline ~15378. Similarly, the option to construct or establish on-
site public art authorized by the proposed Ordinance is exempt from CEQA pursuant to
CEQA Guideline ~15060(c)(2), in that there is no foreseeable possibility that the
implementation of the Ordinance may have a significant effect on the physical
environment. The option itself does not involve commitment to any specific project, and
it is a matter of speculation whether a developer of a project subject to the proposed
Private Developer Cultural Arts Requirement will select the on-site option. Moreover, in
cases where individual projects select the onsite option, the project may be subject to
CEQA review and, in such cases where the on-site art option is selected, the art is
required to enhance rather than detract from the environmental setting.
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Budqet/Financiallmpact
If the ordinance is adopted, additional revenue may be generated that will be
designated for the City Cultural Arts Trust Fund. In addition, staff will develop an on-site
art and cultural resource application fee for consideration as part of the FY 06/07
Budget.
Prepared by:
Sarah Lejeune, Senior Planner
Approved:
P. La ont Ewell
City anager
Attachments:
A. Proposed Ordinance
B. Resolution
C. Process Chart
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ATTACHMENT A
Proposed Ordinance
9
F:\Municipallaw\Share\LAWS\AlS\Art & Culture Ord Draft 10061 O.doc
City Council Meeting
Santa Monica, California
DRAFT
ORDINANCE NUMBER
(CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCil OF THE CITY OF
SANTA MONICA ADDING PART 9.04.10.20 ET SEQ. TO CHAPTER 9.04 OF THE
SANTA MONICA MUNICIPAL CODE ESTABLISHING THE PRIVATE DEVELOPER
CULTURAL ARTS REQUIREMENT, AND ESTABLISHING AN APPEAL PROVISION
WHEREAS, cultural and artistic resources, including the visual, performing, and
literary arts, enhance the quality of life for individuals living in, working in, and visiting
the City of Santa Monica; and
WHEREAS, the balanced development of cultural and artistic resources
preserves and improves the quality of the urban environment and increases real
property values; and
WHEREAS, the City has a longstanding and extensive history of adopting
regulations, programs and policies which regulate aesthetics of both public and private
development and promote the arts and cultural enrichment including, in 1974, adopting
Santa Monica Municipal Code Chapter 9.32, which established standards and
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guidelines for the review of the aesthetic qualities of new development; and
WHEREAS, the City has adopted numerous other comprehensive plans and
development guidelines which directly promote the City's overall aesthetic and cultural
interests and values; and
WHEREAS, the City has a history of supporting culture and arts in relation to
new construction via the City's Public Percent for Art Program which was enacted in
1986 requiring that one percent of public projects be set aside for on-site art and, since
1981, the City has also negotiated at least seven development agreements that have
included a public art requirement; and
WHEREAS, public art and culture has helped attract and anchor a large and
diverse creative sector, enriching the City's cultural identity, and this cultural identity is a
key component of the City's economic vitality which benefits both from the creative
businesses which locate here and from visitors who come to enjoy this creative
environment; and
WHEREAS, as development and revitalization of properties take place within the
City, land values rise, and cultural and artistic venues and environments can rarely
compete for more land in an era of dramatically escalating land costs. Thus, the
opportunities for creative and artistic resources become diminished, and the City's
physical environment is adversely impacted; and
WHEREAS, continued new development that does not include or contribute
toward public art and cultural resources will further exacerbate adverse impacts on the
physical environment; and
WHEREAS, cultural and artistic resources should be provided by those entities
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undertaking development projects that result most directly in this urbanization and
the increased need to enhance the cultural and artistic resources of the City; and
WHEREAS, the 1992 Cultural Arts Master Plan and its 1996 update identified the
need to off-set development impacts to community cultural resources as the City
becomes more built-out; and
WHEREAS, 2% of the average square foot cost of construction is an appropriate
factor upon which to determine the on-site requirement for the private developer cultural
arts requirement because, among other things, a portion of the costs for on-site art
requirements is devoted to indirect costs such as transportation, installation, consultant
services, and insurance, and construction costs within the City typically represent 50%
or less of total project cost; and
WHEREAS, 1 % of the average square foot cost of construction is an appropriate
factor upon which to determine the amount of an in-lieu contribution to a Cultural Arts
Trust Fund because, among other things, the project developer does not realize the re-
sale value of installed art if the developer chooses to contribute to the Fund rather than
place art on-site, and in-lieu contributions avoid implementation and administration
costs of evaluating the quality and appropriateness of on-site developer proposed art
works, which costs would be considerably higher than administering a fund overseen by
the Arts Commission; and
WHEREAS, the private developer cultural arts requirement will promote the
general health and welfare of the City's residents, workforce, and visitors through
balancing the City of Santa Monica's urban growth with the expansion of its cultural
and artistic resources;
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES
HEREBY ORDAIN AS FOLLOWS:
Section 1. Part 9.04.10.20, PRIVATE DEVELOPER CULTURAL ARTS
REQUIREMENT, comprised of sections 9.04.10.20.010 through 9.04.10.20.170, is
hereby added to Article 9 of the Municipal Code to read as follows:
Part 9.04.10.20
PRIVATE DEVELOPER CULTURAL ARTS REQUIREMENT
9.04.10.20.010
Findings and purpose.
The purpose of this ordinance is to authorize the
establishment of guidelines, procedures and standards for
the integration of public art and cultural resources into
private development projects within the City of Santa
Monica.
Public art and cultural resources foster economic
development, revitalize urban areas and improve the overall
business climate by creating a more desirable community
within which to live and work. Well conceived and executed
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works of art enhance the actual value of a development
project, create greater interest in leased space within the
development project, promote cultural tourism and make a
lasting and visible contribution to the community, which
helps to mitigate the impacts of development. The
experience of public art and cultural resources makes the
public areas of buildings and their grounds more welcoming.
It promotes the general health and welfare of its citizens by
making the City more livable, and visually and aesthetically
pleasing.
To ensure that public art and cultural resources are
present and sustained throughout the community, it is
necessary to require that private development projects in the
City of Santa Monica include an element of public art or
cultural facilities or, alternatively, contribute to a City arts
fund for public art and cultural resources and facilities in lieu
of installation of such art.
9.04.10.20.020
Applicability.
The regulations, requirements and provisions of this
Part and Council resolutions adopted pursuant hereto shall
apply to development projects as defined in this Part.
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9.04.10.20.030
Definitions.
The following words or phrases shall have the
following meanings when used in this Part:
Art or Art Work. Art, including but not limited to,
sculpture, painting, graphic arts, mosaics, photography,
crafts, mixed media, electronic arts and environmental
works. Art or Art Work as defined herein may be
permanent, fixed, temporary or portable, may be an integral
part of a building, facility, or structure, and may be
integrated with the work of other design professionals.
Artist. An individual generally recognized by critics
and peers as a professional practitioner of the visual,
performing, or literary arts, as judged by the quality of that
professional practitioner's body of work, educational
background, experience, public performances, past public
commissions, sale of works, exhibition record, publications,
and production of artwork. The members of the
architectural, engineering, design, or landscaping firms
retained for the design and construction of a development
project covered by this Part shall not be considered Artists
for the purposes of this Part. This definition applies only to
the requirements of the Part.
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Arts Commission. The Commission as established
in SS 2.64 et seq. of this Code or any successor legislation.
Unless otherwise specified, any reference to "Commission" in
this Part shall mean the Arts Commission.
Average Square Foot Cost of Construction. The
construction cost per square foot for construction categories
within a development project as established by resolution
of the City Council.
Cultural Arts Development Contribution.
Contribution by a Developer to the Cultural Arts Trust Fund
in lieu of installation of on-site Public Art or Cultural
Facilities.
Cultural Facilities. A structure that houses, and
has as its primary purpose the presentation of, one or more
cultural resources, and that is operated by public entities or
non-profit organizations dedicated to cultural activities
available to a broad public. Examples of acceptable
facilities are museums, theatres, and performing arts
centers, and other similar facilities as determined
appropriate by the Arts Commission Facilities that do not
meet this definition are churches, schools, commercial
movie theatres, gymnasiums or other sports facilities,
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bookstores, buildings dedicated primarily to housing or
administrative activities, and for-profit facilities used for
profit activities.
Cultural Resources. Individual and group
presentations, exhibitions, or performing arts involving
music, dance, theatre, opera, literature, sculpture, murals,
paintings, e~rthworks, mosaics, photographs, prints,
calligraphy, or any combination of media currently known or
which may come to be known, including audio, video, film,
CD-ROM, DVD, holographic or computer generated
technologies; education, including lectures, presentations
and training in or about art and culture; special events such
as festivals and cultural celebrations; and, similar resources
and services as determined and approved by the Arts
Commission.
Developer. The person or entity that is financially
and legally responsible for the planning, development and
construction of any development project covered by this
Part, who may, or may not, be the owner of the subject
property.
Development Project. Commercial development
having new gross floor area of 7500 square feet or more,
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commercial remodels or tenant improvements of 25,000
square feet or more that require approval by the
Architectural Review Board, or residential projects of five or
more units. A Development Project, for purposes of defining
a Project subject to this Part, does not include the following:
cultural facilities, churches, temples, synagogues, and other
buildings or structures used for religious worship; repair and
reconstruction of any building damaged by flood, fire or other
disaster; municipal facilities; affordable housing units. In
mixed residential/nonresidential development, those portions
of projects excluded from the definition of Development
Project hereinabove shall not be included in the calculation
of the average square foot cost of construction.
Director. The Director of Community and Cultural
Services Department, or his/her designee, or the Director of
Planning and Community Development, or his/her designee,
as appropriate.
Freely Accessible. The Art Work 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.
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Performing Arts. Performances presented by
professional performers, including theater performance (any
form of dramatic presentation, spoken or silent); musical
theater/opera (any dramatic performance of which music is
an integral part); dance (any form of rhythmical
movement); music/concert (any musical form whether
classical, traditional or popular).
Public Art or Art Work. On-site art work produced
by an artist, as defined herein, or team of artists, that is
freely accessible on private property or on land or in
buildings owned by the city or another governmental
agency.
9.04.10.20.040
Requirement.
Private Developer Cultural Arts
Before the issuance of a building permit for any
Development Project as defined herein, the Developer shall
participate in the construction or installation of freely
accessible on-site public artwork in accordance with Section
9.04.10.20.050, or provide cultural facilities in accordance
with Section 9.04.10.20.110, or pay a Cultural Arts
Development Contribution in accordance with Section
9.04.10.20.120 below.
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The expenditure of money required to satisfy the
requirements of this Part, whichever alternative is selected to
do so, shall be reduced by the amount, as verified by the
Landmarks Commission or Landmarks Commission
Secretary as appropriate, spent to preserve an historic
resource listed in or determined eligible for listing in the
California Register of Historical Resources or the City's local
register of historic resources, where such preservation
follows the Secretary of the Interior's Standards for the
Treatment of Historic Properties with Guidelines for
Preserving, Rehabilitating, Restoring, and Reconstructing
Historic Buildings or the Secretary of the Interior's Standards
for Rehabilitation and Guidelines for Rehabilitating Historic
Buildings.
9.04.10.20.050
On-site Public Art Projects.
A Developer seeking to satisfy the Private Developer
Cultural Arts Requirement of this Part through the
construction or installation of on-site public art shall do so in
the amount of two percent (2%) of the average square foot
cost of construction of the development project as set forth
by resolution of the City Council. If the actual construction
cost or market value of the on-site public art is greater than
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the required 2% contribution, the City shall have no
obligation to pay the excess amount.
9.04.10.20.060
Projects
Eligible On-Site Public Arts
Public art, for the purposes of this Part and for
determining what shall meet the private developer
requirements for on-site installation of public art, includes art
works that are created uniquely by an artist, as those terms
are defined in this Part, and integrated into the development
project. Public art may include any other form determined by
the Arts Commission to satisfy the intent of this Ch,apter
provided, however, that the following are not considered to
be public art for the purposes of this Part:
(a) Directional elements such as supergraphics,
signage, or color coding except where these elements are
integral parts of the original work of art or executed by artists
in unique or limited editions;
(b) Objects which are mass produced of standard
design such as banners, signs, playground equipment,
benches, statuary, street barriers, sidewalk barriers, or
fountains;
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(c) Reproduction, by mechanical or other means, of
original works of art, except in cases of film, video,
photography, printmaking, or other media arts;
(d) Decorative, architectural, or functional elements
which are designed by the building architect or landscape
architect as opposed to an artist commissioned for this
purpose;
(e) Landscape architecture, gardening, or materials,
except where these elements are designed by the artist and
are an integral part of the work of art by the artist; or
(f) Landscaping required by the City's Community
Development Department as part of the Development
entitlements.
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9.04.10.20.070
Project Expenditures.
Eligible On-Site Public Arts
The public art contribution for on-site installation must
be expended only on costs associated with the selection,
acquisition, purchase, commissioning, design, fabrication,
placement, installation, or exhibition of the public art.
Eligible expenditures include the following items:
(a) Artist fees;
(b) Labor of assistants, materials, and contracted
services required for the design, fabrication, and installation
of the public art;
(c) Any required permit or certificate fees and
reasonable business and legal costs directly related to the
public art;
(d) Reasonable art consultant fees, as established
in guidelines approved to implement the provisions of this
Part;
(e) Communication and other indirect costs
(insurance, utilities associated with the creation but not the
operation of the public art, etc.);
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(f) Transportation of the public art to the site;
(g) Preparation of site to receive public art, beyond
that required for the development itself;
(h) Installation of the completed public art;
(i) Structures which enable the display of the
public art, such as platforms or pedestals, up to 5% of the
total public art contribution;
0) Mountings, anchorages, containments, or other
materials necessary for installation of the public art; and
(k) Plaque identifying the public art, as required by
this Part.
9.04.10.20.080
Project Expenditures.
Ineligible On-Site Public Arts
Expenditures that are ineligible to be counted toward
the on-site public art contribution include the following items:
(a) Promotional materials or activities for the artist,
the public art, the development, the developer or others
parties involved in the development project;
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(b) Opening, dedication, or other event for the
public art, artist, or development;
(c) Developer's project management expenses
associated with the public art;
(d) Services, materials, utilities or other expenses
associated with the operation or maintenance of the public
art;
(e) Land costs or any other costs associated with
the development that are not part of and solely attributable to
the public art; and
(f) Illuminating the public art if not integral to the
design.
9.04.10.20.090 Process for Approval of Public
Art for On-site Installation.
(a) Application Procedures. Upon application for a
development permit, the applicant shall be informed of the
Private Developer Cultural Arts Requirement and referred to
the Director of the Community and Cultural Services
Department in order to declare in writing the means by
25
which the Developer will comply with the requirements of
this Part.
If the Developer selects the installation of on-site
public art work, the Developer should submit art plan
documentation acceptable to the Director of the Community
and Cultural Services Department to support the on-site
public art before review by the Architectural Review Board.
(b) Commission Review and Approval. Before
issuance of the building permit for the development project,
the proposed public art plan documentation must be
reviewed and approved by the Arts Commission, or the
Public Art Committee if so designated by the Commission,
for compliance with this Part, and any associated regulations
or guidelines authorized by this Part.
The Arts Commission shall review the submitted
documentation, together with the recommendation of the
Director of the Community and Cultural Services
Department, and approve, approve with conditions, or deny
the proposed Art Work, and its proposed location,
considering the qualifications of the artist, the aesthetic
quality and harmony of the Art Work with the proposed
development project, and the proposed location of and
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public accessibility to the Art Work. In addition, the budget
for the proposed public art must be approved to ensure that
only eligible expenditures are proposed and that such
expenditures total the amount of the public art contribution.
If the Developer proposes, or the Arts Commission
recommends, significant revisions to the Art Work or
architecture or physical design and layout of the proposed
project to the Art Work, a revised application shall be
submitted to the Director for review and recommendation to
the Arts Commission. The Commission shall make a
determination whether to approve, approve with conditions,
or deny the requested revision.
(c) Appeal of Commission Decision. The Commission
shall render a written decision whether the proposed
installation of on-site art work satisfies the requirements of
this Part within ninety (90) days after documentation
acceptable to the Director of the Community and Cultural
Services Department is received. Any person may seek
review by the City Council of a decision made by the Arts
Commission pursuant to this section by filing an appeal
within fourteen consecutive calendar days from the date that
the decision is made in the manner provided in Part
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9.04.20.24, Sections 9.04.20.24.010 through 9.04.20.24.040
of this Code, or any successor legislation. The decision of
the City Council shall be final.
9.04.10.20.100 Additional Requirements for
Public Art for On-site Installation.
(a) Plaque. The Public Art shall be identified by a
plaque that meets the standards in use by the City at the
time of installation of the Public Art. The requirement of this
paragraph may be waived if determined in a particular
circumstance to be inconsistent with the intent of this Part,
(b) Ownership and Maintenance of Art Work. All on-
site Public Art Work placed on the site of the Developer's
project shall remain the property of the property owner and
his/her successor(s) in the interest. The obligation to provide
all maintenance necessary to preserve the Art Work in good
condition shall remain with the property owner of the site.
The developer and subsequently, the property owner, shall
maintain, or cause to be maintained, in good condition the
public art continuously after its installation and shall perform
necessary repairs and maintenance to the satisfaction of the
City. The maintenance obligations of the property owner
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shall be contained in a covenant and recorded against the
property and shall run with the property.
Failure to maintain the Art Work, as provided herein,
is hereby declared to be a public nuisance. The City also
may pursue additional remedies to obtain compliance with
the provisions of this Requirement, as appropriate.
In addition to all other remedies provided by law, in
the event the owner fails to maintain the Art Work, upon
reasonable notice, the City may perform all necessary
repairs, maintenance or secure insurance, and the costs,
thereof shall become a lien against the real property.
(c) Location and Relocation of On-site Public Art.
When and if the development project is sold at any time in
the future, the Public Art must remain at the development at
which it was created and may not be claimed as the property
of the seller or removed from the development or its location
approved by the Arts Commission. In the event that a
property is to be demolished, the owner must relocate the
public art to another publicly accessible, permanent location
that is approved in advance by the Commission.
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A property owner may, for good cause, petition the
Arts Commission to replace or re-Iocate the public art to
another publicly accessible location on the development
project site. Any removal, relocation, or replacement of the
public art must be consistent with the California Preservation
of Works of Art Act and the Federal Visual Artists' Rights Act
and any other applicable law.
If any approved Art Work placed on private property
pursuant to this Subchapter is removed without City
approval, the Certificate of Occupancy may be revoked.
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9.04.10.20.110
Alternative
On-Site Cultural Facilities
A Developer seeking to satisfy the Private Developer
Cultural Arts Requirement of this Chapter may do so, if
approved by the Arts Commission, through the provision of
on-site cultural facilities in the amount of two percent (2%) of
the average square foot cost of construction of the
development project as set forth by resolution of the City
Council.
If the Developer selects the provision of on-site
cultural facilities, the Developer shall submit documentation
acceptable to the Directors of the Community and Cultural
Services Department and Planning and Community
Development to support the provision of on-site cultural
facilities.
(b) Commission Review and Approval. Before
issuance of the building permit for the development project,
the proposed cultural facility must be reviewed and approved
by the Arts Commission, or the Public Art Committee if so
designated by the Commission, for compliance with this
Part, and any associated regulations or guidelines approved
by the Council.
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The Arts Commission shall review the submitted
documentation, together with the recommendation of the
Directors of the Community and Cultural Services
Department and Planning and Community Development,
and approve, approve with condit.ions, or deny the proposed
cultural facility, and its proposed location within the
development, considering the need for such a facility has
been clearly demonstrated; the facility is sited
appropriately within the development project area; the
managing cultural organization has demonstrated financial
capability to successfully operate the facility; the adequacy
of an agreement that ensures that the cultural facility will
be reserved for public or non-profit use throughout the
term of the commitment; whether the budget proposed is
appropriate and that such expenditures total the amount of
the cultural arts requirement.
(c) Appeal of Commission Decision. The Commission
shall render a written decision whether the proposed on-site
cultural facilities satisfy the requirements of this Part within
ninety (90) days after documentation acceptable to the
Director of the Community and Cultural Services Department
is received. Any person may seek review by the City
Council of a decision made by the Arts Commission
32
pursuant to this section by filing an appeal within fourteen
consecutive calendar days from the date that the decision is
made in the manner provided in Part 9.04.20.24, Sections
9.04.20.24,010 through 9.04.20.24.040 of this Code, or any
successor legislation. The decision of the City Council shall
be final.
9.04.10.20.120
Contri bution.
Cultural Arts Development
In lieu of installation of on-site public art, the
Developer may make a Cultural Arts Development
Contribution in accordance with the following:
(a) Amount of Contribution. One percent (1 %) of
the average square foot cost of construction of the
development project as set forth by resolution of the City
Council.
(b) Timinq of Contribution. The amount of the in-
lieu contribution shall be imposed at the time of approval of
the building permits. No building permit for any development
project shall be issued unless the contribution has been paid
or a contract to pay the contribution has been executed, and
33
no final inspection shall be approved unless the contribution
has been paid.
9.04.10.20.130 Declaration of Covenants,
Conditions, and Restrictions
If the Developer elects to install on-site public artwork
in accordance with the requirements of Section
9.04.10.20.050, the Development Project shall have
recorded against it a Declaration of Covenants, Conditions,
and Restrictions in favor of the City and in a form approved
by the City Attorney which shall include the following
provisions as appropriate:
(a) The Developer shall provide all necessary
maintenance of the art work, including preservation of the
art work in good condition to the reasonable satisfaction of
the City and protection of the art work against destruction,
distortion, mutilation, or other modification.
(b) The Developer shall ensure that the artwork
will be located in an area that is freely accessible.
(c) A description of that portion of the premises
which will be maintained and shall be freely accessible for
the designated public art.
34
Any other reasonable terms necessary to implement
the provisions of this Part.
9.04.10.20.140
Final City Approval.
(a) No final City approval for any project subject to
this Part shall be granted or issued, unless and until the
Director of Community and Cultural Services, after
consultation with the Director of Planning and Community
Development, verifies full compliance with the Private
Developer Cultural Arts Requirement as follows:
(1) The approved Art Work has been installed in a
manner satisfactory to the Director of the Community and
Cultural Services Department. Installation of Art Work shall
be completed prior to the final inspection and issuance of a
Certificate of Occupancy.
(2) In lieu art contributions have been paid, if
applicable.
(3) Financial security in an amount equal to the
acquisition and installation costs of an approved Art Work, in
a form approved by the City Attorney, has been posted.
(4) The Developer has executed and recorded a
covenant with the Los Angeles County Recorder, as required
by section 9.04.10.20.120. The covenant shall be recorded
35
prior to the request for final construction approvals and the
issuance of a Certificate of Occupancy.
(b) The Director shall require that the Developer
submit a written verification of compliance with these
requirements as applicable. Said verification shall consist of
documentation sufficient to enable the Director to readily
determine compliance with the provisions of this Part. Upon
receipt of written verification from the Developer, the Director
shall issue a notice determining whether the Developer has
complied with the requirements of this Chapter. The
Director's determination of compliance may be appealed to
the City Council if such appeal is filed within fourteen
consecutive calendar days from the date that the decision is
made in the manner provided in Part 9.04.20.24, Sections
9.04.20.24.010 through 9.04.20.24,040 of this Code, or any
successor legislation.
9.04.10.20.150
of Funds.
Cultural Arts Trust Fund; Use
There is hereby created a fund to be known as the
"City Cultural Arts Trust Fund" to account for in lieu
contributions paid pursuant to this Part. This fund and the
36
interest thereon shall be maintained by the City Finance
Director and shall be:
(a) For the design, acquisition, commission,
installation, improvement, repair, maintenance, conservation
and insurance of an Art Work.
(b) To sponsor or support cultural facilities and
cultural resources.
(c) For such other equivalent artistic and cultural
uses approved by the Arts Commission.
During a fiscal year, the total amount of expenditures
made in any year from the Cultural Arts Trust Fund for the
purposes set forth in this section shall be established in the
annual City budget and approved by the City Council. The
budget will be developed in keeping with community cultural
priorities as established by the City's adopted Cultural
Master Plan.
The proposed annual expenditures shall be reviewed
by the Arts Commission concurrently with the review of the
budget for expenditures from the City's percent for art funds.
37
9.04.10.20.160 Adoption by Resolution of the
Per Square Foot Amount for On-site Participation or In-
lieu Contribution
Pursuant to this ordinance, the per square foot
amount required to satisfy the private developer cultural art
requirement through the provision of on-site public art or
cultural facilities, or by an in-lieu contribution shall be
adopted from time to time by resolution of the City Council
after a noticed public hearing. In adopting the resolution, the
City Council shall identify the Average Square Foot Cost of
Construction for construction categories including, but not
limited to commercial, residential, and tenant improvement
classifications. The per square foot amount shall be
calculated by multiplying the Average Square Foot Cost of
Construction by the factor of 2% for on-site public art or
cultural facilities, and 1 % for an in-lieu contribution. The
resulting per square foot amount shall be used to determine
the amount necessary to comply with the private developer
cultural arts requirement selected to satisfy the obligation
imposed by this Part.
9.04.10.20.170
Regulations
38
The City Manager, or her/his designee, is authorized to
adopt administrative regulations or guidelines that are
consistent with and that further the terms and requirements
set forth within this Part, which is hereby codified in Article 9,
Part 9.04.10.20, of the Santa Monica Municipal Code or as
otherwise designated by the City Clerk.
SECTION 2. This Ordinance shall apply to applications for development projects
as defined herein determined complete after the January 12, 2007.
SECTION 3. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
SECTION 4. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
have passed this Ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION 5. The Council finds that the adoption and implementation of
this ordinance are exempt from the provisions of the California Environmental Quality
Act pursuant to CEQA Guidelines section 15060( c)(2) in that the Council finds there is
no foreseeable possibility that the implementation of this ordinance may have a
39
significant effect on the environment. The ordinance option to provide on-site public art
or cultural facilities does not involve commitment to any specific project, and it is a
matter of speculation whether a developer of a project subject to the proposed Private
Developer Cultural Arts Requirement will select the on-site option. Moreover, in cases
where individual projects select the onsite option, the project may be subject to
ministerial review and not a project under CEQA. In discretionary review cases, where
art is selected, the art will enhance rather than detract from the environmental setting.
CEQA Guideline S15378 (b)(3) also provides that creation of governmental funding
mechanisms or other governmental fiscal activities which do not involve commitment to
any specific project which may result in a potentially significant physical impact on the
environment is not a project subject to CEQA. Because the proposed Ordinance
provides for an in-lieu contribution option and Cultural Arts Trust Fund in order to create
a governmental funding mechanism, it is also not a project as set forth in CEQA
Guideline S15378.
SECTION 6. The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. The City Clerk shall cause the same to be published once in the
official newspaper within 15 days after its adoption. This Ordinance shall become
effective 30 days after its adoption.
40
ATTACHMENT B
Resolution
42
F: \A TTY\MU N I\LAWS\ALS\C&AConstr. Cost. RES.doc
RESOLUTION NUMBER _ (CCS)
(City Council Series)
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF SANTA MONICA ESTABLISHING THE AVERAGE SQUARE FOOT COST
OF CONSTRUCTION FOR DETERMINING COMPLIANCE WITH THE PRIVATE
DEVELOPER CULTURAL ARTS REQUIREMENT
WHEREAS, the Santa Monica City Council adopted Ordinance Number _
(CCS) on December 5, 2006, adding Part 9.04.10.20 et seq. to Chapter 9.04 of the
Municipal Code establishing the Private Developer Cultural Arts Requirement; and
WHEREAS, the Private Developer Cultural Arts Requirement requires that
private development projects in the City of Santa Monica include an element of public
art or cultural facilities or, alternatively, contribute to a City arts fund for public art and
cultural resources and facilities in lieu of installation of such art or construction of such
facilities; and
WHEREAS, a developer seeking to satisfy the Private Developer Cultural Arts
Requirement may do so either through the installation of on-site public art or
construction of cultural facilities in the amount of two percent (2%) of the average
square foot cost of construction or an in-lieu contribution in the amount of one percent
(1 %) of the average square foot cost of construction of the development project as set
forth by resolution of the City Council; and
WHEREAS, in adopting the resolution, Section 9.04.10.20.160 of the Ordinance
provides that the City Council shall identify the Average Square Foot Cost of
Construction for construction categories including, but not limited to commercial,
residential, and tenant improvement classifications;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The Average Square Foot Cost of Construction for residential and
commercial development projects established pursuant to Section 9.04.10.20.160 is
$200.00 per square foot.
SECTION 2. The Average Square Foot Cost of Construction for commercial
tenant improvements established pursuant to Section 9.04.10.20.160 is $50.00 per
square foot.
SECTION 3. The per square foot amount used to determine compliance with the
private developer cultural arts requirement shall be calculated by multiplying the
appropriate Average Square Foot Cost of Construction by the factor of 2% for on-site
public art or cultural facilities, and 1 % for an in-lieu contribution.
SECTION 4. The City Clerk shall certify to the adoption of this Resolution, and
thenceforth and thereafter the same shall be in full force and effect upon the effective
date of Ordinance Number _ (CCS).
APPROVED AS TO FORM:
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ATTACHMENT C
Process Chart
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Cultural Requirement Process Chart
ReView Policy..- Study options -- Ask questions
Estimate the project Art Requirement--Gonsider all possible credits and deductions
Choose an Option
On-Site Art
2%
Cultural Facility
2%
Cultural Arts Trust Fund Contribution
1%
Submit ArLPlanfor On-Site Artwork
Gon(aining:
Context'Nithinthe project
Artist Selection Process
Artistic Qualifications
Schematic Design by Artist
Public ArtBudget
Submit Art Plan for Cultural Facility
Containing:
OemonstrcUed. Need. forthe. Facility
Organization Selected
Viability of Organization
Context within the.Project
Legal Agreement with Organization
Cultural Facility Budget
Review of Art Plan by Staff
R~view and Approval of Art
.PI~nbyArts Commission
Joint Review and Approval by the
Arts Commission and the
Architectural Review Board
Complete reqUirement by:
Seek Approval if significantchanges in .Art Plan
-Submit a Complete Record
-Sign Covenant and Plan for Long- T arm Maintenance
Prior to making changes or~lterations to artwork or
cultural facilities, contact the City Department of
Community & Cultural Services
Contribute to the Cultural Arts
Trust Fund at anytime prior to
final inspection
Monies from the Cultural Arts
Trust Fund will be appropriated
~nnually as part of the budget
process