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HomeMy WebLinkAboutAgenda AIPP 062206AGENDA CITY OF PALM BEACH GARDENS ART IN PUBLIC PLACES ADVISORY BOARD THURSDAY, JUNE 22, 2006, AT 5:30 P.M. COUNCIL CHAMBERS CALL TO ORDER PLEDGE OF ALLEGIANCE III. ROLL CALL: ART IN PUBLIC PLACES ADVISORY BOARD Regular Members Lee Bickford (Vice Chair) Diane Cappella Myra Davis Ellen Dukes William Leizman Linda Oliver (Chair) Marilyn Spungin Alternates Theodore Thoburn (1" Alt.) Georgia Heard O'Brien (2nd Alt.) Also in attendance: Dan Clark, Interim Growth Management Administrator Brad Wiseman, Planning Manager /Staff Liaison IV. APPROVAL OF MINUTES 1. April 18, 2006 V. UPDATE BY STAFF LIAISON VI. OLD BUSINESS 1. Art in Public Places Ordinance draft - workshop 2. City Hall Bronze Plaques VII. NEW BUSINESS VIII. ADJOURNMENT CITY OF PALM BEACH GARDENS ART IN PUBLIC PLACES ADVISORY BOARD Agenda Cover Memorandum Date Prepared: June 7, 2006 Meeting Date: June 22, 2006 Petition: LDR- 06 -06- 000007 Subject/Agenda Item: LDR- 06 -06- 000007: Code Amendment to Subdivision I. Art in Public Places, Section 78 -261; Section 78 -262 Workshop: A City- initiated request for approval of a text amendment to Section 78 -261 and Section 78 -262, of Subdivision I. Art in Public Places, Code of Ordinances. This City Code amendment seeks to revise the art in public places program definitions, procedures, and requirements. [ ] Recommendation to APPROVE [ ] Recommendation to DENY Reviewed by: Originating Dept.: FINANCE: LDRC Action: Growth Manage ent. [N /A] Approved City Attorney Project Costs: $ N/A [N /A ] PP w/ conditions Christine Tatum, Esq. Manage Total [N /A] Denied Brad Wiseman [ ]Rec. approval Development Compliance Planning Manager $ N/A [ ] Rec. app, w/ conds. Current FY [ ] Rec. Denial [ ] Quasi - Judicial NA [ ) Legislative [N /A] Continued [ ] Public Hearing Funding Source: to: Bahareh Keshavarz, AICP Attachments: Interim Gro h Management Advertised: Date: N/A O [ ]Operating g • AIPP Ordinance draft 2006 Administrator Paper: [X] Other N /A Subdivision I. Art in Daniel P. Clark, P.E. [ ] Required _ Public Places (Section Budget Acct. #: 78 -261; Section 78 -262) Approved By: Ronald M. Ferris NA Affected parties: City Manager [ ] Notified [X] Not Required Petition: LDRA- 06 -06- 000007 Date prepared: June 7, 2006 Meeting Date: June 22, 2006 BACKGROUND On January 19, 1989, the City Council adopted Ordinance 46, 1988, which created the Art in Public Places fee requirement, which set a 2% art fee requirement for private development with a $1,000,000.00 minimum construction cost; currently the required fee is 1%. The City further updated the Art in Public Places program, as a whole, through the adoption of Ordinance 19, 1991; Ordinance 36, 1991; Ordinance 12, 1993; Ordinance 9, 1998; Ordinance 12, 1999; Ordinance 14, 1999; Ordinance 17, 2000; Ordinance 11, 2002; and Ordinance 17, 2004. The most recent amendment in 2004 was not to Subdivision L Art in Public Places, as is the case with this petition. Ordinance 17, 2004, rather, repealed the former Article III of Chapter 2, Code of Ordinances entitled Boards, Committees and Commissions in its entirety and adopted a new Article III, including Division 2 entitled "Art in Public Places Advisory Board." The latest amendment to Subdivision I. Art in Public Places was in 2002, and it clearly defined that all buildings within planned unit developments and planned community districts would be assessed cumulatively towards the art in public places requirement. The current staff initiated code amendment to Subdivision I. Art in Public Places, Sec.78 -261 and Sections 78 -262, is intended to clarify and rearrange the existing language, and include new language with the purpose of providing a more cohesive and comprehensive section that can more effectively implement the Art in Public Places Program. CITY CODE AMENDMENT This City Code amendment clarifies and updates the art in public places program definitions, procedures, and requirements. Section 78 -261 is amended to state the following: (Deletions are str-t�lF, new language is underlined): Sec. 78 -261. Definitions -Art in Public Places Requirements (a) Definitions. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this division, except where the context clearly indicates a different meaning. (1) Construction cost means total costs of buildings constructed on the site. This includes total vertical construction of all buildings on a project site. All buildings within plan unit develepments and planned eemmunity distfiets shall be assessed euwiWatiY,* towards - ^:ent_ even if they are ;,o.- ,.,;,_, 1,000,000.00 , eaeh phase Of The stricken language above remains unchanged and is being relocated to the newly created 2 Petition: LDRA- 06 -06- 000007 Date prepared: June 7, 2006 Meeting Date: June 22, 2006 paragraph (d) Requirements for art or fee -in -lieu of art. (2) Development means any capital project to construct or remodel any private or public development, except residential, or any portion thereof within the limits of the city, where total construction cost equals or exceeds $1,000,000.00. (3) Art, Artwork or Works of art mean all tangible creations by artists exhibiting the highest quality of skill and aesthetic principles and includes all forms of the visual arts conceived in any medium, material, or combination thereof, including but not limited to painting, sculpture, fountains, engraving, carving, frescos, mobiles, murals, collages, mosaics, bas - reliefs, tapestries, photographs, drawings, artist designed seating, and collaborative design projects between architects and /or landscape architects and artists together with all hard costs and soft costs such as, but not limited to, lighting, landscaping, or other aesthetic effects or enhancements integrated with the art and approved by the growth management administrator. The city council shall not consider for approval art objects which are mass - produced in unlimited quantities. The purpose of the modifications to the definition of art, artwork or works of art is to clarify that art is created by an artist or artists, and are not mass - produced in unlimited quantities. This would provide for more original and creative works of art throughout the City, by excluding mass - produced art objects, which are not necessarily created by an artist, and are produced and distributed in mass quantities. Also, artist designed seating is being added as one of the possible works of art, which is consistent with such works of art that have been previously approved by the Art in Public Places Advisory Board, and the City Council. In addition, costs associated with the work of art, which have been included in the art budget, are included in the definition for clarification purposes. Artist or Professional Artist means a practitioner in the visual arts, generally recognized by critics and peers as a professional of serious intent and ability. Indications of a person's status as a professional artist include, but are not limited to, training in the arts, income realized through the sole commission of artwork, frequent or consistent art exhibitions, placement of artwork in public institutions or museums, and receipt of honors and awards in the art field. The current code does not contain a definition for an artist. Therefore, this definition sets the standard, which the Art in Public Places Advisory Board and the City Council will use to determine if the proposed art is created by an actual artist. In addition, this definition sets forth that the applicant would have to prove that the work is being created by an artist, further avoiding approval of art that is not created by an artist. (b) Application Requirements. The applicant shall provide the information described below and any additional information requested by the growth management department necessary to review the application pursuant to the standards of the code. (1) Application forms. The application shall be made on forms provided by the growth management department. 3 Petition: LDRA- 06 -06- 000007 Date prepared: June 7, 2006 Meeting Date: June 22, 2006 (2) Artist information. Portfolio containing photographs of the artist's existing work exhibition and sales history, and biography. (3) Miscellaneous plans, renderings, and details. Artist's color renderings and /or photographs of proposed artwork-, materials sample board site plan depicting the proposed location of the artwork; landscape plan, if necessary, depicting additional landscaping, or modifications to existing` landscaping; architectural elevations if necessary, depicting structures associated with the artwork; lighting location plan and light fixture details. The addition of the application requirements listed above is to clarify the current submittal process. The majority of the above - referenced documents are currently submitted with the Art in Public Places applications; the added section will codify these existing requirements. This language will ensure that the applicants will be well informed of the submittal requirements. -N U Violations. Violation of this chapter shall be subject to enforcement as provided in article VII. (e) (M4* in PubIie PIaees 4 a,.: ^ ^ n ^ ^ °a Requirements or art or fee -in -lieu of art. All new development, either public or private, where total vertical construction costs of all buildings on a project site are equal or greater than $1,000,000.00 shall provide art in public places in an amount of one percent of the total vertical construction costs, as provided in this section and section 78 -262 All buildings within planned unit developments and planned community districts shall be assessed cumulatively towards the art in public places requirement, even if they are permitted separately. If the aggregate cost of the entire project exceeds the $1,000,000.00 threshold, each phase of development shall contribute the required one percent of construction cost towards art in public places for the building project. The art fee for redevelopment of an existing building shall be calculated based on the construction costs of the new development excluding the assessed value of the existing buildings that are replaced or redeveloped. The newly created paragraph (d) emphasizes the current requirement, and provides further clarification through the inclusion of the relocated language that is stricken from the Construction cost definition. (1) d Private Development. A private developer may choose either to provide artwork on the project site or to contribute one percent of the total vertical construction costs to the city's art impact fund. The language listed above is currently referenced in Section 78- 262(a) and (c). The change in the language above is made in order to clarify the current code provisions for artwork that is required for private development, by combining the existing language into one sentence. The minor modification is still with the existing language, which allows the developer to have the option to either place art on their site, or provide money in -lieu of art. 4 Petition: LDRA- 06 -06- 000007 Date prepared: June 7, 2006 Meeting Date: June 22, 2006 a. Contribution of art. If the developer chooses to provide artwork, the art in public places advisory board shall review the proposed artwork and shall recommend to the city council whether to approve, deny, or approve with conditions the selection and location of the artwork according to the standards of this division. The artwork shall be provided as follows. The new language above is intended to clarify the current code by stating clearly what action the Art in Public Places Advisory Board can take. The actions stated in the above paragraph are consistent with the current procedures of the Art in Public Places Advisory Board. 1. Deposit of funds. The developer shall submit to the city documentation showing that a deposit was made with the developer's attorney into an escrow account in an amount of money equal to the art fee prior to the issuance of the first building permit. The developer's attorney will furnish the city documentation of the withdrawals for payment of art fees in accordance with the terms of the contract between the developer and the artist or artists, of the developer's arts consultants. The developer's attorney will provide the city a final certification and accounting of the payment of art and consulting fees at the conclusion of the placement of artwork. The language in this paragraph remains unchanged. The language is currently located in Section 78- 262(a)(1). 2. Surplus balance. Any surplus balance existing in the escrow accounts after the developer has installed the required artwork shall be collected by the city. The surplus balance shall be held in a segregated, interest - bearing fund (the "art impact fund"), and shall be used for the provision of additional art work at the construction site or another site within the city. Use of such funds shall be determined by the city council and shall be in accordance with further provisions of this division. The language in the paragraph listed above is currently located in Section 78- 262(a)(2), and remains unchanged with the exception of the addition of (the "art impact fund ") language, which is intended to clarify the interest - bearing fund. 3. Artist selection. The selection and commissions of the artists shall be by written contract between the developer and artists. The language above remains unchanged. The language is currently located in Section 78- 262(a)(3). 4. Art consultant. The developer may utilize up to 12 percent of the required fee to retain an art consultant to assist in the selection and procurement of required artwork, an additional 3 percent of the required fee shall be used to pay the city for administering the art in public 1p aces program. The art consultant shall have no financial relationship with the artist, nor any 5 Petition: LDRA- 06 -06- 000007 Date prepared: June 7, 2006 Meeting Date: June 22, 2006 ownership in artwork purchased by the developer. The artist shall be allowed to act as the art consultant for the art petition, but shall be precluded from receiving_the art consultant fee. The language in the paragraph listed above is currently located in Section 78- 262(a)(4), and is amended in order to reduce the percentage that the developer may utilize to retain an art consultant from 15 percent to 12 percent. The 3 percent difference will now be allocated to administer the Art in Public Places program. In addition, in cases where the artist would like to serve as the art consultant, it is staff's professional opinion that this may provide for a conflict of interest, and therefore, new language has been added to prevent the artist from receiving the art consultant fee. 5. Vertical construction cost overruns. If the final cost of the vertical construction for the entire project is higher than the cost figure used to calculate the preliminary art budget, the art budget shall be increased as necessary to equal one percent of the actual defined total vertical construction cost for the project. The art budget must be revised within 30 calendar days of any such changes. The increase in the art budget due to the final increase of the vertical construction cost for the entire project shall be placed in the citX art impact fund, or shall be used for the provision of art on site, at the option of the developer. The language in the paragraph listed above is currently located in Section 78- 262(a)(5). It is being modified to clarify that the cost overrun is that of the final vertical construction cost for the entire project. In addition, the new language specifies that increases in the art budget can either be placed in the art impact fund, or the developer can use it for the provision of art on the site. For example, if a project has an original vertical construction cost of $5,000,000.00, and the final vertical construction cost is $6,000,000.00, the increase in the vertical construction cost would be $1,000,000.00, therefore, 1% of $1,000,000.00 is $10,000. The art budget would be increased by $10,000, which shall be placed in the art impact fund, or shall be utilized towards placement of art on site. 6. Appraisal. To establish the value of art submitted to comply with this division, the art in public places advisory board shall have the authority to employ an independent art appraiser to provide a written appraisal of the art submitted. Such appraisal will be paid for by the developer as part of the overall art contribution. The language in the paragraph listed above is to remain unchanged. It is currently in Section 78- 262(g). 7. Artwork purchased pursuant to the requirements of this section belongs to the property owner, and shall be insured and maintained in good condition at all times as determined b the code enforcement official. Maintenance shall include any associated landscaping or related improvements. The city has the right to maintain any art it deems improperly maintained and charge Petition: LDRA- 06 -06- 000007 Date prepared: June 7, 2006 Meeting Date: June 22, 2006 the owner the cost of such maintenance. The language in the paragraph above currently exists in Section 78- 261(6) and Section 78- 262(e)(3). The existing language is modified to state that the City's Code Enforcement official will assure that there will be compliance with the above - stated requirements. 8. The first certificate of occupancy for the project, or as defined in the development order, will not be issued until the artwork is installed and the final certification and accounting of f the payment of the escrow fees has been provided. Artwork installed in accordance with this division cannot be altered or removed from the site without approval of the city council. The propert y owner may transfer ownership to the city, if approved by the city council and if the city owns or occupies the property or facilities where the artwork is situated. The first sentence in the paragraph listed above is included to ensure that the art will be installed on site. It is also intended to ensure that in the case where the applicant has drawn funds from their escrow account, their attorney would present the City with a final accounting of the withdrawals prior to the issuance of the escrow release letter by the City. 9. The artist of approved artwork shall grant to the City of Palm Beach Gardens an unlimited, perpetual, non - exclusive, royalty -free, irrevocable license to reproduce and distribute two - dimensional reproductions of the artwork for ciiy related purposes, and grant to the city the exclusive irrevocable ownership rights in any trademark, service mark, or trade dress rights regarding the artwork, pursuant to a license that shall be approved by the city attorney. City approval of the artwork shall be deemed to be a grant of the artist for authorization by third parties to review and reproduce documents provided by the artist to the city which are deemed to be public records pursuant to public record laws of the state. The paragraph listed above is being added to codify the current artist release form requirement. For example, the artist release form has to be signed by artists who would like to be part of the City's postcard series that showcases the Art in Public Places in the City. 10. Review by the art in public places advisory board. a. Workshop. The applicant shall qppear before the art in public places advisory board in order to receive guidance in the initial stages of the review. In this case, the applicant shall choose between two Wes of review described below. 1. The applicant may have a set direction regarding the artwork and may appear before the board for preliminary comments prior to receiving the board's final recommendation. The applicant shall submit the portfolio of the proposed artist which shall contain photographs of the 7 Petition: LDRA- 06 -06- 000007 Date prepared: June 7, 2006 Meeting Date: June 22, 2006 artist's existing works as well as the artist's biojraphy, or 2. The applicant may appear before the board in order to receive more detailed direction if the applicant does not have a set direction, prior to receiving a final recommendation by the board. The applicant may submit the portfolios of up to three artists. The portfolios shall contain photographs of the artists' existing works as well as the artists' biographies. The current code does not contain language regarding the Art in Public Places review process. The new language listed above requires the workshop stage of the review to be mandatory, and is intended to assist the applicant at the beginning of the review process. It is staff's professional opinion that the Art in Public Places program is beneficial to the City. Therefore, the applicants that come before the Board should be assisted throughout the process, and made aware of the policies and procedures to be adhered to. It is to be understood that some applicants may feel strongly about their choice of an artist. Therefore, the workshop review is designed so that the applicant can have two review options. The Art in Public Places Advisory Board still makes a final recommendation to the City Council, which is the ultimate decision - making body. b. Criteria for review of artwork by the board. In making its recommendation to the city council, the board shall consider the quality of the artwork; the exhibition and sales history of the artist; the artist's works in public collections and previous public art purchases or commissions, the ability of the artist to complete the project within a specified schedule; and the compliance with the standards of this division. The paragraph above was previously deleted from the Art in Public Places section of the Code of Ordinances. It is staff's professional opinion that it should be added to this latest revision, in order to set review criteria that the Board will follow. c. Guidelines. The art in public places advisory board may adopt art in public places implementation guidelines to assist both the public and private sector planning activities. The language listed above exists and is currently located in Section 78- 261(c)(4). The Art in Public Places Advisory Board can draft implementation guidelines, which are nonbinding, but are effective in informing the applicants of the preferences of the Board's criteria. The guidelines would further facilitate the review process. 11. Review by Staff. In making recommendations to the art in public places advisory board and to the city council, staff shall consider the standards of this division in association with sound lanning rp inciples. The current code is not clear on the criteria staff applies to the proposed art during the review process. Therefore, this language has clarified staff's review procedures. Petition: LDRA- 06 -06- 000007 Date prepared: June 7, 2006 Meeting Date: June 22, 2006 12. In the case of redevelopment of a property which has contributed artwork on the site pursuant to this article the artwork may be replaced at the option of the developer with new artwork pursuant to this article or the existing artwork may remain on the site. In the latter case, the value of the existing artwork and its placement must comply with this article as if it were new artwork. The language above is being included to address a future issue, which with time is inevitable in any municipality. Staff is being proactive in approach by including language that will address existing art that is located on sites in the City, which may be proposed for redevelopment. This will give the developer an option to either replace art on the site with new art, or keep the existing art. In both instances, the 1 % requirement for vertical construction equal or exceeding $1,000,000.00 would be required. b. Fee in lieu of artwork. Instead of providing artwork on the project site,a developer may choose to contribute one percent of the total vertical construction costs as the required art fee. If the contribution is made, the contribution shall be placed in the city's art impact fund and used as provided in section 78 -261(d contributor shall have no input in the use of such funds. The language in the paragraph stated above is currently in Section 78- 262(c), and is being clarified to indicate that the construction cost is for vertical construction, and to identify the City's art account as the art impact fund. This further clarifies how the contribution shall be used by specifying the section of the code to be applied. OWN E Petition: LDRA- 06 -06- 000007 Date prepared: June 7, 2006 Meeting Date: June 22, 2006 low- The stricken language above is relocated to different areas of the new art code section, and is unchanged with the amendment. Public Development. The city shall contribute one percent of the total vertical construction costs of a city owned development as an art in public places requirement. Where the city provides the artwork, or where the developer provides a fee in lieu of artwork pursuant to Section 78- 261(d)(1)b., the following shall apply to the use of the funds. The language in the paragraph listed above is mentioned in the existing Section 78- 262(a). This new paragraph specifically differentiates art provided by public development and private development. In addition, it clarifies that the fee in -lieu of artwork provided by the developer shall follow the specified criteria listed in the section. a. The fee shall be placed in the city's art impact fund. The language listed above is currently referenced in Section 78- 262(c), and is unchanged with this amendment. b. Artist selection. The selection and commissions of the artists and artwork shall be by written contract between the city and artists. The sentence listed above currently exists in Section 78- 262(c)(1), and is unchanged with this amendment. c. Use of purchased art. All artwork purchased by the city required art fee contribution shall be displayed on city -owned land, a city -owned building, or a city - leased or rented facility. The artwork shall be displayed in a visually accessible location which shall be suitable to the design of the site, in order for the public to receive the most enjoyment and benefit from the art. The first sentence of the paragraph listed above currently exists in Section 78- 262(c)(2). The second sentence has been amended, because all sites are not designed identically. Therefore, it is staff's professional opinion that a greater degree of flexibility should be allowed when determining the 10 Petition: LDRA- 06 -06- 000007 Date prepared: June 7, 2006 Meeting Date: June 22, 2006 placement of the art. This would allow for the possibility of a more creative location for the placement of the art, where public. For example, a pedestrian plaza within a development with a mix of uses may be more appropriate for art than a portion of the site that does not lend itself to pedestrian traffic. One such example is of the Thomas Jefferson sculpture, which was approved in the plaza at Mirasol Town Square. The current location is accessible to pedestrian traffic, allowing the pedestrians to be able to enjoy and reflect upon the art. The art is also visible to vehicular traffic that enters the site. If the art was placed along Jog Road, where the greatest number of passers -by would have been, pedestrians would not have been able to have maximum enjoyment of the art. d. Art consultant. The city may utilize up to a maximum of 15 percent of the funds allocated from the art account for any particular city facility to retain an art consultant to assist in the selection and installation of artwork. The artist shall be allowed to act as the art consultant, but shall be precluded from receiving the art consultant fee. The first sentence of the paragraph included above currently exists in Section 78- 262(c)(3). The second sentence is added to prevent a possible conflict of interest. e. Proper insurance coverage shall be maintained by the city on artwork purchased with funds generated by this article or on artwork whose ownership has been transferred to the city. The artwork owned by the city shall be maintained b thy. The language included above is partially stated in Section 78- 262(e)(3) and (f). This paragraph clarifies the intention of the code. Art Impact Fund. The art in public places board shall make a recommendation to the city council on how the art fees collected under this article may spent. Funds from the art impact fund may be spent anywhere in the city and such funds may be spent on any art or art related costs such as, but not limited to, lighting, consulting, landscaping aesthetic features or enhancements. Only the city council shall approve how such funds are spent. The current code does not have language that specifies how the art impact fund can be utilized. Therefore, the paragraph listed above establishes this practice. Section 78 -262 entitled "Fee imposed on developments." is repealed and renamed "Standards for artwork." Section 78 -262 is amended to state the following: (Deletions are stmelE, new language is underlined): Sec. 78 -262. Standards for artwork. (a) Artwork shall be displayed in a visually accessible location, which shall be suitable to the design of the site in order for the public to receive the most enjoyment and benefit from the art. All sites are not designed identically, and therefore, it is staff's professional opinion that a greater 11 Petition: LDRA- 06 -06- 000007 Date prepared: June 7, 2006 Meeting Date: June 22, 2006 degree of flexibility should be allowed when determining the placement of the art, in order for the public to be able to appreciate the art on site. For example, a pedestrian plaza within a Mixed -Use development may be more appropriate for art than a portion of the site that does not lend itself to pedestrian traffic. (b) Artwork shall be integrated into the overall planning and design for a structure or project, and shall be compatible with the intent and purpose of the structure at which the work or works are located. The language in this paragraph is unchanged with the amendment. The language is currently located in Section 78- 261(c)(5)b. (c) Artwork shall be integrated into the overall landscaping plan, and landscaping shall be utilized to enhance the visibility of such works. The language in the sentence above is unchanged. The language is currently located in Section 78- 261(c)(5)c. (d) Artwork shall be lighted at a minimum from dusk until midnight. The lighting shall be designed and located in order to prevent excessive lighting energy waste, glare, light trespass and sky glow. The language above is proposed to be modified to address any negative effects that may be associated with the lighting for the artworks. The existing art lighting requirement is located in Section 78- 261(c)(5)d. Le) Artwork installed pursuant to the division cannot be altered or removed from the site without approval of the city council. The language in the sentence above currently exists in Section 78- 262(a)(3) and is not being altered. fD Maintenance. Artwork shall be maintained in good conditions at all times, including any associated landscaping or related improvements. The language in the sentence above remains unchanged; it currently exists in Section 78- 261(6). (g) All artwork purchased by the city required art fee contribution shall be displayed on city - owned land, a city -owned building, or a city - leased or rented facility. The language above currently exists in Section 78- 262(c)(2), and is unchanged with this amendment. K Zoning and Building consideration. Consideration shall be given to project zoning. Permits and building approval shall be obtained, when necessary, and shall be in compliance with the Florida Building Code, the National Electric Code and the previously approved plans by city council. 12 Petition: LDRA- 06 -06- 000007 Date prepared: June 7, 2006 Meeting Date: June 22, 2006 The language above currently exists in Section 78- 261(c)(2), and is being modified to specifically state that permits, which are submitted for construction review are consistent with the plans that were approved by the City Council, and are in compliance with the above - referenced applicable codes. Section 78 -263 is created to state the following: (Deletions are stns new language is underlined): Sec. 78 -263. Waiver of Requirements. (1) Waiver. The city council may waive the requirements contained in this division, utilizing the standards contained herein. Promotion of the general welfare of the city shall be a major factor in the waiver or reduction of fees. • .e�rse!sr�. As the City develops, redevelopment may commence in the near future. Therefore, redevelopment should not be excluded from the Art in Public Places fee requirement. Providing art on site would further enhance the redeveloped project. (-3- Q Other upgrades. Upgrading of landscaping, project entrances, and vehicle parking, if any, which provide substantial improvement in excess of existing requirements shall be factors to be considered in the waiver process. (4) (3) Criteria for waiver of fees. The city council shall consider the following when considering a request to waive or reduce required fees: a. The impact of proposed improvements on the appearance and utility of an existing structure; b. The impact of proposed improvements on existing and potential tenants or businesses; and c. The probability of the owner acquiring substantial or anchor tenants to assist in relieving financial problems, excess vacancy rates, dilapidated appearance, and similar (3) (4) Credit for expenditures. a. Monies expended for the purpose of meeting minimum code or site plan requirements shall receive no credit for payment of required fees. b. Landscaping shall be considered a temporary improvement as compared to a permanent structural improvement in determining a monetary credit. The city council may not authorize more than 50 percent credit for the cost of installing new or replacement landscaping. Unusual cost of individual plantings or groups of plantings, such as rare exotics, shall not be considered as the sole factor for credit. (6) M Architectural features. The city council may grant a partial credit toward required 13 Petition: LDRA- 06 -06- 000007 Date prepared: June 7, 2006 Meeting Date: June 22, 2006 fees when a project contains unusual architectural features. (4) (6) Aesthetic features. The city council, upon the recommendation of the art in public places advisory board, may give a developer partial credit for an element of the project which supplies creditable aesthetic features for the benefit of the public. The language above currently exists in Section 78- 262(h)(1)(2)(3)(4) and (5), and is unchanged with this amendment. STAFF RECOMMENDATION Staff is requesting direction and guidance from the Art in Public Places Advisory Board. 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Date Prepared: June 5, 2006 ORDINANCE , 2006 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA RELATING TO ART IN PUBLIC PLACES TO CLARIFY AND UPDATE THE PROCEDURES AND GUIDELINES APPLICABLE TO THE CITY ART IN PUBLIC PLACES PROGRAM; AMENDING SECTION 78 -261 ENTITLED "DEFINITIONS" OF THE CITY CODE OF ORDINANCES; REPEALING SECTION 78 -262 ENTITLED "FEE IMPOSED ON DEVELOPMENTS" OF THE CITY CODE OF ORDINANCES AND REPLACING IT WITH "STANDARDS FOR ARTWORK "; CREATING NEW SECTION 78 -263 "WAIVERS "; PROVIDING FOR CODIFICATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Code of Ordinances of the City of Palm Beach Gardens contains provisions for an Art in Public Places program, at Chapter 78, Division 6 "Public Places," Subdivision I. "Art in Public Places;" and WHEREAS, the Art in Public Places fee requirement was established by Ordinance 46, 1988, which set a $1,000,000.00 minimum construction cost for the Art in Public Places requirement; and WHEREAS, the City updated the Art in Public Places program through the adoption of Ordinance 17, 2000, and the adoption of Ordinance 11, 2002; and WHEREAS, the City Council through the adoption of Ordinance 17, 2004 repealed the former Article III of Chapter 2, Code of Ordinances entitled "Boards, Committees and Commissions" in its entirety and adopted a new Article III, including Division 2 entitled "Art in Public Places Advisory Board," which created the Art in Public Places Advisory Board, its purpose, powers, and duties, and the number, qualifications, and terms of office of the members thereof; and WHEREAS, the City Council has determined that it is necessary to amend Subdivision I. "Art in Public Places" to clarify and update the procedures and the guidelines applicable to the art in public places program; and WHEREAS, this Land Development Regulations amendment was reviewed by the Art in Public Places Advisory Board on 2006, which recommended its approval by a vote of ; and WHEREAS, this Land Development Regulations amendment was reviewed by the Planning, Zoning and Appeals Board, sitting as the Land Development Regulations Commission, at a public hearing on 2006, which recommended its approval by a vote of ; and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Date Prepared: June 5, 2006 Ordinance , 2006 WHEREAS, the City Council has determined that adoption of this Ordinance is in the best interest of the citizens and residents of the City of Palm Beach Gardens. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PALM BEACH GARDENS, FLORIDA, that: SECTION 1. The foregoing recitals are hereby affirmed and ratified. SECTION 2. Section 78 -261, entitled "Definitions," of Chapter 78, Subdivision I. entitled "Art in Public Places," of the City Code of Ordinances is renamed and amended to read: Sec. 78 -261. Art in Public Places Requirements (a) Definitions. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this division, except where the context clearly indicates a different meaning. developments (1) Construction cost means total costs of buildings constructed on the site. This includes total vertical construction of all buildings on a project site.-,U buildiRgs within planned unit shall be assessed GUMUlatively towards the art in PUb1iG plaGes requiFernent, even of they are permitted separately. If the aggregate GOSt of the entire shall pay the requiFed .. building (2) Development means any capital project to construct or remodel any private or public development, except residential, or any portion thereof within the limits of the city, where total construction cost equals or exceeds $1,000,000.00. (3) Art, Artwork or Works of art mean all tangible creations by artists exhibiting the highest quality of skill and aesthetic principles and includes all forms of the visual arts conceived in any medium, material, or combination thereof, including but not limited to painting, sculpture, fountains, engraving, carving, frescos, mobiles, murals, collages, mosaics, bas - reliefs, tapestries, photographs, drawings, artist designed seating, and collaborative design projects between architects and /or landscape architects and artists.-, together with all hard costs and soft costs such as, but not limited to, lighting, landscaping, or other aesthetic effects or enhancements integrated with the art and approved by the growth management administrator. The city council shall not consider for approval art obiects which are mass - produced in unlimited quantities. 7 Date Prepared: June 5, 2006 Ordinance , 2006 2 (4) Artist or Professional Artist means a practitioner in the visual arts, generally 3 recognized by critics and peers as a professional of serious intent and ability_ 4 Indications of a person's status as a professional artist include, but are not 5 limited to, training in the arts, income realized through the sole commission of 6 artwork, frequent or consistent art exhibitions, placement of artwork in public 7 institutions or museums, and receipt of honors and awards in the art field. 9 (b) Application Requirements. The applicant shall provide the information described 10 below and any additional information requested by the growth management department 11 necessary to review the application pursuant to the standards of the code. 12 13 (1) Application forms. The application shall be made on forms provided by the 14 growth management department. 15 16 (2) Artist information. Portfolio containing photographs of the artist's existing 17 work. exhibition and sales historv. and bioaraphv. 19 (3) Miscellaneous plans, renderings, and details. Artist's color renderings and /or 20 photographs of proposed artwork; materials sample board; site plan depicting 21 the proposed location of the artwork; landscape plan, if necessary, depicting 22 additional landscaping, or modifications to existing landscaping; architectural 23 elevations, if necessary, depicting structures associated with the artwork; 24 lighting location plan, and light fixture details. 25 26 -(b-) (c) Violations. Violation of this chapter shall be subject to enforcement as 27 provided in article VII. 28 29 (c-) Requirements for art or fee -in -lieu of art. 30 All new development, either public or private, where total vertical construction costs of 31 all buildings on a project site are equal or greater than $1,000,000.00 shall provide art in 32 public places in an amount of one percent of the total vertical construction costs, as 33 provided in this section and section 78 -262. All buildings within planned unit 34 developments and planned community districts shall be assessed cumulatively towards 35 the art in public places requirement, even if they are permitted separately. If the 36 aggregate cost of the entire project exceeds the $1,000,000.00 threshold, each phase 37 of development shall contribute the required one percent of construction cost towards 38 art in public places for the building project. The art fee for redevelopment of an existing 39 building shall be calculated based on the construction costs of the new development 40 excluding the assessed value of the existing buildings that are replaced or redeveloped. 41 42 (1) ReseFved. Private Development. A private developer may choose either to 43 provide artwork on the project site or to contribute one percent of the total 44 vertical construction costs to the citv's art impact fund. W Date Prepared: June 5, 2006 Ordinance , 2006 1 a. Contribution of art. If the developer chooses to provide artwork, the art 2 in public places advisory board shall review the proposed artwork and 3 shall recommend to the city council whether to approve, deny, or approve 4 with conditions the selection and location of the artwork according to the 5 standards of this division. The artwork shall be provided as follows. 7 1. Deposit of funds. The developer shall submit to the city 8 documentation showing that a deposit was made with the 9 developer's attorney into an escrow account in an amount of 10 money equal to the art fee prior to the issuance of the first building 11 permit. The developer's attorney will furnish the city documentation 12 of the withdrawals for payment of art fees in accordance with the 13 terms of the contract between the developer and the artist or 14 artists, of the developer's arts consultants. The developer's 15 attorney will provide the city a final certification and accounting of 16 the payment of art and consulting fees at the conclusion of the 17 placement of artwork. 18 19 2. Surplus balance. Any surplus balance existing in the escrow 20 accounts after the developer has installed the required artwork shall 21 be collected by the city. The surplus balance shall be held in a 22 segregated, interest - bearing fund (the "art impact fund ") and shall 23 be used for the provision of additional art work at the construction 24 site or another site within the city. Use of such funds shall be 25 determined by the city council and shall be in accordance with 26 further provisions of this division. 27 28 3. Artist selection. The selection and commissions of the artists 29 shall be by written contract between the developer and artists. 30 31 4. Art consultant. The developer may utilize up to 12 percent of 32 the required fee to retain an art consultant to assist in the selection 33 and procurement of required artwork, an additional 3 percent of the 34 required fee shall be used to pay the city for administering the art in 35 public places program. The art consultant shall have no financial 36 relationship with the artist, nor any ownership in artwork purchased 37 by the developer. The artist shall be allowed to act as the art 38 consultant for the art petition, but shall be precluded from receiving 39 the art consultant fee. 40 41 5. Vertical construction cost overruns. If the final cost of the 42 vertical construction for the entire project is higher than the cost 43 figure used to calculate the preliminary art budget, the art budget 44 shall be increased as necessary to equal one percent of the actual 45 defined total vertical construction cost for the project. The art 46 budget must be revised within 30 calendar days of any such Date Prepared: June 5, 2006 Ordinance , 2006 1 changes. The increase in the art budget due to the final increase of 2 the vertical construction cost for the entire project shall be placed in 3 the city art impact fund, or shall be used for the provision of art on 4 site, at the option of the developer. 6 6. Appraisal. To establish the value of art submitted to comply with 7 this division, the art in public places advisory board shall have the 8 authority to employ an independent art appraiser to provide a 9 written appraisal of the art submitted. Such appraisal will be paid 10 for by the developer as part of the overall art contribution. 11 12 7. Artwork purchased pursuant to the requirements of this section 13 belongs to the property owner, and shall be insured and maintained 14 in good condition at all times as determined by the city's code 15 enforcement official. Maintenance shall include any associated 16 landscaping or related improvements. The city has the right to 17 maintain any art it deems improperly maintained and charge the 18 owner the cost of such maintenance. 19 20 8. The first certificate of occupancy for the project, or as defined in 21 the development order, will not be issued until the artwork is 22 installed and the final certification and accounting of the payment of 23 the escrow fees has been provided. Artwork installed in accordance 24 with this division cannot be altered or removed from the site without 25 approval of the city council. The property owner may transfer 26 ownership to the city, if approved by the city council and if the city 27 owns or occupies the property or facilities where the artwork is 28 situated. 3M 30 9. The artist of approved artwork shall grant to the City of Palm 31 Beach Gardens an unlimited, perpetual, non - exclusive, royalty -free, 32 irrevocable license to reproduce and distribute two - dimensional 33 reproductions of the artwork for city- related purposes, and grant to 34 the city the exclusive irrevocable ownership rights in any trademark, 35 service mark, or trade dress rights regarding the artwork, pursuant 36 to a license that shall be approved by the city attorney. City_ 37 approval of the artwork shall be deemed to be a grant of the artist 38 for authorization by third parties to review and reproduce 39 documents provided by the artist to the city which are deemed to be 40 public records pursuant to public record laws of the state. 41 42 10. Review by the art in public places advisory board. 43 a. Workshop. The applicant shall appear before the art in 44 public places advisory board in order to receive guidance in 45 the initial stages of the review. In this case, the applicant 46 shall choose between two types of review described below. Date Prepared: June 5, 2006 Ordinance , 2006 1 1. The applicant may have a set direction regarding 2 the artwork and may appear before the board for 3 preliminary comments prior to receiving the board's 4 final recommendation. The applicant shall submit the 5 portfolio of the proposed artist which shall contain 6 photographs of the artist's existing works as well as 7 the artist's biography; or 8 2. The applicant may appear before the board in order 9 to receive more detailed direction if the applicant does 10 not have a set direction, prior to receiving a final 11 recommendation by the board. The applicant may 12 submit the portfolios of up to three artists. The 13 portfolios shall contain photographs of the artists' 14 existing works as well as the artists' biographies. 15 b. Criteria for review of artwork by the board. In making its 16 recommendation to the city council, the board shall consider 17 the quality of the artwork; the exhibition and sales history of 18 the artist; the artist's works in public collections and previous 19 public art purchases or commissions; the ability of the artist 20 to complete the project within a specified schedule; and the 21 compliance with the standards of this division. 22 c. Guidelines. The art in public places advisory board may 23 adopt art in public places implementation guidelines to assist 24 both the public and private sector planning activities. 25 26 11. Review by Staff. In making recommendations to the art in 27 public places advisory board and to the city council, staff shall 28 consider the standards of this division in association with sound 29 planning principles. 30 31 12. In the case of redevelopment of a property which has 32 contributed artwork on the site pursuant to this article, the artwork 33 may be replaced at the option of the developer with new artwork 34 pursuant to this article, or the existing artwork may remain on the 35 site. In the latter case, the value of the existing artwork and its 36 placement must comply with this article as if it were new artwork. 37 38 b. Fee in lieu of artwork. Instead of providing artwork on the project site, 39 a developer may choose to contribute one percent of the total vertical 40 construction costs as the required art fee. If the contribution is made, the 41 contribution shall be placed in the city's art impact fund and used as 42 provided in section 78- 261(d)2. The contributor shall have no input in the 43 use of such funds. 44 On. N Sawa Date Prepared: June 5, 2006 Ordinance , 2006 7 g 9 astiVities 10 11 IRstallatien. InstallatiOR of aFtwerk shall be by the standards Ii (6) 12 below. guided 13 14 15 passeFs by. 16 17 b. AFtwaFk shall be ontegFated into the eveFall planning and de-sign fGF 18 a StFUGtUFe OF projeGt, and shall be Gompatible with the 'RteRt and PUFPOse 19 ef the StFUGtUre at whiGh the W9Fk eF WeFks aFe leGated. 20 21 G. Artwork shall be the eveFall jandSGaping plan, and 22 . 23 24 , 25 aFtWOFk shall be illuminated fFom dusk until midRight. 26 27 28 . 29 30 31 twMeS, ' 32 33 34 (2) Public Development. The city shall contribute one percent of the total 35 vertical construction costs of a city owned development as an art in public 36 places requirement. Where the city provides the artwork, or where the 37 developer provides a fee in lieu of artwork pursuant to Section 78- 38 261(d)(1)b.. the following shall aDDly to the use of the funds. IM 40 a. The fee shall be placed in the city's art impact fund. 41 b. Artist selection. The selection and commissions of the artists and 42 artwork shall be by written contract between the city and artists. 43 c. Use of purchased art. All artwork purchased by the city required art fee 44 contribution shall be displayed on city -owned land, a city -owned buildinq, 45 or a city - leased or rented facility. The artwork shall be displayed in a 46 visually accessible location, which shall be suitable to the design of the Date Prepared: June 5, 2006 Ordinance , 2006 site, in order for the public to receive the most eniovment and benefit from 2 the art. 3 d. Art consultant. The city may utilize up to a maximum of 15 percent of 4 the funds allocated from the art account for any particular city facility to 5 retain an art consultant to assist in the selection and installation of artwork. 6 The artist shall be allowed to act as the art consultant, but shall be 7 precluded from receiving the art consultant fee. 8 e. Proper insurance coverage shall be maintained by the city on artwork 9 purchased with funds generated by this article or on artwork whose 10 ownership has been transferred to the city. The artwork owned by the city 11 shall be maintained by the city, 12 13 (3) Art Impact Fund. The art in public places board shall make a 14 recommendation to the city council on how the art fees collected under 15 this article may be spent. Funds from the art impact fund may be spent 16 anywhere in the city and such funds may be spent on any art or art 17 related costs such as, but not limited to, lighting, consulting, landscaping, 18 aesthetic features or enhancements. Only the city council shall approve 19 how such funds are spent. 20 21 SECTION 3. Section 78 -262, entitled "Fee imposed on developments," of 22 Chapter 78, Subdivision I. "Art in Public Places," of the City Code of Ordinances is 23 repealed and replaced as follows. 24 25 26 Sec. 78 -262. Standards for artwork. 27 28 (a) Artwork shall be displayed in a visually accessible location, which shall be 29 suitable to the design of the site, in order for the public to receive the most enioyment 30 and benefit from the art. 31 32 (b) Artwork shall be integrated into the overall planning and design for a structure or 33 project, and shall be compatible with the intent and purpose of the structure at which the 34 work or works are located. 35 36 (c) Artwork shall be integrated into the overall landscaping plan, and landscaping 37 shall be utilized to enhance the visibility of such works. 38 39 (d) Artwork shall be lighted at a minimum from dusk until midnight. The lighting shall 40 be designed and located in order to prevent excessive lighting, energy waste, glare, 41 light trespass and sky glow. 42 43 (e) Artwork installed pursuant to the division cannot be altered or removed from the 44 site without approval of the city council. 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Date Prepared: June 5, 2006 Ordinance , 2006 (f) Maintenance. Artwork shall be maintained in good conditions at all times, including any associated landscaping or related improvements. (g) All artwork purchased by the city required art fee contribution shall be displayed on city -owned land, a city-owned building, or a city- leased or rented facility. (h) Zoning and Building consideration. Consideration shall be given to protect zoning. Permits and building approval shall be obtained, when necessary, and shall be in compliance with the Florida Building Code, the National Electric Code and the previously approved plans by city council. SECTION 4. Section 78 -263, entitled "Waiver of Requirements" is created as follows. Sec. 78 -263. Waiver of Requirements. (1) Waiver. The city council may waive the requirements contained in this division, utilizing the standards contained herein. Promotion of the general welfare of the city shall be a major factor in the waiver or reduction of fees. M- (3} —(2) Other upgrades. Upgrading of landscaping, project entrances, and vehicle parking, if any, which provide substantial improvement in excess of existing requirements shall be factors to be considered in the waiver process. (4) (3) Criteria for waiver of fees. The city council shall consider the following when considering a request to waive or reduce required fees: a. The impact of proposed improvements on the appearance and utility of an existing structure; b. The impact of proposed improvements on existing and potential tenants or businesses; and c. The probability of the owner acquiring substantial or anchor tenants to assist in relieving financial problems, excess vacancy rates, dilapidated appearance, and similar ( (4) Credit for expenditures. a. Monies expended for the purpose of meeting minimum code or site plan requirements shall receive no credit for payment of required fees. b. Landscaping shall be considered a temporary improvement as compared to a permanent structural improvement in determining a monetary credit. The city council may not authorize more than 50 percent credit for the cost of installing new or replacement landscaping. Unusual 9 Date Prepared: June 5, 2006 Ordinance , 2006 cost of individual plantings or groups of plantings, such as rare exotics, shall not be considered as the sole factor for credit. (&) (5) Architectural features. The city council may grant a partial credit toward required fees when a project contains unusual architectural features. M n Aesthetic features. The city council, upon the recommendation of the art in public places advisory board, may give a developer partial credit for an element of the project which supplies creditable aesthetic features for the benefit of the public. SECTION 5. Codification of this Ordinance is hereby authorized and directed. SECTION 6. This Ordinance shall become effective immediately upon adoption. (The remainder of this page left intentionally blank) a 1 PASSED this day of 2 3 PASSED AND ADOPTED this 4 and final reading. 5 6 CITY OF PALM BEACH GARDENS 7 8 BY: 9 Mayor Russo 10 11 12 Vice Mayor Barnett 13 14 15 Councilmember Jablin 16 17 18 Councilmember Levy 19 20 21 Councilmember Valeche 22 23 ATTEST: 24 25 26 BY: 27 Patricia Snider, City Clerk 28 29 30 APPROVED AS TO FORM AND 31 LEGAL SUFFICIENCY 32 33 34 BY: 35 Christine P. Tatum, City Attorney 36 37 38 39 40 Date Prepared: June 5, 2006 Ordinance , 2006 2006, upon first reading. day of , 2006, upon second FOR AGAINST ABSENT /f § 78 -253 PALM BEACH GARDENS CODE (4) Removal of native vegetation. Removal of native vegetation shall be minimized in the land development process. When feasible, native material shall be relocated on site. Native vegetation which cannot be transplanted or relocated on -site is encouraged to be offered for donation or to be sold by the applicant. (Ord. No. 17 -2000, § 119, 7- 20 -00) Secs. 78- 254-78 -260. Reserved. DMSION 6. PUBLIC PLACES* Subdivision L Art in Public Places Sec. 78 -261. Definitions. (a) Definitions. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this division, except where the context clearly indicates a different meaning. (1) Construction cost means total costs of buildings constructed on the site. This includes total vertical construction of all buildings on a project site. All buildings within planned unit developments and planned community districts shall be assessed cumulatively towards the art in public places requirement, even if they are permitted separately. If the aggregate cost of the entire project exceeds the $1,000,000.00 threshold, each phase of development shall pay the required one percent of construc- tion cost towards art in public places for the building project. (2) Development means any capital project to construct or remodel any private or public development, except residential, or any portion thereof within the limits of the city, where total construction cost equals or exceeds $1,000,000.00. (3) Works of art mean all forms of the visual arts conceived in any medium, material, or combination thereof, including but not limited to painting, sculpture, fountains, engraving, carving, frescos, mobiles, murals, collages, mosaics, bas - reliefs, tapestries, photographs, drawings, and collaborative design projects between architects andlor landscape architects and artists. (b) Violations. Violation of this chapter shall be subject to enforcement as provided in article VII. (e) Art in public places advisory board. (1) Reserved. (2) Zoning consideration. Consideration must be given to project zoning (as base specifi- cations and wind tolerance for sculpture). Permits and building approval must be obtained, when necessary. *Editor's note Formerly, div. 5. See the editor's note ch. 78, art. V, div. 3. Supp. No. 16 CD78:220 l .�O* LAND DEVELOPMENT (3) Reserved. § 78 -262 (4) Guidelines. The committee [board] shall adopt Art in Public Places Implementation Guidelines to assist both public and private sector planning activities. (5) Installation. Installation of artwork shall be guided by the standards listed below. a. Artwork shall be installed to be visible to the maximum number of passers -by. b. Artwork shall be integrated into the overall planning and design for a structure or project, and shall be compatible with the intent and purpose of the structure at which the work or works are located. C. Artwork shall be integrated into the overall landscaping plan, and landscaping shall be utilized to enhance the visibility of such works. d. Artwork shall be lighted in an unobtrusive manner. At a minimum, artwork shall be illuminated from dusk until midnight. (6) Maintenance. Artwork shall be maintained in good conditions at all times, including any associated landscaping or related improvements. (Ord. No. 17 -2000, § 120, 7- 20 -00; Ord. No. 11 -2002, § 1, 3- 21 -02; Ord. No. 17 -2004, § 5, 6 -3 -04) Sec. 78 -262. Fee imposed on developments. (a) Fee. All budgets for the new construction of private and public developments in the city, as specified in section 78 -261, shall include an amount of one percent of the total budgets as a fee for art in public places. The fee shall be imposed and paid as provided below. (1) Deposit of funds. The developer shall submit to the city documentation showing that a deposit was made with the developer's attorney into an escrow account in an amount of money equal to the art fee prior to the issuance of the first building permit. The developer's attorney will furnish the city documentation of the withdrawals for payment of art fees in accordance with the terms of the contract between the developer and the artist or artists, of the developer's arts consultant. The developer's attorney will provide the city a final certification and accounting of the payment of art and consulting fees at the conclusion of the placement of artwork. (2) Surplus balance. Any surplus balance existing in the escrow accounts after the developer has installed the required artwork shall be collected by the city. The surplus balance shall be held in a segregated, interest - bearing fund, and shall be used for the provision of additional art work at the construction site or another site within the city. Use of such funds shall be determined by the city council and shall be in accordance with further provisions of the chapter. (3) Artist selection. The selection and commissions of the artists shall be by written contract between the developer and artists. Supp. No. 16 CD78 :221 t' LAND DEVELOPMENT § 78 -262 (f) Insurance. Proper insurance coverage shall be maintained by the city on artworks purchased with funds generated by this article or on artwork whose ownership has been transferred to the city. (g) Appraisal. 'Ib establish the value of art submitted to comply with this division, the art in public places advisory board shall have the authority to employ an independent art appraiser to provide a written appraisal of the art submitted. Such appraisal will be paid for by the developer as part of the overall art contribution. (h) Waiver of requirements. (1) Waiver. The city council may waive the requirements contained in this chapter, utilizing the standards contained herein. Promotion of the general welfare of the city shall be a major factor in the waiver or reduction of fees. (2) Existing structures. Required fees may only be waived in whole or in part provided an existing complex is subject of extensive plans for redevelopment of the exterior of existing structures, or buildings are demolished and replaced with square footage equal to or less than that of original buildings. (3) Other upgrades. Upgrading of landscaping, project entrances, and vehicle parking, if any, which provide substantial improvement in excess of existing requirements shall be factors to be considered in the waiver process. (4) Criteria for waiver of fees. The city council shall consider the following when considering a request to waive or reduce required fees: a. The impact of proposed improvements on the appearance and utility of an existing structure; b. The impact of proposed improvements on existing and potential tenants or businesses; and C. The probability of the owner acquiring substantial or anchor tenants to assist in relieving financial problems, excess vacancy rates, dilapidated appearance, and similar (5) Credit for expenditures. a. Monies expended for the purpose of meeting minimum code or site plan requirements shall receive no credit for payment of required fees. b. Landscaping shall be considered a temporary improvement as compared to a permanent structural improvement in determining a monetary credit. The city council may not authorize more than 50 percent credit for the cost of installing new or replacement landscaping. Unusual cost of individual plantings or groups of plantings, such as rare exotics, shall not be considered as the sole factor for credit. (i) Architectural features. The city council may grant a partial credit toward required fees when a project. contains unusual architectural features. 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