PUBLIC ART AND PRIVATE DEVELOPMENT RESOURCE GUIDE

PUBLIC ART AND PRIVATE DEVELOPMENT

RESOURCE GUIDE FOR DEVELOPERS

“States have an opportunity to both

improve livability and boost state and local

economies by investing in the arts and

culture.”

National Governors Association

1.WHY IS THE CITY REQUIRING THAT MY

DEVELOPMENT INCLUDE PUBLIC ART?

Public art is an integral element in private

development that offers a city or

municipality many possibilities: the

opportunity to make a place exceptional, to

honor local tradition and/or history, to

illuminate the City’s aspirations. Art can

bring its viewers joy, surprise, stimulation,

and reflection in a way that is unique to a

specific place. Notable art projects can put

a City “on the map” in a way that brings

national, and even international attention

to a site. This can make the City a more

competitive location for business and

tourism alike. In addition, public art

supports the local economy through the

processes of design, fabrication, and

installation.

Development is good, but thoughtful

development is even better. Private

development is critical to a City’s growth:

thoughtful development that respects local

history, culture, and customs can be

integrated into the life of the City’s citizens,

as well as its urban landscape in a way that

adds to the City’s cultural as well as its

economic life. Successful public art projects

have the ability to infuse new development

with a strong connection to the community,

giving both residents and visitors a vibrant

sense of place, and helping to both express

and forge local identity.

2. WHAT IS A WORK OF PUBLIC ART?

City codes typically specify that the public

art project is an original, site-specific work

of art, constructed of durable materials

such as, but not limited to, metal, glass,

stone, light, or mosaic.

The most important aspect of a work of

public art is that it is created by a

professional working artist of recognized

achievement in the field of public art. The

artist may work with architects, landscape

architects, engineers, lighting designers

and/or other professionals, but he or she

must be the primary designer of the

project, and must hold the contract with

the developer for the work of art.

Richard Deutsch Against the Day

Chevy Chase Center, MD

Photograph: Joseph Romeo

3. WHAT ARE THE CITY’S REQUIREMENTS

FOR PUBLIC ART PROJECTS?

Understanding the City’s requirements for

public art projects is the critical first step in

any successful project. Nearly 100 cities

and municipalities across the U.S. have a

requirement for public art in private

development, and no two programs are the

same. Therefore, it is important to research

the particular requirements in the

jurisdiction in which your development is

located.

Requirements for public art projects

generally fall into three categories:

Guidelines, Policies, and Ordinances.

Guidelines are typically suggestions

issued by City staff and approved by

elected officials. Guidelines state

desired outcomes concerning new

private developments. Guidelines

may address matters such as FAR

(foot/area ratio), public space

amenities, illumination, the

character of the architecture, and

the inclusion of public art.

Guidelines may be flexible, and they

may not be enforceable. Guidelines

often require discussion with City

representatives to ensure that there

is a clear understanding of what is

expected. There may be some

flexibility regarding the placement of

the art project, the scale of the

work, etc.

Policies are typically more specific;

they are spelled out in municipal

documents, and are often designed

to address a particular area where

several independent developments

are being planned. They are meant

to affect the character of an existing

community, or create a new area of

the City.

Policies express “the way we do

things” within a community. They

are often used to help give cohesion

to a private development area in

which several independent

developments will be affecting the

character of a neighborhood, or in

redevelopment or new

developments in expanding city

boundaries.

Policies are more enforceable than

guidelines, particularly when a

precedent has been set by past

developments. For the developer

they also allow for some flexibility,

as explained?

Ordinances are enforceable laws

passed by elected officials.

Ordinances are used to define very

specific requirements for public art

projects, such as the artist selection

process; options for the nature of

the project (materials and methods);

maintenance requirements; and

other matters pertaining to the

creation and life of the public art

project.

Building permits are issued only

when compliance with these city

codes is met. Ordinances can be

very definite about matters such as

the look of a building. The benefit of

ordinances is that they are

objective, clear, and enforceable:

the drawback is that they are rigid,

which can discourage innovation

and in some cases may present

obstacles to choosing the best

options for solving problems or

challenges that arise.

Reviewing the existing public art

projects in the City or municipality

may help developers come up with

creative ideas for various

possibilities and opportunities, while

also giving them an overview of the

City’s public art collection. This can

help the developer see how the new

public art project may complement

other works in the City’s collection.

“Arlington's program is governed by a

Public Art Policy, not ordinance, and public

art on private property is always

negotiated, never required. The strength of

the program is the long cultivated

expectation for public art.” Brooks Barwell,

Arlington County, Virginia

4. WHAT IS THE CULTURAL LANDSCAPE OF

THIS CITY?

When a developer understands the cultural

landscape of a City or municipality, a more

positive outcome is likely to result, both for

the developer and for members of the

community.

Here are a few good questions for

developers to ask:

a. Does the City, Town, or Municipality

have a Cultural Arts Department? If

so, who is the Director?

b. Is there an appointed Arts

Commission, or an established

cultural council?

c. Does the Commission have legal

authority?

d. Has the Commission been involved

in previous public art projects (or is

it a new program)?

e. Do the City and /or community

produce an annual program of

cultural events?

f. Who are some of the artists living

and working in this community?

g. Are there any local or regional

organizations that can help foster

connections between local artists

(particularly artists working in public

art), nationally known artists, and

the entities charged with supervising

the installation of public art?

h. Does the City/municipality/ area

have a Public Art or Cultural master

plan?

5. “How can I do the right thing for my

project and for the City?”

(In other words, how can a developer go

about meeting the City’s requirements in a

way that benefits his or her development

project as well as the City?)

The developer has a vision for what his or

her development will be. For its part, the

City has created public art policies that

support its vision for future growth, with

hopes of gaining visibility in a national and

international market, and a global world.

By deciding to develop a project within a

particular City, the developer accepts

responsibility for being an active and

informed citizen of that community even if

he or she does not live there.

Investing in public art may offer benefits in

the form of opportunities for trade-offs

regarding, for example, flexibility in FAR

requirements, expedited permitting,

additional building height, massing options,

and a range of other possibilities.

There are many other benefits for

developers to realize in creating public art,

including gaining visibility, making their

properties more attractive to both business

and residential markets, and promoting

good relationships within the community.

“The arts are the best insurance policy a

city can take out on itself.”

Woody Dumas, Mayor of Baton Rouge

6. How can a public art requirement

become an asset for the developer?

Many developers and owners who were

initially skeptical about the requirements of

public art projects have become

unequivocal in their support for such

projects, and the benefits to their

developments, after participating in the

process.

A public art project that is generated by

thorough discussions first between the

developer and the City staff, and then with

the artist; and that follows a clear and

transparent process, can often enhance the

vision of the developer, and make the

development both a destination and a local

landmark.

“Don’t just pay for art because it is

required. Work hard to get the best possible

solution for the site and project. The end result

of this should be something you will enjoy

seeing every time you visit the project. If you

are not proud of the art, it is just an expense.”

David Jury | Vice President, Support Services &

Facilities Development | Palo Alto Medical

Foundation

Larry Kirkland Garden Gifts

Sunnyvale Clinic of the Palo Alto Medical

Foundation, CA

Photographer: Craig Collins

7. Why is it a good idea to hire a public art

consultant?

Many developers are understandably

unfamiliar with the process of

commissioning and supervising the

construction of a work of public art. An

experienced public art consultant brings a

unique set of skills to oversee the process,

from the initial discussions, to selection of

the artist, to design development, and

throughout the approval process,

fabrication, and installation.

Commissioning an artist to create a work of

public art is different than working with

architects, landscape architects, engineers

and contractors. The public art consultant

can bring an invaluable amount of

professional experience and insight to the

process. The public art consultant is the

owner's (or developer’s) representative in

all phases of the project, ensuring that the

work of public art is achieved within budget

and on schedule, and that it meets the

aesthetic goals of all involved.

A public art consultant has the expertise

needed to work with the developer, the

developer's team, the artists, and City staff

to commission and create a unique, site-

specific public art project for either a public

or private development. The public art

consultant is retained to oversee the

selection of an artist and to ensure that the

finished project is of the quality promised

by the artist and meets the expectations of

the commissioning entity. His or her

experience includes coordinating and

managing a variety of personalities, skills,

interests, and regulations. The specific

experience and expertise of the public art

consultant (which is quite different from

that of a corporate art consultant) can save

the developer considerable time and effort,

and will contribute to the realization of an

exemplary project.

An experienced public art consultant is

invaluable in assuring that communication

among the various participants is clear, and

that all stages of the process are anticipated

and discussed well in advance. The public

art consultant can assist the client in a

range of ways.

For example:

 Recognizing opportunities within the

public art project, such as a shade

structure, or a seating element, or

the enhancement of a planned

water feature;

 Understanding and coordinating the

municipal approval process;

 Communicating with the City staff to

insure a smooth process from

beginning to completion;

 Soliciting portfolios from a variety of

artists to consider for the project.

 Working closely with the artist to

ensure the highest quality of work;

 Ensuring that deadlines are met;

 Helping to manage budget issues.

In addition, the public art consultant can

ensure that the work is successfully

integrated into the built environment of the

development project, in cooperation with

the developer's design team and

contractors.

For public art projects in private

development, the public art consultant is

paid by the developer, and

the fee is negotiated between the two

parties. It is important to confirm with the

City representatives whether this fee is an

allowable expense within the art budget.

Payment is either based on an hourly fee

with an upset limit, or a set fee based on a

percentage of the overall budget. For

example, an ordinance may limit the

consultant's fee to 5% of the overall art

budget. Of course, fees paid to the public

art consultant must be transparent. An art

consultant’s fee is not a percentage of the

artist’s contract for the commission.

The public art consultant represents the

developer's interests and concerns

throughout the project, including the final

achievement of the best possible public art

project for the owner, the artist, and the

community.

8. What specialized experience does an

experienced public art consultant bring to

the developer's team?

 Experience in and understanding of

the building construction process.

 Experience in timely decision-

making and negotiating skills.

 A detailed and comprehensive

understanding of the unique

challenges and opportunities in

creating a site-specific work of

public art.

 Experience in dealing with the

dynamics of City politics.

9. What are some of the key questions to

ask a public art consultant you are

considering hiring?

 Do you have experience in

overseeing a range of public art

projects (different budgets,

locations, sites)?

 Can you provide references from

developers or city administrators

with whom you have worked?

 What are some of your initial

thoughts about possible ways to

achieve my goals for this project?

The City's Arts and Culture Council should

be able to recommend a few qualified

public art consultants.

10. What makes for a good public art

process? And how does this contribute to

the realization of a successful public art

project?

A well-considered public art process

includes a thorough, transparent artists'

search and selection process. It is essential

to a good project outcome that this process

is clear, that everyone involved knows the

steps in the process, and that they

understand how and why they are there. As

in construction projects, this is the critical

underlying infrastructure of the public art

project.

Questions to ask:

 Does the City define the process?

Some City ordinances and guidelines

specify that City staff, as well as the

developer's team, must be involved

in the selection of both the site for

the work and the project artist, and

may have a clear process for

including them in place. Other Cities

and municipalities may have less

well-defined requirements. It is very

important that the developer work

closely with the City staff to become

familiar with the process and

understand the requirements.

 If the City has not specified the

steps in the public art process, an

experienced public art consultant

can be very helpful in working with

the developer and the City to

achieve a positive process and

outcome.

Lynn Basa The Grove (with wedding party)

Village Square, Claremont, CA

Photograph by Artist

11. Who should the developer include on

his team?

It is of crucial importance for the developer

to assemble a team of knowledgeable,

engaged, experienced individuals to

participate in the public art process. These

individuals may include:

 A public art consultant;

 City officials;

 Art educators and curators;

 An architect (the project architect,

and/or an architect not directly

involved in the development

project);

 A landscape architect experienced in

public art,

 Other experienced artists.

While it is understood that the developer

will make final decisions about the public

art project, the input, discussion, and

counsel of the advisory group and City staff

can be invaluable in creating a positive

outcome. The role of the advisory team is to

help the developer gain knowledge of and

insight into a range of possibilities in

selecting both the public art site and the

artist.

Commissioning a work of public art is a

major decision that will have a long-term

impact on the development, as well as on

the community. The advisory team can

assist the developer by making the City

approval process more streamlined, and by

providing professional support throughout

the selection and approval process and

throughout the project's development.

12. How is the cost of the public art project

determined?

Typically, the cost of the public art project is

calculated as a percentage of the hard

construction costs of the development

project. Each City or municipality sets its

own percentage, usually (but not always)

1%. This number represents the total

budget for the public art project, and covers

all costs related to the public art project,

including artist selection and fees, the

artist's consultants and engineers,

fabrication, shipping and transportation,

installation, and construction costs related

to installation of the public art project.

It is important to discuss the budget with

City staff, to ensure that all the costs that

are to be included in the budget are

understood and accounted for.

Richard Deutsch Fragments

Blu Plaza, San Francisco, CA

Photograph by Artist

13. How is the best and most appropriate

site for public art determined?

Even if sited on private land, the public art

project will become an important part of

the City's landscape. Depending on the

available siting for the public art project,

City codes often require that the work of art

work is visible and/or accessible to the

public.

Each development project and site area is

unique, and determining the best location

for the work of public art in a way that also

enhances the development project should

be a part of early discussions. The

developer's concept and goals for the

development project are a critical part of

this discussion. By reviewing the project site

plan, the developer's advisory group,

working with City staff, may find unique

ways of realizing opportunities that are not

apparent during the initial review.

Sometimes there will be several different

possible sites to consider: in other cases,

one site will be immediately apparent as

the best location. Most experienced artists

will want to be able to contribute to this

discussion. For many artists who do public

works, understanding a site with as much

clarity and perception as architects and

landscape designers is an important part of

their professional expertise. Bringing an

artist onto the development team early in

the design phase allows for his or her vision

to be optimally realized.

Anne Marie Karlsen Wheels

Santa Monica Place Parking Garage, CA

Photographer: William Short

14. How is the artist selected?

Through a site plan review process, with the

developer, advisory committee and City

staff working together, typically several

possible location(s) for the public art

project are selected.

Some locations will suggest a particular

type of public artwork (landscape, lighting,

mosaic, metal, etc.). When this is the case,

the search for an artist or group of artists

experienced in that particular medium

marks the beginning of the search process.

In other projects there may be various

possibilities for both the site and the type of

work, thereby allowing for a wider range of

potential artistic opportunities.

Some experienced artists work in a variety

of media. Another way of approaching this

process is to bring an artist or artists to

meet with the team prior to selecting a site.

Larry Kirkland Around About

Westgate Center Pasadena, CA

Photograph by Artist

There are several ways to seek appropriate,

experienced artists. Public art consultants

have comprehensive knowledge of and

experience with qualified artists. Typically,

the advisory team, as well as the City's arts

and culture staff, will also have

recommendations for artists to consider. In

some cities there is a pre-qualified pool of

artists to be considered for art

commissions, selected by a jury process.

One type of selection process, coordinated

by the public art consultant or City Staff,

might include the following steps:

 Request for qualifications (RFQs)

from artists to be considered for the

project are collected.

 The developer, the advisory

committee, City staff, and the public

art consultant review artists'

materials submitted.

 Working together, the advisory

team and City staff determines a

short list of 3-5 artists to be

considered.

 The short-listed artists visit the site,

meet with the developer and the

team, and review the site plan and

architectural drawings for the

project.

 Artists present their concepts and

ideas to the selection committee

(the developer, members of

Advisory Committee, City officials

and staff)

 After discussion by the selection

committee, the artist is selected. (If

additional information is needed

before a decision can be made, the

committee decides next steps.)

In another approach to the selection

process an artist is selected after a review

of his or her qualifications and an interview

with the Committee. This artist is then

retained to develop a concept, working with

the design team of architects and landscape

designers. The concept is then subject to

review and acceptance by the developer,

the Advisory Committee, and City officials

and staff.

15. How can developers and artists do

their best work together?

“During the design process it is important to

create opportunities for discussions about

budget, theme, size, colors, materials, style and

how to best work with whatever approvals are

necessary. A very collaborative relationship will

result in a product that is far better for both

parties than a project created in a vacuum. If

the developer does not have the temperament

for working with an artist in this fashion,

recognize that fact and appoint someone else to

do so.”

David Jury | Vice President, Support Services &

Facilities Development | Palo Alto Medical

Foundation

 Begin to discuss the project with City

staff and the public art consultant as

early in the process as possible -- the

earlier, the better, to allow for pro-

active planning.

 Establish a clear and transparent

process and schedule for reviews of

the project. (Typically the reviews

are related to contract phases and

the payment schedule outlined in

the artist's contract.)

 Articulate the vision for the

development project, and express

ideas about how the public art

project might be best integrated

into the development project

overall.

 Clarify the roles of members of the

advisory team. This is particularly

important if the developer has

designated someone on his/her staff

as a key representative and

decision-maker for the public art

project.

16. What should be included in the artist’s

contract?

 The public art consultant and/or City

staff will have experience with

public art contracts. Unlike other

building, design, and construction

contracts, the artist's contract

includes the artist's right to retain

intellectual property rights to his or

her ideas, concepts, models,

samples, drawings as well as the

finished work of art.

 The artist is responsible for the

supervision and/or execution of all

aspects of the public art project.

 The contract must be directly

between the developer and the

artist (not through a third party,

such as the project architect or

general contractor).

 Once the art project is complete, the

title of ownership passes to the

developer. The artist or artist's

estate retains the copyright in

perpetuity.

Larry Kirkland Wonder Wander

Gateway Center at Potomac Yards,

Arlington County VA.

Photographer: Craig Collins

17. What happens after the artwork is

installed and approved?

 The finished and installed public art

project is part of the developer's

agreement with the City. The

project's Certificate of Occupancy

may depend upon the completion of

the art project and its acceptance by

the City.

 As part of the developer's

agreement with the City, the art

project and the entire site must be

maintained in accordance with

guidelines supplied by the artist.

 No alterations, removal, relocation,

or de-acquisition may take place

without the approval of both the

City and the artist.

 Should the property be sold, these

requirements remain in place as part

of the property, and are the

responsibility of the new owner.

 City codes specify the process when

a work of art is damaged or

removed due to mitigating factors,

as determined by the City.

18. Frequently asked questions:

 Is it preferable to hire a local artist?

This often depends upon the scale

and scope of the project. Smaller

project budgets suggest that, to hold

down costs, an artist from the

region should be sought. Larger

projects may attract an artist of

greater reputation and expanded

vision. Finding the right artist for a

particular project may mean

expanding beyond the region.

 Should the artist be required to use

local fabricators? Artists create their

artworks in many ways: some in

their own studios, and some using a

variety of artisans and fabricators.

Artists often develop strong working

relationships with these fabrication

teams. These specialists are

uniquely qualified to help realize the

vision of the artist. A local fabricator

might be suggested to a good end

result, but this decision should be

left up to the artist.

 What happens if the developer and

the developer's team are not

satisfied with the artist’s proposals?

A good contract will define the

process. Most often if the developer

or City is not satisfied with the

proposed concept, a frank

discussion among all involved will

help define the problematic issues.

The artist is then offered the

opportunity to refine or

reconceptualize the proposal, for an

additional fee. If the new concept is

still unacceptable, the developer has

the right to release the artist from

the contract and find another artist.

 What are some safeguards for

ensuring that the public art project

will stay within budget and on

schedule? Be very clear what the

established budget is. Have a

thorough understanding of the

artist’s previous projects, the

budgets for them, and whether

there were budget over-runs in the

past. Ask for a complete budget

breakdown of all materials, labor,

overhead, crating, shipping,

consultant fees, installation, and

artist oversight and fee. Insist that

the artist carry a contingency, and

make sure the developer has a

contingency as well. As with all

building projects, running into the

unexpected is to be expected.

 Are artists hard to work with?

Artists ask the reverse: “Are these

people hard to work with?” Artists,

like many others, are creative,

visionary, hardworking and

dedicated people. Those who are

involved in creating works in the

public arena understand the

complicated demands of schedules,

reviews, and working with large,

complex groups of people. Prior to

hiring an artist, it is important to talk

with those who have worked with

him or her previously. It is also

important to understand that artists

are not like traditional construction

workers. Artists make one-of-a-kind

objects, and it requires great skill

and attention to realize their visions.

Establishing an involved and

mutually respectful relationship

between owner and artist is very

important.

Michael Stutz Flamethrower

Westin Gaslamp Quarter, San Diego, CA

Photograph by Artist

This document was written by

Susan M Miller, with contributions by

Janet Hulstrand, Janet Kagan and

Larry Kirkland