HomeMy WebLinkAboutLettersFOLEY
FOLEY & LARDNER LLP
September 2, 2008
Larry Spring
Chief Financial Officer
City of Miami
444 SW 2nd Avenue
Miami, Florida 33130
George Mensah
Director of Community Development
City of Miami
444 SW 2nd Avenue
Second Floor
Miami, Florida 33130
Gentlemen:
ATTORNEYS AT LAW
WASHINGTON HARBOUR
3000 K STREET, N.W., SUITE 500
WASHINGTON, D.C. 20007.5143
202.672.5300 TEL
202.672.5399 FAX
foley.com
WRITER'S DIRECT LINE
202.295.4031
irail@foley.com EMAIL
CLIENT/MATTER NUMBER
088011.0103
Foley and Lardner LLP has recently been re-engaged to work on the Wagner Square Project
located near Jackson Memorial Hospital in Miami, Florida. The project is a public/private
partnership between the City of Miami and Wagner Square to remediate a brownfield and
develop a mixed use project with commercial and affordable housing components.
The Wagner square project won from HUD a $1 million BEDI grant and a related $4 million
Section 108 loan on September 26, 2003. Due to various circumstances beyond the control of
the City or the developer, the original project scope and schedule has been amended on three
occasions. In each instance, I understand HUD was aware of the amendments and approved
each. I have attached for background purposes a copy of the "Third Amended Declaration of
Restrictions" to describe the history tied to the amendments.
Notwithstanding these delays, the project has made significant progress. The property was fully
remediated and received a "No Further Action" letter from the Department of Environmental
Resource Management on October 7, 2005. Phase I containing the 56 unit residential
condominiums is moving forward as planned. The developer has closed the construction loan,
the City has approved the HOME loan as of July 18th and we are in the process of finalizing the
remaining loan documents. Permits were issued in May. We have awarded a construction
contract to Ivory Construction, a minority contractor who is underway with infrastructure (water,
sewer and drainage) related work. Condominium documents are completed pending division
approval and recording. The water and sewer agreement for all three phases is completed. Sales
BOSTON JACKSONVILLE NEW YORK SAN FRANCISCO
BRUSSELS LOS ANGELES ORLANDO SHANGHAI
CENTURY CITY MADISON SACRAMENTO SILICON VALLEY
CHICAGO MIAMI SAN DIEGO TALLAHASSEE
DETROIT MILWAUKEE SAN DIEGO/DEL MAR TAMPA
TOKYO
WASHINGTON, D.C.
WASH_4812086.1
:FOLEY
FOLEY & LARDNER LLP
Larry Spring
September 2, 2008
Page 2
and marketing efforts are underway. Appraisals were obtained by the lender for Phases I and III
reflecting land values of $1,750,000.
Phase II — The developer has obtained approval of a MUSP to construct an approximately
330,299 square foot Medical Office Building with ground floor retail and an out -patient
surgical/diagnostic facility together with a parking garage containing 1,339 spaces. In addition,
Phase III has been approved for the 48 "for Sale" condominium units which is anticipated to
begin once we complete construction of Phase I & II. The developer has retained Fullerton Diaz
architects who is leading the design team. The architects have completed approximately 50% of
the design development documents as of this date. The developer has also retained Hunt
Construction as the general contractor. Hunt is currently providing predevelopment services
prior to completion and permitting of the construction plans. The property is currently being
marketed for lease to several medical providers and retailers. A land appraisal was completed
back in December prior to the final MUSP approval indicating the site's land value at
$4,270,00.00. The developer has also completed amendments to the Declaration of Restrictions
in lieu of a Unity of Title and an Amendment to the Easement and Operating agreement which
are pending city commission approval detailing the final approved MUSP development plan.
The cash investment in the total project by the developer exceeds $4.6 million to date excluding
the $800,000 of BEDI funding received for the remediation of the property.
I am writing regarding the deadline originally imposed by HUD for the City of Miami to both
draw down and disburse the Section 108 loan and BEDI grant funds the City of Miami was
awarded for the Wagner Square project by no later than September 15, 2008. After extensive
consultations with HUD and City staff, the developer is requesting that the City draw down the
$4,000,000 loan prior to September 15, 2008, into the SunTrust account and disburse such funds
(excluding the $500,000 reserve) when requested by the developer on an as needed basis
provided such requests are for eligible expenses (with appropriate back up) and are drawn down
by the developer within one year of the deposit of funds within the Sun Trust account. The
developer also requests that the City draw down the final $200,000 remaining in the BEDI grant.
These requests are consistent with HUD and Treasury department rules and guidelines.
The BEDI grant and Section 108 loan are an essential element of this project. Said another way,
but for these funds, this project would likely fail. I have worked closely with HUD and the City
to find an acceptable solution. Please take immediate action to work with HUD and the
developer to propose the necessary amendments to implement these changes and ensure the
success of the Wagner Square project.
WASH_4812086.1
:FOLEY
FOLEY & LARDNER LIP
Larry Spring
September 2, 2008
Page 3
Thank you for your time and consideration.
All the best,
cc: Debra Kolsky
Pedro Mirones
Robin Jones Jackson
WASH_4812086.1
ocr.12.2005 1:S3PM DERM STORAGE TANKS
MIAMI-DADE COUNTY, FLORIDA
MIAMI-DAD
NO.956 P.2
October 7, 2005
Ms. Debra Sinkle-Kolsky
Wagner Square, LLC
1175 NE 125th Street
North Miami, FL 33161
ENVIRONMENTALEmENT
POLLUTION CONTROL DIVI3 ON
33 S.W. 2J d AVENUE
SUITE eoo
MIAMI, FLORIDA 33130.1S40
(303) 372.8817
CERTIFIED MAIL 7003 1680 0000 8825 8792
RETURN R4CEIPT REQUESTED
Subject: Site Rehabilitation Completion Order
Wagner Square
1700 NW 14'r' Avenue
Miami, 33125, Miami -Dade County
HWR-501/File # 17378
FDEP Brownfield Site ID # BF139801003
Discharge Date: February 4, 2000
Dear Ms. Sinkle-Kolsky:
The Miami -Dade County Department of Environmental Resources Management (DERM) has
reviewed the Source Removal Report (SRR) and Site Rehabilitation Completion Report (SRCR)
(dated July 13, 2005) and supplement information to the SRCR, (dated September 7, 2005) that was
prepared by GeoSyntec Consultants for the Wagner Square, formerly known as Civic Center
Property, located at 1700 NW 14th Avenue, Miami, Miami -Dade County, Florida. Maps showing the
location of the Wagner Square and the Location of the "contaminated site" for which this Order is
being issued are attached as Exhibits 1 and 2.
Based upon the information provided by Wagner Square, LLC concerning property located at
1700 NW 14th Avenue, it is the opinion of PERM that Wagner Square, !-LC has successfully and
satisfactorily implemented the approved brownfield site rehabilitation agreement schedule and
program tasks and, accordingly, no further action is required to assure that the land use of
Residential Housing identified In the brownfield site rehabilitation agreement is consistent with
existing and proposed uses.
The submittals indicate that soil and groundwater contaminant concentrations are below the
applicable Soil Cleanup Target Levels and Maximum Concentration limits or Groundwater Cleanup
Target Levels as adopted in Chapter 62-777, Florida Administrative Code (F.A.C.) (Effective date
April 17, 2005), Therefore, you have satisfied the site rehabilitation requirements for the above -
referenced contaminated site and are released from any further obligation to conduct site
rehabilitation at the contaminated site, except as set forth below. See attached table (Exhibit 3),
incorporated by reference herein, which includes Information regarding the contaminants, affected
media, and applicable cleanup target levels for the contaminated site that is the subject of this Order.
Failure to meet the following requirement will result in the revocation of this Order:
"Protect Conserve and Manage Fiances Environment and Ngturai Resources"
Printed on reamed paper.
ru4 ,d 04105102
'CT. 12.2005 1: 53PM DEPM STORAGE TANKS NO.955 P.3
Ms, Sinkle-Kolsky
HWR-501/File #17376/BF ID #139801003
October 6, 2005
Page2of5
(a) You are required to properly abandon all monitoring welts within 60 days of receipt of this
Order. The monitoring wells must be plugged and abandoned in accordance with the
requirements of Rule 62-532.500(4), F.A,C.;
(b) You are required to submit, within 30 days. en electronic copy (two copies) of the
above -referenced submittals on compact disks as required under Paragraph 17 of the
BSRA. The camped disks shall also include the following supporting documents as they
contain information on which the D RM's reviews and approvals are based: Site
Assessment Rert (June 20 Se terrtber 2002),
Site AssessmentReport Addendum If (May.2003), Remedial Action Plan (January
erne is ion an en um av2004) anctfemedlai A-5fiiri"P14n Mt ndutl't1t a
(July 2004), a copy of the executed BSRA. and this SRCO.rvr o
Further, in accordance with Chapter 376,82(3), Florida Statutes (F.S.), upon completion of site
rehabilitation in compliance with sections 376.77 — 376.85, F.S., additional site rehabilitation is not
required unless it is demonstrated that:
(a) That fraud was committed in demonstrating site conditions or completion of site
rehabilitation;
(b) That new information confirms the existence of an area of previously unknown
contamination which exceeds the site -specific rehabilitation levels established in
accordance with section 376.81, F.S., or which otherwise poses the threat of real and
substantial harm to public health, safety, or the environment in violation of the terms of
sections 376.77-376.85, F.S.;
(c) That the remediation efforts failed to achieve the site rehabilitation criteria established
under section 376.81, F.S.;
(d) That the level of risk is increased beyond the acceptable risk established under section
376.81, F.S. due to substantial changes in exposure conditions, such as a change in land
use from nonresidential to residential use. Any person who changes the land use of the
brownfield site thus causing the level of risk to increase beyond the acceptable risk level
may be required by the department to undertake additional remediation measures to
assure that human health, public safety. and the environment are protected to levels
consistent with section 376.81, F.S,; or
(e) That a new release occurs at the brownfield site subsequent to a determination of eligibility
for participation in the brownfield program established under section 376.80, F.S.
Leoat Issues
DERM's Order shall become final unless a timely petition for an administrative hearing is filed
under sections 120.569 and 120.57, F.S,, within 21 days of receipt of this Order. The procedures for
petitioning for a hearing are set forth below.
r;rT.12.23 5 1:53PN DERM STORAGE TANKS NO.956 P.4
Ms. Sinkle-Kolsky
HWR-501/File #17376/BF 1D #139801003
October 6, 2005
Page 3 of 5
§376.82(2), F.S., establishes liability protection for the PRFBSR upon execution of a BSRA.
Persons who have filed a petition for administrative hearing may seek to mediate the dispute, and
choosing mediation will not adversely affect the right to a hearing if mediation does not result in a
settlement. The procedures for petitioning a hearing or feting a request for extension of time to file a
petition for administrative hearing are set forth below.
Persons affected by this Order have the following options:
A. If you choose to accept DERM's decision regarding SRCO you do not have to do
anything, This Order is final and effective as of the date on the top of the first page of
this Order.
B. if you choose to challenge DERM's decision, you may do the following:
1. File a request for an extension of time to file a petition for hearing with the PERM
within 21 days of receipt of this Order; such a request should be made if you wish
to meet with DERM in an attempt to informally resolve any disputes without first
filing a petition for hearing; or
2. File a petition for administrative hearing with DERM within 21 days of receipt of
this Order.
How to Reouest an Extension of Time to File p Petition for Hearing
For good cause shown, pursuant to Rule 82-110.106(4). F.A.C, DERM (in the office of the
Director of DERM. 33 SW 2nd Ave., PH2, Miami, FL 33130) may grant a request for an extension of
time to file a petition for hearing. Such a request must be fled (received) by DERM (in the office of
the Director of DERM, 33 SW 2nd Ave., PI-i^K, Miami, FL 33130), within 21 days of receipt of this
Order. Petitioner, if different from Ms. Debra Sinkle-Kolsky, Wagner Square, LLC, shall mall a copy of
the request to Ms. Debra Sinkle-Kolsky, Wagner Square, LLC at the time of filing. Timeiy filing a
request for an extension of time tolls the time period within which a petition for administrative hearing
must be made.
How to Filta Petition for Administrative Hearing
A person whose substantial interests are affected by this Order may petition for an
administrative proceeding (hearing) under sections 120.569 and 120,57, F,S, The petition must
contain the information set forth below and must be filed (received) by DERM (in the office of the
Director of DERM. 33 SW 2nd Ave., PH2, Miami, FL 33130), within 21 days of receipt of this Order.
Petitioner, if different from Ms. Debra Sinkle-Kolsky, Wagner Square. LLC, shall mail a copy of the
petition to Ms, Debra Sinkle-Kolsky, Wagner Square, LLC at the time of filing. Failure to file a petition
within this time period shall waive the right of anyone who may request an administrative hearing
under sections 120.569 and 120.57, F.S., or to intervene in this proceeding and participate as a party
to it. Any subsequent intervention (in a proceeding initiated by another party) will be only at the
discretion of the presiding officer upon the filing of a motion In compliance with Rule 28-106.205,
FAC.
•',CT. 12.2005 1: 53PC 1 DERM STORAGE TANKS
Ms. Sinkle-Koisky
HWR-501/File #17376/BF ID #139601003
October 6, 2005
Page 4 of 5
NO.956 P.5
Pursuant to subsection 120.64(5)(b)(4), F.S., and 120.569(2), F.S., and Rule 28-106.201,
F.A.C., a petition for administrative hearing shall contain the following information.
a) The name, address, and telephone number of each petitioner, the name, address, and
telephone number of the petitioner's representative, if any; the site owner's name and
address, if different from the petitioner; the FDEP Brownfield Site ID 139801Q03; and the
name and address of the facility;
b) A statement of when and how each petitioner received notice of DERM's action or
proposed action;
c) An explanation of how each petitioner's substantial interests are or will be affected by
DERM's action ar proposed action;
d) A statement of the material facts disputed by the petitioner, or a statement that there are no
disputed facts;
e) A statement of the ultimate facts alleged, including a statement of the specific facts the
petitioner contends warrant reversal or modification of DERM's action or proposed action:
f) A statement of the specific rules or statutes the petitioner contends require reversal or
modification of DERM's action ar proposed action, including an explanation of how the
alleged facts relate to the specific rules or statutes; and
g) A statement of the relief sought by the petitioner, stating precisely the action petitioner
wishes DERM to take with respect to DERM's action or proposed action.
A petition that does not dispute the material facts on which PERM's action is based shall state
that no such facts are in dispute and otherwise shall contain the same information as set forth above,
as required by Rule 28-108.301, FAC.
In addition to requesting an administrative hearing, any petitioner may elect to pursue
mediation. The election may be accomplished by filing with DERM a mediation agreement with all
parties to the proceeding (i.e., the PRFSSR, PERM, and arty person who has filed a timely and
sufficient petition for a hearing). The agreement shall contain all the information required by Rule 28-
106.404, F.A.C. The agreement shall be received by DERM (in the office of the Director of DERM.
acting as Clerk, 33 SW 2 Avenue, PH2, Miami, Florida 33130,) within ten (10) days after the deadline
for filing a petition, as set forth above. Choosing mediation wilt not adversely affect the right to a
hearing if mediation does not result in a settlement.
As provided in section 120.573, F.S., the timely agreement of all parties to mediate will toll the
time limitations imposed by sections 120.569 and 120.67, F.S. for holding an administrative hearing
and issuing a final order. Unless otherwise agreed by the parties, the mediation shall be concluded
within sixty days of the execution of the agreement. if mediation results in settlement of the
administrative dispute, DERM shall enter a final order incorporating the agreement of the parties.
Persons seeking to protect their substantial interests that would be affected by such a modified final
decision shall file their petitions in accordance with the provisions of Section 120,589, FAC, or they
shall be deemed to have waived their right to a proceeding under sections 120.589 and 120.57, F.S.
If mediation terminates without settlement of the dispute, DERM shall notify all parties in writing that
the administrative hearing processes under sections /20.569 and 120.57, F.S. are resumed.
This Order is final and effective as of the date on the top of the first page of this Order. Timely
filing a petition for administrative hearing extends the date this Order takes effect until DERM issues
Dcr. 12. 2005 1 : 54Pr'1 DERN STOPAGE Tt4t4eS
Ms. Sinkle-Kolsky
HWR-501/File #17375/BF ID #139801003
October 6, 2005
Page 5 of 5
NO.956 P.5
either a final agreement pursuant to an administrative hearing or an Agreement Responding to
Supplemental information provided to DERM pursuant to meetings with DERM.
Judicial Review
Any party (other than the PRFBSR) to this Order has the right to seek judicial review of it under
section 120,68, F.S., by filing a notice of appeal under rule 9.110 of the Florida Rules of Appellate
Procedure with DERM (in the office of the Director of DERM, 33 SW 2"4 Ave., PH2, Miami, FL
33130), and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the
appropriate District Court of Appeal. The notice of appeal must be filed within thirty days after this
Order is filed with the Director of DERM acting as clerk.
Questions
Any questions regarding DERM's review of your SRCO should be directed to Rodoifo Rego at
(305) 372,6700, Questions regarding legal issues should be referred to the Miami -Dade County
Attorney's Office at (305) 375-5151. Contact with any of the above does not constitute a petition for
administrative hearing or request for an extension of time to file a petition for administrative hearing.
The FDEP Brownfield Site ID Number for this site is BF139801003. Please use this
identification on all future correspondence with the DERM.
Sincerely,
Wilbur Mayorga, Chief
Pollution Control Division
DERM
WM/rr
cc: Lee C. Hoefert, P. E., FDEP Southeast District
Harry Tomlinson, Jr., P.E., Geosyntec Consultants, 5901 Broken Sound Parkway, Suite 300,
Boca Raton, FL 33487
Roger Register, Tallahassee BWC
Lisa Duchene, Tallahassee OGC
File
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to
§120,52 Florida Statutes, with the
designated Department Clerk, receipt
of which is hereby acknowledged.
Clerk Dat
(or Deputy Clerk)