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Res 03-09ORDINANCE NO. 03 -09 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING SECTION 8.5.1, "ESTABLISHMENT OF PUBLIC ARTS PROGRAM ", SUBSECTION (C), "OWNERSHIP AND MAINTENANCE ", TO PROVIDE THAT THE CITY MAY CONTRIBUTE FUNDS THROUGH THE PUBLIC ARTS PROGRAM TO OTHER ENTITIES IN ORDER TO HELP FUND PUBLIC ART; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Planning and Zoning Board reviewed the proposed text amendment at a public hearing held on December 8, 2008 and voted 6 to 0 to recommend that the changes be approved; and WHEREAS, pursuant to Florida Statute 163.3174(4)(c), the Planning and Zoning Board, sitting as the Local Planning Agency, has determined that the change is consistent with and furthers the goals, objectives and policies of the Comprehensive Plan; and WHEREAS, the City Commission of the City of Delray Beach adopts the findings in the Planning and Zoning Staff Report; and WHEREAS, the City Commission of the City of Delray Beach finds the ordinance is consistent with the Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the recitations set forth above are incorporated herein. Section 2. That Section 8.5.1, "Establishment of Public Arts Program ", Subsection (C), "Ownership and Maintenance ", of the Land Development Regulations of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: (C) Ownership and Maintenance: (1) The City will own all the rights to the art produced under the Public Arts Program., except as set forth in paragraphs 4 and 5 below, and subject to the provisions of the Visual Artists Rights Act of 1990. All contracts with artists and all art purchases will require the artist to waive the following restrictions: (i) Photographic reproduction rights; (ii) Right to remove /relocate art; (iii) Right to repair art in case of emergency. Artist will retain the copyright and the right to be notified if the work is to be destroyed, or modified or radically repaired on a nonemergency basis. (2) City will retain ownership of proposal models or drawings of commissioned art. (3) Maintenance may be the responsibility of the City. (4) If the City contributes funds for art that is placed on private property and does not hire the artist to perform the work, paragraph (1) above shall not apply. If the City hires the artist to perform the work on private property then paragraph (1) shall apply. However, if the City contributes funds for an art project that is located on private property, an agreement must be executed between the City and the property owner that sets forth the following: • Who will maintain the artwork; • The standard in which it will be maintained; • What rights, if any, that the City or some other third party will have regarding access to the artwork; • What remedies the City may have if the property owner fails to maintain the artwork in the manner set forth in the agreement; • The location of the artwork and requirements that nothing may be placed in front of the artwork to shield its view from the public; • The rights the public has to view or access to the artwork; • The time period in which the artwork will remain at the location set forth in the agreement and provisions for reimbursement of city funds, if required, if the artwork is removed prior to that time period; • Once the required time period for the artwork to remain on the property, as set forth in the agreement, has expired and if the artwork is owned by the City, the City shall remove the artwork; if the artwork is not owned by the City, the City will not be responsible for its removal; • Ownership of the artwork. The City may contribute funds for art located on public or private property, to an entity that is not the owner of the property but is developing artwork for the property. If the City so chooses to contribute funds there shall be an agreement between the City and the entity receiving the funds approved by the City Attorney, that shall include but not be limited to, that the art shall 2 ORD. NO. 03 -09 be visible by the public. Section 4. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 5. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 6. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the day of , 2009. ATTEST City Clerk First Reading \\\J\ Second Reading_ 3 ORD. NO. 03-09 MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: January 12, 2009 SUBJECT: AGENDA ITEM 10 C - REGULAR COMMISSION MEETING OF JANUARY 20, 2009 ORDINANCE NO. 03-09 ITEM BEFORE COMMISSION This ordinance is before Commission for second reading for a City initiated amendment to the Land Development Regulations (LDR) Section 8.5.1., `Establishment of Public Arts Program," to provide that the City may contribute funds through the Public Arts Program to other entities in order to help fund public art. BACKGROUND At the first reading on January 6, 2009 the Commission passed Ordinance No. 03 -09. RECOMMENDATION Recommend approval of Ordinance No. 03 -09 on second and final reading. MEMORANDUM TO: Mayor and City Commissioners FROM: MARK MCDONNELL, AICP, ASST. DIRECTOR PLANNING AND ZONING PAUL DORLING, AICP, DIRECTOR PLANNING AND ZONING THROUGH: CITY MANAGER DATE: December 31, 2008 SUBJECT: AGENDA ITEM 12.A. - REGULAR COMMISSION MEETING OF JANUARY 6, 2009 ORDINANCE 03 -09 ITEM BEFORE COMMISSION Consideration of a City - initiated amendment to the Land Development Regulations to allow the City to contribute funds to an entity that is developing artwork for either public or private property not owned by the City. BACKGROUND The amendment will allow the City to contribute funds to an entity that is developing artwork for either public or private property they don't own. If the City opts to contribute such funds, an agreement must be approved by the City Attorney that must include provisions that such art be visible by the public. REVIEW BY OTHERS The text amendment was considered by the Planning and Zoning Board on December 8, 2008. The Board unanimously recommended approval on a 6 to 0 vote, by adopting the findings of fact and law contained in the staff report and finding that the amendment is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.5(M) of the Land Development Regulations. RECOMMENDATION By motion, approve on first reading Ordinance No. 03 -09 for a City - initiated amendment to the Land Development Regulations, by adopting the findings of fact and law contained in the staff report and finding that the amendment is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.5(M) of the Land Development Regulations. ORDINANCE NO. 03 -09 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING SECTION 8.5.1, "ESTABLISHMENT OF PUBLIC ARTS PROGRAM ", SUBSECTION (C), "OWNERSHIP AND MAINTENANCE ", TO PROVIDE THAT THE CITY MAY CONTRIBUTE FUNDS THROUGH THE PUBLIC ARTS PROGRAM TO OTHER ENTITIES IN ORDER TO HELP FUND PUBLIC ART; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Planning and Zoning Board reviewed the proposed text amendment at a public hearing held on December 8, 2008 and voted 6 to 0 to recommend that the changes be approved; and WHEREAS, pursuant to Florida Statute 163.3174(4)(c), the Planning and Zoning Board, sitting as the Local Planning Agency, has determined that the change is consistent with and furthers the goals, objectives and policies of the Comprehensive Plan; and WHEREAS, the City Commission of the City of Delray Beach adopts the findings in the Planning and Zoning Staff Report; and WHEREAS, the City Commission of the City of Delray Beach finds the ordinance is consistent with the Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the recitations set forth above are incorporated herein. Section 2. That Section 8.5.1, `Establishment of Public Arts Program ", Subsection (C), "Ownership and Maintenance ", of the Land Development Regulations of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: (C) Ownership and Maintenance: (1) The City will own all the rights to the art produced under the Public Arts Programs except as set forth in paragraphs 4 and 5 below, and subject to the provisions of the Visual Artists Rights Act of 1990. All contracts with artists and all art purchases will require the artist to waive the following restrictions: (i) Photographic reproduction rights; (ii) Right to remove /relocate art; (iii) Right to repair art in case of emergency. Artist will retain the copyright and the right to be notified if the work is to be destroyed, or modified or radically repaired on a nonemergency basis. (2) City will retain ownership of proposal models or drawings of commissioned art. (3) Maintenance may be the responsibility of the City. (4) If the City contributes funds for art that is placed on private property and does not hire the artist to perform the work, paragraph (1) above shall not apply. If the City hires the artist to perform the work on private property then paragraph (1) shall apply. However, if the City contributes funds for an art project that is located on private property, an agreement must be executed between the City and the property owner that sets forth the following: • Who will maintain the artwork; • The standard in which it will be maintained; • What rights, if any, that the City or some other third party will have regarding access to the artwork; • What remedies the City may have if the property owner fails to maintain the artwork in the manner set forth in the agreement; • The location of the artwork and requirements that nothing may be placed in front of the artwork to shield its view from the public; • The rights the public has to view or access to the artwork; • The time period in which the artwork will remain at the location set forth in the agreement and provisions for reimbursement of city funds, if required, if the artwork is removed prior to that time period; • Once the required time period for the artwork to remain on the property, as set forth in the agreement, has expired and if the artwork is owned by the City, the City shall remove the artwork; if the artwork is not owned by the City, the City will not be responsible for its removal; • Ownership of the artwork. The City may contribute funds, for art located on public or private property, to an entity that is not the owner of the property but is developing artwork for the property. If the Cily so chooses to contribute funds there shall be an agreement between the City and the entity receiving the funds, approved by the City Attorney, that shall include, but not be limited to, that the art shall be visible by the public. 2 ORD. NO. -08 Section 4. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 5. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 6. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the day of , 2008. ATTEST City Clerk First Reading Second Reading MAYOR 3 ORD. NO. -08 PLANNING AND ZONING BOARD STAFF REPORT MEETING DATE: DECEMBER 8, 2008 AGENDA NO: IV.F. AGENDA ITEM: CONSIDERATION OF A CITY-INITIATED AMENDMENT TO THE LAND DEVELOPMENT REGULATIONS (LDR), AMENDING SECTION 8.5.1, "ESTABLISHMENT OF PUBLIC ARTS PROGRAM ", SUBSECTION (C), "OWNERSHIP AND MAINTENANCE ", TO PROVIDE THAT THE CITY MAY CONTRIBUTE FUNDS THROUGH THE PUBLIC ARTS PROGRAM TO OTHER ENTITIES IN ORDER TO HELP FUND PUBLIC ART. ITEM BEFORE THE BOARD The item before the Board is to make a recommendation to the City Commission regarding a city - initiated amendment to Land Development Regulations (LDRs) that will allow the City to contribute funds to an entity that is developing artwork for either public or private property they don't own. Pursuant to Section 1.1.6, an amendment to the text of the Land Development Regulations may not be made until a recommendation is obtained from the Planning and Zoning Board. BACKGROUND/ANALYSIS The amendment will allow the City to contribute funds to an entity that is developing artwork for either public or private property they don't own. If the City opts to contribute such funds, an agreement must be approved by the City Attorney that must include provisions that such art be visible by the public. REQUIRED FINDINGS Comprehensive Plan Conformance LDR Section 2.4.5(M)(5) (Findings) requires that the City Commission make a finding that the text amendment is consistent with and furthers the Goals, Objectives and Policies of the Comprehensive Plan. Relevant sections of the Comprehensive Plan are cited below: Policy C -3.1 The City of Delray Beach hereby acknowledges the role of Culture and the Arts in Economic Development and pledges in pursuit of a theme of this Comprehensive Plan -- A Renaissance Community -- the promotion of the arts and accommodation of cultural activities for economic development ends. This amendment is consistent with the Comprehensive Plan as it continues the Public Arts Program in the City. The amendment increases the flexibility for City contributions for artwork and ensures, at a minimum, that the art will be visible by the public for their enjoyment. Planning and Zoning Board Meeting, December 8, 2008 LDR Amendment — Public Arts Program REVIEW BY OTHERS Courtesy Notices Courtesy notices were provided to the following homeowner and civic associations: ■ Neighborhood Advisory Council Letters of objection and support, if any, will be provided at the Planning and Zoning Board meeting. ALTERNATIVE ACTIONS A. Continue with direction. B. Move a recommendation of approval to the City Commission of the amendment to Land Development Regulations, Section 8.5.1, "Establishment of Public Arts Program ", Subsection (c), "Ownership and Maintenance ", by adopting the findings of fact and law contained in the staff report, and finding that the text amendment and approval thereof is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Section 2.4.5(M) C. Move a recommendation of denial to the City Commission of the amendment to Land Development Regulations, Section 8.5.1, "Establishment of Public Arts Program ", Subsection (c), "Ownership and Maintenance ", by adopting the findings of fact and law contained in the staff report, and finding that the text amendment and approval thereof is inconsistent with the Comprehensive Plan and does not meet the criteria set forth in LDR Section 2.4.5(M) (motion to be made in the affirmative). RECOMMENDED ACTION D. Recommend approval of the amendment to Land Development Regulations, Section 8.5.1, "Establishment of Public Arts Program ", Subsection (c), "Ownership and Maintenance ", by adopting the findings of fact and law contained in the staff report, and finding that the text amendment and approval thereof is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Section 2.4.5(M) attachment: ■ proposed ordinance FA cc I2(iy-) Boca Raton/Delray Beach News - Friday & Saturday, January 9 -10, 2009 • www.bocanews.com l0A N027CF:;' 100 ANNOUNCEMENTS CITY OF DELRAY BEACH,FLOfl10A NOTICE OF PUBLIC HEARING A PUBLIC HEARING wig be held on the following proposed ordinance a1 7:00 p.m. on TUESDAY, JANUARY 20, 2009 (or at any continuation of such meeting which is set by the Commission), in he City Commission Chambers, 100 N.W. Is[ Avenue, Del- ray Beach. Florida, at which lime the City Commission will consider its adoption. The proposed ordinance may be inspected at the Office of the City Clerk at City Hall, 100 N.W. 1st Avenue, Delray Beach, Florida, be- tween the hours of 890 a.m. and 5:00 p.m., Monday through Friday, except holidays. At interested parties are in- vded to anend and be heard with re- specl to the proposed ordinance. ORDINANCE NO. 03-09 AN ORDINANCE OF THE CITY COM MISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULA- TIONS OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING SECTION 8.5.1, 'ESTABLISHMENT OF PUBLIC ARTS PROGRAM', SUB- SECTION (C), - OWNERSHIP AND MAINTENANCE', TO PROVIDE THAT THE CITY MAY CONTRIBUTE FUNDS THROUGH THE PUBLIC ARTS PROGRAM TO OTHER EN- TITIES IN ORDER TO HELP FUND PUBLIC ART; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. Please be advised that 8 a person de- cides to appeal any decision made by the City Commission with respect to any matter considered at these hear rigs, such person may need to ensure that a verbatim record includes the testimony and evidence upon which the appeal is to be based. The City does not provide nor prepare such record pursuanl to FS.286.0105. CITY OF OELRAY BEACH C., D. Nub n, CMC Coy Clerk Publish: Friday, January 9, 2009 Bop RatorvOelray Beach News