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Ord No 06-21-2396ORDINANCE NO.06-21-2396 An Ordinance amending Chapter 7 of the City of South Miami Code of Ordinances, creating a new Section 7-17 titled "Art in Public Places". WHEREAS, Art in Public Places will enhance its character and identity of the City; and WHEREAS, Art in Public Places will contribute to economic development and tourism; and WHEREAS, Art in Public Places will revitalize urban space with cultural meaning, aesthetic quality, and uniqueness; and WHEREAS, Art in Public Places will add beauty and interest in those spaces visible to the public; and WHEREAS, Art in Public Places will increase opportunities for the public to experience and participate in the arts through the acquisition and installation of world -class art in publicly accessible areas. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1. The foregoing recitals are hereby ratified and incorporated by reference as if fully set forth herein and as the legislative intent of this Ordinance. Section 2. The City of South Miami's Chapter 7, of the City of South Miami Code of Ordinances, creating a new Section 7-17 titled "Art in Public Places"— "Art in Public Places Trust" that reads as follows: Sec. 7-17 in Public Places Art in Public Places (1) This Section is known, and may be cited as the "South Miami Art in Public Places Ordinance." (2) Definitions. The following terms are hereby defined for this Section: City facility means any building above -ground, that is Q owned by the City_ or any of its agencies, and or private development built on City -owned land. Page l of 11 Ord. No.06-21-2396 Committee means the Art in Public Places Professional Advisory Committee as established in this Section or the Miami -Dade County Art in Public Places Professional Advisory Committee if the City chooses to utilize such services provided by the county. Construction Cost means and includes the cost of the entire construction of the Protect, including all supervision, materials, supplies, labor, tools, equipment, transportation and/or other facilities furnished, used or consumed, without deduction on account of penalties, liquidated damages or other amounts withheld from payment to the contractor or contractors, but such cost shall not include the Consulting Engineer/Architect's fee, or other payments to the Consulting Engineer/Architect and shall not include cost of land, Rights -of -Way and Easement acquisition or subsequent changes to the construction contract with no impact to the total square footage of the construction project. All construction costs must be calculated as of the date the contract is executed. Trust or Trustees, as those words are used in this Section, mean the Trustee(s) of the Art in Public Places Trust. Works of atf means the application of skill and taste to production of tangible objects, according to aesthetic principles, including, but not limited to, paintings, sculptures, engravings, carvings, frescoes, mobiles, murals, collages, mosaics, statues, bas-reliefs, tapestries, photographs, lighting designs and drawings. Works of Art are to be created by professional artists in the visual arts with established and or emerging practices and a track record of creating works accessioned in public and or private collections. (3) The City of South Miami has adopted a municipal program providing for the acquisition and maintenance of public art , as contemplated by, Section 2-11.15 of the Miami -Dade County Code of Ordinances entitled "Works of Art in Public Places," as it may be amended from time to time. It is the purpose of this Section to establish a formal City requirement for the funding, acquisition, commissioning and maintenance of public art. This requirement, and the policies and procedures that implement it, are referred to as the City of South Miami Art in Public Places Program (Program). (4) It is the intention of this Program to preserve the City's heritage; to enhance its character and identity; to contribute to economic development and tourism: to revitalize urban space with cultural meaning, aesthetic quality and uniqueness: to add beauty and interest in those spaces visible to the public; and to increase opportunities for the public to experience and participate in the arts through the acquisition and installation of world -class art in publicly accessible areas. Page 2 of 11 Ord. No. 06-21-2396 (5) Art in Public Places Program. (a) Applicability. The Art in Public Places Program applies to Municipal and Non -Municipal Construction Projects. The minimum requirements for new governmental buildings are governed by the Miami -Dade County Code as amended, Section 2-11.15, which requires not less than one and one-half percent (1.5%) of the construction cost of new -governmental buildings be devoted towards the acquisition, repair, and maintenance of public art. The provisions in this Section are supplemental to and generally more restrictive than Miami -Dade County Code provisions. If the Miami -Dade County Code provisions relating to new governmental buildings are not enforced by the City, Miami -Dade County may enforce those provisions. Should a conflict arise between the provisions of this Section and Miami -Dade County Code, the more restrictive will apply. A commercial property owner who is not subject to the Art in Public Places Program may opt into the Program by submitting proposed Public Art to Committee; provided the Program's requirement that the art have a value of 1.5% of the Construction Cost does not apply (b) Fund Requirements and Waivers. (i) Fund Requirements. The Art in Public Places Program will be funded through Art in Public Places Fees (Fee) for non -municipal projects, as well as a contribution from the City for municipal construction projects (Contribution) whether the project is implemented directly by the City or through a public -private partnership where the City retains ownership of the land. (ii) The Fee and the Contribution are both based on the Construction cost and in each case, it is equal to one and one-half percent (1.5%) of the Construction cost of the Project. These funds will be interest bearing and the principal and any eamed interest may only be used for the purposes outlined in the Program. Persons or entities other than those required to make payments to the Art Trust Fund pursuant to this Section may make a voluntary donation to the Fund by specffying_the use of such donation. (iii) The Developer of any Non -Municipal Commercial Construction Proiect of one million dollars ($1,000,000.00) or more and not exempted as provided in paragraph (c) below, must contribute one- and one-half percent (1.5%) of the Construction Cost to the Art Trust Fund established by the City. A Developer may seek a waiver of the requirement of this Section as provided in paragraph NO below. Application of this Art Trust Fund will be in accordance with City Guidelines and Master Plan. Page 3 of 11 Ord. No. 06-21-2396 (iv) Waiver of the Art in Public Places Fee. A Developer of a Non - Municipal Construction Proiect that is not exempt as set forth in Para_ rap ah (c) below may petition to waive the Art in Public Places Fee requirement by one or more of the following: 1. Ac�g or commissioning artwork for donation to the City, which has an appraised value equal to or greater than the amount of the Art in Public Places Fee that otherwise would be required, with such artwork to be incorporated within the Developer's project; valuation of the work must be performed and submitted in writing by a US certified art appraiser; or 2. Donating to and installing artwork in the City with an appraised value equal to or greater than the amount of the Art in Public Places Fee that otherwise would be required, and providing for the perpetual maintenance of such artwork, valuation of the work must be performed and submitted in writing by a US certified art appraiser; or 3. Causing the purchase, designation, restoration, or perpetual maintenance of significant buildings and structures in an amount equal to or greater than the amount of the Art in Public Places Fee that otherwise would be required provided they have been designated as historic by the City's Historic Preservation Board; or 4. Causing the purchase of parcels, identified by the City Manager as needed for the City's Parks and Open Space, in an amount equal to or greater than the amount of the Art in Public Places Fee that otherwise would be required and donating such parcels to the City. (c) A Developer seeking a waiver pursuant to paragraphs 1 or 2 herein above must submit the proposed Artist and artwork concept to the Committee for review, in accordance with the Guidelines. The Committee will recommend to the Trust and the City Commission whether to approve, deny, request further information or approve with _conditions, and the City Commission will have final approval of the concept (if work is to be commissioned) or the donation of the artwork. (d) The value of donated or acquired artwork must be confirmed by a US certified art appraiser (or person with professional arts credentials otherwise acceptable to the City), with the cost of such appraisal to be borne solely by the Developer and which cannot be included in the one and one-half percent (1.5%) budget for art. The value of the commissioned work will be determined by the value of the artist contract for such commission, including but not limited to, artist fee, and expenses incurred by the artist for subcontractors, travel/expenses, materials, fabrication, transportation and installation costs. Developer costs for art consultant fees in excess of ten percent (10%) of the Art in Public Places Fee, including proiect management, coordination with other design professionals, site preparation, and other in-house costs Page 4 of 11 Ord. No. 06-21-2396 or fees will not be considered part of the value of the commissioned work. (e) Ownership and title of works incorporated into private construction must remain with the property owner, who will be required to maintain the artwork in good condition. The property owner's obligations regarding maintenance and access for such artwork must be set forth in a recorded restrictive covenant acceptable to the City Attorney's Office, which obligations must run with the land. Removal or alteration of artwork incorporated into private property may only be permitted with City approval in accordance with the Guidelines and will require payment of the Fee to the Art Trust Fund that otherwise would have been originally required. (f) Title to works donated to the City and placed on City property must have a Warranty Title naming the City as sole owner of the artwork. Any Public Art created or installed through a partnership between a Developer and the City to place free-standing Public Art on City property to satisfy all be part of that Developer's Art in Public Places Fee is required to be presented to the City Commission for review and final approval. All contracts for artwork that will be acquired or accepted for ownership by the City must be reviewed and approved as to form and legal sufficiency by the City Attomey's Office. (g) A Developer seeking waiver pursuant to paragraphs (iii)3 or Ov)4 herein above must submit the request to the City Commission for approval with a recommendation of the Historic Preservation Board for paragraph 003 and Parks and Recreation Board for paragraph (iv)4, as well as staff. The value of donations must be determined by a qualified appraiser acceptable to the City, which in the case of real estate must be by an appraiser who is an Appraisal Institute member holding US certified appraiser and the cost of such appraisal must be borne by the Developer. (h) In extraordinary circumstances, upon a showing of a unique hardship that is not otherwise addressed in this Section, a developer may seek an adiustment of the requirements of this Section. The request for adjustment will be made to the City Commission, after obtaining_a recommendation from the Trust and City Manager. The determination of the City Commission as to whether to exercise its discretion to grant an adjustment in extraordinary circumstances is final and not subject to further reconsideration, review, or appeal. (i) Exemptions from the Art in Public Places Program. The following are exempt from the requirements of this Section and are not required to pay into the Art Trust Fund or seek a waiver from paving into the fund: (i) New construction, additions, and modifications to single-family detached residences. Page 5 of 11 Ord. No. 06-21-2396 (ii)Construction projects, which are required to pay a public art fee pursuant to other applicable Miami -Dade County regulations, provided Payment has been made and an official letter of compliance from Miami -Dade Art in Public Places is documented and approved to the City Manager's satisfaction: (j) Applicants wishing to pursue installation of Art in Public Places must meet requirements of the City's Master Plan and the Guidelines. After submission to and review by the Committee and the Trust, the City Commission, in its sole and absolute discretion, may approve the submitted concept for Public Art. It is the intention and direction of the City that Public Art approved through the City's Art in Public Places Programs permitted regarding aesthetic characteristics after a review is conducted and a determination is made by the Committee that the Public Art is appropriate in design and proposed construction. (k) Appropriation for construction to include amount for works of art. The City Manager is authorized to accept donations in any amount and to provide for the acquisition of works of art equivalent in value to an amount not less than one and one-half (1.5) percent of the Construction Cost of each new commercial building. All funds appropriated must be deposited into a segregated account and only used for art in public places. To the extent the total appropriation is not used for the acquisition of works of art for said buildings, the remainder may be used for: (i) Program administrative costs, insurance costs, or for the repair and maintenance of any works of art acquired under this Section; or (ii) To supplement other appropriations for the acquisition of works of art under this Section or to place works of art in or on public places or buildings which have already been constructed. (1) All non -municipal new commercial construction having a value greater than $1,000,000 must pay an Art in Public Places Fee into the Art Trust Fund equal to one and one-half (1.5%) of the Construction Costs of the Project. In the altemative, (i) the owner may install art approved by the Trust having an equivalent value in a public plaza. The site of the plaza must be approved by the Trust and the City Manager. If there is a disagreement between the Trust and the City Manager as to the site of the plaza, the City Commission must approve the site: or (ii) The City and Owner may work collaboratively to identify art opportunities within the proiect that may be suitable for the integration of an artist -design feature and/or element to be wholly or partially paid by the Art in Public Places Fee generated by said rdect. Page 6 of 11 Ord. No. 06-21-2396 (6) Art in Public Places Trust. The Art in Public Places program will be administered by a Trust and referred to in this Section as "Trust". (a) Purpose. The Trustees of the Art in Public Places Trust must act in the public interest upon all matters relating to the program and must support the program's -goals and objectives. The Trustees' responsibilities include reviewing the Committee's proposed selections of artwork and making recommendations to the City Commission, for maintenance, planning, public education, and curating of all works of art acquired by the program. (b) Membership; qualifications. The Trust is composed of a maximum of Five (5) Trustees appointed to staggered terms. Each member of the City Commission may appoint a representative to the Trust. Trustees will serve without compensation. Each Trustee appointed by a member of the City Commission must be appointed to a term which will end concurrently with the last day of the term of the City Commissioner who appointed the Trustee. (c) If a vacancy occurs prior to the expiration of the Trustee's term, the Commission member who appointed that Trustee may appoint a new Trustee to fill the balance of the term. Each Trustee must be knowledgeable in public art, a resident of the City and may not operate, own or be employed by any art dealer, art gallery, artists' representative, museum, or other entity that derives income from the sale or display of artwork. (d) Term of office. Each Trustee, after the initial Board of Trustees are appointed, are limited to two consecutive four (4) year terms which may be extended in accordance with Section 2-22 of the Citv's Code of Ordinances. The City Commission may stagger the terms of the initial Board of Trustees. Additionally, notwithstanding any other provision of the Code or of any resolution, the term of every Trustee appointed by a Commissioner will automatically expire when the appointing Commission member leaves office or the member's term expires. (e) Attendance requirement. Notwithstanding any other provision of this Code, a Trustee must be automatically removed if, in a given fiscal year, the Trustee is absent from three (3) of the board's meetings without an acceptable excuse. (f) A member of a Board will be deemed absent from a meeting when the Trustee is not present at seventy-five (75) percent of the meeting. An "acceptable excuse" is defined as an absence for medical reasons, or any other reason which the Board, by a two-thirds vote of the membership, deems appropriate. By a two-thirds (2/3) vote of the members of the City Commission, the provisions of this Section may be waived. (g) Quorum. A quorum consists of a majority of the Trustees that are in office. Page 7 of 11 Ord. No. 06-21-2396 (h) Duties. The Trustees must prepare and approve a master art plan to ensure a coherent acquisition program and implementation guidelines (Guidelines), both of which must be approved by the City Commission. The Trustees must approve all program acquisitions in accordance with the master art plan and Guidelines. (i) Master art plan and implementation -guidelines. The Trust must publish a master art plan Master Plan and written uniform guidelines (Guidelines) which must be reviewed and approval by the City Commission. The Master Plan will govern location and selection criteria for artwork. Written Guidelines must include policies and procedures for managing City -initiated public art projects, guiding Developers who have an Art in Public Places requirement, The Guidelines will govern the manner and method of submission of proposed works of art to the Trustees, and the process by which the Trustees will make recommendations to the City Commission. 0) The City Commission may, resolution, engage Miami -Dade County to perform the functions of the Trust and avoid the establishment of the City's own Trust. (7) Professional Advisory Committee. A Professional Advisory Committee (Committee) here by created, composed of five members who must be appointed by the Board of Trustees, and who will be compensated for professional services in accordance with a schedule established by the Trustees, although this will not preclude donation of such services. (a) Membership, qualifications. Each member of the Committee must be a professional in the field of art, architecture, art history, or architectural history. Members' reasonable expenses will be reimbursed at a uniform rate to be established from time to time by the Trust. (b) Term of office. Each Committee member will serve a four-year term and may be reappointed for a total of two (2) consecutive terms. The term limit may be extended by the City Commission in accordance with Section 2-22 of the City's Code of Ordinances. (c) Duties. The Committee will screen submissions and will recommend to the Trust for each acquisition not more than three (3) possible selections, which may be existing works of art or new commissions. (d) Proceedings. For each acquisition the Trust may direct the Committee to act as a Committee of the Whole or in smaller subcommittees. (e) Selections of works of art. All acquisitions and commissions will be in accordance with the master art plan. The Trust must approve each acquisition and commission from those recommendations made by the Committee. The Cily Manager will negotiate and execute appropriate contracts to acquire each approved work of art. Funds may be aggregated to acquire works of art. Page 8 of 11 Ord. No. 06-21-2396 (f) The City Commission may, by resolution, engage Miami -Dade County to oerform the functions of the Committee and avoid the establishment of the City's own Committee. (g) Selection criteria In the selection process, the following principles must be observed: (i) Works of art must be located in areas where residents and visitors live and congregate and where the art will be highly accessible and visible. (ii) Areas used by tourists, including the parks and thoroughfares, shall each have a separate sub -master plan that must be incorporated as a portion of the master art plan. (iii) The Trust's selections must reflect the cultural and ethnic diversity of this City without deviation from a standard of excellence. (iv) Final selection must also take into account appropriateness to the site, permanence of the work in light of environmental conditions at the site, maintenance requirements, quality of the work, likelihood that the artist can successfully complete the work within the available funding, and diversity of the artists whose work has been acquired by the Trust. (h) The City may alternatively, by written resolution, engage Miami -Dade County Art in Public Places Program to provide on a fee basis, services of the County's Committee for the selection of Art in Public Places commissions and or acquisitions and for the proiect management deemed necessary for the successful implementation of an artwork commission (8) The Guidelines will govern the manner and method of the submission of proposed works of art to the Committee, the process by which the Committee must make recommendations to the Trust and the process by which the Trust is to approve acquisitions. The Guidelines and the Master Plan must be approved by City Commission. Purchases of existing art and Commissions for new art pursuant to such approved -guidelines must be approved by the City Manager and mentioned to Commission under City Managers Report. (9) Accounting. The City Manager must submit an annual report providin a detailed accounting of monies spent or earmarked for future expenditures from the Art Trust Fund to the City Commission during budget process. (10) Selection of Public Art using the Art Trust Fund. The selection of public art using the Art Trust Fund, must be made by the Committee, and approved by the City Commission after receiving a recommendation from the Trust. The Principles_ governing selection criteria for public art Page 9 of 11 Ord. No. 06-21-2396 are more fully set forth in the Guidelines and Master Plan, but at a minimum the work of art must satisfy all of the following: (a) Is publicly accessible. (b) Is created by a professional Artist who makes a living through his/her art practice and has a proven track record of creating a body of visual work fora public, commercial and or grivate benefit. (c) Demonstrates excellence in aesthetic quality, workmanship, innovation, and creativity. (d) Is appropriate in scale, form, content and of materials/media suitable for the site. (e) Demonstrates feasibility in terms of budget, timeline, safety, durability, operation, maintenance, conservation, security and/or storage and siting; and (f) Bring diversity to the City's public art collection in terms of media, artistic discipline and/or artistic approach. (11) Ownership and Upkeep Ownership of all works of art acquired by the City under this Section is vested in the City of South Miami. The Art in Public Places Trust is charged with the custody, supervision, maintenance, and preservation of works of art acquired by the City ursuant to this Section. In each instance the Cily will obtain title to each work of art acquired. All contractual agreements between the City and the artist must include a "Maintenance and Inventory Sheet", including the annual cost projections, which details the maintenance and ongoing care of the work of art and signagelcredit recommendations. The City Manager may require an assessment by a professional conservator. (12) Personnel. The City Manager may provide adequate clerical personnel as may be reasonably required by the Trust for the proper performance of its duties, subject to budget limitations. (13) Conflict of Interest and Code of Ethics Ordinance. The provisions of the Miami -Dade County Conflict of Interest and Code of Ethics Ordinance are applicable to the members of the Trust and the Committee. Section 3. Corrections. Conforming language or technical scrivener - type corrections may be made by the City Attorney for any conforming amendments to be incorporated into the final ordinance. Section 4. Codification. The provisions of this ordinance shall become and be made part of the City of South Miami Land Development Code as amended; that the sections of this ordinance may be renumbered or re -lettered to accomplish Page 10 of 11 Ord. No. 06-21-2396 such intention; and that the word 'ordinance" may be changed to "section" or other appropriate word. Section 5. Ordinances in Conflict. All ordinances or parts of ordinances and all sections and parts of sections of ordinances in direct conflict herewith are hereby repealed. Section 6. Severability. If any section, clause, sentence, or phrase of this ordinance is for any reason held invalid or unconstitutional by a court of competent jurisdiction, this holding shall not affect the validity of the remaining portions of this ordinance. Section 7. Effective Date. This ordinance shall become effective upon enactment. PASSED AND ENACTED this 231d day of March, 2021. ATTEST: 0 CITY LERi 15' Reading — 3/2/21 2°d Reading — 3/23/21 PAP READ AND APPROVED AS TO FORM: COMMISSION VOTE: 4-0 LANGUAGE, LEGALITY, AND Mayor Philips: Yea EXECUTJON THEIR Commissioner Harris: Yea Commissioner Liebman: Yea Commissioner Gil: Yea WY ATTORNEY Page 11 of 11 Agenda item No:6. City Commission Agenda item Report Meeting Date: March 16, 2021 Submitted by: Thomas Pepe Submitting Department: City Attorney Item Type: Ordinance Agenda Section: Subject: An Ordinance amending Chapter 7 titled "Buildings", of the City of South Miami Code of Ordinances, creating a new Section 7.17 titled "Art in Public Places". 3/5 (Commissioner Liebman) Suggested Action: Attachments: City_of_South_Miami Art_Public_Places-SKFinal_MDCrevCAresponseClean_3_sf.docx