429.3

SEC. 429.3. IMPOSITION OF PUBLIC ART FEE REQUIREMENT. (a) Determination of Requirements. The Department shall determine the applicability of Section 429.1 et seq. to any development project requiring a first construction document and, if Section 429.1 et seq. is applicable, the number of gross square feet subject to its requirements, and shall impose this requirement as a condition of approval for issuance of the first construction document for the development project to address the need for additional public art in the downtown districts. The project sponsor shall supply any information necessary to assist the Department in this determination. (b) Amount of Fee. Upon design approval of the development project from the Planning Department, and except as otherwise provided herein, the project sponsor shall dedicate and expend an amount equal to one percent of the construction cost of the building or addition as determined by the Director of DBI (the "Public Art Fee") for the purposes described herein and

subject to the options set forth below. (c) Department Notice to Development Fee Collection Unit at DBI. After the Department has made its final determination of the net addition of gross floor area subject to Section 429.1 et seq. and the dollar amount of the Public Art Fee required, the Department shall immediately notify the Development Fee Collection Unit at DBI of its determination, in addition to the other information required by Section 402(b) of this Article. (d) Options to Fulfill Requirements. (1) Non-Residential Development Projects. Non-residential buildings with public open space requirements greater than 1,499 square feet but less than 3,000 square feet that provide ground floor open space shall comply with Section 429.3 by providing on-site public art of a value equivalent to the Public Art Fee; provided, however, that if the required Public Art Fee exceeds $500,000, only on-site public art valued at $500,000 is required to be provided on-site. Non-residential buildings with public open space requirements greater than or equal to 3,000 square feet that provide ground floor open space shall comply with Section 429.3 by providing on-site public art of a value equivalent to the Public Art Fee; provided, however, that if the required Public Art Fee exceeds $750,000, only on-site public art valued at $750,000 is required to be provided on-site. In any case where the Public Art Fee requirement exceeds the amount required on-site, prior to issuance of a building or site permit the project sponsor shall elect one of the following options to fulfill any requirements imposed as a condition of approval and to notify the Arts Commission and the Department of their choice: (A) to expend the remainder of the Public Art Fee on-site, or (B) to deposit the remainder of the Public Art Fee into the Public Artwork Trust Fund established in Section 10.100-29 of the San Francisco Administrative Code for the purposes set forth therein and in Section 429.5(b), including the creation, installation, exhibition, conservation, preservation, and restoration of works of public art and for capital improvements to non profit arts facilities ("In-Lieu Fee for Public Artwork Trust") within the C-3 District or within a half mile of the boundary of the C-3 District or, if the project is within another zoning district, within a half mile of the project boundary, or (C) to expend a portion of the remainder on-site and deposit the rest into the Public Artwork Trust Fund. As provided in Section 402, the project sponsor shall pay the fee to the Development Fee Collection Unit at DBI. (2) Residential Development Projects. Prior to issuance of a building or site permit for a residential development project subject to the requirements of Section 429.1 et seq., the sponsor shall elect one of the options listed below to fulfill any requirements imposed as a condition of approval and to notify the Arts Commission and the Department of their choice of the following: (A) Option to Use 100% of Public Art Fee to Provide On-Site Public Artwork. Unless otherwise provided below, the project sponsor may elect to provide on-site public art of a value at least equivalent to the Public Art Fee. (B) Option to Contribute 100% of Public Art Fee Amount to Public Artwork Trust Fund. Effective on the effective date of Ordinance No. 62-12 for a project that has not received its first construction document, and except as provided herein, the project sponsor may pay the Public Art Fee for deposit in the Public Artwork Trust Fund established in Section 10.100-29 of the San Francisco Administrative Code for the purposes set forth therein and in Section 429.5(b), including the creation, installation, exhibition, conservation, preservation, and restoration of works of public art and for capital improvements to nonprofit arts facilities ("In-Lieu Fee for Public Artwork Trust") within the C-3 District or within a half mile of the boundary of the C-3 District or, if the project is within another zoning district, within a half mile of the project boundary. As provided in Section 402, the project sponsor shall pay the fee to the Development Fee Collection Unit at DBI. (C) Option to Expend a Portion of the Public Art Fee Amount to On-Site Public Artwork and the Remainder to the Public Artwork Trust Fund. Effective on the effective date of Ordinance No. 62-12 a project that has not received its first construction document may elect to expend a portion of the Public Art Fee for the acquisition of On-Site Public Artwork that shall be subject to the requirements of Subsection (d)(2)(A) above regarding On-Site Public Artwork, and deposit the remaining balance of the Public Art Fee into the Public Artwork Trust Fund. As provided in Section 402, the project sponsor shall pay the fee to the Development Fee Collection Unit at DBI. (e) Department's Notice to Development Fee Collection Unit of Sponsor's Choice. After the project sponsor has notified the Arts Commission and the Department of the choice to fulfill the requirements of Section 429.1 et seq., as required by Section (d)(1) or (2) above, the Department shall immediately notify the Development Fee Collection Unit at DBI of the project sponsor's choice. (f) Development Fee Collection Unit Notice to Arts Commission and Department Prior to Issuance of the First Certificate of Occupancy. The Development Fee Collection Unit at DBI shall provide notice in writing or electronically to the Arts Commission and to the Department prior to issuing the first certificate of occupancy for any development project subject to Section 429.1 et seq. that will fulfill all or part of the requirements with an option other than the project sponsor's payment of an in-lieu fee to verify that the artwork was placed in the agreed upon location with the appropriate ADA compliant signage. If the Arts Commission or the Department notifies the Unit at such time that the sponsor has not satisfied the requirements, the Director of DBI shall deny any and all certificates of occupancy until the subject project is brought into compliance with the requirements of Section 429.1 et seq. (g) Process for Revisions of Determination Requirement. In the event that the Department or the Planning Commission takes action affecting any development project subject to Section 429.1 et seq., and such action is subsequently modified, superseded, vacated, or reversed by the Board of Appeals, the Board of Supervisors, or by court action, the procedures of Section 402(c) of this Article shall be followed. (Added by Ord. 62-12 , File No. 110853, App. 4/19/2012, Eff. 5/19/2012; amended by Ord. 56-13 , File No. 130062, App. 3/28/2013, Eff. 4/27/2013; Ord. 188-15 , File No. 150871, App. 11/4/2015, Eff. 12/4/2015) AMENDMENT HISTORY Former divisions (d)(1)(a)-(c) redesignated as (d)(1)(A)-(C); former divisions (d)(2)(i)-(iii) redesignated as (d)(2)(A)-(C); Ord. 56-13 , Eff. 4/27/2013. Division (d)(2)(C) amended; Ord. 188-15 , Eff. 12/4/2015. SEC. 429.4. COMPLIANCE BY PROVIDING ON-SITE PUBLIC ARTWORK. (a) Installation. The project sponsor must install the public art in compliance with this Section 429.4: (1) in areas on the site of the building or addition so that the public art is clearly visible from the public sidewalk or the open-space feature required by Section 138, or (2) on the site of the open-space feature provided pursuant to Section 138, or (3) in a publicly accessible lobby area of a Hotel (“On-Site Public Artwork”). Said On-Site Public Artwork shall be installed prior to issuance of the first certificate of occupancy; provided, however, that if the Zoning Administrator concludes that it is not feasible to install the Artwork within that time and that adequate assurance is provided that the Artwork will be installed in a timely manner, the Zoning Administrator may extend the time for installation for a period of not more than 12 months. Said works of art may include sculpture, bas-relief, murals, mosaics, decorative water features, tapestries or other artworks permanently affixed to the building or its grounds, or a combination thereof, but may not include architectural features of the building, nor artwork designed by the architect, except as permitted with respect to the in lieu contribution regarding publicly owned buildings meeting the criteria described above. Artworks shall be displayed in a manner that will enhance their enjoyment by the general public. The type and location of Artwork, but not the artistic merits of the specific artwork proposed, shall be approved by the Zoning Administrator in accordance with the provisions of Section 309 of this Code. (b) Recognition of Artists. An ADA compliant plaque identifying the creator, name (if any), and installation date of the On-Site Public Artwork required by subsection (a) above shall be placed at a publicly conspicuous location within view of the On-Site Public Artwork at the same time the Artwork is installed. (c) Removal, Relocation, or Alteration of Artwork. Once the project sponsor has installed and completed the final Artwork, the project sponsor, building owner and any third party may not remove, relocate or alter the Artwork without notifying and consulting with the Planning Department at least 120 days prior to the proposed removal, relocation or alteration. A project sponsor’s or building owner’s notice of intent to the Planning Department to remove, relocate, or alter Artwork shall include written approval of the proposed removal, relocation, or alteration from the artist or artist’s estate, if applicable, under the federal Visual Artists Rights Act (17 U.S.C. §§106A and 113(d)) (“VARA”), the California Art Preservation Act (Cal. Civil Code §§987 et seq.) (“CAPA”), or any successor laws protecting the integrity of Artwork, or a written waiver from the artist expressly waiving their rights, if any, under VARA and CAPA. The Planning Department shall not approve any removal, relocation, or alteration unless it finds any removed Artwork will be replaced with Artwork of equal or greater value or that any relocation or alteration is only a minor modification. If a project sponsor does remove, relocate, or alter the Artwork without notification and approval of the Planning Department, the Planning Department is authorized to pursue enforcement of this Section under Section 176 of this Code or to pursue any other remedy permitted by law. (d) Removal, Relocation, or Alteration of Artwork for Existing 100% Affordable Housing Projects. Notwithstanding the requirements of subsection (c) of this Section 429.4, 100% Affordable Housing Projects for which public art has already been installed as of the effective date of the ordinance in Board of Supervisors File No. 230706, including a 100% affordable residential building built to satisfy affordable housing requirements of market rate projects, may remove, relocate, or alter Artwork if the Artwork has been vandalized or severely compromised such that it cannot be restored to its original condition without significant financial expenditures. A project sponsor’s or building owner’s notice of intent to the Zoning Administrator to remove, relocate, or alter Artwork shall include: (1) documentation of vandalism or severely compromised conditions and (2) written approval of the proposed removal, relocation, or alteration from the artist or artist’s estate, if applicable, under the federal Visual Artists Rights Act (17 U.S.C. §§106A and 113(d)) (“VARA”), the California Art Preservation Act (Cal. Civil Code §§987 et seq.) (“CAPA”), or any successor laws protecting the integrity of Artwork, or a written waiver from the artist expressly waiving their rights, if any, under VARA and CAPA. The Zoning Administrator, after a duly noticed public hearing, may approve, conditionally approve, or deny removal, relocation, or alteration of the Artwork. The Zoning Administrator shall take into account the financial burden of repair and the extent of the vandalism, including past history of repeat vandalism, and likelihood that the Artwork may be vandalized again. For cases proposing removal under this subsection (d), the Zoning Administrator shall consider the viability of relocating the Artwork elsewhere on the property. In regard to relocation or alteration, including relocation of the Artwork elsewhere on the property, if the Zoning Administrator determines that relocation or alteration is a minor modification