"Affordable Housing" is defined in Section XI-10-54.15.D of the Zoning Code.

"Building Development Costs" means those construction costs as declared on building permit applications, and as accepted by the Building Official. Building permit applications shall include building, plumbing, mechanical and electrical permit applications for the project.

"Developer and/or Owner" means any individual, firm, limited liability company, association, partnership, political subdivision, government agency, municipality (other than the City of Milpitas), industry, public or private corporation, or any other entity that undertakes any construction within the City subject to the requirements in this Section 14.

"Public Art" is a process which results in the incorporation of original works of art by artists in publicly accessible spaces and which serves a socio-environmental function identifiable with people; is accessible to the mind and the eye; is integral to the site and responds to the concept of place making; is integrated with the work of other design professionals; is of high quality; serves the City by enhancing the quality of life for citizens and contributes to the City's prestige; is unique to its moment in time and place.

"Public Art Program In-Lieu Contribution" means the percentage of Building Development Costs required herein.

"Public Art Projects" are projects which involve artists working through the public art process that result in the creation of original works in publicly accessible spaces that include but are not limited to paintings, mural decorations, inscriptions, stained glass, fiber work, statues, reliefs or other sculpture, monuments, fountains, arches, or other structures intended for ornament or commemoration, carvings, frescoes, mosaics, mobiles, photographs, drawings, collages, prints, crafts both decorative and utilitarian in clay, fiber, wood, metal, glass, plastics and other materials. Public Art Projects also include artists serving on design and development teams to identify opportunities to incorporate art in publicly accessible space.

"Publicly Accessible Art" means art that is accessible to the general public.

(Ord. No. 38.821, § 3, 5/19/15)

This Section 14 is intended to promote the aesthetics and arts in the City of Milpitas by requiring the inclusion of a public artwork component in new private development projects in Milpitas. A policy is hereby established to require certain private developments to include Publicly Accessible works of art for placement on the development site or contribute a Public Art Program In-Lieu Contribution as a condition of project approval. Developers and/or Owners are encouraged to employ Milpitas artists or arts organizations to fulfill the Public Art requirement.

(Ord. No. 38.821, § 3, 5/19/15)

A.

Calculation.

1.

Nonresidential Building Developments. Private nonresidential building developments involving 2,000 square feet or more of new floor area shall devote an amount not less than one-half of one percent of Building Development Costs for acquisition and installation of Publicly Accessible Art on the development site.

2.

Residential Building Developments. Private residential building developments of 20 or more new dwelling units shall devote an amount not less than one-half of one percent of Building Development Costs for acquisition and installation of Publicly Accessible Art on the development site.

B.

Public Art Review. All proposed Public Art to be installed on a development site under this Section 14 shall first be reviewed and approved by the Art Commission for its artistic value and appropriateness in light of the size of the development project. The cost of the proposed Public Art shall not be the sole reason for rejecting the proposed Public Art.

C.

In-Lieu Contribution.

1.

At the discretion of the Developer and/or Owner, in lieu of installing on-site Public Art, the Developer and/or Owner may provide a Public Art Program In-Lieu Contribution to be deposited into the Public Art Fund for acquisition and placement of Public Art throughout the City.

2.

The Art Commission may allow a Developer and/or Owner to satisfy the public art requirement by a combination of installing Publicly Accessible Art on the development site and make a Public Art Program In-Lieu Contribution if the Art Commission determines that the location, siting or scale of the development site makes the installation of Publicly Accessible Art inappropriate or impossible for the purposes of satisfying the one percent requirement for installing Publicly Accessible Art on the development site.

D.

Subsequent Removal of Public Art or Alternative Compliance Space. If the Developer and/or Owner satisfies the Public Art requirement in accordance with subsection (A)(1), (A)(2), above, the Public Art previously installed on the development site may only subsequently be removed if the Developer and/or Owner makes a Public Art Program In-Lieu Contribution equivalent to the original amount to the Public Art Fund.

E.

Exclusions. The requirements of this Section 14 shall not apply to an Affordable Housing development with a minimum of 20 percent Affordable Housing units if the Developer and/or Owner demonstrates to the satisfaction of the City Council that said requirements would cause the development project not to be economically feasible.

(Ord. No. 38.821, § 3, 5/19/15)

Public Art Program In-lieu Contribution shall be placed in the Public Art Fund. The fund shall be used exclusively to (1) provide sites for works of art, (2) acquire and install works of art, (3) maintain works of art, or (4) fund other administrative costs associated with the Public Art Program. The Art Commission shall recommend utilization of monies in the Public Art Fund to the City Council.

(Ord. No. 38.821, § 3, 5/19/15)

Compliance with the provisions of this Section 14 shall be demonstrated by the Developer and/or Owner at the time of filing the Building Permit application as follows: (a) payment of the full amount of the Public Art Program In-Lieu Contribution, or (b) written proof to the Building Department and the Public Art Program of a contractual agreement to commission or purchase and to install the requested artwork on the development site by a date approved by City. The value of the Publicly Accessible Artwork shall be independently verified by a third party unrelated to the Developer and/or Owner and submitted to the City with the contractual agreement at the sole expense of the Developer and/or Owner. The Developer and/or Owner shall provide the City with proof of installation of the requested artwork on the development site or proof of full payment of the Public Art In-Lieu Contribution before issuance of the certificate of occupancy, unless the City has approved some other method of assuring compliance with the provisions of this Section 14. In the case of installation of Public Art on the development site, the Developer and/or Owner shall maintain said artwork in proper condition on an ongoing basis.

(Ord. No. 38.821, § 3, 5/19/15)

In addition to other fines or penalties provided by State or municipal law, the City may revoke or suspend any permit granted to any Developer and/or Owner who violates the provisions of this Section 14.

(Ord. No. 38.821, § 3, 5/19/15)