CITY OF NORTH LAUDERDALE

CITY OF NORTH LAUDERDALE

COMMISSION MEETING

SATURDAY, AUGUST 11, 2007

SPECIAL MEETING – 4:00 p.m.

MINUTES

The North Lauderdale City Commission met on Saturday, August 11, 2007 at the Municipal Complex. The meeting convened at 4:08 p.m.

1. INVOCATION AND PLEDGE OF ALLEGIANCE – Mayor Brady gave the invocation

2. ROLL CALL

Mayor Jack Brady

Vice Mayor Rich Moyle – Excused absence

Commissioner Gary Frankel

Commissioner John Cangemi

Commissioner David Hilton

City Manager Richard Sala

City Attorney Samuel Goren

Deputy Clerk Patricia Vancheri

3. RESOLUTION - Neighborhood Partnership Program

Commissioner Frankel made a motion to read title. Seconded by Commissioner Cangemi. All in favor.

Attorney read:

A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF NORTH LAUDERDALE, FLORIDA AUTHORIZING SPECIFIC IMPROVEMENTS TO THE HAMPTONS OF NORTH LAUDERDALE, IN A 50% MATCHING AMOUNT NOT TO EXCEED $28,222.00 TO BE FUNDED BY THE NEIGHBORHOOD PARTNERSHIP PROGRAM PRIOR TO THE END OF FY 2006/2007 LINE ITEM – 001-3005-524-8311; FINDING THAT SUCH EXPENDITURES SERVE A PUBLIC PURPOSE; AUTHORIZING THE CITY ADMINISTRATION TO IMPLEMENT THE IMPROVEMENTS APPROVED HEREIN; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE.

Jesus Valdes presented the item seeking consideration and approval of a neighborhood partnership program project to be located at the Hamptons of North Lauderdale. This would be for the installation of a decorative aluminum perimeter fence throughout the community. Mr. Valdes indicated that this is a high density neighborhood which needs ongoing monitoring, attention and rejuvenation. He said the state of the neighborhoods often impact the city’s quality of life, social well-being and resident satisfaction. Mr. Valdes said that the City places a high priority on partnership efforts that enhance the vitality of these neighborhoods. Mr. Valdes said that the Hamptons is one of the city’s oldest neighborhoods and is in need of several improvements; the most pressing of which is the community boundary fence that will not only enhance the aesthetics, but also provide extra security measures. He said the proposed improvements would benefit the entire area in which it is located. Mr. Valdes requested consideration for the specified amount in matching funds. He indicated that the submitted application meets all the requirements and includes a firm commitment from the homeowner’s association to see this project’s completion before the end of the fiscal year, which is one of the requirements. Mr. Valdes said that the Community Development department will oversee the progress and will be directly involved in the permitting stage, through the final stages of inspection. Mr. Valdes indicated that two persons from the homeowner’s association and Linda White, the Community Grants coordinator, were present to answer any questions posed by the Commission regarding the recommendation to approve the project. Mr. Sala added that in this year’s current budget, there was a $50,000 allocation that has not been used and this application would be a part of that. He also thanked Linda White for following through with the applications and trying to do the right thing for some of our neighborhoods. Commissioner Frankel made a motion to approve. Commissioner Cangemi seconded. All in favor.

RESOLUTION NO. 07-08-5254 PASSED AND ADOPTED UNANIMOUSLY

4. DISCUSSION AND POSSIBLE MOTION TO AMEND – Wal-Mart Development Agreement

City Attorney Sam Goren said that the Development Agreement between the City of North Lauderdale and Wal-Mart was recorded in the Public Records of Broward County in August of 2006. Mr. Goren said this document serves as a public statement between the parties regarding their public commitments to each other in connection with the over-all development of the site. Mr. Goren indicated that the development agreement provides multiple exhibits which are design criteria, techniques, procedures, processes, as well as criteria regarding the standards for leasing and finding tenants of a quality as described in the documents. He also indicated that Wal-Mart has submitted a request to amend the current Development Agreement through their legal counsel. Legal Counsel for Wal-Mart, Nectaria Chakas, was present. Mr. Goren outlined some of the changes requested with regard to the development aspect. He indicated that under the current agreement, the applicant has the opportunity to legally apply for a building permit to build the Super-Center which is the main structure described in the agreement. However, the certificate of occupancy which could be applied for, could not be granted under the terms of the current developer’s contract without the out-parcel shell buildings in complete and final form. Mr. Goren said the proposal submitted by Ms. Motley of Wal-Mart, essentially changes some of the terms of the contract. He said, in essence, the proposal is that the City shall not require the issuance of the building permit for the Town Center out-parcel building prior to the issuance of the building permit for the Super Center and the City shall not require completion of the Town Center out-parcel buildings prior to the issuance of a certificate of occupancy for the Super Center to open to the public. Mr. Goren said the consequence of the change being asked for is that the certificate of occupancy trigger is removed by the proposal and would allow Wal-Mart, if they meet the qualifications of a building permit, to proceed with their applicable project and to receive a certificate of occupancy without the completion of the out-parcels. Mr. Goren said that one caveat in the agreement is that if the City has not approved the site plan for a hotel, which is referenced in the documents, by the time the other town center out parcel buildings are completed, then Wal-Mart shall masquerade and seed or sod the hotel parcel to stabilize it and install the parking spaces along the northern boundary of the hotel out-parcel and the parking spaces along the east boundary. Mr. Goren said this is not changed by this proposal, but the issue is that if they do not have the out-parcel buildings completed, the hotel ground site landscaping and parking is supposed to be provided for. Mr. Goren said the proposal was generated by the developer, and he indicated that there was an August 28^th trigger and under the code there is an 18 month site plan approval which expires. Mr. Goren said this is the only change requested in the document. Mr. Goren said this public meeting gives the Commission the opportunity to address the seriousness of the request and the implications of the contract which is sizable to the City and important to the City’s future. Commissioner Cangemi said he is not happy with this and questioned that all they wanted to do was build the Wal-Mart? At this point, Nectaria Chakas addressed the Commission to answer the question, and indicated that it is their intention to build the entire project as the developer’s agreement contemplates, but because of certain things that have transpired between Wal-Mart and the City, Wal-Mart is no longer comfortable moving forward with the project at all unless they receive some sort of comfort level from the City, vis-à-vis discussions that she can take back to Wal-Mart or through an amendment to the development agreement. Ms. Chakas mentioned the looming deadline and said that decisions have to be made fast. She said they would not be opposed to the Commission granting an extension of the site plan approval, so that they could then continue to operate in good faith and keep the communication between the City and the developer going as it has been. Commissioner Cangemi made a motion to approve the site plan extension. Mr. Sala interjected that the site plan extension is a pure six month extension at the end of the current eighteen month cycle. Mr. Goren reiterated that it would be a six month extension. Commissioner Cangemi said that is what he would like to do that for two reasons, one because he feels the City is being pressured, and two because he would like to have more valued information that they can discuss amicably. Commissioner Cangemi said that he treasures Vice-Mayor Moyle’s decision and would like him to be a part of this. He said Commissioner Frankel will be out of the country and would like his opinion too. Commissioner Frankel said he welcomes Wal-Mart’s business and would like to see this through and work with them any way possible, and if giving a six month extension will solve the problem, then he would welcome it and would second Commissioner Cangemi’s motion. Mayor Brady asked to make an amendment to the motion and passed the gavel. On a friendly amendment, Mayor Brady wished to make a motion to direct the preparation of a counter-proposal to Wal-Mart and an extension of six months. He said he wants the project to work. At this point, David Lipp, with Atlantic Commercial Group, of Boca Raton, addressed the Commission. He communicated that his feeling is that it would be in the best interest of the parties to bring a resolution to this as soon as possible. He said there is quite a bit of momentum with regard to the efforts to lease the Town Center project, including a fully executed contract with a major hotel developer for a 97 room hotel which is very desirable to the city and they don’t want to lose that contract. He also said they have a developer that the City has met with on numerous occasions, that is quite capable, that is planning on developing the Town Center project as it relates to the tenant interest and the City’s desirability of the tenants for that project. Mr. Lipp said currently there is about 36,000 square feet that is to be leased in that space, plus an approximately 6,000 to 7,000 square foot free-standing restaurant parcel. He said the project has not broken ground yet and that they have at least a year to continue their leasing efforts and that those efforts have been on-going for over a year. Mr. Lipp said it is difficult to lease a project that has not broken ground. He said that despite that, the developer has secured letters of intent and leases for over 30% of the 36,000 square feet and those letters and leases are with national and regional credit type tenants. He said after discussions between the developer and the city manager and Wal-Mart representatives, it was of the opinion that some of those tenants were not acceptable, nor desirable for the project. Mr. Lipp said Wal-Mart and the developer and the leasing agent have been emphatic from day one that they cannot be bound on a day to day basis with going to the City to find out if a particular tenant is considered desirable or undesirable. He said that the attachment to the exhibit to the developer’s agreement states the prohibited uses and that none of those uses are being contemplated. Mr. Lipp also stated that Wal-Mart is fully committed to moving forward on the project, as is the developer, provided that the City will not create difficulties in their efforts to get a certificate of occupancy for their store, and not create difficulties with regard to the tenant mix that the professionals feel are a desirable tenant mix to this project. He said the demographics don’t call for tenants such as Morton’s Steakhouse or Houston’s, and Wal-Mart does not have the ability to force those types of tenants into this project. Mr. Lipp said he is sure there will be a very desirable restaurant that will commit, that will also be acceptable to the City. He said it is still early on in the process. Additionally, Mr. Lipp said that with regard to the retail mix, you won’t get a Ferragamo or an Ann Taylor, but the tenants they had proposed for this, they felt were good credit, quality tenants that are found in other good, quality retail projects in desirable communities and that ultimately, the City will agree with that and work with Wal-Mart to quickly come to resolution, so that Wal-Mart and the developer are comfortable proceeding with the project. Mayor Brady said that if they are putting up a 25 million dollar building that want to develop the whole project. He feels that Wal-Mart wants to make it a success. Commissioner Cangemi asked about the hotel. Mr. Lipp said they have a fully executed agreement between Baywood Hotels and McGill Property Group as the proposed developer. Mr. Lipp also mentioned that he will be going to the ICSC convention and wants to be sure he should be marketing this project. Commissioner Cangemi said that about a year ago they were at that convention and did the best they could and that Mayor Brady and Mr. Sala have been working on it, but said he thinks the momentum started to run out because the ground has not been broken. He said he would like to keep the momentum up and the trust, with open lines of communication. He said he would agree to the friendly amendment as long as there was an extension to negotiate. For the record, Mr. Goren said that the motion would be proper, but if you were to approve that motion, it would do two things, like a 1(a) and 1(b); (a) it would give the six month extension to the code and (b) it would approve the proposal by the applicant. Mr. Goren further stated that any amendment to the developer’s agreement would need to be adopted by ordinance. Commissioner Hilton said he does not want to change the developer’s agreement and asked if there was anything that says they cannot issue the permit to start construction of the Wal-Mart. Mr. Sala said they can issue that permit. Commissioner Hilton mentioned that according to Ms. Motley, their building will take the longest to build, so he wants to get some dirt turning and get that building going. Mr. Sala said that by extending the site plan, they don’t have to pull the permit for six months. Commissioner Hilton said he understood, but it has been a year and a half already. Commissioner Cangemi said that six months gives them more negotiation time. Mr. Sala said that it would give Wal-Mart an opportunity to give a presentation on where they are, who they are going after, who has signed contracts and what is in front of us. He said he is hopeful and optimistic that it will be better than the last presentation. Mr. Sala said if it is the Commission’s direction to have him back off a little bit, he will be happy to do so, but said the Commission hired him to be the redevelopment director also and hired him to bring some class to North Lauderdale and some good projects and developments. Mr. Sala said he is just doing what they asked him to do. Mayor Brady said his philosophy is we are a working class blue collar community and see’s no reason why not to give Wal-Mart good faith. Commissioner Hilton questioned what does he mean by good faith? Mr. Brady said when you are talking about 20 to 25 million dollars building you want them to go ahead and develop it, that is what he means by good faith. Mayor Brady said that is why the motion to direct Sam to prepare the contract amendment to accept a counter-proposal from Wal-Mart, that’s good faith and when you have a hotel that’s going in there, that’s good faith. He said he believes they have some other tenants that want to go in there, such as Payless, the drive-through Starbuck’s and possibly some more. He said it was the philosophy of “build it and they will come”. Mr. Sala said he doesn’t believe that Starbuck’s has been presented to us. Commissioner Frankel said he agrees that if you build it they will come. He said a corporation of that magnitude, if you say you are going to do something, then he has to have a certain amount of trust, and he thinks that this Commission is very interested in seeing something nice built. He said you have to understand that this is the last big parcel in the city. He also said the Commission went to a special retreat in Las Vegas to solicit the very nicest of businesses to come into the area called the commons. He said business is not something you control, you only work within and you know that some businesses just won’t come here and probably they’ve used their good faith in trying to see the very best, but really, government should recognize private property rights that you people should have the right to use some discretion on how you want to build it and advertise it and get the businesses. He said sometimes whatever you can, but sometimes as best as you can . He said he doesn’t expect to see it being Rodeo Drive. You’re not getting Louis Vuitton and probably like you said, Morton’s Steak House won’t go there, but you’ll get the best you can and as Mayor Brady said, you have to have good faith and trust. So, Commissioner. Frankel’s opinion is that whatever you have to do to continue a good relationship with extending time and doing any modification Mayor Brady might see fit to propose is fine with him. Sam Goren said procedurally, he would like to make a couple of suggestions. He said you have an oddity this afternoon, from the standpoint that you only have four members on the dais. He said, if I may offer to you, based on his assessment of the motion, which is legally appropriate, you may wish to suggest bifurcating the motion and having a motion on the specifics of the extension, which appears to be something which the Commission as a collegial body would embrace, and with all due respect to any of you on the panel today, you may want to take up a second motion separately with regard to the proposal, which would require further work on my part to begin with. So, for the purposes of at least solidifying your collegial direction, the maker of the motion has made it, the seconder has made it and apparently the maker has not yielded to the Mayor’s request for a friendly amendment. That being said, unless he has, you may want to take them up separately. Commissioner. Frankel said are you suggesting that we postpone and Mayor Brady interrupted with “either he accepts the friendly amendment, or he doesn’t”. Mr. Goren said the main motion on the table right now is the motion to extend for six months. He said he just wants the record to be clear about that. Commissioner Cangemi asked if Commissioner. Frankel seconded that and he replied yes, that that would keep things moving and we would have a certain amount of good faith. Commissioner. Frankel said are you suggesting that the proposal on this amendment to the developer’s agreement maybe should be taken up when Vice-Mayor Moyle is here? Deputy clerk attempted to get a roll call on the motion. Mr. Goren said the motion on the floor is for a six month extension of the site plan pursuant to city code which would extend the August 29^th deadline. Mayor Brady asked, “Did the friendly amendment die?”. Mr. Goren said the maker didn’t accept it. Commissioner Hilton said the motion is on the table right now and Mr. Brady said he asked for a friendly amendment and either he says yes or he says no, no problem. Commissioner Cangemi said no. City Attorney said the main motion is on the extension. Deputy Clerk called the question. Vote was unanimous. Sam reiterated that the Motion for the six month extension of the site plan was granted for that particular purpose. Mayor Brady passed the gavel and made a motion for City Attorney to prepare a contract amending and accepting a counter proposal from Wal-Mart. He said this is the only way that he thinks Wal-Mart will not be scared off and if they are scared off, he wants it known that he was no part of it. Commissioner Frankel seconded it. Sam said, if I may Mayor, the motion that you are making after passing the gavel, is essentially to approve the proposal from Wal-Mart which is before the Commission which is subject to drafting of an ordinance notwithstanding. Commissioner Frankel said, and that of course will come up when the Vice-Mayor is here so we’ll give him the pleasure of deciding on it. Mayor Brady said but you’ll be able to vote on it. Mr. Goren said Commissioner Frankel may not be able to second it since the Vice Mayor is not here. He said it is a hyper technical argument that one may not want to get into, which is that Commissioner Frankel is not the Vice Mayor. So, you can challenge Roberts Rules and the Mayor gets to decide the answer. Commissioner Frankel said he is seconding the Mayor and that the Mayor should agree with that or that he could second it. Mayor. Brady asked “what is the law”? Mr. Goren said the Vice-Mayor is the person to whom the gavel will be passed and the vice mayor is not here and there is no such thing in the city as an interim vice mayor. Commissioner. Frankel said, so you go on seniority and he would be next. Mr. Goren said he has heard the arguments before and there may be a technical insufficiency. Mayor Brady said he just wants it on the record. Mr. Goren said the Mayor can make the motion, he has passed the gavel. Commissioner. Frankel said he has seconded it. Mr. Goren said, let’s assume for discussion, that you have a valid motion and second, so someone needs to call the question, and you may well find yourself at a deadlock. Mayor Brady said, I want the people to know. Commissioner Cangemi said call the question. Deputy Clerk said, the motion was made by Mayor Brady, seconded by Commissioner Frankel. Commissioner Hilton and Commissioner Cangemi responded, “No”. Commissioner Frankel, “Yes”. Mayor Brady, “Yes”. Mr. Goren said the vote was two to two and therefore it fails. Mr. Goren said you have granted a six month extension by appropriate motion for the applicant and the City. Mayor Brady asked what do they have to do now to have the City Manager stay out of it; back off. Commissioner Cangemi said he thinks the lines of communication are going to open. He said with them being under pressure right now and being put into a pressure cooker as they are told, it’s been how long, since February, and now we are going to be looking to make a decision where any kind of authority or any kind of input that they have would just be given away. He said he thinks within six month’s extension they should definitely come to some type of camaraderie. Nectaria Chakas said they are certainly encouraged by the City Manager’s statement that he would issue building permits for the super center notwithstanding the fact that building permit applications have not been filed for the town center because that is contrary to what they have been told. Commissioner Hilton said, “I want the building, don’t get me wrong, there is just the concern there as obviously, we are dealing with a third party developer that Wal-Mart can start their building and then that developer could just walk away, at which point we have a super center and a big empty lot in front, so that concerns me and maybe that little bit of holding something over Wal-Mart in a sense of maybe before you get the CO we need to get some buildings going, and it doesn’t say you have to do it, if I’m not mistaken, it was kind of we can’t obviously step around that as we get closer, but, he said, he thinks they need to get the buildings going and see where we go from there. He said he has been on the board for a year and a half and used this as part of his campaign that we were getting this super center and that’s almost two years now. He said we need to get dirt turning and get something built. Nectaria Chakas said “understood”. Commissioner Frankel said yes, I agree it’s been a long time and he is aggravated that its gone this long, but we are sort of in an economic quandary now-a-days as you can pretty much see all over the nation, and he can understand that Wal-Mart, as a very successful company, doesn’t make stupid moves, only make smart moves, that is why they are number one in retailing. Mr. Frankel also said he respects whatever they can do, knowing that they are going to take a parcel that is zoned agricultural and out of that wilderness is going to become a very valuable and desirable shopping center and he has to use good faith in whatever the business climate is, that they will fill it with good shops as best as they possibly can. Mr. Frankel said he wants to rely on good faith because he said you need trust when you talk about big development, and do remember they are sitting with the largest piece of undeveloped land in the city that is left and you are sitting with something that is very desirable to be developed or re-developed by someone. He said you are looking at a Commission that feels that this is our last and only remaining “child at home” and we are kind of pampering it. Commissioner Cangemi asked about an article in the Sun-Sentinel, regarding Wal-Mart not being notified of the meeting. Mr. Sala said the reporter made a call to Wal-Mart’s corporate office and was told by the corporate office that they knew nothing of this meeting; that’s all we know. Mr. Lipp said the answer to that is this meeting was called at the very last minute and maybe that message had not gotten through to whomever that reporter had spoken to. Mr. Lipp also addressed Commissioner. Frankel and said he respects the fact that he cherishes this last piece of land, and they clearly understood that from day one. He said they are also equally committed to seeing a very attractive project and said the leasing efforts have been second to none. Mr. Lipp further said that as a member of the firm responsible for leasing that project, he knows the great lengths that the leasing agents have gone to lease it up and in fact, at the Orlando convention, the proposed developer of the retail project is going to have the project boards in his booth and has meetings set up with prospective and the leasing agent will be there to attend those meetings and further those meetings along and to have further conversations and dialogue with other prospective tenants. He said they remain committed to it, but again wanted to emphasize that they have a lot of momentum at this point and he doesn’t want to lose that momentum. Mr. Lipp said we need to resolve this and move forward, because quite honestly you may have already seen a shovel going into the ground and the developer start moving dirt were it not for the concerns that we now have. Commissioner Cangemi said he just wants them to know that they had this vision and he still wants to keep it alive. He said he is going with his gut feeling, that’s why he voted no, but voted yes on the extension, because he knows amicably that they can get along. Nectaria Chakas said they look forward to that.

MOTION TO APPROVE THE SITE PLAN EXTENSION FOR SIX MONTHS WAS PASSED UNANIMOUSLY.

MOTION TO AMEND THE DEVELOPER’S AGREEMENT FAILED ON A TIE VOTE. COMMISSIONER HILTON AND COMMISSIONER CANGEMI DISSENTING.