The purpose of the Village of Palmetto Bay Art in Public Places Program is to promote the general welfare by encouraging pride in the community, increasing property values, enhancing the quality of life through artistic opportunities, uniting the community through shared cultural experiences, and creating a cultural legacy for future generations through the collection and exhibition of high-quality art pieces that reflect diverse styles, chronicling history through the collection of artifacts, documents and memorabilia that will acknowledge the past and create programs and activities that will further these goals.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007)

(a)

Artwork means durable creations that may be original or limited editions of art and that may include, but not be limited to, sculptures, murals, monuments, frescoes, fountains, paintings, stained glass, or ceramics and may include architectural designs, components or structures as provided for under section 30-160.15. The "artwork" medium may include, but not be limited to: glass, steel, bronze, wood, stone and concrete. For purposes of the art in public places program, "artwork" does not include the following:

(1)

Directional elements, such as signage or graphics;

(2)

Objects that are mass produced in a standard design;

(3)

Landscape gardening, unless substantially comprising durable elements defined as "artwork" under this section.

(b)

Construction cost shall mean the architectural and engineering fees, site work, and contingency allowances for a development project. It shall not include the cost of land acquisition or subsequent cost changes to the construction and/or architectural contract(s). In the absence of such information being provided by the applicant or the dispute of said submission, the cost shall be based upon the most recent publication of RS means together with estimated design services fees with all value estimations to favor the village's interests. All costs to derive at said estimated value as described above shall be borne by the applicant and be considered part of the construction cost.

(c)

Development project means any development, including remodeling, which requires a building permit or permits as described on the precise plan submitted for approval to the

(d)

Durable means lasting, enduring and highly resistant to deterioration due to weather or the passage of time.

(e)

Life cycle of an art piece shall mean the natural deterioration period for a piece of artwork. Artworks created under this division are meant to be permanent and should last at least 25 years, when properly designed and maintained. Artwork reaches the end of its life cycle when the artist, or the artist's estate, and/or a qualified art conservator verifies that the artwork has aged or deteriorated to a point where it cannot reasonably be conserved or repaired. Artwork life span cannot be less than 25 years.

(f)

Project developer means the owner, including its successor and assigns, of the subject property.

(g)

Project valuation means the total value of the improvements approved for a development project submitted to the village in order to obtain a building permit or permits for the development project, which shall constitute all of the construction costs identified in this division.

(h)

Public art board means the entity appointed by the mayor and village council to make recommendations to the village council regarding dedication, donations, installations, maintenance and acquisitions of public art to fulfill the requirements of this article.

(i)

Public art fund means a separate, interest-bearing set of accounts set up by the village to receive monies for the public art program.

(j)

Public place means any exterior area on public or private property within the village which is easily accessible or clearly visible to the general public from adjacent public property such as a street or other public thoroughfare or sidewalk.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007; Ord. No. 2012-05, § 1, 3-12-2012; Ord. No. 2023-07, § 2, 4-17-2023)

The village's art in public places program shall be administered by the community and economic development department of the village.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007; Ord. No. 2012-05, § 1, 3-12-2012; Ord. No. 2023-07, § 2, 4-17-2023)

There shall be created a public art board whose membership, meetings, duties, and other responsibilities are as described below:

(a)

Membership. The village council shall appoint members to the public art board, which board shall consist of seven members. Each councilmember, the manager, and the community and economic development director shall each nominate a member, and the village council shall vote on the selection of each member. The required quorum shall consist of three members. The board members shall serve for four years, under staggered terms, serving without compensation. To ensure a balanced and diverse board it is recommended, but not required, that two of the board members be from the following professions: architect (landscape architect, architect, architectural historian, or urban planner), a skilled professional in the field of fine art (fine art history, art dealer, art gallery, artists' representative, museum curator, etc.), an interior designer, or a professor of art or art history.

(b)

Meetings. If any member fails to attend two of three successive meetings without cause and without prior approval of the chairman, the committee shall declare the member's office vacant, and the village council shall promptly fill that vacancy.

(c)

Conflict of interest. If any member of the public art committee shall find that his private or personal interests are involved in the matter coming before the committee, he shall disqualify himself from all participation in that matter. No member of the public art committee shall have his or her work of art considered or approved by the public art committee during their term of service on the committee or for one-year thereafter.

(d)

Duties. The board shall review and propose artwork items to be acquired under the village's art in public places program. The board shall issue a recommendation to the village council for all artwork including governmental development projects, non-governmental, and private sector development projects acquisitions in accordance with this division. The board shall oversee the public education, and curatorial aspects of the program. The community and economic development director, or his/her designee shall be the liaison to the board, shall prepare a budget for staff and other expenditures necessary to operate the program and shall deliver an annual report to the village council. The board shall screen submissions and will recommend to the village council for final authorization for each acquisition not more than three possible selections, which may be existing works of art or new commissions. The board shall also issue a recommendation to the village council on all murals that are installed on commercial properties and face a public place that are not considered a new non-governmental or private sector development project. Specifically, the applicant should follow the process for attaining approval from the board regarding public art as stated in section 30-160.6.

(e)

Master art plan and implementation guidelines. Should the program's fund grow to over a $1,000,000.00, the board may prepare a master art plan to ensure a coherent acquisition program and implementation guideline, both of which must be presented to the village council for final approval by resolution. Should this occur, the village council, per the recommendation of the board may adopt and publish a master art plan with uniform guidelines to govern the manner and method of the submission of proposed works of art to the board, the process by which the board shall make recommendations to the village council and the process by which the village council shall approve acquisition.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007; Ord. No. 2012-05, § 1, 3-12-2012; Ord. No. 2015-02, § 1, 3-2-2015; Ord. No. 2017-14, § 1, 10-2-2017; Ord. No. 2023-07, § 2, 4-17-2023)

All acquisitions will be in accordance with the criteria identified in this division. The village council may approve each acquisition from those selections recommended by the board. The village manager and village attorney will negotiate and execute appropriate contracts to acquire each approved work of art. Funds may be aggregated to acquire works of art.

(a)

Selection process. The village council shall establish procedures for selecting artwork to be purchased from the resources of the art in public places fund. Those procedures may include the following means:

(1)

Open competition;

(2)

Limited competition;

(3)

Invitation;

(4)

Direct purchase;

(5)

Donation; and,

(6)

Any combination of the above.

All board members, village council members, artists, applicants, and respective agents shall comply with the village's cone of silence regulations.

(b)

Selection criteria. In the selection process, the following principles shall be observed:

(1)

Works of art shall be located in areas where residents and the public live and congregate and shall be accessible and visible to pedestrian and vehicular traffic;

(2)

The board should consider the inherently impactful intrusive nature of public art on the lives of those frequenting public places. Artworks reflecting enduring artistic concepts, not transitory ones, should be sought;

(3)

The board's selections must reflect the cultural and ethnic diversity of the village and South Florida without deviation from a standard of excellence;

(4)

Final selection shall 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, diversity of works already acquired by the village, diversity of the artists whose work has been acquired by the village;

(5)

Quality of the artwork;

(6)

Maintenance requirements;

(7)

Whether the artwork too closely resembles a business logo or sign and should, therefore, be rejected;

(8)

Any other criteria set forth in the public art program guidelines, as amended from time to time;

(9)

Ability of the artist to complete the project within a specified schedule and budget;

(10)

Exhibition and sales history of the artist, as well as works of art in public collections and previous public art purchases or commissions; and

(11)

Any other criteria set forth in the public art program guidelines, as amended from time to time.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007; Ord. No. 2012-05, § 1, 3-12-2012; Ord. No. 2023-07, § 2, 4-17-2023)

An application for placement of artwork on private property but within "public space" or for the donation of artwork to the village (as a gift or in lieu of a fee), shall be submitted to the village council, after review and recommendation by the board, and shall include:

(a)

Preliminary sketches, photographs or other documentation of sufficient descriptive clarity to indicate the nature of the proposed artwork;

(b)

An appraisal or other evidence of the value of the proposed artwork including acquisition and installation costs (to establish the value of art submitted to comply with this program's requirements, the village may employ an independent art appraiser to provide a written appraisal of the art. Such appraisal shall be funded by the developer. Additionally, under the guidance of the department of community and economic development, more than one appraisal may be required.

(c)

Preliminary plans containing such detailed information as may be required by the village to adequately evaluate the location of the artwork and its compatibility with the proposed development project and/or with the character of adjacent developed parcels and the existing neighborhood;

(d)

A written agreement executed by the artist who created the artwork, in which he or she expressly waives all rights that may be waived under applicable state and federal laws. The artist of approved artwork shall grant to the village an unlimited, perpetual, nonexclusive, royalty-free, irrevocable license to reproduce and distribute two-dimensional reproductions of the artwork for village-related purposes, and grant to the village 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 village attorney. Village 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 village which are deemed to be public records pursuant to the public records laws of the state. The village shall also have the option of referring to the name and title of the artist and artwork in reproductions;

(e)

When artwork is to be placed on private property, a written statement executed by the property owner and approved by the village attorney that requires the landowner or his or her successors and assigns to defend, indemnify and hold the village harmless against any liability, loss, damage, costs or expenses (including reasonable attorneys' fees and court costs) arising from any claim, action or liability related to the artwork;

(f)

A narrative statement to be submitted to the village to demonstrate that the artwork will be displayed in a public place; and

(g)

A statement indicating the property owner's willingness to maintain the artwork in compliance with section 30-160.14.

(h)

Ownership and upkeep. Ownership of all works of art acquired by the village under this program is vested in the village. The art in public places board and the village council are charged with the custody, supervision, maintenance and preservation of such works of art. In each instance, the village shall acquire title to each work of art acquired.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007; Ord. No. 2012-05, § 1, 3-12-2012; Ord. No. 2023-07, § 2, 4-17-2023)

(a)

Government development projects. All government development projects shall provide for the acquisition of works of art equivalent in value to not less than one and one-half percent of the construction cost of the project, provided that no funds may be appropriated for this purpose from the ad valorem tax operations fund.

(b)

Non-governmental and private sector development projects. All non-governmental and private sector development projects (interior or exterior modifications, additions, or new construction) including: parking structures, residential developments of more than two units, mixed use projects, and/or commercial sites with construction costs exceeding $250,000.00 shall be subject to the provisions of this division and shall provide for the acquisition of works of art as follows:

(1)

For artwork provided on site: a value of not less than one and one-quarter percent of the construction costs

(2)

For artwork provided off site or contribution to the art fund or some contribution to the art fund or some combination thereof: a value of not less than one percent of the construction costs.

(3)

When the board approves the installation of a mural on site to meet this requirement, the required value of the artwork may be waived or lessened by the board.

(c)

Exemptions. Non-governmental and private sector development projects may be exempt from this division by the village council, provided:

(1)

The structure is intended primarily to house one or more social service agency providers, affordable housing projects, or religious facilities; or,

(2)

The project consists of the reconstruction of structures which have been damaged by fire, flood, wind, or other calamity;

(3)

Governmental development projects or portions thereof that do not include buildings.

(4)

Single family residential improvements and original construction.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007; Ord. No. 2012-05, § 1, 3-12-2012; Ord. No. 2013-12, § 1, 10-7-2013; Ord. No. 2023-07, § 2, 4-17-2023)

(a)

The applicant will be notified by the Village of Palmetto Bay's Planning and Zoning Division of the Art-in-Public Places requirement and valuation. The applicant will have the following options:

(1)

Pay the appropriate fee as identified in division 30-160;

(2)

Donate artwork which has been approved by the board and village council;

(3)

Place artwork, which has been approved by the board and village council; or,

(4)

A combination of the above subject to the approval of the village council;

(5)

Any party may contribute amounts or artworks valued at amounts greater than those required by this section.

(b)

It is the responsibility of the applicant to apply to the art-in-public places advisory board for approval to place artwork on private property. The applicant shall receive board and village council approval prior to the issuance of a building permit.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007; Ord. No. 2012-05, § 1, 3-12-2012; Ord. No. 2023-07, § 2, 4-17-2023)

No final approval, such as a final inspection, temporary certificate of occupancy or a certificate of occupancy, for any development project subject to the village's art in public places program is achieved in one or more of the following ways:

i.

The approved artwork has been installed in a manner satisfactory to the village council in compliance with this division.

ii.

In-lieu art fees have been paid.

iii.

Financial security, in an amount equal to the acquisition and installation costs of an approved artwork, in a form approved by the village attorney has been posted the village.

iv.

An approved artwork has been donated and accepted by the Palmetto Bay Village Council.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007; Ord. No. 2023-07, § 2, 4-17-2023)

There is hereby created within the village an individual account to be known as the Village of Palmetto Bay Art in Public Places Fund. This fund shall be maintained by the village and shall be used solely for the acquisition, installation, improvement, maintenance and insurance of artwork as follows:

(a)

All money received by the village pursuant under the art in public places program or from endowments or gifts to the village designated for the arts shall be placed in the art in public places fund. All money shall be deposited, invested, accounted for and expended as follows:

(1)

Funds received shall be deposited in the art in public places fund in a manner to avoid any commingling with other revenues and funds of the village, except for temporary investments, and all funds shall be expended solely for the purposes for which they were collected. Any interest income earned by the money in the art in public places fund shall be deposited in the art in public places fund and shall be expended only for the purpose for which the money was originally collected.

(2)

The public art fund shall be used solely for expenses associated with the selection, commissioning, acquisition, transportation, maintenance, public education, promotion, administration, removal and insurance of the works of art or in relation thereto.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007; Ord. No. 2023-07, § 2, 4-17-2023)

Art that is placed on private property in lieu of a fee, or that is donated to the village in lieu of a fee, must qualify as artwork under this division and shall be operated and maintained at all times in substantial conformity with the manner in which the artwork was originally approved by the village council. Such art on private property must be located in an area designated as "public space."

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007)

Any art proposed to be donated to the village in lieu of payment of a fee to the art in public places fund, or otherwise to fulfill the obligations set forth in section 30-160.7, must qualify as an artwork, and must be approved by the board and village council as provided for under sections 30-160.5 through 30-160.6.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007; Ord. No. 2012-05, § 1, 3-12-2012)

(a)

Completed applications shall be submitted to the board as provided for under section 30-160.6 and ultimately to the Palmetto Bay Village Council for review and approval of the artwork including consideration of the artwork's conformity to the definition of "artwork," its aesthetic quality and harmony with the existing on-site improvements and neighborhood, and its proposed location and public accessibility.

(b)

If, after review, the applicant proposes, or the village council subsequently recommends, significant revisions to the architecture or physical design and layout of the proposed project, the revised application shall be returned to the village council for further review and recommendation concerning the revised proposal.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007; Ord. No. 2012-05, § 1, 3-12-2012)

(a)

All artwork placed on the site of a development project shall remain the property of the site's owner. The obligation to provide all maintenance necessary to preserve and maintain the artwork in good condition shall remain with the owner of that site and the owner's successors and assigns, unless agreed to otherwise by resolution of the village mayor and council. Application for such request and all associated fees with processing same shall be borne by the applicant.

(b)

The obligation to maintain the artwork shall be enforced as follows:

(1)

Prior to the placement of the artwork on a development project, the property owner shall record a document with the county recorder setting forth a description of the artwork and acknowledging the obligation of the property owner to repair and maintain it. This document and the underlying covenant shall run with the land for a minimum of 25 years shall provide notice to future property owners of the obligation to repair and maintain the artwork and of certain limitations related to any federal, state or local laws governing the rights of the artists including but not limited to rights regarding the alteration, modification or relocation of subject artwork. The village shall be a signatory party to this document, and its final form and content shall be approved by the village attorney.

(2)

Maintenance of artwork, as used in this division, shall include, without limitation, preserving the artwork in good condition to the satisfaction of the village, protecting the artwork against physical defacement, mutilation or alteration, and securing and maintaining insurance coverage for fire, wind, vandalism and extended liability in an amount to be determined by the village attorney. Maintenance requirements shall be enforceable by the village for the "life cycle" of the specific artwork.

(3)

If at any time the village council determines that artwork has not been maintained in substantial conformity with the manner in which it was originally approved, the code compliance division of the village, as authorized by the village council, shall require the current property owner to either:

a.

Repair or maintain the artwork; or

b.

After reasonable notice, pay the lesser of either the costs estimated by the village to be required to repair and maintain the artwork and/or secure and maintain insurance for the artwork, or the percent for the art fee required under this division, based upon the current fee schedule and the current fair market value of the building, structure or improvement for which the artwork was required, as determined by the county tax assessor.

The village may additionally issue notices of civil infraction for failure to maintain the artwork in accordance with the village's notice of civil infraction fine schedule contained in 2-205, of the Village's Code of Ordinances.

(c)

Stolen or removed artworks are to be replaced by the owner. Replaced pieces are to be reviewed and approved by the village council subject to the criteria set forth in this division.

(d)

All artwork donated to the village shall become the property of the village upon acceptance by the village council.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007; Ord. No. 2012-05, § 1, 3-12-2012; Ord. No. 2023-07, § 2, 4-17-2023)

Generally, architecture shall not be considered artwork for purposes of the village art in public places program unless approved by the board and village council. The criteria used to determine on a case-by-case basis whether architecture may be considered artwork for purposes of fulfilling the requirements of this division shall include, but not be limited to, the following:

(a)

The architect shall be substantially recognized by the art world in shows, museums, and/or publications.

(b)

When reviewing architecture as art, the underlying concept of the architecture shall be more expressive than mere utilitarian architecture. The architecture as a whole or certain architectural features shall express ideas or meaning and have cultural significance or conceptual complexity in relation to the totality of the object.

(c)

In the alternative, architecture can be considered artwork if it is created as a collaborative effort with an artist, the artist does a majority of the work, the artist has major design control of the portions of the architecture to be considered art, and the artist has been brought in early in the process. The artist shall have experience and knowledge of monumental scale sculpture.

(d)

The architecture must meet all the general criteria regarding placement of artwork on private property.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007)

The project developer seeking approval of an architectural project to fulfill the requirements of this division shall comply with sections 30-160.5 through 30-160.6 and:

(1)

During the presentation to the board, the project developer must submit a maquette and other materials which satisfactorily illustrate the proposed conceptual development. The project developer and the architect must submit a conceptual statement expressing why the architecture should be considered an artwork including an explanation of the ideas, meaning, cultural significance or conceptual complexity expressed in the architecture. The developer must then submit a maquette and other materials which satisfactorily illustrate the development project. The project developer and the architect shall demonstrate that high quality materials and craftsmanship will be used in the execution of the construction.

(2)

If all of the foregoing criteria are met, the board shall make the recommendation to the village council to accept the architecture as an artwork only if, in its judgment, the architectural work is of extremely high artistic merit and would make a substantial cultural contribution to the village.

(3)

The project developer and/or architect shall have the responsibility to demonstrate that all of the foregoing criteria and criteria of sections 30-160.5 and 30-160.6 are met.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007)

(a)

Fees paid into the art in public places fund that are not committed within ten years from the date of payment may be returned to the current owner of the development project with all interest actually earned thereon if a written request for return is filed with the village treasurer during the tenth year after payment and refund of the fees is approved by the village council. The request for return shall be verified and shall include the date of payment, the amount paid and method of payment, the location of the development for which the fee was paid, and a statement that the applicant is the payer of the fees and/or the current owner of the development project.

(b)

The village council shall determine if return of the then uncommitted portion of the fees and interest is appropriate and, if so, the method of refund. No refund shall be appropriate if the village council determines any one of the following applies:

(1)

The village council finds the fee is needed for the art in public places program.

(2)

Moneys were not posted as fees, but were satisfied by letter of credit, bond or other instrument taken to secure payment at a future date.

(Ord. No. 07-05, § 1, 3-5-2007; Ord. No. 07-20, § 1, 6-18-2007)