16. Public art ord. no. 09-2037OFFICE OF THE CITY CLERK
CITY HALL
'(0300 TORRE A`JENUE • CUPERTINO, CA 95043255
C U P E RT 1 N O TELEPHONE: (408) 777-3223 • FAX: (408) 777-3366
SUMMARY
Agenda Item No. -~~' ~ ~ Meeting Date.
Adopt an ordinance defusing and enacting the: public art requirement established in the Cupertino
General Plau. -
SUBJECT AND ISSUE
The Cupertino General Plan requires public girt for new or expanded buildings over 50,000 squaz-e
feet. The budget for the artworlc must be at Ie:ast one-quarter of one percent of the project budget,
and there is an expenditure cap of $100,000.
The Fine Arts Commission reviewed public art for several recent developments in order to define
the process, and then prepared an overview o.F the program (Quarter-Percent for Art) and a draft
ordinance for the City Council's review and z:doption.
RECOMMENDED ACTION
Conduct the first reading of the public art ordinance.
Submitted by:
Kimberly Smith
City Clerlt;
.A.pproved for submission:
(~
:David W. Knapp
City Manager
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ORDINANCE NO. 09-2037
AN ORDINANCE OF THE CITY OF CUPERTINO ADDING
CHAPTER 19.118.00 REQUIRING ARTWORK IN PUBLIC
AND PRIVATE DEVELOPMENTS
Whereas, in November 2005 the Land Use Element of the Cupertino General Plan was
amended to add Goal H, Policy 2-66, to create a civic environment where the arts express an
innovative spirit, celebrate a rich cultural diversity, and inspire individual and community
participation; and
Whereas, a "percent for art" program was established for construction over 50,000 square feet
for new buildings or expanded buildings.
NOW, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES HEREBY
ORDAIN that the following chapter shall be added to the Cupertino Municipal Code:
19.118.00 Required Artwork in Public and Private Developments
19.118.010 Purpose and Intent
The purpose of this ordinance is to provide a review framework for public art in both public and
private developments in the City of Cupertino, commensurate with the following specific goals, as
described in the Cupertino General Plan:
A. Enhance community character and identity
B. Provide attractive public arts to residents and visitors alike
C. Stimulate opportunities for the arts. through cooperative relations between local business and
the City
19.118.020 Applicability of Regulations
A. Any development of 50,000 sq. ft. or larger involving construction of new buildings and/or the
expansion of existing buildings shall be subject to the requirements of this chapter.
B. Additional artwork not mentioned in this chapter by means of specific plan, use permit,
planned development or other discretionary review may be required when deemed appropriate by
the City Council.
19.118.030 Permitted Artwork
Types of art that may be used to satisfy the requirements of this chapter include, but are not
limited to, the following:
A. Sculpture: in-the-round, bas-relief, mobile, fountain, kinetic, electronic, or other, in any
material or combination of materials;
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Ordinance No. 09-2037
Page 2
B. Painting: all media, including portable and permanently affixed works, such as murals;
C. Graphic arts: printmaking, drawing, calligraphy and photography, but only when on a
lazge public scale;
D. Mosaics;
E. Functional artwork created by a professional artist, such as benches, tree grates or trash
receptacles;
F. Any other form of work of art determined by the Fine Arts Commission to satisfy the
intent of this chapter.
19.118.040 Ineligible Artwork
The following shall not be considered eligible to s<Ltisfy the requirements of this chapter:
A. Reproductions of original works of art, whether by mechanical or other means. However,
permitted artwork may include limited editions, controlled by the artist, of original prints, cast
sculpture, photographs, or other art forms;
B. Directional or other functional elements such as supergraphics, signing, or color coding,
except where those elements are integral parts of original signed artworks;
C. Art objects which are mass-produced from a standard design, such as playground
equipment, fountains, flags or banners;
D. Landscaping and garden features, except v~here these elements are designed by the artist
and aze an integral part of a fine artwork
19.118.050 Application for Public Artwork
A. An application for public artwork may be made by the property owner of record or his
agent.
B. Application shall be made to the Director cf Community Development on a form provided
by the City.
C. Application for public art for a new development shall be made in conjunction with the
review of the use permit and/or architectural and s ite approval for the entire project, in order that
the design and location be taken into consideration at the time of acchitectural and site planning, as
outlined in chapter 19.124 of the Cupertino Municipal Code.
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Ordinance No. 09-2037 Page 3
D. The Fine Arts Commission shall review for approval the public art application and
artwork. The decision of the Fine Arts Commission may be appealed in accordance with Section
1.16.020 of the Cupertino Municipal code, or as amended.
19.118.060 Design Criteria and Artist Qualifications
It is the intent of this chapter to provide for public art on private property without imposing the
artistic preferences of the City on the owner or the developer of the property. Artistic preferences
are to be primarily those of the owner or developer of the property, but the artwork and its location
is subject to approval of the Fine Arts Commission.
A permit required pursuant to Section 19.1 18.050 shall be granted upon a showing by the
applicant that the proposed artwork meets the following criteria:
A. The artwork is of a nature specified in Section 19.1 18.030
B. The artwork requirement is to be satisfied with one significant piece of artwork, except
that the requirement may be met with several works of art when specifically found by the Fine
Arts Commission to fulfill the intent of this chapter. The artwork shall be an integral part of the
landscaping and/or architecture of the buildings.
C. The artwork shall be easily visible from the public street and be located in an area
specifically designated on the project site plan. Appropriate locations include, but are not limited
to, entryways to the property, greenbelts, and building exteriors. The artwork must be in
permanent view to motorists and pedestrians. Artwork located at the entrance to a development
should make a major statement and be visible from the main parking lot, if any. When located in
proximity to major traffic thoroughfares, the artwork should be at a motorist's scale and oriented
toward the view corridor of the motorist.
D. Artwork located along Stevens Creek Boulevard or De Anza Boulevard corridors shall be
large in scale and oriented to the view corridors of the motorist. Appropriate artwork in these
corridors will most likely be sculptural: however, other forms of art may be considered if
consistent with the intent of this chapter. Artwork should have a visual impact upon passengers in
a moving vehicle or pedestrians not less than 100 feet away.
E. The composition of the artwork shall be of permanent materials requiring a low level of
maintenance. Materials used shall be durable and resistant to graffiti and the effects of weather.
F. The nature and style of the artwork shall be considered in the context of other artwork in
the surrounding area in order to encourage a wide range of art styles and materials, and to create a
balanced and interesting aesthetic appearance. The developer is encouraged to give preference to
artists living or working in the San Francisco Bay area, and to avoid using artists whose work is
already displayed as public art within the City of Cupertino boundaries.
G. Because the artwork will necessarily be highly visible to the public and be associated with
city requirements, expressions of obvious bad taste or profanity shall not be approved.
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Ordinance No. 09-2037
Page 4
H. Water and/or electronic sculpture may be permitted if adequate assurance of continued
maintenance is provided. ,
I. Artwork shall be identified by an appropriate plaque or monument measuring not less than
eight inches by eight inches. The plaque shall be rriade of a durable, permanent material and shall
be placed near the artwork, and shall list the date of installation, title and artist, and medium.
J. The artwork shall be a permanent, fixed asset of the property. Assurance shall be provided
that if the property is transferred, the transferees shall be informed of the requirements of this
chapter, including restrictions on removal of the artwork, and of their responsibility to maintain
the artwork, landscaping, and lighting.
K. The proposed artwork shall meet the criteria for review as set forth in the City of
Cupertino Public Art Program Guidelines for Sele<:tion of Public Art, as originally adopted by the
City Council Resolution No. OS-040, or as later amended.
L. The artist's qualifications will be evaluated and examples of past work may be reviewed.
The review, however, shall be primarily for the purpose of determining the artist's experience with
artwork of monumental proportion.
19.118.070 Minimum Artwork Value
The minimum expenditure for the artwork, including but not limited to design, fabrication, and
installation, is one-quarter of one percent (.25%), with an expenditure cap of $100,000.00, or such
minimum expenditure and/or expenditure cap that is set forth in the Cupertino General Plan.
19.118.080 Maintenance Requirements
The property owner shall maintain the artwork in good condition continuously after its
installation, as determined appropriate by the city. Maintenance shall include all related
landscaping, lighting, and upkeep, including the identification plaque. Artwork required or
approved pursuant to this chapter cannot be removed, except for required maintenance or repair,
unless approved by the City; at which time the Cit!~ may require replacement or relocation of the
artwork. In the event that the artwork is located in the public right-of--way, a maintenance
agreement with the City shall be required.
19.118.090 In Lieu Fee for Artwork is Discouraged
In some instances the placement of artwork on a particular property may not be feasible. In
such cases, an in-lieu contribution may be made to the City. The developer or property owner
may apply to the Fine Arts Commission for an in-lieu fee alternative on projects that lack an
appropriate location for public art, although such alternative is strongly discouraged.
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Ordinance No. 09-2037
Publication Clause
Page 5
The City Clerk shall cause this ordinance to be published at least once in a newspaper of I
general circulation published and circulated in the City within 15 days after its adoption, in
accordance with Government Code Section 36933, shall certify to the adoption of this ordinance
and shall cause this ordinance and her certification, together with proof of publication, to be
entered in the Book of Ordinances of the Council of this City.
INTRODUCED at a regular adjourned meeting of the City Council of the City of
Cupertino the 3`d of February, 2009 and ENACTED at a regular meeting of the City Council of
the City of Cupertino the of 2009, by the following vote:
PASSED:
Vote: Members of the Citv Council
Ayes:
Noes:
Absent:
Abstain:
ATTEST: APPROVED:
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EXHIBITS
BEGIN
HERE
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~~' Association of REALTORS®
February 3, 2009
The Honorable Orrin Mahoney
Mayor
Cupertino City Council
Cupertino, CA 95014-3202
Dear Mayor Mahoney and Councilmembers,
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Thank you for the opportunity to comment on behalf of the Silicon Valley Association of REALTORS
regarding agenda item 16, the draft ordinance adding to Cupertino's Municipal Code Chapter 19.118.00,
regarding mandatory artwork in public and private developments.
We commend the city's effort to improve the quality of life in Cupertino by taking strides to increase the
amount and the quality of public arts. Although we are riot prepared to comment on the general impact this
proposal will have on property owners in Cupertino, we would like to request a technical amendment to the
proposed ordinance.
We have concerns regarding the second sentence in section 19.118.060 (J), and believe it is redundant in
practice, will lead to a waste of resources and expose property owners to unnecessary liability. We are in
full agreement with city staff that any requirements that are conditions of approval, including artwork, for a
project, "shall be a permanent, fixed asset of the property."
The second sentence states:
"Assurance shall be provided that if the property is transferred, the transferees shall be informed of
the requirements of this chapter, including restrictions on removal of the artwork, and of their
responsibility to maintain the artwork, landscaping, and lighting."
We interpret this proposal to require an additional disclosure or contract between the two parties to ensure
the preservation of the artwork. This will be the first mandate of its type in Cupertino, and is completely
unnecessary. Generally speaking, when specific elements of a development are approved (like mandatory
artwork), those elements are essentially rights carried over from one property owner to another in the
CC&R's of the property that would be viewed and transferred during the sale.
We suggest that Section J be amended to read; "The artwork shall be a permanent, maintained fixed asset
of the property, and statements to this fact shall be attached or recorded to the existing CC&R's as an
amendment to subject properties." As crafted, this amendment will maintain this requirement in the public
record and embed it in the rights of the ownership.
Please feel to contact me if you have any additional questions regarding our request, and thank you for
giving me the opportunity to comment on behalf of my f~ssociation.
Sincerely,
~ ~'
`Adam tgo ery ~ /
Governmen Affairs Di
Silicon Valley Asso ation of REALTORS®
19400 Stevens Creek Blvd., Suite 100 • Cupertino, CA 95014
Phone: 408.200.0100 • Fax: 408.200.0101 • www.silvar.org