CAO 02-10 CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Jorge M. Gonzalez CAO No. 02-10
City Manager ~tll CMO No. 2-6/02
Murray H. Dubbin/~ ~ ~ ~'~
City Attorney ' ¥ ~\
Raul J. Aguila~__~ ~ ~> /~
First Assistant City Attornqy'"'~)
FROM:
SUBJECT:
DATE:
Art in Public Places
August 7, 2002
The following legal opinion is requested pursuant to your memorandum, dated June 4, 2002,
with regard to interpretation of the following sections of the City's Art in Public Places (AIPP)
legislation.
Does the definition of "new buildings and/or public facilities or additions to
existing City structures" include the following for purposes of appropriation
under the City's AIPP legislation?
Pump houses
Outdoor Pools
Tennis Courts
Golf Courses
Ball Fields
Parking Lots
The City's AIPP legislation is codified in Sections 82-536 through 82-612 of the Miami
Beach City Code. As you note in your memorandum, Section 82-587, entitled "Appropriations by
the city to the [AIPP] fund", states that "All appropriations of city funding for construction of city-
owned projects, including construction of new buildings and/or public facilities or additions to
existing structures, shall include an appropriation of funds to the city art in public places fund .... "
Section 82-537, entitled "Definitions", collectively defines the terms "construction project"
and "city-owned construction project" as "...any capital project for new city-owned building
construction or for additions to existing city-owned building, paid for wholly or in part by the city."
Therefore, by referring back to the aforestated definition, when the term "construction project" or
"city-owned construction project" is used within the AIPP legislation, it is intended to refer to
buildings; either, new city-owned building construction or additions to existing city-owned
buildings~.
Therefore, as the terms "construction project" and "city-owned construction project" are
intended to refer to building construction, or additions to existing buildings, it would be reasonable
to conclude that the AIPP legislation was not intended to apply to the public facilities (pools, tennis
courts, golf courses, ball fields, and parking lots) referenced in your June 4, 2002 memorandum.
However, construction projects for the aforestated public facilities may necessarily entail the
construction of, or addition to, buildings (i.e. pool houses, club houses, etc.) as a discrete portion of
the construction services contemplated therein. In that event, the AIPP legislation would apply,
therefore necessitating an appropriation limited exclusively to the specific cost of the building or
buildings within the larger public facilities project2.
The intent of the AIPP legislation is unclear as to whether it applies to "pump houses". Were
we to apply the definition of "building" proffered by the Florida Building Code (see Footnote No.
1), a pump house would not be considered a building since its intended use is not for sheltering any
occupancy. However, as there is no definition of "building" within the AIPP legislation, an
amendment to same, defining the term "building", would be advisable.
Does the definition of "site work" include the following for purposes of
appropriation under AIPP legislation?
All land-based construction required by the project scope and/or City
building codes and land use ordinances such as parking lots, fences,
water retention, landscaping, water and sewer connections, etc.
The temi "construction cost" in the AIPP legislation is particularly relevant when
detemfining the amount of the appropriation of City funding for Art in Public Places, which,
pursuant to Section 82-587, is currently defined as - for new construction - an amount equal to not
less than 1.5 percent of the construction cost of the proposed project. Section 82-537 defines
"construction costs" as "...costs associated with construction, including architectural and engineering
fees, site work, and contingency allowances. Land acquisitions costs and costs associated with
'subsequent changes in construction contracts are not included."
' There is no definition for "building" in the AIPP legislation. However, the most recent
edition of the Florida Building Code defines "building" as "Any structure that encloses a space used
for sheltering any occupancy .... "
2 For example, where construction of a new golf course includes construction of or
improvements to a golf course club house, the specific construction cost of the clubhouse should be
separated from the total project, and an AIPP appropriation made with regard to a percentage of that
specific cost.
Unlike the question posed in No. 1. of this memorandum, a review of the AIPP legislation,
does not provide us with a clear definition of the term "site work". Said term has historically
referred to costs associated with site preparation incident to a construction project. Since we have
opined in No. 1 herein that the terms "construction project" and "city-owned construction project"
refer to buildings, then the term "site work" should refer to that portion of the construction cost
related to the total construction cost of the building itself. Notwithstanding this interpretation, as
recommended in No. 1 of this memorandum, should the Administration want a clearer definition of
either the terms "construction cost" or "site work", it would be advisable to amend the AIPP
legislation to clarify the intent of same.
Should you have any questions or comments, please do not hesitate to contact me.
RJ^Xkw
F:~,TTOxAGUR~2AO~02- I O.C AO
CCi
Robert Middaugh, Assistant City Manager
Tim Hemstreet, CIP Director '
Kristen Mckew, CIP Administrator
Patricia Walker, Finance Director
Georgie Echert, Asst. Finance Director
James Quinlan, ACE Director
Jody Vargas, Executive Administrator
CITY OF MIAMI BEACH
Office of the City Manager
Interoffice Memorand u m
To: Murray H. Dubbin
City Attorney
From: Jorge M. Gonzalez
City Manager
Subject:
ART IN PUBLIC
P~M.O. NUMBER 2-6102
Date: July 18, 2002
In light of finalizing the City's Capital Budget for FY 2003 for adoption by the City
Commission in September 2002, the attached legal opinion request is essential to assure
compliance and proper allocation of funds.
Please advise if you need any assistance or further information.
JMG\C~rar
F:\CMGR~ALL\CH R~ST~N~JMG\LegalOpinion~AiPP Follow-up.doc
Attach ment
C:
Robert C. Middaugh, Assistant City Manager
Tim Hemstreet, Capital Improvement Projects Director
Kristen Mckew, Capital Projects Administrator
Patricia Walker, Finance Director
Georgie Echert, Assistant Finance Director
James Quinlan, Director of Arts, Culture and Entertainment
Jody Vargas, Executive Administrator
CITY OF MIAMI BEACH
Office of the City Manager
Request for Legal Opinion
C.M.O. Number: 2'~l'"z.
To: Murray H. Dubbin
City Attomey
From: Jorge M. Gonzalez
City Manager
Subject:
ART IN PUBLIC PLACES
Date: June 4, 2002
IYour legal opinion is requested with regard to interpretation of the Art in Public Places Ordinance which
states (full,copy attached):
Sec. 82-587
Appropriation by the city to the fund:
"All appropriations of city funding for construction of city-owned projects, including construction of new
buildings and/or public facilities or additions to existing structures shall include an appropriation of
funds to the city art in public places fund. For new construction the amount shall not be less than 1.5
percent of the construction cost of the proposed project. The appropriation to the fund shall be made
at the same time as the appropriations of funding for the construction project."
Sec 4A-1
Definitions: '
"Construction cost- costs associated with construction including arohitectural and engineering fees,
site work, and contingency allowances."
Does the definition of "new buildings and/or public facilities or additions or additions to existing structures"
include the following for purposes of appropriation under this Ordinance:
Pump Houses (not a metal box, but a structure with walls and a roof)
Outdoor Pools
Tennis Courts
Golf Courses
Ball Fields
Parking Lots
Does the definition of "site work" include the following for purposes of appropriation under this Ordinance:
All land-based construction required by the project scope and/or city building codes and land use
ordinances such as parking lots, fences, water retention, landscaping, water and sewer
connections, etc.
Thank you for your time.
J MG\c~C~THUQ:jv