Item Coversheet

Ordinances - R5  F




COMMISSION MEMORANDUM

TO:Honorable Mayor and Members of the City Commission 
FROM:Raul J. Aguila, City Attorney 
DATE:September  11, 2019
 

10:30 a.m. Second Reading Public Hearing

SUBJECT:

AN ORDINANCE OF THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE CODE OF THE CITY OF MIAMI BEACH, ENTITLED "PUBLIC PROPERTY," BY AMENDING ARTICLE VII, ENTITLED "ART IN PUBLIC PLACES" ("AIPP"), BY AMENDING SECTION 82-537 THEREOF, ENTITLED "DEFINITIONS," TO AMEND THE DEFINITION OF "CITY CONSTRUCTION PROJECT" AND THE DOLLAR THRESHOLD THEREIN FROM $500,000, TO $250,000 FOR THE PROJECTS SUBJECT TO THE PROVISIONS OF ARTICLE VII; AMENDING THE TYPES OF PROJECTS EXCLUDED FROM THE APPLICABILITY OF ARTICLE VII, AND AMENDING THE DEFINITION OF "CONSTRUCTION COST"; BY AMENDING SECTION 82-562, ENTITLED "POWERS AND DUTIES," TO PROVIDE NON-SUBSTANTIVE TEXT AMENDMENTS; BY AMENDING SECTION 82-587, ENTITLED "APPROPRIATION BY THE CITY TO THE FUND," TO AMEND THE AMOUNT TO BE APPROPRIATED TO THE ART IN PUBLIC PLACES FUND ("FUND") FROM NOT LESS THAN 1½ PERCENT, TO NOT LESS THAN 2 PERCENT OF THE CONSTRUCTION COST OF CITY CONSTRUCTION PROJECTS, CONFORMING LANGUAGE RELATIVE TO PROJECTS DEVELOPED BY PERSONS OR ENTITIES OTHER THAN THE CITY TO THE AMENDED DEFINITIONS OF "CITY CONSTRUCTION PROJECT" AND "CONSTRUCTION COST," AND REQUIRING A 5/7TH CITY COMMISSION VOTE FOR WAIVER OR REDUCTION OF AN OTHERWISE REQUIRED AIPP APPROPRIATION OR PLACEMENT OF AN APPROPRIATION INTO THE FUND; BY AMENDING SECTION 82-588, ENTITLED "PERMITTED USE OF FUND MONIES," TO PROVIDE NON-SUBSTANTIVE TEXT CHANGES; AND, PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.


RECOMMENDATION

 

At first reading on July 17, 2019, the Administration expressed its support for raising the amount appropriated to the AiPP fund to not less than 2% of the construction cost of City Construction projects, but that it would like to work with the sponsor to address concerns regarding the applicability of the ordinance to specified G.O. Bond projects.  On July 17, 2019, the Mayor and City Commission approved the proposed amendments to the AIPP Ordinance on first reading, subject to a resolution of the concerns raised by the Administration and the City’s G.O. Bond Oversight Committee. 

 

In an effort to fully address the concerns raised by the Administration and the G.O. Bond Oversight Committee with respect to the applicability of the AIPP Ordinance to the existing planned G.O. above-ground improvements and streetscape beautification projects, pursuant to Section 82-587(c)1 of the City Code, the proposed waiver of the requirements of the AIPP Ordinance with respect to the foregoing projects is the subject of a companion agenda item for the City Commission’s consideration.

 

On August 27, 2019, the Art in Public Places Committee was advised of the foregoing list of projects that would be exempted from the AIPP requirements, and the AIPP Committee raised no objection to the proposed exemptions.

ANALYSIS


The Art in Public Places (AiPP) Ordinance (Ordinance No. 95-2985) was adopted in 1995. The ordinance was created to “enhance the aesthetic environment of the City of Miami Beach by including works of art on public property within the City and in City construction projects.”

The goals of the AiPP program are: overseeing the City's public art collection; enhancing the physical environment of Miami Beach with artworks of the highest level of quality and suitability for the site; serving as the coordinating body for all public art projects on City property; building partnerships with the private sector, non-profit and community groups that connect the AiPP projects to the life of the City; encouraging participation by artists based locally, nationally and internationally; and serving as a source of information about public art.

 

Prior Amendments

 
The AiPP Ordinance was amended on June 9, 2004 (Ordinance No. 2004-3448) to clarify the definition of terms for eligible construction projects for funding as well as the policy and procedures for appropriations. The amendments expanded the required appropriations to the AIPP Fund to include city construction projects where the City is a party to a development agreement and/or a ground lease; revised and clarified the respective definitions of “hard costs” and “City construction project” for purposes of applying required AIPP financial contributions; exempted certain types of City construction projects from the AIPP Ordinance; clarified the powers and duties of the AIPP Committee; made the Committee structure uniform with the City’s agencies, boards, and committees legislation; and provided that the acquisition, removal, and/or relocation of works of art would be in accordance with the criteria set forth in the Art in Public Places Master Plan, that was adopted by resolution of the City Commission. The AiPP Guidelines were also adopted by the City Commission at that time.

On October 14, 2015, at the request of Commissioner Malakoff, the City Commission directed city staff to prepare an amendment to the AiPP Ordinance that would streamline the review and approval process for Art in Public Places. Prior to the amendment, the City Code required the selected work of public art to be reviewed twice by either the Historic Preservation Board or Design Review Board, which review the work of art solely in an advisory capacity. The amendment, adopted on January 13, 2016 (Ordinance No. 2016-3985), requires the City’s AIPP-selected artists to only appear once before the Historic Preservation Board or the Design Review Board, and clarified the City Code to reflect that the City Commission makes all findings, selection and conditions to be imposed upon the artwork, artist or location, as either board is advisory to the City Commission, which makes the ultimate determinations with respect to AIPP works.

 

Existing AiPP Funding and Definitions

The AiPP program is funded by 1 ½ % of all hard costs of City projects, including new construction, additions, and costs for construction of joint private/public projects. The fund is used for the commission or acquisition of works of art; conservation and maintenance of works of art; research and evaluation of works of art; printing and distribution of related materials; and administration.

 

Funding. Section 82-587 of the AiPP Ordinance states how appropriations will be made by the City to the AiPP fund:

 

(a) All appropriations of City funding for City construction projects shall include an appropriation of funds to the AiPP fund. The amount appropriated to the AiPP fund shall not be less than 1 1/2 percent (1 ½ %) of the construction cost of the City construction project. The appropriation to the fund shall be made at the time of the award of the construction contract for said City construction project. For City requested changes in scope requiring additional appropriations in excess of $200,000 in the aggregate, at the time of appropriation of monies for the subject changes in scope, the applicable art in public places funding allocation shall be transferred to the AiPP fund.

(b) For City construction projects that are developed by persons and entities other than the City, but that are developed pursuant to a development agreement entered into with the city, or which involve the participation of the City as a ground lessor, the required appropriation shall ¬be made at the same time as the appropriation of funding for the construction project and be based upon the construction cost, regardless of whether the construction cost is funded by the City or the person or entity other than the City. This shall not apply to projects by not-for-profit persons or entities recognized under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, whose total construction budgets are less than $8,000,000.

 

(c) In considering the required appropriation for a particular City construction project, the City Commission may, by resolution:

1. Waive the required appropriation, finding such waiver to be in the best interest of the City;

2. Reduce the required appropriation amount; or

3. Find that the particular City construction project is not an appropriate site for works of art, and place all or a portion of the required appropriation in the art in public places fund for use at another site.

 

(d) The City Commission shall also consider whether the funding source for a particular City construction project is restricted by public bond covenants; federal, state or local laws; and/or legal parameters which would require that the appropriation be utilized on the particular City construction project site.

 

(e) Prior to making a final determination as to the required appropriation for a City construction project, the City Commission shall consider the recommendation of the Art in Public Places committee.

Definitions. Section 82-537 of the AiPP Ordinance states the definition of city construction projects and defines as follows:

 

City construction project means any construction contract to which the city is a party for the new construction of; renovations requiring compliance with Chapter 34 Section 3401.8 of the Florida Building Code fifty percent (50%) rule or, renovation having a value equal to or greater than $500,000, or addition to any city-owned building, facility, or other city-owned property, including but not limited to, parks, pools, recreation trails and golf courses. The definition of city construction project shall also be deemed to include construction projects that are developed by persons or entities other than the city, but which require the participation of the city as a party to a development agreement or ground lease.

 

Construction cost means “hard costs” associated with construction of a city construction project. Land acquisition costs, architect and engineering fees, environmental remediation costs, and costs associated with subsequent changes in construction contracts, except as provided in the proceeding sentence, are not included. An adjustment will be made to an original art in public places appropriation only for construction costs associated with city requested changes in scope requiring additional appropriations in excess of $200,000 in the aggregate.

 

The provisions of this article shall not apply to the new construction of, renovations, or additions to the following city construction projects:

 

a. Water and sewer related facilities, such as pump stations, water mains, water lines, sewer lines, treatment facilities, etc.

b. Storm drainage infrastructure.

c. Road construction or bridges.

d. Streetscape beautification projects, which include but are not limited to, one or all of the following elements: resurfacing, new curbs, gutters, pavers, sidewalks, landscaping, lighting, bus shelters, bus benches, street furniture and signage.

e. City construction projects undertaken to replace, reconstruct, or repair an existing public building or facility damaged or destroyed by a sudden unexpected turn of events, such as an act of God, riot, fire, flood, accident, or other urgent circumstance.

f. The construction, remodeling, repair or improvement to a public electric or gas utility system.

g. Where the city construction project is undertaken as a repair or maintenance of an existing public facility.

 
On April 10, 2019, the Mayor and Commission made a referral to the FCWPC to discuss a proposed ordinance to amend the City’s Art in Public Places ordinance to expand the projects covered under the ordinance to promote more public art and funding for future projects.

At the May 29, 2019 Finance and Citywide Projects Committee Meeting, Mayor Gelber sponsored a discussion item regarding a proposed ordinance to amend the City’s Art in Public Places ordinance to expand projects covered under the ordinance to promote more public art and funding for future projects approved by the City Commission. The proposed amendments are summarized as follows and are provided in full as (Attachment 1):

 

Increase the amount to be appropriated to the Art in Public Places fund from not less than 1.5%, to not less than 2% of the construction cost of city construction projects. Other comparable cities across the US with 2% minimum requirements include Austin, Texas; San Francisco, California; San Jose, California; and Sacramento, California, among others.

• Amend the dollar threshold of city construction projects from $500,000 to $250,000, for projects subject to the provisions of Art in Public Places

• Amend the definition of City construction project to include city-owned building, facility, or other city-owned property including, but not limited to parks, pools, recreation trails, bay walks, beach walks, streetscape beautification projects and golf courses. Streetscape beautification projects, which include but are not limited to, resurfacing, new curbs, gutters, pavers, sidewalks, landscaping, lighting, bus shelters, bus benches, street furniture and signage, and similar above-ground improvements, shall be included and shall be subject to the provisions of this article.

• This amendment would not include water and sewer related facilities, such as pump stations, water mains, water lines, storm water, sewer lines, treatment facilities, storm drainage infrastructure, road construction and bridges. It would also not include City construction projects undertaken to replace, reconstruct, or repair an existing public building or facility damaged or destroyed by a sudden unexpected turn of events, such as an act of God, riot, fire, flood, accident, or other urgent circumstance. The construction, remodeling, repair or improvement to a public electric or gas utility system would also be excluded, when the city construction project is undertaken as a repair or maintenance of an existing public facility.

• Amend applicable projects to include management agreements for a City-owned buildings or facilities having a term of ten (10) years or more (including renewal terms) where such management agreement contemplates that the manager/operator will design and construct a City building or facility as part of the terms of such agreement.

• Amend consideration of a waiver of the required AiPP appropriation to require a resolution approved by 5/7th vote of the City Commission.

 

The Finance and Citywide Projects Committee discussed the item and referred it back to the Mayor and Commission for further discussion on the July 17, 2019 City Commission Meeting Agenda.

AiPP Committee Motion

During the June 18, 2019 Art in Public Places Committee meeting, a motion was made to support the proposed amendments to the Art in Public Places Ordinance which expands the definition of “City Construction Project” to include bay walks, beach walks, streetscape beautification projects (resurfacing, curbs, gutters, pavers, sidewalks, landscaping, lighting, bus shelters, bus benches, street furniture, signage and similar above ground improvements); amending the dollar threshold therein from $500,000 to $250,000 for the projects subject to the provisions of Art in Public Places; and amend the amount to be appropriated to Art in Public Places from not less than 1.5 percent, to not less than 2 percent. The motion was passed unanimously.

G.O. Bond Oversight Committee Motion

On June 18, 2019, the G.O. Bond Oversight Committee adopted a motion that the City should do everything in its power to utilize the funds of the G.O. Bond Projects for Art in Public Places, and that the dollars for that art should be re-allocated to the project from which the funds were generated (example: the AiPP funds generated from the 72nd garage project, would be used specifically for that project). The G.O. Bond Oversight Committee requested for projects #34, #37, #38 to be exempt from the 2% increase and would also be exempt from the existing 1.5% AiPP allotment, as they feel that these projects are underfunded as they are. The City should request that Art in Public Places and CIP work together in order to achieve the above recommendation.

CONCLUSION

 

The adoption of the proposed amendments to the AiPP Ordinance, and the adoption of the companion agenda item to waive the requirements of  the AiPP Ordinance to specified G.O. Bond Projects, would resolve the concerns raised at first reading with regard to the applicability of the AIPP Ordinance to specified above ground improvements/streetscape beautification projects.

Legislative Tracking
Tourism and Culture
Sponsor
Mayor Dan Gelber and Co-sponsored by Commissioners Aleman and Malakoff

ATTACHMENTS:
Description
Attachment 1 - Ordinance