Identify the cultural event that you plan to experience to fulfill the requirements for the main project.
What event have you identified? Where is the agency/activity that you plan to attend?
When are you planning to attend the event/activity? What is the specific date and time?
How does this activity/event differ from your own diverse experience?
What challenges you foresee with completing this Project?
What are you looking forward to as you complete this project?
In the profession of social work, there is an expectation that all service providers and professionals provide culturally responsive interventions and considerations to diverse individuals, groups, and communities. At the same time, the topic of diversity has the potential to create discomfort. How do social workers continue to not only engage in difficult conversations, but to also acknowledge and confront the layers of discomfort?
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Learning about local diversity and attending cultural events is one way to challenge one’s perspective and engage with diverse others. For this Assignment, participate in an immersive experience in your community. As a guest at this experience, remember to take a stance of cultural humility and respectfully participate. You then create a PowerPoint (PPT) presentation about this experience in which you analyze related concepts in the course. You are expected to demonstrate professional demeanor in behavior, dress, and setting for the presentation.
To Prepare: Attend an open event in your community related to a diverse social identity (gender identity/expression, race/ethnicity, class, religion, ability, sexual orientation, national origin, or age). Then, create a PPT presentation and record the presentation using the Personal Capture function of Kaltura Media (see Kaltura Media Uploader linked in the classroom for instructions on using this technology). Use the Presentation feature to record both your PPT and a video of yourself presenting.
In the PPT presentation, address the following prompts:
Describe the cultural event in which you participated.
Explain how this experience influenced your perceptions of diversity and difference.
Analyze at least 3 key concepts from this course in relation to this experience.
Define what it means to you to engage with diversity and difference in practice.
Describe two challenges associated with discussing and reflecting on diversity related content.
Describe one strategy to address these challenges.
Identify one positive emotion and one negative emotion that surfaced during the past 10 weeks of the course.
Describe one strategy to address the negative emotion in order to continue developing cultural awareness.
Explain specific steps that you will take to advance human rights and social, economic, and environmental justice based on what you have learned in this course.
City Council Regular Meeting
City of Fayetteville
Meeting Agenda – Final
433 Hay Street
Fayetteville, NC
28301-5537
(910) 433-1FAY (1329)
Council Chamber7:00 PMMonday, January 13, 2020
1.0 CALL TO ORDER
2.0 INVOCATION
3.0 PLEDGE OF ALLEGIANCE
4.0 ANNOUNCEMENTS AND RECOGNITIONS
5.0 APPROVAL OF AGENDA
6.0 CONSENT AGENDA
19-11776.01 Approval of Meeting Minutes:
November 14, 2019 – Special
November 25, 2019 – Discussion of Agenda Items
November 25, 2019 – Regular
December 2, 2019 – Special – Inauguration
December 9, 2019 – Discussion of Agenda Items
December 9, 2019 – Regular
111419 Special (NCCWHC Public Forum)
112519 Discussion of Agenda Items
112519 Regular
120219 Inauguration
120919 Discussion of Agenda Items
120919 Regular
Attachments:
19-11726.02 Award Contract for Sykes Pond Road Bridge Replacement
Bid Tab – Sykes Pond Road Bridge Replacement 12062019
Sykes Pond Road
Attachments:
19-11736.03 Bid Recommendation – HW401 N. Water Improv. Project Contract 2
Booster Pump Station
Bid Recommendation – HWY 401 CONTRACT 2Attachments:
Page 1 City of Fayetteville Printed on 1/9/2020
January 13, 2020City Council Regular Meeting Meeting Agenda – Final
19-11746.04 Bid Recommendation – Rehabilitation of Cross Creek Outfall, Blue
Street to Gale Street
Bid Recommendation – Cross Creek Outfall Blue St to Gale StAttachments:
19-11756.05 Bid Recommendation – 2019 Annual Transformer Contract
Bid Recommendation – 2019 Transformer ContractAttachments:
19-11766.06 Bid Recommendation – One (1) 18K Excavator
Bid Recommendation – 18K EXCAVATORAttachments:
19-11716.07 Adoption of Capital Project Ordinance Amendments 2020-30 and
2020-31 to Transfer Grant Funding between the Project Appropriations
for the Connector Trail between the Cape Fear River Trail and Linear
Park Connector and the Cape Fear River Trail Phase II and to
Appropriate Additional General Fund Transfer for the Connector Trail,
and Award of the Construction Contract for Cape Fear River Trail
Phase II – Part C as Re-Advertised
CPOA 2020-31 (Cape Fear River Trail – Phase 2)
CPOA 2020-30 (Connector Trail – Cape Fear River Trail to Linear Park)
CFRT Supplemental Agreement #7
Bid Tab -Cape River Multipurpose Trail Phase 2 Part C 12062019
CFRT Part C MAP
Attachments:
19-11796.08 Adoption of Clerical Correction for Capital Project Ordinance
Amendment 2020-29 Adopted by Council on December 9, 2019
CPOA 2020-29 (Airport Terminal Improvements Part II) As Adopted 12 9 19
CPOA 2020-29 (Airport Terminal Improvements Part II) Corrected 1 13 20
Attachments:
19-11876.09 Adoption of Special Revenue Fund Project Ordinance 2020-9 to
Appropriate a Grant Award for Phase 1 of the Conservation
Restoration Plan for Cross Creek
Cemetery #1
CCF Grant Agreement 2019_Cross Creek 1
SRO 2020-9 (Conservation Restoration Plan Cross Creek Cemetery)
Attachments:
19-11836.010 Parks and Recreation Bond Spending Plan Approval and Adoption of
Capital Project Ordinance 2020-23 Appropriating Funding for the
Tennis Center Project
010416 Special (Parks and Recreation Bond)doc
PR Bond Funding Plan Update_1-7-20
CPO 2020-23 (Tennis Center)
Attachments:
Page 2 City of Fayetteville Printed on 1/9/2020
January 13, 2020City Council Regular Meeting Meeting Agenda – Final
19-11856.011 Amendment of the Use and Operating Agreement with Fayetteville
Baseball Club for Segra Stadium Regarding the Capital Repair,
Maintenance and Improvements Schedule (Exhibit E), and Adoption of
Capital Project Ordinance 2020-24 to Authorize Calendar Year 2020
Expenditures from the Capital Repair, Maintenance and Improvements
Account
Fayetteville Baseball Club LLC 12-2016 sm
Capital Reserve Account Excerpts
Segra Stadium 30 Year Capital Plan 12-10-19 Final
CPO 2020-24 (Segra Stadium Capital Repairs, Maintenance and Improvements CY 2020)
121219 DRAFT Minutes
Attachments:
19-11786.012 Tax Refunds Greater Than $100
Finance Memorandum and Cumberland Cty Notification of Approved Tax RefundAttachments:
Page 3 City of Fayetteville Printed on 1/9/2020
January 13, 2020City Council Regular Meeting Meeting Agenda – Final
7.0 PUBLIC FORUM
8.0 ADMINISTRATIVE REPORTS
19-11928.01 Administrative Report on the Future Land Use Map & Plan – to provide
information regarding the content in the Map and Plan. Three
additional Administrative Reports will be provided to further overview
the plan prior to a Public Hearing being scheduled.
Future Land Use Map Plan, Draft, 11-5-2019, ReducedAttachments:
9.0 ADJOURNMENT
POLICY REGARDING PUBLIC HEARING AGENDA ITEMS
Individuals wishing to speak at a public hearing must register in advance with the City Clerk. The Clerk ’s Office is
located on the third floor, City Hall, 433 Hay Street, and is open during normal business hours. Citizens may also
register to speak immediately before the public hearing by signing in with the City Clerk in the Council Chamber
between 6:30 p.m. and 7:00 p.m.
POLICY REGARDING NON-PUBLIC HEARING AGENDA ITEMS
Anyone desiring to address the Council on an item that is not a public hearing must present a written request to the
City Manager by 10:00 a.m.on the Wednesday preceding the Monday meeting date.
CLOSING REMARKS
POLICY REGARDING CITY COUNCIL MEETING PROCEDURES
SPEAKING ON A PUBLIC AND NON-PUBLIC HEARING ITEM
Individuals who have not made a written request to speak on a nonpublic hearing item may submit written materials
to the City Council on the subject matter by providing thirteen (13) copies of the written materials to the Office of the
City Manager before 5:00 p.m. on the day of the Council meeting at which the item is scheduled to be discussed.
COUNCIL MEETING WILL BE AIRED
January 13, 2020 @ 7:00 p.m.
Spectrum Cable Channel 7
Notice Under the Americans with Disabilities Act (ADA):
Page 4 City of Fayetteville Printed on 1/9/2020
January 13, 2020City Council Regular Meeting Meeting Agenda – Final
The City of Fayetteville will not discriminate against qualified individuals with disabilities on
the basis of disability in the City’s services, programs, or activities. The City will generally,
upon request, provide appropriate aids and services leading to effective communication for
qualified persons with disabilities so they can participate equally in the City ’s programs,
services, and activities. The City will make all reasonable modifications to policies and
programs to ensure that people with disabilities have an equal opportunity to enjoy all City
programs, services, and activities. Any person who requires an auxiliary aid or service for
effective communications, or a modification of policies or procedures to participate in any
City program, service, or activity, should contact the office of Human Relations at
ynazar@ci.fay.nc.us, 910-433-1696, or the Office of the City Clerk at
cityclerk@ci.fay.nc.us, 910-433-1989, as soon as possible but no later than 72 hours
before the scheduled event.
Page 5 City of Fayetteville Printed on 1/9/2020
City Council Action Memo
City of Fayetteville 433 Hay Street
Fayetteville, NC 28301-5537
(910) 433-1FAY (1329)
File Number: 19-1177
Agenda Date: 1/13/2020 Status: Agenda ReadyVersion: 1
File Type: ConsentIn Control: City Council Regular Meeting
Agenda Number: 6.01
TO: Mayor and Members of City Council
THRU: Telly C. Whitfield, Ph.D., Assistant City Manager
FROM: Pamela J. Megill, MMC, City Clerk
DATE: January 13, 2020
RE:
Approval of Meeting Minutes:
November 14, 2019 – Special
November 25, 2019 – Discussion of Agenda Items
November 25, 2019 – Regular
December 2, 2019 – Special – Inauguration
December 9, 2019 – Discussion of Agenda Items
December 9, 2019 – Regular
..end
COUNCIL DISTRICT(S):
ALL
..b
Relationship To Strategic Plan:
Develop and maintain strong community connections.
Executive Summary:
The Fayetteville City Council conducted meetings on the referenced date during which
they considered items of business as presented in the draft.
Background:
The draft minutes are from the meeting held on the above mentioned date.
Issues/Analysis:
N/A
Page 1 City of Fayetteville Printed on 1/9/2020
File Number: 19-1177
Budget Impact:
N/A
Options:
1. Approve draft minutes
2. Amend draft minutes and approve draft minutes as amended
3. Do not approve the draft minutes and provide direction to staff.
Recommended Action:
Approve the draft minutes.
Attachments:
Draft minutes
Page 2 City of Fayetteville Printed on 1/9/2020
DRAFT
FAYETTEVILLE CITY COUNCIL
REGULAR MEETING MINUTES
COUNCIL CHAMBER
NOVEMBER 14, 2019
7:00 P.M.
Present: Mayor Mitch Colvin
Council Members Katherine K. Jensen (District 1); Daniel
Culliton (District 2); Tisha S. Waddell (District 3); D. J.
Haire (District 4); Larry O. Wright, Sr. (District 7);
Theodore Mohn (District 8); James W. Arp, Jr. (District 9)
Absent: Council Members Johnny Dawkins (District 5); William J. L.
Crisp (District 6)
Others Present: Douglas Hewett, City Manager
Karen McDonald, City Attorney
Kristoff Bauer, Deputy City Manager
Telly Whitfield, Assistant City Manager
Angel Wright-Lanier, Assistant City Manager
Kevin Arata, Corporate Communications Director
Jay Toland, Chief Financial Officer
Cynthia Blot, Economic and Community Development
Director
John “Mac” Healy, Board of Directors, NC Civil War
and Reconstruction History Center FoundationDr.
James Anderson, Fayetteville State University
Pamela Megill, City Clerk
Jennifer Ayre, Deputy City Clerk
Kristin Roberts, Senior Administrative Assistant
Members of the Press
1.0 CALL TO ORDER
Mayor Colvin called the meeting to order.
2.0 INVOCATION
The invocation was offered by Council Member Wright.
3.0 PLEDGE OF ALLEGIANCE
The Pledge of Allegiance to the American Flag was led by the
Mayor and City Council.
4.0 OTHER ITEMS OF BUSINESS
4.01 History of the Proposed NC Civil War and Reconstruction History
Center
Mr. Kristoff Bauer, Deputy City Manager, presented this item and
provided a brief overview of the history of the City of Fayetteville
actions regarding the proposed NC Civil War and Reconstruction History
Center.
4.02 Presentation on the NC Civil War and Reconstruction History
Center
Mr. John “Mac” Healy, Board of Directors Chair, NC Civil War and
Reconstruction History Center Foundation, provided an overview of the
proposed NC Civil War and Reconstruction History Center and remarked
upon the location and project summary, the resident market, comparable
museum experience, potential attendance, economic and fiscal impacts,
quality of life, and preservation of Civil War Heritage.
Dr. James Anderson, Fayetteville State University,expressed
support for the proposed NC Civil War and Reconstruction History
Center.
DRAFT
5.0 PUBLIC FORUM
5.01 Public Forum Rules and Decorum for the November 14 Public Forum
in the City Council Chamber
Mayor Colvin read the rules of conduct and decorum for the
November 14 public forum in the City Council Chamber.
5.02 Public Forum Speakers
Mr. Mario Benavente, 3549 Hastings Drive, Fayetteville, NC, spoke
in favor of the proposed Civil War and Reconstruction History Center.
Mr. Joel Cook, 1806 East 1st Street, Greenville, NC, spoke in
favor of the proposed Civil War and Reconstruction History Center.
Ms. Stella Mullen, 141 May Street, Fayetteville, NC, spoke in
favor of the proposed Civil War and Reconstruction History Center.
Mr. Marc Barnes, 1102 Lamppost Lane, Greensboro, NC, spoke in
favor of the proposed Civil War and Reconstruction History Center.
Mr. Straus Davis, 8412 Judy Drive, Fayetteville, NC, spoke in
opposition of the proposed Civil War and Reconstruction History
Center.
Mr. Angel Roples, 855 Danish Drive, Fayetteville, NC, spoke in
favor of the proposed Civil War and Reconstruction History Center.
Mr. Andrew Bryant, Jr., 1020 George Street, Fayetteville, NC,
spoke in favor of the proposed Civil War and Reconstruction History
Center.
Mr. Ron Bryant, 2555 Fields Road, Fayetteville, NC, spoke in
favor of the proposed Civil War and Reconstruction History Center.
Ms. Cheri Todd Molter, 429 Nottingham Drive, Fayetteville, NC,
spoke in favor of the proposed Civil War and Reconstruction History
Center.
Mr. Denver Ralph Huff, III, 606 Forest Lake Road, Fayetteville,
NC, spoke in favor of the proposed Civil War and Reconstruction
History Center.
Mr. Tom Holt, 202 Hinsdale Avenue, Fayetteville, NC, spoke in
favor of the proposed Civil War and Reconstruction History Center.
Mr. John Caldwell, 6998 Wickersham Drive, Fayetteville, NC, spoke
in favor of the proposed Civil War and Reconstruction History Center.
Ms. Lynn Legatski, 122 Magnolia Avenue, Fayetteville, NC, spoke
in favor of the Civil War and Reconstruction History Center.
Ms. Ethelyn Holden Baker, 810 Executive Place, Apt. 113,
Fayetteville, NC, spoke in favor of the proposed Civil War and
Reconstruction History Center.
Mr. Rick Booth, 112 Parkview Avenue, Fayetteville, NC, spoke in
favor of the proposed Civil War and Reconstruction History Center.
Mr. Jerry Reinoehl, 516 Deerpath Drive, Fayetteville, NC, spoke
in favor of the proposed Civil War and Reconstruction History Center.
Mr. Demetrius Haddock, 573 Cutchen Lane, Fayetteville, NC, spoke
in favor of the proposed Civil War and Reconstruction History Center.
DRAFT
Mr. Keith C. Pitchford, 4218 Harbin Walk Lane, Fayetteville, NC,
spoke in favor of the proposed Civil War and Reconstruction History
Center.
Mr. G. Milton Richardson, no address provided, spoke in favor of
the proposed Civil War and Reconstruction History Center.
Ms. Nicholle Young, 660 Dowfield Drive, Fayetteville, NC, spoke
in favor of the proposed Civil War and Reconstruction History Center.
Mr. Karl Legatski, 122 Magnolia Avenue, Fayetteville, NC, spoke
in favor of the proposed Civil War and Reconstruction History Center.
Mr. Steven Leavell, 140 Ham Road, Hope Mills, NC, spoke in favor
of the proposed Civil War and Reconstruction History Center.
Mr. Matthew Farina, 190 S. Knoll Road, Southern Pines, NC, spoke
in favor of the proposed Civil War and Reconstruction History Center.
Mr. Robert Taber, 220 Myrover Street, Fayetteville, NC, spoke in
favor of the proposed Civil War and Reconstruction History Center.
Ms. Kelli Walsh, no address provided, spoke in favor of the
proposed Civil War and Reconstruction History Center.
Mr. Joseph Vonnegut, 4513 Bent Grass Drive, Fayetteville, NC,
spoke in favor of the proposed Civil War and Reconstruction History
Center.
Mr. Terry Johnson, 5121 Wichita Drive, Fayetteville, NC, spoke in
favor of the proposed Civil War and Reconstruction History Center
being located at the Averasboro Battlefield.
Mr. Levincent Sutton, 800 East Orange Street, Fayetteville, NC,
spoke in favor of the proposed Civil War and Reconstruction History
Center.
Rev. Cureton L. Johnson, no address provided, spoke in opposition
of the proposed Civil War and Reconstruction History Center.
Ms. Carolina Echeverri, 3809 Raider Court, Hope Mills, NC, spoke
in favor of the proposed Civil War and Reconstruction History Center.
Ms. Ann Highsmith, 208 Litchfield Place, Fayetteville, NC, spoke
in favor of the proposed Civil War and Reconstruction History Center.
Ms. Margaret Dickson, no address provided, spoke in favor of the
proposed Civil War and Reconstruction History Center.
Mr. Clyde Foster, 3844 Chadbourne Drive, Fayetteville, NC, spoke
in opposition of the proposed Civil War and Reconstruction History
Center.
Mr. Douglas S. Harris, 1698 Natchez Trace, Greensboro, NC, spoke
in favor of the proposed Civil War and Reconstruction History Center.
He invited everyone to visit the International Civil Rights Museum in
Greensboro which has been successful.
Mr. Darsweil Rogers, 1305 Stansfield Drive, Fayetteville, NC,
spoke in favor of the proposed Civil War and Reconstruction History
Center.
Ms. Jackie Taylor, 1040 Old Vander Road, Fayetteville, NC, spoke
in favor of the proposed Civil War and Reconstruction History Center.
Mr. Adam Beyah, 2620 Bragg Boulevard, Fayetteville, NC, spoke
regarding the proposed Civil War and Reconstruction History Center.
DRAFT
Dr. Rakesh Gupta, 2595 Vixen Street, Fayetteville, NC, spoke in
favor of the proposed Civil War and Reconstruction History Center.
Mr. David Nichols, 3540 Farmbrook Road, Fayetteville, NC, spoke
in favor of the proposed Civil War and Reconstruction History Center.
Imam Eronomy Mohammed Smith, 2700 Murchison Road, Fayetteville,
NC, spoke on the growth of the City and other matters.
Mr. Julian Stackhaus, 3445 Bennett Drive, Fayetteville, NC, spoke
regarding the Civil War and Reconstruction History Center.
Mr. Earl J. Moniz, 7340 Reedy Creek Drive, Fayetteville, NC,
spoke about the Hawaiians in the Civil War.
Mr. Nero B. Coleman, 352-5 Bubble Creek Court, Fayetteville, NC,
spoke regarding the proposed Civil War and Reconstruction History
Center.
Mr. Willie Williams, 1165 Sandhills, Fayetteville, NC, spoke in
favor of the proposed Civil War and Reconstruction History Center.
Mr. Charles Hurst, no address provided, spoke in opposition of
the proposed Civil War and Reconstruction History Center.
Mayor Colvin thanked all in attendance and those that
participated.
Mayor Colvin announced Council Member Arp will be stepping down
as Council Member for District 9, and thanked him for his years of
service to the City. Council Member Arp thanked the Mayor, Council
and citizens, and stated the best is yet to come.
6.0 ADJOURNMENT
There being no further business, the meeting adjourned at
9:01 p.m.
Respectfully submitted,
_________________________________ ________________________________
PAMELA J. MEGILL MITCH COLVIN
City Clerk Mayor
111419
DRAFT
FAYETTEVILLE CITY COUNCIL
DISCUSSION OF AGENDA ITEMS MEETING MINUTES
ST. AVOLD ROOM
NOVEMBER 25, 2019
6:00 P.M.
Present: Mayor Mitch Colvin
Council Members Katherine K. Jensen (District 1); Daniel
Culliton (District 2); Tisha S. Waddell (District 3); D. J.
Haire (District 4); Johnny Dawkins (District 5);
William J. L. Crisp (District 6); Larry O. Wright, Sr.
(District 7); Theodore W. Mohn (District 8)
Absent: Council Member James W. Arp, Jr. (District 9)
Others Present: Douglas Hewett, City Manager
Karen McDonald, City Attorney
Kristoff Bauer, Deputy City Manager
Telly Whitfield, Assistant City Manager
Angel Wright-Lanier, Assistant City Manager
Lisa Harper, Assistant City Attorney
Gerald Newton, Development Services Director
Jay Toland, Chief Financial Officer
Sheila Thomas-Ambat, Public Services Director
Tracey Broyles, Budget and Evaluation Director
Cynthia Blot, Economic and Community Development
Director
Jennifer Ayre, Deputy City Clerk*
Chris Davis, Council Member-Elect, District 6
Shakeyla Ingram, Council Member-Elect, District 2
Yvonne Kinston, Council Member-Elect, District 9
Terri Hutchins, Hutchins Law Firm
Mark Brown, PWC Senior Customer Programs Officer
Members of the Press
Mayor Colvin called the meeting to order at 6:00 p.m.
CLOSED SESSION
MOTION: Council Member Haire moved to go into closed session for an
attorney-client privileged matter.
SECOND: Council Member Waddell
VOTE: UNANIMOUS (9-0)
The regular session recessed at 6:03 p.m. The regular session
reconvened at 6:46 p.m.
MOTION: Council Member Dawkins moved to go into open session.
SECOND: Mayor Pro Tem Mohn
VOTE: UNANIMOUS (9-0)
Mayor Colvin stated tonight’s goal is to have the agenda items
completed in an hour to an hour and a half in order to allow Council
time to give parting words to the outgoing Council Members.
Mayor Colvin stated the UDO public hearing is a requirement to
make changes. He stated after the public hearing, Council will have
the optionto either (1) take action or (2) have further discussion.
Council Member Haire asked to pull Item 6.013, ordinance
amendment to Chapter 5, Alcoholic Beverages, for an up and down vote
and Item 6.015, uninhabitable structures demolition recommendations
for 1912 Murchison Road.
Council Member Wright asked to pull Item 6.09, bid recommendation
for Retrofit Streetlight (LED) Luminaries, for a presentation from
staff.
DRAFT
Mr. Douglas Hewett, City Manager, requested someone pull Item
6.06, adoption of Budget Ordinance Amendment 2020-5 and Capital
Project Ordinance Amendment 2020-28 for the Hay Street Garage Project,
to have staff provide greater clarity.
Mayor Colvin stated most of the presentations will be done during
the Announcements and Recognition portion so that family and friends
can see them. Then at the end, Council will have a moment to give
personal tributes to the outgoing Council Members.
There being no further business, the meeting adjourned at
6:52 p.m.
Respectfully submitted,
_________________________________ ________________________________
JENNIFER L. AYRE MITCH COLVIN
Deputy City Clerk Mayor
112519
DRAFT
FAYETTEVILLE CITY COUNCIL
REGULAR MEETING MINUTES
COUNCIL CHAMBER
NOVEMBER 25, 2019
7:00 P.M.
Present: Mayor Mitch Colvin
Council Members Katherine K. Jensen (District 1); Daniel
Culliton (District 2); Tisha S. Waddell (District 3); D. J.
Haire (District 4); Johnny Dawkins (District 5);
William J. L. Crisp (District 6); Larry O. Wright, Sr.
(District 7); Theodore Mohn (District 8)
Absent: Council Member James W. Arp, Jr. (District 9)
Others Present: Douglas Hewett, City Manager
Karen McDonald, City Attorney
Kristoff Bauer, Deputy City Manager
Telly Whitfield, Assistant City Manager
Angel Wright-Lanier, Assistant City Manager
Jay Toland, Chief Financial Officer
Sheila Thomas-Ambat, Public Services Director
Anthony Kelly, Assistant Police Chief
Tracey Broyles, Budget and Evaluation Director
Taurus Freeman, Planning and Zoning Manager
Cynthia Blot, Economic and Community Development
Director
Mark Brown, PWC Customer Relations Director
Jennifer Ayre, Deputy City Clerk
Kristin Roberts, Senior Administrative Assistant
Members of the Press
1.0 CALL TO ORDER
Mayor Colvin called the meeting to order.
2.0 INVOCATION
The invocation was offered by Dr. Gregory Perkins, Associate
Pastor for Mount Pisgah MBC.
3.0 PLEDGE OF ALLEGIANCE
The Pledge of Allegiance to the American Flag was led by the
Mayor and City Council.
4.0 ANNOUNCEMENTS AND RECOGNITION
Council Member Jensen introduced Ms. Jaya Chittams, representing
the Fayetteville-Cumberland Youth Council.
Mr. Greg Weber, Arts Council, CEO, announced the Dickens Holiday
Festival will be held on November 29, 2019, in downtown Fayetteville.
Mayor Colvin presented the Key and Coin of the City of
Fayetteville to Council Member Culliton in recognition of his service
on the City Council.
Mayor Colvin presented the Key and Coin of the City of
Fayetteville to Mayor Pro Tem Mohn in recognition of his service on
the City Council.
Mayor Colvin presented the Key and Coin of the City of
Fayetteville to Council Member Crisp in recognition of his service on
the City Council.
Senator deViere presented the Order of the Longleaf Pine to
Council Member Crisp.
DRAFT
5.0 APPROVAL OF AGENDA
MOTION: Council Member Wright moved to approve the agenda.
SECOND: Council Member Haire
VOTE: UNANIMOUS (9-0)
6.0 CONSENT AGENDA
MOTION: Council Member Wright moved to approve the consent agenda
with the exception of Items 6.06, 6.09, and 6.013, and 1912
Murchison Road of Item 6.015.
SECOND: Council Member Dawkins
VOTE: UNANIMOUS (9-0)
6.01 Approval of Sub-Recipient Grant Agreement with Mid-Carolina
Council of Governments (MCCOG) for the Federal Transit
Administration (FTA) Enhanced Mobility of Seniors and Individuals
with Disabilities Program
The City is the Designated Recipient for Federal Transit
Administration (FTA) grant funds for the Fayetteville urbanized area.
On November 18, 2018, City Council approved Special Revenue Fund
Project Ordinance 2019-7 that appropriated FTA grant NC-2018-069 for
Section 5310 Enhanced Mobility of Seniors and Individuals with
Disabilities Program funding. This grant included funding for
Mid-Carolina Council of Governments (MCCOG) to support services
provided by Cumberland County’s Community Transportation Program.
These federal grant funds are “passed through” to MCCOG by means of a
sub-recipient grant agreement. The sub-recipient agreement provides
$320,000.00 in FTA Section 5310 funding for Cumberland County’s
Community Transportation Program to provide non-medical transportation
(work, school, shopping) for elderly and disabled residents of urban
areas of Cumberland County not served by Fayetteville Area System of
Transit (FAST). This grant will reimburse the County for services
provided in FY 18 and FY 19. The County is providing the 20 percent
local matching requirement by a combination of County and State funds.
There is no match required from the City of Fayetteville.
Council authorized the City Manager to execute the agreement.
6.02 P19-45F. A request to rezone two parcels from Single-Family
Residential 6 (SF-6) to Mixed Residential 5 (MR-5), located at
415 and 439 Cedric Street (Tax Map No. 0418-19-5016 and 0418-19-
3051), containing 1.18± acres and being the property of Life Line
Realty, LLC, represented by Genille Duncan.
6.03 P19-48F. A request to rezone a parcel from Limited
Commercial/Conditional (LC/CZ) to Single-Family Residential 10
(SF-10), located at 6023 Ramsey Street (Tax Map No.
0530-78-8283), containing 1.88± acres and being the property of
Rebecca T. Cooper, Mildred M. Poulin, and Carolyn T. Moreau.
6.04 P19-46F. Rezoning of four properties from Single-Family
Residential (SF-10) (Tax Map Nos. 9486-65-0161, 9486-54-2995,
9486-34-9273, and 9486-95-0597), totaling 15.55± acres and a
0.85± acres portion of a property zoned Agricultural (AR) (Tax
Map No. 9486-55-7595) and a 2.20 portion of a property zoned
Conservation District (CD) (Tax Map No. 9486-65-0412) to
Community Commercial (CC), located in the northeast quadrant of
Gillis Hill Road and Raeford Road, totaling 18.6± acres and being
the properties of Barker Partners, LLC.; Barker Corp.; and Judy
Dibacco and Malcolm Gillis, represented by Dan Barker.
6.05 P19-47F. Rezoning of properties from Neighborhood Commercial(NC)
to Limited Commercial (LC) located at 8191 Cliffdale Road (Tax
Map Nos. 9487-56-5401, 9487-56-5237, 9487-56-6424, and
9487-56-6485), totaling 2.6± acres, located in the southeast
quadrant of Cliffdale Road and Rim Road, and being the properties
DRAFT
of Robert K. and Barbara J. Hughes; Montibello Retail LLC, c/o
Southern Real Estate; and RIM III (IDR) LLC, c/o Marvin F. Poer &
Co.
6.06 This item was pulled for discussion and separate vote.
6.07 Adoption of Capital Project Ordinance Amendment 2020-27 (Tree
Fund)
Capital Project Ordinance Amendment (CPOA) 2020-27 will
appropriate $252,244.00 of revenues, collected from May 2015 through
October 2019, from payments in lieu of specimen tree preservation.
The authorized project, known as the City’s Tree Fund, is for tree
planting in public areas, such as along trails, in parks, and along
public street rights-of-way.
6.08 Approval of Installment Financing for 800 MHz Radios
The City began a three-year project to replace 800 megahertz
(MHz) radios in FY 18. City Council adopted three capital project
ordinances to appropriate $1,569,000.00 of proceeds from a planned
financing to move forward with the third and final phase of the radio
replacements on September 9, 2019. The City has issued an RFP for the
financing of the radios. Council approved Bank of America to provide
the financing of the project.
6.09 This item was pulled for discussion and separate vote.
6.10 Bid Recommendation – Relay and Control Switchboards Keystone
Electrical, Des Moines, IA, the lowest responsive, responsible
bidder in the total amount of $344,531.65
Bids were received on October 31, 2019, as follows:
Keystone Electrical, Des Moines, IA…………………..$344,531.65
Electrical Power Products, Inc., Des Moines, IA………..$350,502.00
Schweitzer Engineering Laboratories, Inc., Pullman, WA….$351,498.00
KVA Inc., Greer, SC…………………………………$353,020.00
Birmingham Control Systems, Bessemer, AL………………$355,990.00
KEMCO Industries, Sanford, FL………………………..$426,565.00
6.11 Assessment Appeal for 5978 Lakeway Drive (PIN 0405-08-6218)
As part of Phase 5 Annexation Project Areas 18 and 19, property
owner Wendy Hancuff requested a review of her assessment. Upon
reviewing the request, it was determined that the Cumberland County
database for her property was incorrect. PWC staff agrees with the
appeal based on this clerical error and requests that the assessment
be reduced from $14,213.00 to $7,545.00. The assessment was paid in
full and PWC will issue a refund for $6,668.00.
6.12 Assessment Appeal for 1612 South Reilly Road (PIN 9497-10-3291)
As part of Phase 5 Annexation Project Areas 18 & 19, property
owners Vernon and Rosa Mae Manuel requested a review of their
assessment. Upon reviewing the request, the City Attorney determined,
based upon information available at the time of review, that the
property type was misclassified due to clerical error at the time of
the assessment. PWC staff does not object to a reduction in the
assessment from $12,907.00 to $5,000.00 based on this determination.
The property owner has paid $5,000.00 towards the assessment.
6.13 This item was pulled for discussion and separate vote.
6.14 Downtown Parking Services Contract: Approval of a Five-Year
Contract with Republic/Lanier Parking for the Operation and
Management of the Downtown Parking Program; Approval of Revisions
to Code of Ordinances for Traffic Schedules and Parking, Adoption
of Budget Ordinance Amendment (BOA) 2020-6 including Fee Schedule
DRAFT
Revisions, and Approval of a Resolution Authorizing City Manager
to Implement Parking Changes
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE
AMENDING ARTICLES III AND X OF CHAPTER 16, MOTOR VEHICLES AND
TRAFFIC, OF THE CODE OF ORDINANCES OF THE CITY OF FAYETTEVILLE,
NORTH CAROLINA. ORDINANCE NO. S2019-056
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
NORTH CAROLINA REQUIRING THE CITY BUILDING INSPECTOR TO CORRECT
CONDITIONS WITH RESPECT TO, OR TO DEMOLISH AND REMOVE A STRUCTURE
PURSUANT TO THE DWELLINGS AND BUILDINGS MINIMUM STANDARDS CODE OF
THE CITY. 5725 (5721) Waters Edge Drive, PIN # 0407-47-3424.
ORDINANCE NO. NS2019-024
7009 Pantego Drive – District 8
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
NORTH CAROLINA REQUIRING THE CITY BUILDING INSPECTOR TO CORRECT
CONDITIONS WITH RESPECT TO, OR TO DEMOLISH AND REMOVE A STRUCTURE
PURSUANT TO THE DWELLINGS AND BUILDINGS MINIMUM STANDARDS CODE OF
THE CITY. 7009 Pantego Drive, PIN # 9487-67-6532. ORDINANCE NO.
NS2019-025
127 Early Street – District 1
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
NORTH CAROLINA REQUIRING THE CITY BUILDING INSPECTOR TO CORRECT
CONDITIONS WITH RESPECT TO, OR TO DEMOLISH AND REMOVE A STRUCTURE
PURSUANT TO THE DWELLINGS AND BUILDINGS MINIMUM STANDARDS CODE OF
THE CITY. 127 Early Street, PIN # 0439-64-8006. ORDINANCE NO.
NS2019-026
1912 Murchison Road – District 4 – This item was pulled for discussion
and separate vote.
6.16 Petition: Acceptance and Addition of Streets within the Wendover
Place Subdivision into the City of Fayetteville System of Streets
At the September 3, 2019, work session following a request by
Council Members Mohn and Crisp and supported by consensus of the
Council, City staff was asked to bring forward a plan for the
acceptance of the currently private streets in the Wendover Place
subdivision. This required two actions by Council. At the October
14, 2019, Council meeting, staff was directed to work with the
Wendover Place Home Owners Association (HOA) to prepare the necessary
documentation in order for the City to assume control and future
maintenance responsibility for the three Wendover Place streets. This
required a re-plat of the subdivision to dedicate the streets as
public. The Wendover HOA has finalized its dedication offer by
recording a new plat dedicating the streets for public use in the
Cumberland County Register of Deeds. The second action requires staff
to return to Council for acceptance and addition of these newly plated
streets. Council approved the three Wendover Place streets for
inclusion in the City of Fayetteville system of streets.
6.06 Adoption of Budget Ordinance Amendment 2020-5 and Capital Project
Ordinance Amendment 2020-28 for the Hay St. Garage Project
Mr. Kristoff Bauer, Deputy City Manager, presented this item and
stated as this project reaches conclusion, the project appropriation
needs to be adjusted to provide sufficient funds to cover actual
project expenditures. Council is asked to pass Budget Ordinance
Amendment 2020-5 to appropriate $1.4 million from General Fund fund
balance to fund Capital Project Ordinance Amendment 2020-28 which will
DRAFT
set the total project appropriation for the Hay Street Parking Garage
at $17,745,000.00.
Discussion ensued.
MOTION: Council Member Culliton moved to adopt Budget Ordinance
Amendment 2020-5 and Capital Project Ordinance Amendment
2020-28 as presented.
SECOND: Council Member Crisp
VOTE: UNANIMOUS (9-0)
Mr. Mark Brown, PWC, Customer Relations Director, presented this
item and stated this item is to award the one-year contract for the
purchase of 250 Retrofit Streetlight (LED) Luminaires, with the right
to purchase additional quantities within the one-year period, upon the
agreement of both parties, to Wesco Distribution, Inc., Raleigh, NC,
the lowest responsive, responsible bidder in the total amount of
$93,250.00.
Bids were received on October 24, 2019, as follows:
MOTION: Council Member Wright moved to approve the bid
recommendation to award the one-year contract for the
purchase of 250 Retrofit Streetlight (LED) Luminaires, with
the right to purchase additional quantities within the one-
year period upon the agreement of both parties, to Wesco
Distribution, Inc., Raleigh, NC, the lowest responsive,
responsible bidder, in the total amount of $93,250.00.
SECOND: Council Member Culliton
VOTE: UNANIMOUS (9-0)
6.013 Ordinance Amendment to Chapter 5, Alcoholic Beverages
Ms. Karen McDonald, City Attorney, presented this item and stated
at the October 7, 2019, City Council work session, discussion was held
regarding an amendment to Chapter 5, Alcoholic Beverages, of the City
Code. Seeking consensus from Council, the Mayor expressed an interest
in allowing consumption and possession of open containers of alcoholic
beverages on public streets, alleys, or parking lots within the City
which are temporarily closed to regular traffic during special events.
After discussion, City Council directed the City Attorney to revise
the ordinance. The revised ordinance was presented at the November
work session for discussion. Council directed staff to present the
ordinance amendment at the November 25, 2019, regular meeting for
adoption with an option for a one-year review.
Discussion ensued.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE
AMENDING CHAPTER 5, ALCOHOLIC BEVERAGES, OF THE CODE OF
ORDINANCES OF THE CITY OF FAYETTEVILLE, NORTH CAROLINA. ORDINANCE
NO. S2019-060
MOTION: Council Member Culliton moved to adopt ordinance amendment.
SECOND: Council Member Jensen
VOTE: PASSED by a vote of 5 in favor to 4 in opposition (Council
Members Waddell, Haire, Crisp, and Wright)
DRAFT
Council Member Haire stated he pulled this property from the
consent agenda as he has spoken with the property owners and advised
he would ask for an extension with provisions.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
NORTH CAROLINA REQUIRING THE CITY BUILDING INSPECTOR TO CORRECT
CONDITIONS WITH RESPECT TO, OR TO DEMOLISH AND REMOVE A STRUCTURE
PURSUANT TO THE DWELLINGS AND BUILDINGS MINIMUM STANDARDS CODE OF
THE CITY. 1912 Murchison Road, PIN # 0428-94-1938. ORDINANCE
NO. S2019-27
MOTION: Council Member Haire moved to adopt the ordinance to
demolish the structure located at 1912 Murchison Road,
Fayetteville, NC, and that such ordinance be stayed for 60
days to allow the owner to:
1. Obtain all necessary trade or demolition permits and
repair the exterior of the building, including the
repair and replacement of the exterior ceiling panels,
defective door on right side of the building, and
defective ceiling in drive through area of the
building; and repair or replace any wires hanging,
soffit and fascial work on the entire building or
demolish the building within 30 days from the adoption
of this ordinance;
2. Cut any overgrown grass or hedges on the property;
3. Correct any and all other City of Fayetteville code
violations within 60 days from the date of the
adoption of this ordinance; and
4. Secure the property.
City caused demolition will proceed if the above conditions
have not been satisfied within the time prescribed pursuant
to the demolition ordinance adopted by Council.
SECOND: Council Member Dawkins
VOTE: PASSED by a vote of 6 in favor to 3 in opposition (Council
Members Colvin, Jensen, and Mohn)
7.0 PUBLIC HEARINGS
7.01 TA19-060: An amendment to Section 30-4.C.4.i.7.b of the Unified
Development Ordinance (UDO) to delete the minimum lot width
requirement for uses that include the retail sales of gasoline
and other automotive fuels, applicant Harris Teeter Properties,
LLC.
Mr. Craig Harmon, Planner, presented this item with the aid of a
PowerPoint presentation and stated Harris Teeter Properties, LLC,
desires to construct a fuel station to the front of their existing
store on Raeford Road on the site previously occupied by Applebee’s.
Under the UDO, in order for a site to be developed for gasoline sales,
the lot must have a minimum lot width of 150 feet. If it is a corner
lot, 200 feet of linear frontage is required for each street. The
proposed redevelopment of the Applebee’s site at 2702 Raeford Road is
a corner lot and does not meet this requirement. On October 15, 2019,
the Planning Commission recommended approval per Planning staff’s
recommendation.
Within the UDO, the use and features of a property are regulated
by the underlying zoning district. This includes the minimum lot area
and lot width requirements. There are uses that due to their potential
to become nuisances require additional standards beyond those
established by the underlying zoning district. The retail sale of
gasoline and other automotive fuels is one such use, due to the
volatility of the product being dispensed. Staff is supportive of
requiring large lots for these types of uses. However, the lot width
DRAFT
requirement, particularly for corner lots, limits the redevelopment
potential for unused or underutilized commercial properties. The
elimination of this provision increases the flexibility developers
have with site design, while complying with the UDO. Prior to making
this recommendation, staff compared this requirement with like-sized
jurisdictions and found that the City’s UDO was the only one which
contained this provision.
Discussion ensued.
This is the advertised public hearing set for this date and time.
There was no one present to speak and the public hearing was opened
and closed.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE
AMENDING ARTICLE 30-4, USE STANDARDS, OF CHAPTER 30, THE UNIFIED
DEVELOPMENT ORDINANCE, OF THE CODE OF ORDINANCES OF THE CITY OF
FAYETTEVILLE, NORTH CAROLINA. ORDINANCE NO. S2019-057
MOTION: Council Member Dawkins moved to approve based upon the
congruency of the proposed amendment with the following
standards for text amendments as required by City Code
§ 30-2.C.2(e):
1. The proposed amendment is consistent with all
applicable City-adopted plans.
2. The proposed amendment is not in conflict with any
provision of this Ordinance, or any related City
regulations.
3. The proposed amendment will align with Code with NC
General Statutes, NC Building Codes, and various other
regulations and requirements within the City and the
Code.
4. The proposed amendment addresses a community need to
provide the best Codes as possible for interpretation,
enforcement and compliance.
5. The proposed amendment is consistent with the purpose
and intent of the zoning districts in this Ordinance
and do ensure efficient development within the City.
6. The proposed amendment would result in a logical and
orderly development pattern.
7. The proposed amendment would not result in
significantly adverse impacts on the natural
environment and the natural functioning of the
environment.
SECOND: Council Member Waddell
VOTE: PASSED by a vote of 8 in favor to 1 in opposition (Council
Member Haire)
7.02 Public hearing on text amendments to Article 30; six proposed
amendments to the Unified Development Ordinance.
Mr. Taurus Freeman, Planning and Zoning Manager, presented this
item with the aid of a PowerPoint presentation and stated the
following 6 text amendments to the Unified Development Ordinance (UDO)
were part of 20 amendments that were heard by the Planning Commission
on July 29, 2019. These amendments were recommendations by the
Mayoral-appointed Unified Development Ordinance Task Force. Unlike the
previous amendments, whereas staff recommended “slight” modifications
to the original Task Force recommendations for clarity, these 6
amendments have a mixture of recommendations that differs from the UDO
Task Force: two items were remanded to the Corridor Revitalization
Committee for further review and comment (TA19-037 and TA19-057); one
DRAFT
item is to be remanded back to staff for further analysis (TA19-036);
no action will be taken on one item (TA19-042); and two items have
varying recommendations (TA19-041 and TA19-046). The Planning
Commission followed the recommendation of Planning staff for four of
the six amendments and two from the UDO Task Force. The proposed text
amendments are as follows:
This is the advertised public hearing set for this date and time,
the public hearing was opened.
Mr. Ralph Huff, 606 Forest Lake Road, Fayetteville, NC, spoke in
favor of all six text amendments.
Ms. Lori Epler, P.O. Box 53787, Fayetteville, NC, spoke in favor
of all six text amendments.
Ms. Christine Michaels, 159 Maxwell Street, Fayetteville, NC,
spoke in favor of all six text amendments.
There being no one further to speak, the public hearing was
closed.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE
AMENDING ARTICLE 30-5, DEVELOPMENT STANDARDS, OF CHAPTER 30, THE
UNIFIED DEVELOPMENT ORDINANCE, OF THE CODE OF ORDINANCES OF THE
CITY OF FAYETTEVILLE, NORTH CAROLINA. ORDINANCE NO. S2019-058
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE
AMENDING ARTICLE 30-5, DEVELOPMENT STANDARDS, OF CHAPTER 30, THE
UNIFIED DEVELOPMENT ORDINANCE, OF THE CODE OF ORDINANCES OF THE
CITY OF FAYETTEVILLE, NORTH CAROLINA. ORDINANCE NO. S2019-059
MOTION: Council Member Culliton moved to adopt Text Amendments
19-041 and 19-042.
SECOND: Council Member Wright
VOTE: PASSED by a vote of 6 in favor to 3 in opposition (Council
Members Colvin, Waddell, and Mohn
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE
AMENDING ARTICLE 30-5, DEVELOPMENT STANDARDS, OF CHAPTER 30, THE
UNIFIED DEVELOPMENT ORDINANCE, OF THE CODE OF ORDINANCES OF THE
CITY OF FAYETTEVILLE, NORTH CAROLINA. ORDINANCE NO. S2019-060
MOTION: Council Member Dawkins moved to adopt Text Amendment
19-036.
SECOND: Council Member Haire
VOTE: UANIMOUS (9-0)
MOTION: Mayor Pro Tem Mohn moved to remand Text Amendment 19-046 to
a City Council work session; no later than March 2020.
SECOND: Council Member Haire
DRAFT
VOTE: UNANIMOUS (9-0)
MOTION: Mayor Pro Tem Mohn moved to remand Text Amendment 19-037 to
a City Council work session; no later than March 2020.
SECOND: Council Member Wright
VOTE: UNANIMOUS (9-0)
MOTION: Mayor Pro Tem Mohn moved to remand Text Amendment 19-057 to
a City Council work session; no later than March 2020.
SECOND: Council Member Wright
VOTE: UNANIMOUS (9-0)
8.0 ADMINISTRATIVE REPORTS
8.01 Zoning Commission Annual Report to City Council
This item was for information only, and was not presented.
8.02 Administrative Report on the Future Land Use Map and Plan – To
provide information regarding the creation and importance of the
Map and Plan prior to the Public Hearing for Adoption
This item was for information only, and was not presented.
DRAFT
2015 and Prior Vehicle ……………………………. 715.79
2015 and Prior Taxes Revit ………………………….. 0.00
2015 and Prior Vehicle Revit ………………………… 0.00
2015 and Prior FVT ……………………………….. 102.03
2015 and Prior FTT ……………………………….. 102.04
2015 and Prior Storm Water …………………………. 29.05
2015 and Prior Fay Storm Water ……………………… 55.29
2015 and Prior Fay S Waste Fee ……………………… 37.46
2015 and Prior Annex ……………………………….. 0.00
Interest ………………………………………. 2,519.61
Revit Interest …………………………………….. 0.00
Storm Water Interest prior ………………………….. 7.64
Fay Storm Water Interest 2015 and prior ……………… 15.27
Storm Water Interest 2016 and Forward ………………. 262.57
Annex Interest …………………………………….. 0.00
Solid Waste Interest ……………………………… 507.28
FTT Interest ……………………………………… 77.15
Total Tax and Interest ……………………… $3,257,204.37
9.0 ADJOURNMENT
There being no further business, the meeting adjourned at
11:08 p.m.
Respectfully submitted,
_________________________________ ________________________________
PAMELA J. MEGILL MITCH COLVIN
City Clerk Mayor
112519
DRAFT
FAYETTEVILLE CITY COUNCIL
SPECIAL MEETING MINUTES
J.W. SEABROOK AUDITORIUM
FAYETTEVILLE STATE UNIVERSITY
1200 MURCHISON ROAD
DECEMBER 2, 2019
6:00 P.M.
Present: Mayor Mitch Colvin
Council Members Katherine K. Jensen (District 1); Shakeyla
Ingram (District 2); Tisha S. Waddell (District 3); D. J.
Haire (District 4); Johnny Dawkins (District 5); Chris
Davis (District 6); Larry Wright, Sr. (District 7);
Courtney Banks-McLaughlin (District 8); Yvonne Kinston
(District 9)
Others Present: Douglas Hewett, City Manager
Karen McDonald, City Attorney
Kristoff Bauer, Deputy City Manager
Angel Wright-Lanier, Assistant City Manager
Telly Whitfield, Assistant City Manager
Gina Hawkins, Police Chief
Dwayne Campbell, Chief Information Officer
Gerald Newton, Development Services Director
Michael Gibson, Fayetteville-Cumberland Parks and
Recreation Director
Tracey Broyles, Budget and Evaluation Director
Elizabeth Somerindyke, Internal Audit Director
Barbara Hill, Human Resources Development Director
Pamela Megill, City Clerk
Jennifer Ayre, Senior Administrative Assistant
Members of the Press
1.0 Welcome
Mr. John Malzone, Master of Ceremonies, welcomed those in
attendance.
2.0 Posting of the Colors
Police and Fire Departments Honor Guard Team performed the
Posting of the Colors followed by the Pledge of Allegiance to the
American Flag.
3.0 Pledge of Allegiance
The Pledge of Allegiance to the American Flag was recited by
those in attendance.
4.0 National Anthem
Ms. Victoria Huggins sang the National Anthem.
5.0 Invocation
The invocation was offered by Mr. Chris Davis, Council Member-
Elect.
6.0 Administration of Oaths of Office
Mr. Mitch Colvin was sworn in by The Honorable Stephen Benjamin,
Mayor, Columbia, South Carolina.
Ms. Kathy Jensen, District 1, was sworn in by The Honorable
Claire Hill, Superior Court Judge.
Ms. Shakeyla Ingram, District 2, was sworn in by The Honorable
Stephen Stokes, District Court Judge.
Ms. Tisha S. Waddell, District 3, was sworn in by Ms. Adriane
Patton, North Carolina Notary Public.
Mr. D. J. Haire, District 4, was sworn in by Mrs. Sandra Jones
Morrisey, North Carolina Notary Public.
Mr. Johnny Dawkins, District 5, was sworn in by The Honorable
Stephen Stokes, District Court Judge.
Mr. Chris Davis, District 6, was sworn in by The Honorable
Stephen Stokes, District Court Judge.
Mr. Larry Wright, Sr., District 7, was sworn in by The Honorable
Stephen Stokes, District Court Judge.
Ms. Courtney Banks-McLaughlin, District 8, was sworn in by Mayor
Mitch Colvin.
Ms. Yvonne Kinston, District 9, was sworn in by The Honorable
Cheri-Siler-Mack, District Court Judge.
7.0 Call to Order
Mayor Colvin called the meeting to order and thanked all present
for their attendance.
8.0 Election of Mayor Pro Tem
Mayor Colvin called for nominations for the position of Mayor Pro
Tempore.
MOTION: Council Member Waddell moved to nominate Council Member
Jensen for the position of Mayor Pro Tempore.
SECOND: Council Member Haire
VOTE: UNANIMOUS (10-0)
9.0 Opening Address
Mayor Colvin provided the opening address.
10.0 Adjournment
There being no further business, the meeting adjourned at
7:34 p.m.
11.0 Retire the Colors
The Fayetteville Police and Fire Departments Honor Guard Team
retired the colors.
Respectfully submitted,
______________________________ ______________________________
PAMELA J. MEGILL MITCH COLVIN
City Clerk Mayor
120219
DRAFT
FAYETTEVILLE CITY COUNCIL
DISCUSSION OF AGENDA ITEMS MEETING MINUTES
ST. AVOLD ROOM
DECEMBER 9, 2019
6:00 P.M.
Present: Mayor Mitch Colvin
Council Members Katherine K. Jensen (District 1); Shakeyla
Ingram (District 2); Tisha S. Waddell (District 3); D. J.
Haire (District 4); Johnny Dawkins (District 5); Chris
Davis (District 6) Larry O. Wright, Sr. (District 7);
Courtney Banks-McLaughlin (District 8); Yvonne Kinston
(District 9)
Others Present: Douglas Hewett, City Manager
Karen McDonald, City Attorney
Kristoff Bauer, Deputy City Manager
Telly Whitfield, Assistant City Manager
Angel Wright-Lanier, Assistant City Manager
Kevin Arata, Corporate Communications Director
Gerald Newton, Development Services Director
Tracey Broyles, Budget and Evaluation Director
Gina Hawkins, Police Chief
Jay Toland, Chief Financial Officer
Cynthia Blot, Economic and Community Development
Director
Sheila Thomas-Ambat, Public Services Director
Pamela Megill, City Clerk
Members of the Press
Mayor Colvin called the meeting to order at 6:00 p.m.
Mayor Colvin read the titles of the announcements for the regular
meeting, and asked Council to review the list of public forum speakers
for this evening.
Council Member Ingram requested an explanation of Item 6.08,
adoption of Budget Ordinance Amendment 2020-7 (Emergency Telephone
System Fund) to Provide Additional Funding for Replacement Generator
and Uninterruptible Power Supply. Ms. Tracey Broyles, Budget and
Evaluation Director, provided an overview of the item.
Council Member Waddell requested an explanation of Item 6.06,
P19-54F, rezoning a portion of property from Limited Commercial (LC)
to Community Commercial/Conditional (CC/CZ), located at 4058 Legend
Avenue (Tax Map No. 0418-54-2435) near the intersection of Bragg
Boulevard and Sycamore Dairy Road, containing 17.18± acres and being
the property of Phillip Taylor, Trustee. Mr. Taurus Freeman, Planning
and Zoning Manager, provided an overview of the item.
Council Member Waddell requested an explanation of Item 6.07,
adoption of Capital Project Ordinance Amendment 2020-29, award of
Terminal Improvements Part II Construction Contract to Resolute
Building Company, and Authorization for the City Manager to Execute
the Contract. Mr. Kristoff Bauer, Deputy City Manager, provided an
overview of the item.
Council Member Waddell requested an explanation of Item 6.010,
authorize the City Manager to sign a Municipal Agreement with NCDOT
Division of Aviation for Airport Runway and Apron Crack Sealing
Project and Approve the Associated Resolution. Mr. Douglas Hewett,
City Manager, provided an overview of the item.
Council Member Waddell requested an explanation of Item 6.011,
resolution authorizing the abandonment of City easements. Mr. Douglas
Hewett, City Manager, provided an overview of the item.
DRAFT
Mayor Colvin requested that Council Member Waddell move to pull
Item 6.07 at the regular meeting.
There being no further business, the meeting adjourned at
6:21 p.m.
Respectfully submitted,
_________________________________ ________________________________
PAMELA J. MEGILL MITCH COLVIN
City Clerk Mayor
120919
DRAFT
FAYETTEVILLE CITY COUNCIL
REGULAR MEETING MINUTES
COUNCIL CHAMBER
DECEMBER 9, 2019
7:00 P.M.
Present: Mayor Mitch Colvin
Council Members Katherine K. Jensen (District 1); Shakeyla
Ingram (District 2); Tisha S. Waddell (District 3); D. J.
Haire (District 4); Johnny Dawkins (District 5); Chris
Davis (District 6); Courtney Banks-McLaughlin (District 8);
Yvonne Kinston (District 9)
Absent: Council Member Larry O. Wright, Sr. (District 7)
Others Present: Douglas Hewett, City Manager
Karen McDonald, City Attorney
Kristoff Bauer, Deputy City Manager
Telly Whitfield, Assistant City Manager
Angel Wright-Lanier, Assistant City Manager
Gerald Newton, Development Services Director
Gina Hawkins, Police Chief
Mike Hill, Fire Chief
Cynthia Blot, Economic and Community Development
Director
Kevin Arata, Corporate Communications Director
Tracey Broyles, Budget and Evaluation Director
Sheila Thomas-Ambat, Public Services Director
Bradley Whited, Airport Director
Taurus Freeman, Planning and Zoning Manager
Pamela Megill, City Clerk
Jennifer Ayre, Deputy City Clerk
Members of the Press
1.0 CALL TO ORDER
Mayor Colvin called the meeting to order at 7:00 p.m.
2.0 INVOCATION
The invocation was offered by Pastor LaVern Hayden, Wesleyan
Pentecostal.
3.0 PLEDGE OF ALLEGIANCE
The Pledge of Allegiance was led by Tristen from Boy Scout Troop
787. Scout Master Jay Rayco stated the troop is here working on their
Citizenship to the Community Merritt Badge which requires the boys to
have an understanding of how local government works.
4.0 ANNOUNCEMENTS AND RECOGNITION
Mayor Pro Tem Jensen introduced Ms. Alexis Diana, Fayetteville-
Cumberland Youth Council, Vice Chair, Junior at Cumberland County
Polytechnic, representing the Youth Council at tonight’s’ meeting.
Mayor Pro Tem Jensen congratulated Council Member Haire on
receiving his Bachelors of Arts degree from North Carolina A&T.
Mayor Colvin asked everyone to keep Council Member Wright in
their prayers as he is away on a family emergency.
Mr. Sean Groover, Interim Chair of the Police Foundation,
provided an overview of the recent activities of the Fayetteville
Police Foundation.
Mr. Chas Sampson, Chief Executive Officer at Seven Principles
Corporation and GreenLeaf Financials, announced the forthcoming 2019
DRAFT
Inaugural Mixer on December 17, 2019, at 5:30 p.m. hosted by the Arts
Council and Greater Fayetteville Chamber of Commerce.
MOTION: Council Member Haire moved to reconsider the November 25,
2019, agenda item – 1912 Murchison Road, PIN 0428-94-1938.
SECOND: Council Member Dawkins
VOTE: UNANIMOUS (9-0)
5.0 APPROVAL OF AGENDA
MOTION: Council Member Haire moved to approve the agenda with the
addition of Item 9.02, reconsideration of agenda item –
1912 Murchison Road, PIN 0428-94-1938.
SECOND: Council Member Dawkins
VOTE: UNANIMOUS (9-0)
6.0 CONSENT AGENDA
MOTION: Council Member Waddell moved to approve the consent agenda
with the exception of Item 6.07; pulled for discussion and
separate vote.
SECOND: Mayor Pro Tem Jensen
VOTE: UNANIMOUS (9-0)
6.01 Approval of Meeting Minutes:
October 4, 2019 – Work Session
October 14, 2019 – Discussion of Agenda Items
October 14, 2019 – Regular
October 23, 2019 – Agenda Briefing
October 28, 2019 – Discussion of Agenda Items
October 28, 2019 – Regular
November 4, 2019 – Work Session
November 12, 2019 – Discussion of Agenda Items
November 12, 2019 – Regular
6.02 Certification of Results from the Cumberland County Board of
Elections for the November 5, 2019, Municipal Election for Mayor
and City Council Districts 1, 2, 3, 4, 5, 6, 7, 8, and 9.
6.03 P19-49F. Rezoning of two properties from Heavy Industrial (HI) to
Community Commercial, located at 1530 and 1600 Clinton Road, (Tax
Map Nos. 0447-51-2056 and 0447-51-3053) totaling .48± acres and
being the properties of Fay and Billy Horne and Charles Horne,
represented by Ben Stout.
6.04 P19-52F. Conditional Rezoning of a property from Limited
Commercial (LC) to Limited Commercial/Conditional Zoning (LC/CZ),
located at 301 Hope Mills Road (Tax Map No. 0416-29-0418)
containing 0.97± acres and being the property of Shirley and
Albert Norton, Jr., represented by Larry Fatone.
6.05 P19-53F. Rezoning of two properties from Community Commercial
(CC) to Light Industrial (LI), located at 1713 and 1705 Gillespie
Street (Tax Map Nos. 0436-24-6546 and 0436-24-3555) totaling 5.1±
acres and being the properties of Clarence Eugene Pegram,
Trustee.
6.06 P19-54F. Rezoning a portion of property from Limited Commercial
(LC) to Community Commercial/Conditional (CC/CZ), located at 4058
Legend Avenue (Tax Map No. 0418-54-2435) near the intersection of
Bragg Boulevard and Sycamore Dairy Road, containing 17.18± acres
and being the property of Phillip Taylor, Trustee.
6.07 This item was pulled for discussion and separate vote.
DRAFT
6.08 Adoption of Budget Ordinance Amendment 2020-7 (Emergency
Telephone System Fund) to Provide Additional Funding for
Replacement Generator and Uninterruptible Power Supply
Budget Ordinance Amendment (BOA) 2020-7 will appropriate
$169,668.00 from the Emergency Telephone System Fund fund balance to
provide additional funding for a replacement generator and
uninterruptible power supply (UPS).
6.09 Adoption of Special Revenue Fund Project Ordinance 2020-8 to
Appropriate the FY 2018 Project Safe Neighborhoods Grant
Special Revenue Fund Project Ordinance 2020-8 will appropriate
$117,865.00 of federal grant funds passed through the North Carolina
Gang Investigation Association for items including, but not limited
to, the purchase of software, supplies, equipment, and community
outreach for the Operation Ceasefire Program.
6.010 Authorize the City Manager to sign a Municipal Agreement with
NCDOT Division of Aviation for Airport Runway and Apron Crack
Sealing Project and Approve the Associated Resolution.
NCDOT Division of Aviation will be expending $438,284.00 from its
Airport Preventative Maintenance Project funding and the Airport has
obligated $152,658.00 as a local share for reimbursement to NCDOT.
NCDOT has provided the Municipal Agreement to perform the work.
Council authorized the City Manager to sign this agreement, by
resolution.
6.011 Resolution Authorizing the Abandonment of City Easements
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
NORTH CAROLINA AUTHORIZING THE ABANDONMENT OF CITY EASEMENTS.
RESOLUTION NO. R2019-040
6.012 Phase 5 Annexation Area 25 Preliminary Assessment Resolution to
be Adopted and Public Hearing
RESOLUTION AND ORDER TO FILE AND PUBLISH A PRELIMINARY ASSESSMENT
RESOLUTION FOR THE EXTENSION OF THE SANITARY SEWER COLLECTION
SYSTEM IN ALL OR A PORTION OF THE STREETS WITHIN AREA 25 OF THE
PHASE 5 ANNEXATION LISTED ON EXHIBIT “A”. RESOLUTION NO.
R2019-041
6.07 Adoption of Capital Project Ordinance Amendment 2020-29, Award of
Terminal Improvements Part II Construction Contract to Resolute
Building Company, and Authorization for the City Manager to
Execute the Contract
Mr. Bradley Whited, Airport Director, presented this item and
stated the funding sources proposed to be appropriated for the project
include future Federal Aviation Administration grants for which
funding commitments have already been received but for which grants
have not yet been awarded ($4,041,108.00); North Carolina Department
of Transportation funding for which only one of two years of
anticipated funding has been appropriated and grants for both years
are yet to be awarded ($5,371,414.00); and future collections of
Passenger Facility Charges. While these funds have yet to be
officially awarded or collected, staff is comfortable that the funding
commitments are reliable and collections can reasonably be
anticipated. At this time, an additional appropriation of Airport Net
Assets of $5,726,984.00 is necessary to provide the balance of funding
required for the project. Additional grant funding of $2,468,167 is
anticipated from FAA discretionary fund as the balance of a planned
commitment of $10,000,000.00. As this anticipated funding is
committed, or other grant funds received, the appropriation of Airport
Net Assets will be offset and funds returned to the Operating Fund.
There is no impact to the General Fund as the project appropriation is
to be funded by dedicated Airport funding sources including
DRAFT
accumulated operating fund net assets, restricted Passenger and
Customer Facility Charges, and Federal Aviation Administration and
North Carolina Department of Transportation grant funds.
MOTION: Council Member Waddell moved to adopt Capital Project
Ordinance Amendment 2020-29 as presented; award the Part II
Terminal Improvement construction contract to Resolute
Building Company at 211 Cloister Court, Chapel Hill, NC
27514, in the total amount of $27,566,100.00; and authorize
the City Manager to execute the contract.
SECOND: Council Member Ingram
VOTE: UNANIMOUS (9-0)
7.0 STAFF REPORTS
7.01 Fayetteville Police Department 2019 – 3rd Quarter Review
Ms. Gina Hawkins, Police Chief, presented the Police Department
3rd Quarter Review with the aid of a PowerPoint presentation. Chief
Hawkins addressed the following items: Crime Statistics, Aggravated
Assault Defined, Clearance Rate, Narcotics Unit, Response Times,
Professional Standards, Staffing, Recruiting, Achievements, Gang Unit,
Community Watch Groups, Community Engagement Trailer, Intern Program,
Strategic Plan, National Night Out, Traffic Statistics, Human
Trafficking.
Discussion ensued.
MOTION: Council Member Kinston moved to receive the Fayetteville
Police Department 2019 3rd Quarter Review.
SECOND: Council Member Davis
VOTE: UNANIMOUS (9-0)
8.0 PUBLIC FORUM
Mr. Iman Eronomy Muhammed Smith, 1200 Murchison Road,
Fayetteville, NC, spoke on the state of the City of Fayetteville.
Mr. Charles Hurst, 245 McHarry Drive, Fayetteville, NC, expressed
concerns and displeasure regarding Christmas carols being sung at the
Market House, downtown Fayetteville.
9.0 OTHER ITEMS OF BUSINESS
9.01 Report by RSM US LLP of the Audit and Financial Results for the
Year Ended June 30, 2019
Mr. Jay Toland, Chief Financial Officer, stated the City
Council’s audit firm, RSM US LLP, has completed their audit for the
fiscal year ended June 30, 2019. A copy of the audited financial
report has been provided to each Council member. Mr. Robbie Bittner,
CPA, MBA, a senior manager with RSM US LLP, will present the auditor’s
report and financial results. The report was presented to and
approved by the Audit Committee on November 25, 2019.
Mr. Robbie Bittner presented the report with the aid of a
PowerPoint presentation.
MOTION: Council Member Dawkins moved to accept the Report by RSM US
LLP of the Audit and Financial Results for the Year Ended
June 30, 2019.
SECOND: Council Member Ingram
VOTE: UNANIMOUS (9-0)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
NORTH CAROLINA REQUIRING THE CITY BUILDING INSPECTOR TO CORRECT
DRAFT
CONDITIONS WITH RESPECT TO, OR TO DEMOLISH AND REMOVE A STRUCTURE
PURSUANT TO THE DWELLINGS AND BUILDINGS MINIMUM STANDARDS CODE OF
THE CITY. 1912 Murchison Road, PIN # 0428-94-1938.
MOTION: Council Member Haire moved to clarify that the demolition
ordinance for 1912 Murchison Road be stayed for 90 days
from November 25, 2019.
SECOND: Council Member Waddell
VOTE: UNANIMOUS (9-0)
10.0 ADJOURNMENT
There being no further business, the meeting adjourned at
8:40 p.m.
Respectfully submitted,
_________________________________ ________________________________
PAMELA J. MEGILL MITCH COLVIN
City Clerk Mayor
120919
City Council Action Memo
City of Fayetteville 433 Hay Street
Fayetteville, NC 28301-5537
(910) 433-1FAY (1329)
File Number: 19-1172
Agenda Date: 1/13/2020 Status: Agenda ReadyVersion: 1
File Type: ConsentIn Control: City Council Regular Meeting
Agenda Number: 6.02
TO: Mayor and Members of City Council
THRU: Kristoff Bauer, ICMA-CM, Deputy City Manager
FROM: Sheila Thomas-Ambat, PE, CCM, CFM – Public Services Director
Kimberly Toon, CLGPO, Purchasing Manager
DATE: January 13, 2020
RE:
Award Contract for Sykes Pond Road Bridge Replacement
..end
COUNCIL DISTRICT(S):
All
..b
Relationship To Strategic Plan:
Goal 3: High Quality Built Environment
Goal 4: Desirable Place to Live, Work and Recreate
Executive Summary:
The Council is asked to approve award of and authorize the execution of a contract for
Sykes Pond Road Bridge Replacement. The lowest responsive, responsible bidder,
Smith Rowe, LLC Mount Airy, NC, is recommended.
Background:
A storm event on September 29, 2016 washed away a culvert and the road embankment
on Sykes Pond Road at Little Rockfish Creek. The extensive damage caused the City to
conduct an engineering evaluation on the most appropriate repair. After a hydrologic and
hydraulic analysis was conducted, it was determined the most cost effective alternative
would be to place a bridge at this location.
This contract will consist of bridge construction, water main construction, roadway
reconstruction, storm drainage, and erosion control. The bridge will consist of a single
span box beam bridge for the crossing over Little Rockfish Creek including roadway
approach work. The project will also include an aerial waterline crossing.
Page 1 City of Fayetteville Printed on 1/9/2020
File Number: 19-1172
The project was advertised for bids to be opened on December 03, 2019.
Bids received are as follows:
$1,147,819.18 Smith Rowe, LLC, Mount Airy, NC
$1,150,588.74 S&C Construction, LLC Wilmington, NC
$1,253,646.50 Dane Construction, Inc. Mooresville, NC
$1,264,140.15 National Bridge Builders, LLC Kernersville, NC
$1,297,000.00 T.A. Loving Company, Goldsboro, NC
$1,357,362.20 Sloan Construction a Division of Reeves Construction Company,
Duncan, SC
$1,372,731.00 FSC II, LLC dba Fred Smith Company, Raleigh, NC
Issues/Analysis:
None.
Budget Impact:
No Budget Impact because funds have been appropriated for this purpose in prior years.
The Public Works Commission (PWC) will pay for their portion of costs associated with
the aerial waterline crossing.
Options:
1-Award contract as recommended by staff
2-Not award contract and provide further directions to staff
Recommended Action:
Staff recommends Council approve contract award and authorize the City Manager to
execute a contract for Sykes Pond Road Bridge Replacement with the lowest,
responsive, responsible bidder, Smith Rowe, LLC, Mount Airy, NC in the total amount of
$1,147,819.18.
Attachments:
· Bid Tab – Sykes Pond Road Bridge Replacement
· Map of project location
Page 2 City of Fayetteville Printed on 1/9/2020
LINE ITEM DESCRIPTION QTY. UNIT UNIT PRICE TOTAL AMOUNT UNIT PRICE TOTAL AMOUNT UNIT PRICE TOTAL AMOUNT
1 Mobilization, Bonds, Insurance and Permits 1 LS $49,000.00 $49,000.00 $52,000.00 $52,000.00 $46,200.00 $46,200.00
2 Clearing and Grubbing 1 AC $25,000.00 $25,000.00 $13,000.00 $13,000.00 $10,000.00 $10,000.00
3
Removal of EX. 11’x7′ Arch Pipes Headwalls,
Wingwalls, and 36″RCP
1 LS $165,000.00 $165,000.00 $9,000.00 $9,000.00 $31,800.00 $31,800.00
4 Fence Removal 32 LF $10.00 $320.00 $4.85 $155.20 $10.00 $320.00
5 Remove Existing Pavement 140 SY $10.00 $1,400.00 $15.25 $2,135.00 $9.75 $1,365.00
6 Aggregate Base Course 225 TON $55.00 $12,375.00 $60.00 $13,500.00 $43.00 $9,675.00
7 Select Borrow 20 CY $40.00 $800.00 $135.00 $2,700.00 $40.00 $800.00
8 Fine Grading 1 LS $25,000.00 $25,000.00 $7,500.00 $7,500.00 $46,975.00 $46,975.00
9 Erosion and Sediment Control 1 LS $10,000.00 $10,000.00 $15,000.00 $15,000.00 $3,500.00 $3,500.00
10 Temporary Silt Fence 1150 LF $3.00 $3,450.00 $6.32 $7,268.00 $2.75 $3,162.50
11 Inlet Protection 1 LS $500.00 $500.00 $800.00 $800.00 $750.00 $750.00
12 Erosion and Control Matting 400 SY $5.00 $2,000.00 $3.00 $1,200.00 $3.00 $1,200.00
13 Floating Turbidity Curtain 230 SY $75.00 $17,250.00 $41.50 $9,545.00 $10.00 $2,300.00
14 Concrete Washout Structure 1 EA $1,000.00 $1,000.00 $850.00 $850.00 $2,256.00 $2,256.00
15 Milling Bituminour Pavement 520 SY $20.00 $10,400.00 $15.75 $8,190.00 $12.50 $6,500.00
16 Asphalt Concrete Surface Course, Type SF9.5C 220 TON $125.00 $27,500.00 $131.00 $28,820.00 $139.30 $30,646.00
17
Asphalt Concrete Intermediate Course, Type
119.0C
160 TON $125.00 $20,000.00 $131.00 $20,960.00 $110.00 $17,600.00
18 30″ Curb 26 LF $50.00 $1,300.00 $105.00 $2,730.00 $128.85 $3,350.10
19 4″ Concrete Sidewalk 15 SY $65.00 $975.00 $126.00 $1,890.00 $150.00 $2,250.00
20 Guardrail Anchor Unit, Type III 4 EA $1,750.00 $7,000.00 $1,700.00 $6,800.00 $1,700.00 $6,800.00
21 Guardrail End Unit, Type TL-3 4 EA $2,900.00 $11,600.00 $2,900.00 $11,600.00 $2,900.00 $11,600.00
22 Guardrail 25 LF $21.00 $525.00 $18.00 $450.00 $18.00 $450.00
23 15″ RCP 32 LF $75.00 $2,400.00 $115.00 $3,680.00 $82.68 $2,645.76
24 Masonry Drainage Structures 1 EA $3,500.00 $3,500.00 $4,500.00 $4,500.00 $4,603.10 $4,603.10
25 Reinforced Precast Concrete Flared End Section 1 EA $1,000.00 $1,000.00 $1,500.00 $1,500.00 $1,542.98 $1,542.98
26 Pipe Outlet 1 EA $750.00 $750.00 $1,700.00 $1,700.00 $543.40 $543.40
27 Seeding 0.3 AC $6,000.00 $1,800.00 $7,500.00 $2,250.00 $8,100.00 $2,430.00
28 Thermoplastic Pavement Markings 1880 LF $2.43 $4,568.40 $2.90 $5,452.00 $2.25 $4,230.00
29 Raised Reflective Pavement Markings 23 EA $12.25 $281.75 $10.00 $230.00 $20.00 $460.00
30 Traffic Control 1 LS $12,000.00 $12,000.00 $4,000.00 $4,000.00 $500.00 $500.00
31 Soil Materials 600 CY $35.00 $21,000.00 $25.00 $15,000.00 $5.00 $3,000.00
32 Topsoil 50 CY $45.00 $2,250.00 $75.00 $3,750.00 $33.33 $1,666.50
33 Filter Fabric 8 SY $20.00 $160.00 $3.00 $24.00 $7.00 $56.00
34
Unclassified Structure Excavation AT Station 13+60
-L-
1 LS $10,000.00 $10,000.00 $25,000.00 $25,000.00 $25,865.00 $25,865.00
35 NCDOT Class A Concrete (End Bent) 70 CY $700.00 $49,000.00 $950.00 $66,500.00 $891.08 $62,375.60
General
National Bridge Builders, LLC
Sloan Construction a Div. of Reeves
Construction Co
Sykes Pond Road Bridge Replacement
BID TABULATION
Smith Rowe, LLC
36 NCDOT Class AA Concrete (Sidewalk & End Posts) 61 CY $650.00 $39,650.00 $800.00 $48,800.00 $754.83 $46,044.63
37 Bridge Approach Slabs 1 LS $27,500.00 $27,500.00 $35,000.00 $35,000.00 $27,600.00 $27,600.00
38 Reinforcing Steel (Bridge) 10408 LB $1.25 $13,010.00 $1.50 $15,612.00 $1.30 $13,530.40
39 Epoxy Coated Reinforcing Steel (Bridge) 2460 LB $2.00 $4,920.00 $2.10 $5,166.00 $1.42 $3,493.20
40
Pile Driving Equipment Setup For HP 12X53 Steel
Piles
14 EA $500.00 $7,000.00 $450.00 $6,300.00 $492.00 $6,888.00
41 HP 12X53 Steel Piles 665 LF $32.00 $21,280.00 $45.00 $29,925.00 $30.49 $20,275.85
42 Three Bar Metal Rail 185 LF $175.00 $32,375.00 $155.00 $28,675.00 $226.17 $41,841.45
43 NCDOT Rip Rap (Class II) (2′-0″ Thick) 840 TON $50.00 $42,000.00 $75.00 $63,000.00 $52.13 $43,789.20
44 Geotextile for Drainage 1000 SY $3.00 $3,000.00 $3.00 $3,000.00 $3.00 $3,000.00
45 Elastomeric Bearings 1 LS $5,000.00 $5,000.00 $5,000.00 $5,000.00 $2,800.00 $2,800.00
46 3’0″ X 3’3″ Prestressed Concrete Box Beam 1400 LF $230.00 $322,000.00 $295.00 $413,000.00 $246.09 $344,526.00
47 PDA Testing 2 EA $2,000.00 $4,000.00 $2,100.00 $4,200.00 $1,000.00 $2,000.00
48
Bridge Approach Fill-Sub Regional Tier, Station
13+60 -L-
1 LS $10,000.00 $10,000.00 $25,000.00 $25,000.00 $17,025.00 $17,025.00
49 Sealed As Built Plans For FEMA Compliance 1 LS $2,500.00 $2,500.00 $2,000.00 $2,000.00 $1,800.00 $1,800.00
50
Constructin Stakes, Lines And Grade (To include
Construction Surveying, and Supplemental
Surveying Office Calculations)
1 LS $6,000.00 $6,000.00 $12,000.00 $12,000.00 $500.00 $500.00
$1,041,340.15 $1,046,357.20 $924,531.67
51 Mobilization, Bonds, Insurance and Permits 1 LS $10,000.00 $10,000.00 $15,000.00 $15,000.00 $11,100.00 $11,100.00
52 Traffic Control 1 LS $2,500.00 $2,500.00 $7,500.00 $7,500.00 $500.00 $500.00
53 Erosion Control – General Provisions 1 LS $5,000.00 $5,000.00 $10,000.00 $10,000.00 $1,000.00 $1,000.00
54 Clearing and Grubbing 1 LS $15,000.00 $15,000.00 $10,000.00 $10,000.00 $2,500.00 $2,500.00
55 Steel “H” Piles 140 LF $300.00 $42,000.00 $355.00 $49,700.00 $211.04 $29,545.60
56 12″ Steel Waterline 58 LF $350.00 $20,300.00 $460.00 $26,680.00 $775.92 $45,003.36
57 Restrained Joint Ductile Iron 12″ Waterline 355 LF $180.00 $63,900.00 $235.00 $83,425.00 $184.11 $65,359.05
58 FL Ductile Iron 12″ Waterline 40 LF $950.00 $38,000.00 $880.00 $35,200.00 $934.42 $37,376.80
59 12″ Water Valve 1 EA $3,500.00 $3,500.00 $5,400.00 $5,400.00 $3,833.18 $3,833.18
60 Testing (New Waterline) 460 LF $5.00 $2,300.00 $30.00 $13,800.00 $11.31 $5,202.60
61
Sterilization (New Waterline And Existing Damaged
Waterline)
2600 LF $3.00 $7,800.00 $5.50 $14,300.00 $2.57 $6,682.00
62 Select Backfill for Unsuitable Material 100 CY $35.00 $3,500.00 $125.00 $12,500.00 $25.00 $2,500.00
63 H-Pile 12″ Pipe Support For Aerial Crossing 4 EA $1,500.00 $6,000.00 $5,000.00 $20,000.00 $3,046.23 $12,184.92
64
Constructin Stakes, Lines And Grade (To include
Construction Surveying, Supplemental Field
Surveying and Supplemental Sureying Office
Calculations)
1 LS $3,000.00 $3,000.00 $7,500.00 $7,500.00 $500.00 $500.00
$222,800.00 $311,005.00 $223,287.51
$1,264,140.15 $1,357,362.20 $1,147,819.18Total Project Cost
Section A Roadway, Bridge, DrainageTotal
Section B Water Utility Total
City Council Action Memo
City of Fayetteville 433 Hay Street
Fayetteville, NC 28301-5537
(910) 433-1FAY (1329)
File Number: 19-1173
Agenda Date: 1/13/2020 Status: Agenda ReadyVersion: 1
File Type: ConsentIn Control: City Council Regular Meeting
Agenda Number: 6.03
TO: Mayor and Members of City Council
THRU: David W. Trego, CEO/General Manager
Fayetteville Public Works Commission
FROM: Fayetteville Public Works Commission
DATE: January 13, 2020
RE:
Bid Recommendation – HW401 N. Water Improv. Project Contract 2 Booster
Pump Station
..end
COUNCIL DISTRICT(S):
All
..b
Relationship To Strategic Plan:
High Quality Built Environment
Executive Summary:
Bids were received for the contract for the Highway 401 North Water Improvements
Project, Contract 2: Booster Pump Station. The recommended lowest responsive,
responsible bidder is BridgePoint Civil, Goldsboro, NC, in the total amount of
$1,894,665.00.
Background:
The Fayetteville Public Works Commission, during their meeting on December 11, 2019,
approved the bid recommendation to award the contract for the Highway 401 North Water
Improvements Project Contract 2 Booster Pump Station to BridgePoint Civil, Goldsboro,
NC, the lowest responsive, responsible bidder in the total amount of $1,894,665.00. The
Commission also authorized staff to forward this recommendation to the City Council for
approval.
Page 1 City of Fayetteville Printed on 1/9/2020
File Number: 19-1173
This project will construct water system improvements along the HWY 401 North corridor
in Cumberland County beginning at the termination point of the existing 16-inch
transmission main near the intersection of Ramsey Street and Bienville Drive, and
extending north to the intersection and then west along Elliot Bridge Road. This project
will include 10,000 feet of watermain improvements.
Bids were received on November 26, 2019, as follows:
BIDDERS TOTAL COST
BridgePoint Civil, Goldsboro, NC $1,894,665.00
T.A. Loving Company, Fayetteville, NC $2,133,500.00
Pipeline Utilities Inc., Raleigh, NC $2,168,000.00
Issues/Analysis:
Notice of the bid was advertised on October 29, 2019, with a bid opening date of
November 26, 2019. Addendum No. 1 as issued on November 21, 2019; the addendum
was to provide minutes from the Pre-Bid meeting on November 7, 2019, as well as
answers to bidders’ questions, and revisions to technical specifications and drawings .
Three (3) bids were received during the bid process.
SDBE/Local Participation: BridgePoint Civil, Goldsboro, NC, is not classified as a
SDBE, minority or woman-owned business. Their bid has 0% DBE participation but
meets the DBE good faith efforts.
Budget Impact:
Funding for this project will be funded from WS-14 US HWY 401 North Booster Station
Contract 2 – CPR1000428
Options:
N/A
Recommended Action:
The Fayetteville Public Works Commission recommends the Fayetteville City Council
award the contract for the Highway 401 North Water Improvements Project Contract 2
Booster Pump Station to BridgePoint Civil, Goldsboro, NC, the lowest responsive,
responsible bidder in the total amount of $1,894,665.00.
Attachments:
Bid Recommendation – Highway 401 Contract 2
Page 2 City of Fayetteville Printed on 1/9/2020
PUBLIC WORKS COMMISSION
ACTION REQUEST FORM
TO: David W. Trego, CEO/General Manager DATE: December 3, 2019
FROM: Trent K. Ensley, Procurement Manager
ACTION REQUESTED: Approve contract award for the Highway 401 North Water
Improvements Project Contract 2 Booster Pump Station. This project will construct water system
improvements along the HWY 401 North corridor in Cumberland County beginning at the
termination point of the existing 16-inch transmission main near the intersection of Ramsey St.
and Bienville Dr. and extending north to the intersection and then west along Elliot Bridge Rd.
This project will include 10,000 feet of water main improvements.
BID/PROJECT NAME: Highway 401 North Water Improvements Project Contract 2 Booster
Pump Station.
BID DATE: November 26, 2019 DEPARTMENT: Water Resources Engineering
BUDGET INFORMATION: Funding for this project will be funded from WS-14 US HWY
401 North Booster Pump Station (Contract 2) (CPR1000428).
AWARD RECOMMENDED TO: BridgePoint Civil, Goldsboro, NC
BASIS OF AWARD: Lowest responsive, responsible bidder
COMMENTS: The Commission is asked to approve award of the Highway 401 North Water
Improvements Project Contract 2 Booster Pump Station to lowest responsive, responsible bidder
BridgePoint Civil, Goldsboro, NC. Notice of the bid was advertised through our normal channels
on October 29, 2019 with a bid opening date of November 26, 2019. Addendum No. 1 was
issued on November 21, 2019; the addendum was to provide minutes from the Pre-Bid meeting
on November 7, 2019, as well as answers to bidder’s questions, and revisions to technical
specifications and drawings. Three (3) bids were received during the bid process and award is
recommended to the lowest responsive, responsible bidder, BridgePoint Civil, Goldsboro, NC.
ACTION BY COMMISSION
APPROVED REJECTED
DATE
ACTION BY COUNCIL
APPROVED REJECTED
DATE
BID HISTORY
HIGHWAY 401 NORTH WATER IMPROVEMENTS PROJCET
CONTRACT 2 BOOSTER PUMP STATIONS
BID DATE: NOVEMBER 26, 2019
Consulting Engineer
CDM Smith, Raleigh, NC
Advertisement
1. PWC Website 10/29/2019 through 11/26/2019
Addendum No. 1 11/21/2019 through 11/26/2019
2. The Fayetteville Press General Monthly Ad
List of Prospective Bidders
1. T.A. Loving, Goldsboro, NC
2. Billy Bill Grading, Fayetteville, NC
3. Sandhill Contractors, Sandford, NC
4. State Utility Contractors Inc., Monroe, NC
5. Utilities Plus Inc., Linden, NC
6. Wells Brothers Construction Inc., Turkey, NC
7. Lanier Construction, Snow Hill, NC
8. Hine Sitework Inc., Goldsboro, NC
9. BridgePoint Civil, Goldsboro, NC
10. Odell Smith & Sons, Spring Lake, NC
11. Sandford Contractors Inc., Sanford, NC
12. Sandy’s Hauling and Back Hoe Services, Roseboro, NC
13. Mechanical Jobbers, Lithonia, GA
14. Insituform Technologies, LLC, Chesterfield, MO
15. Tri-State Utilities Co., Chesapeake, VA
16. Sak Construction, LLC, O’Fallon, MO
17. Am-Liner East, Inc., Berryville, VA
List of Organizations Notified of Bid
Small Business Administration Programs:
Small Business Administration Regional Office (SBA)
NC Procurement & Technical Assistance Center (NCPTAC)
Veterans Business Outreach Center (VBOC)
Small Business Technology Center (SBTDC)
Women’s Business Center of Fayetteville (WBC)
Local Business and Community Programs
FSU Construction Resource Office (FSUCRO)
FSU Economic Development Administration Program (FSUEDA)
FSU Career Pathways Initiative
NAACP, Fayetteville Branch
FTCC Small Business Center (SBC)
Greater Fayetteville Chamber
Hope Mills Chamber
Spring Lake Chamber
Hoke Chamber
Fayetteville Business & Professional League (FBPL)
State Business and Community Programs
NC Institute of Minority Economic Development (The Institute) Durham, NC
NAACP, State Branch Raleigh, NC
National Utility Contracting Association- NC Chapter (NUCA)
Durham Chapter of the National Association of Women in Construction (NAWIC)
South Atlantic Region of National Association of Women in Construction (NAWIC)
The Hispanic Contractors Association of the Carolinas (HCAC)
United Minority Contractors of North Carolina
International Women in Transportation- Triangle Chapter
Media
Fayetteville Observer
WIDU, AM1600
IBronco Radio at FSU
Fayetteville Press News
Up & Coming Weekly
Bladen Journal
SDBE/Local Participation
BridgePoint Civil, Goldsboro, NC is not classified as a SDBE, minority or woman-owned
business. Their bid has 0% DBE participation but meets the DBE good faith efforts.
City Council Action Memo
City of Fayetteville 433 Hay Street
Fayetteville, NC 28301-5537
(910) 433-1FAY (1329)
File Number: 19-1174
Agenda Date: 1/13/2020 Status: Agenda ReadyVersion: 1
File Type: ConsentIn Control: City Council Regular Meeting
Agenda Number: 6.04
TO: Mayor and Members of City Council
THRU: David W. Trego, CEO/General Manager
Fayetteville Public Works Commission
FROM: Fayetteville Public Works Commission
DATE: January 13, 2020
RE:
Bid Recommendation – Rehabilitation of Cross Creek Outfall, Blue Street to Gale
Street
..end
COUNCIL DISTRICT(S):
All
..b
Relationship To Strategic Plan:
High Quality Built Environment
Executive Summary:
Bids were received for the contract for the Rehabilitation of the Cross Creek Outfall, Blue
Street to Gale Street. The recommended lowest responsive, responsible bidder is
Insituform Technologies, LLC, Chesterfield, MO, in the total amount of $2,593,848.20.
Background:
The Fayetteville Public Works Commission, during their meeting on December 11, 2019,
approved the bid recommendation to award the contract for the Rehabilitation of the
Cross Creek Outfall, Blue Street to Gale Street to Insituform Technologies, LLC,
Chesterfield, MO, the lowest responsive, responsible bidder in the total amount of
$2,593,848.20. The Commission also authorized staff to forward to the City Council for
approval.
This project will line approximately 9,300 LF of 36-inch concrete sewer outfall between
Page 1 City of Fayetteville Printed on 1/9/2020
File Number: 19-1174
Blue Street and Gale Street. This outfall serves a large portion of central Fayetteville .
Failure of this main would result in significant construction, environmental, and social
costs.
Bids were received on November 20, 2019, as follows:
BIDDERS TOTAL COST
Base Bid Alternate No. 2
Insituform Technologies, LLC, Chesterfield, MO $2,593,848.20
Tri-State Utilities Co., Chesapeake, VA $2,639,050.98
Sak Construction, LLVC, O’Fallon, MO $3,140,565.00
Ann-Liner East, Inc., Berryville, VA $3,492,939.50
Michels Corporation, Watertown, CT $4,460,778.00
Issues/Analysis:
Notice of the bid was advertised on October 8, 2019, with a bid opening date of
November 12, 2019. Addendum No. 1 was issued on October 30, 2019, the addendum
was to provide minutes and answers from the Pre-Bid meeting on October 25, 2019.
Addendum No. 2 was issued on November 6, 2019, to revise the General Requirements
and Contract documents, and to extend the bid opening from November 12, 2019, to
November 20, 2019. Addendum No. 3 was issued on November 13, 2019, to address
additional bidder questions for technical specifications. Addendum No. 4 was issued on
November 15, 2019 to provide Appendix D for the project encroachments.
The bid provided three (3) base bid pricing structures and bidders could bid on any or all
of the three base bids. Base Bid – Alternate One allowed for the use of
thermal-cured-in-place pipe (CIPP) liner in specified areas and the use of ultraviolet-light
(UV) cured CIPP linear in specified areas. Base Bid – Alternate two allowed for the use
of thermal-cured CIPP liners throughout the project area. Base Bid – Alternate Three
allowed for the use of UV-Cured CIPP liners through the project areas. One two (2) bids
were received for Base Bid – Alternate One and only two (2) bids were received for Base
Bid – Alternate Three. Each of these Base Bid Alternatives did not meet the three (3) bid
requirement for consideration for award. For Base Bid – Alternate Two, five (5) bids were
received for this Alternate.
SDBE/Local Participation: Insituform Technologies, LLC, Chesterfield, MO, is not
classified as a SDBE, minority or woman-owned business. Their bid has 0% DBE
participation but meets the DBE good faith efforts.
Budget Impact:
Funding for this project will be funded from WS-69 Line (the Cross Creek Outfall, Blue
Street to Gale Street) – CPR1000296
Page 2 City of Fayetteville Printed on 1/9/2020
File Number: 19-1174
Options:
N/A
Recommended Action:
The Fayetteville Public Works Commission recommends the Fayetteville City Council
award the contract for the Rehabilitation of the Cross Creek Outfall, Blue Street to Gale
Street to Insituform Technologies, LLC, Chesterfield, MO, the lowest responsive,
responsible bidder in the total amount of $2,593,848.20.
Attachments:
Bid Recommendation – Cross Creek Outfall Rehabilitation, Blue St to Gale St
Page 3 City of Fayetteville Printed on 1/9/2020
PUBLIC WORKS COMMISSION
ACTION REQUEST FORM
TO: David W. Trego, CEO/General Manager DATE: December 3, 2019
FROM: Trent K. Ensley, Procurement Manager
ACTION REQUESTED: Approve contract award for the Rehabilitation of the Cross Creek
Outfall, Blue St. to Gale St. This project will line approximately 9,300 LF of 36-inch concrete
sewer outfall between Blue Street and Gale Street. This outfall serves a large portion of central
Fayetteville. Failure of this main would result in significant construction, environmental, and social
costs.
BID/PROJECT NAME: The Rehabilitation of the Cross Creek Outfall, Blue St. to Gale St.
BID DATE: November 20, 2019 DEPARTMENT: Water Resources Engineering
BUDGET INFORMATION: Funding for this project will be funded from WS-69 Line the
Cross Creek Outfall, Blue Street to Gale Street (CPR1000296).
BIDDERS TOTAL COST
Base Bid Alternate No. 2
Insituform Technologies, LLC, Chesterfield, MO $2,593,848.20
Tri-State Utilities Co., Chesapeake, VA $2,639,050.98
Sak Construction, LLC, O’Fallon, MO $3,140,565.00
Am-Liner East, Inc., Berryville, VA $3,492,939.50
Michels Corporation, Watertown, CT $4,460,778.00
AWARD RECOMMENDED TO: Insituform Technologies, LLC, Chesterfield, MO
BASIS OF AWARD: Lowest responsive, responsible bidder
COMMENTS: The Commission is asked to approve award of the Rehabilitation of the Cross
Creek Outfall, Blue St. to Gale St to lowest responsive, responsible bidder Insituform
Technologies, LLC, Chesterfield, MO. Notice of the bid was advertised through our normal
channels on October 8, 2019 with a bid opening date of November 12, 2019. Addendum No. 1
was issued on October 30, 2019, the addendum was to provide minutes and answers from the Pre-
Bid meeting on October 25, 2019. Addendum No. 2 was issued on November 6, 2019 to revise
the General Requirements and Contract documents and to extend the bid opening from November
12, 2019 to November 20, 2019. Addendum No. 3 was issued on November 13, 2019 to address
additional bidder questions for technical specifications. Addendum No. 4 was issued on
November 15, 2019 to provide Appendix D for the project encroachments.
The bid provided three (3) base bid pricing structures and bidders could bid on any or all of the
three base bids. Base Bid – Alternate One allowed for the use of thermal-cured-in-place pipe
(CIPP) liner in specified areas and the use of ultraviolet-light (UV) cured CIPP linear in specified
areas. Base Bid – Alternate Two allowed for the use of thermal-cured CIPP liners throughout the
project area. Base Bid – Alternate Three allowed for the use of UV-cured CIPP liners through the
project area. Only two (2) bids were received for Base Bid – Alternate One and only two (2) bids
were received for Base Bid – Alternate Three. Each of these Base Bid Alternatives did not meet
the three (3) bid requirement for consideration for award. For Base Bid – Alternate Two, five (5)
bids were received for this Alternate. Award is recommended to the lowest responsive,
responsible bidder, Insituform Technologies, LLC, Chesterfield, MO.
ACTION BY COMMISSION
APPROVED REJECTED
DATE
ACTION BY COUNCIL
APPROVED REJECTED
DATE
BID HISTORY
THE REHABILITATION OF THE CROSS CREEK OUTFALL
BLUE ST. TO GALE ST.
BID DATE: NOVEMBER 20, 2019
Consulting Engineer
W.K Dickson, Raleigh, NC
Advertisement
1. PWC Website 10/08/2019 through 11/12/2019
Addendum No. 1 10/30/2019 through 11/12/2019
Addendum No. 2 11/06/2019 through 11/20/2019
Addendum No. 3 11/13/2019 through 11/20/2019
Addendum No. 4 11/15/2019 through 11/20/2019
2. The Fayetteville Press General Monthly Ad
List of Prospective Bidders
1. T.A. Loving, Goldsboro, NC
2. Billy Bill Grading, Fayetteville, NC
3. Sandhill Contractors, Sandford, NC
4. State Utility Contractors Inc., Monroe, NC
5. Utilities Plus Inc., Linden, NC
6. Wells Brothers Construction Inc., Turkey, NC
7. Lanier Construction, Snow Hill, NC
8. Hine Sitework Inc., Goldsboro, NC
9. BridgePoint Civil, Goldsboro, NC
10. Odell Smith & Sons, Spring Lake, NC
11. Sandford Contractors Inc., Sanford, NC
12. Sandy’s Hauling and Back Hoe Services, Roseboro, NC
13. Mechanical Jobbers, Lithonia, GA
14. Am-Liner East, Inc., Berryville, VA
15. Insituform Technologies, LLC, Chesterfield, MO
16. Tri-State Utilities Co., Chesapeake, VA
17. Sak Construction, LLC, O’Fallon, MO
18. Am-Liner East, Inc., Berryville, VA
List of Organizations Notified of Bid
Small Business Administration Programs:
Small Business Administration Regional Office (SBA)
NC Procurement & Technical Assistance Center (NCPTAC)
Veterans Business Outreach Center (VBOC)
Small Business Technology Center (SBTDC)
Women’s Business Center of Fayetteville (WBC)
Local Business and Community Programs
FSU Construction Resource Office (FSUCRO)
FSU Economic Development Administration Program (FSUEDA)
FSU Career Pathways Initiative
NAACP, Fayetteville Branch
FTCC Small Business Center (SBC)
Greater Fayetteville Chamber
Hope Mills Chamber
Spring Lake Chamber
Hoke Chamber
Fayetteville Business & Professional League (FBPL)
State Business and Community Programs
NC Institute of Minority Economic Development (The Institute) Durham, NC
NAACP, State Branch Raleigh, NC
National Utility Contracting Association- NC Chapter (NUCA)
Durham Chapter of the National Association of Women in Construction (NAWIC)
South Atlantic Region of National Association of Women in Construction (NAWIC)
The Hispanic Contractors Association of the Carolinas (HCAC)
United Minority Contractors of North Carolina
International Women in Transportation- Triangle Chapter
Media
Fayetteville Observer
WIDU, AM1600
IBronco Radio at FSU
Fayetteville Press News
Up & Coming Weekly
Bladen Journal
SDBE/Local Participation
Insituform Technologies, LLC, Chesterfield, MO is not classified as a SDBE, minority or
woman-owned business. Their bid has 0% DBE participation but meets the DBE good faith
efforts.
City Council Action Memo
City of Fayetteville 433 Hay Street
Fayetteville, NC 28301-5537
(910) 433-1FAY (1329)
File Number: 19-1175
Agenda Date: 1/13/2020 Status: Agenda ReadyVersion: 1
File Type: ConsentIn Control: City Council Regular Meeting
Agenda Number: 6.05
TO: Mayor and Members of City Council
THRU: David W. Trego, CEO/General Manager
Fayetteville Public Works Commission
FROM: Fayetteville Public Works Commission
DATE: January 13, 2020
RE:
Bid Recommendation – 2019 Annual Transformer Contract
..end
COUNCIL DISTRICT(S):
All
..b
Relationship To Strategic Plan:
High Quality Built Environment
Executive Summary:
Bids were received for the 2019 Annual Transformer Contract. The recommended lowest
responsive, responsible bidders are National Transformer Sales for ERMCO, Raleigh,
NC, for a total of $550,992.00 and Anixter, Apex, NC, for a total of $581,347.50.
Background:
The Fayetteville Public Works Commission, during their meeting on December 11, 2019,
approved the bid recommendation to award the contract for the 2019 Annual Transformer
Contract to National Transformer Sales for ERMCO, Raleigh, NC, and Anixter, Apex, NC,
the lowest responsive, responsible bidders in the total amount of $550,992.00 and
$581,347.50, respectively. The Commission also authorized staff to forward this
recommendation to the City Council for approval.
Bids were received on October 9, 2019, as follows:
Page 1 City of Fayetteville Printed on 1/9/2020
File Number: 19-1175
BIDDERS TOTAL COST
National Transformer Sales for ERMCO, Raleigh, NC $550,992.00 *
Anixter, Apex, NC $581,347.50 *
WEG, Washington, MO $402,041.00 **
Note: * Total recommended award amount for National Transformer Sales for ERMCO,
and for Anixter
** Total bid amount submitted by WEG for 3-phase pad mount transformers but
not awarded. Please see additional comments below.
Issues/Analysis:
Notice of the bid was advertised on September 24, 2019, with a bid opening date of
October 9, 2019. Bids were solicited from eight (8) vendors, three (3) bids were
received. The award recommendation is based on Total Owning Cost (TOC) and the
lowest price of the transformers. Bidders could bid on any or all of the transformers. Bids
were also evaluated to ensure compliance with PWC Specifications. WEG submitted
bids that were higher in both TOC (Total Owning Cost) and purchase price for the
3-phase pad-mount transformers as compared to the two other bidders. Evaluation of the
bids for the single-phase transformers showed that several of the transformers bid by
Anixter were not compliant with Fayetteville PWC’s specification to include breakers.
Therefore, award of the single-phase transformers is split between Anixter and National
Transformer Sales for ERMCO. Award of all the 3-phase pad-mount transformers is to
National Transformer Sales.
Budget Impact:
Funding for this project will be funded through Electric Inventory
Options:
N/A
Recommended Action:
The Fayetteville Public Works Commission recommends the Fayetteville City Council
award the 2019 Annual Transformer Contract to National Transformer Sales for ERMCO,
Raleigh, NC, and Anixter, Apex, NC, the lowest responsive, responsible bidders in the
total amount of $550,992.00 and $581,347.50, respectively.
Attachments:
Bid Recommendation – 2019 Transformer Contract
Page 2 City of Fayetteville Printed on 1/9/2020
PUBLIC WORKS COMMISSION
ACTION REQUEST FORM
TO: David W. Trego, CEO/General Manager DATE: December 3, 2019
FROM: Trent Ensley, Procurement Manager
ACTION REQUESTED: Award bid for 2019 Transformer Contract (approximately 601 transformers)
of different types and sizes to be purchased over a twelve month period, as needed, with the option to
renew for three (3) additional 12 month periods for a total of four (4) years upon agreement of both
parties. Contracts for this project are requested to be awarded to National Transformer Sales and Anixter.
BID DATE: October 9, 2019 DEPARTMENT: Electric Inventory
BUDGET INFORMATION: Funding for this project will be from Electric Inventory.
BIDDERS TOTAL COST
National Transformer Sales for (ERMCO), Raleigh, NC $550,992.00 *
Anixter, Apex, NC $581,347.50 *
WEG, Washington, MO $402,041.00 **
Note: * Total recommended award amount for National Transformer Sales for (ERMCO) and Anixter.
** Total bid amount submitted by WEG for 3-phase pad mount transformers but not awarded.
Refer to comments below.
AWARD RECOMMENDED TO: National Transformer Sales for (ERMCO) Raleigh, NC for a total of
$550,992.00 and to Anixter, Apex, NC for a total of $581,347.50
BASIS OF AWARD: The awarded bidders were the lowest responsive, responsible bidders for various
types of transformers.
COMMENTS: The Commission is asked to approve award for the purchase of approximately 601
transformers. Notice of the bid was advertised through normal channels on September 24, 2019 with a bid
opening date of October 9, 2019. Bids were solicited from eight (8) vendors, three (3) bids were received
during the bid opening and the award is recommended to National Transformer Sales for (ERMCO) and
Anixter. The award recommendation is based on Total Owning Cost (TOC) and lowest price of the
transformers. Bidders could bid on any or all of the transformers. Bids were also evaluated to ensure
compliance with PWC specifications. WEG submitted bids that were higher in both TOC (Total Owning
Cost) and purchase price for the 3-phase pad-mount transformers as compared to the two other bidders.
Evaluation of the bids for the single phase transformers showed that several of the transformers bid by
Anixter were not compliant with Fayetteville PWC’s specification to include breakers. Therefore, award
of the single phase transformers is split between Anixter and National Transformer Sales for (ERMCO).
Award of all of the 3-phase pad-mount transformers is to National Transformer Sales. See attached chart
for the breakout of the awards by transformer type and quantities.
ACTION BY COMMISSION
APPROVED REJECTED
DATE
ACTION BY COUNCIL
APPROVED REJECTED
DATE
BID HISTORY
2019 TRANSFORMER CONTRACT
BID DATE: October 9, 2019 2:00 PM
Advertisement
1. PWC Website 9/24/2019 thru 10/9/2019
List of Organizations Notified of Bid
1. NAACP Fayetteville Branch, Fayetteville, NC
2. Small Business Technology Center, Fayetteville, NC
3. FSU Construction Resource Office, Fayetteville, NC
4. FTCC Small Business Center, Fayetteville, NC
5. Greater Fayetteville Chamber, Fayetteville, NC
6. Latino Community Connects, Fayetteville, NC
7. Fayetteville Business and Professional League, Fayetteville, NC
8. SBTDC, Fayetteville, NC
List of Prospective Bidders
1. ERMCO c/o National Transformer Sales, Raleigh, NC
2. WEG, Washington, MO
3. Anixter, Apex, NC
4. Wesco, Raleigh, NC
5. HD Supply Wake Forest, Wake Forest, NC
6. Irby Utilities, Rocky Mount, NC
7. Virginia Transformer Corporation, Roanoke, VA
8. TCI Alabama, Pell City, AL
SDBE Participation
Although Anixter is not classified as an SDBE, Anixter is committed to promoting participation of
minority, woman and service-disabled veteran-owned business enterprises. In 2017, Anixter was presented
with AT&T’s Supplier Diversity Crystal Award for significantly exceeding their minority-, woman- and
disabled-veteran owned business utilization targets. Per AT&T’s recognition letter, Anixter was part of “a
very select group of Prime Suppliers who attained and/or exceeded 21.5 percent diversity utilization in
2016.” This is the third time in four years that Anixter has attained this prestigious award. NTS for ERMCO
is not classified as an SDBE, DBE, minority or woman owned business.
Supplier Transformer Type Qty Total
Anixter Conventional 16 $22,254.00
Anixter CSP 214 $218,386.00
Anixter 1-Phase Pad mount 195 $340,707.50
$581,347.50
NTS/ERMCO Conventional 38 $61,402.00
NTS/ERMCO CSP 86 $71,428.00
NTS/ERMCO 1-Phase Pad mount 19 $50,211.00
NTS/ERMCO 3-Phase Pad mount 33 $367,951.00
$550,992.00
City Council Action Memo
City of Fayetteville 433 Hay Street
Fayetteville, NC 28301-5537
(910) 433-1FAY (1329)
File Number: 19-1176
Agenda Date: 1/13/2020 Status: Agenda ReadyVersion: 1
File Type: ConsentIn Control: City Council Regular Meeting
Agenda Number: 6.06
TO: Mayor and Members of City Council
THRU: David W. Trego, CEO/General Manager
Fayetteville Public Works Commission
FROM: Fayetteville Public Works Commission
DATE: January 13, 2020
RE:
Bid Recommendation – One (1) 18K Excavator
..end
COUNCIL DISTRICT(S):
All
..b
Relationship To Strategic Plan:
High Quality Built Environment
Executive Summary:
Bids were received for the purchase of One (1) 18K Excavator, equivalent to the CAT 308
or Kubota KX080. The recommended lowest responsive, responsible bidder is
Cumberland Tractor Kubota, Fayetteville, NC, for a total of $91,962.00.
Background:
The Fayetteville Public Works Commission, during their meeting on December 11, 2019,
approved the bid recommendation to award the purchase of One (1) 18K Excavator,
equivalent to the CAT 308 or Kubota KX080 to Cumberland Tractor Kubota, Fayetteville,
NC, the lowest responsive, responsible bidder in the total amount of $91,962.00. The
Commission also authorized staff to forward this recommendation to the City Council for
approval.
Bids were received on November 21, 2019, as follows:
Page 1 City of Fayetteville Printed on 1/9/2020
File Number: 19-1176
BIDDERS TOTAL COST
Cumberland Tractor Kubota, Fayetteville, NC $91,962.00
NON-RESPONSIVE BIDDERS
Bobcat of Fayetteville, Fayetteville, NC $84,382.06
Gregory Poole, Fayetteville, NC $85,137.00
Company Wrench, Fayetteville, NC $85,662.45
Ascendum Machinery, Garner, NC $87,763.00
May/RHI, LLC, Clayton, NC $89,932.00
Company Wrench, Fayetteville, NC $91,030.00
Issues/Analysis:
Notice of the bid was advertised on October 30, 2019, with a bid opening date of
November 21, 2019. Bids were solicited from fourteen (14) vendors, and seven (7) bids
were received. Bids were evaluated after the bid opening to ensure compliance with
PWC specifications. The evaluation concluded that 6 of 7 bids did not meet the required
specifications of the excavator; therefore, these bids are non-responsive.
SDBE Participation: Cumberland Tractor Kubota of Fayetteville, NC, is a local business
that is not classified as a SDBE, minority or woman-owned business.
Budget Impact:
Total funding of $130,00.00 is included in the FY2020 Fleet Maintenance Capital Budget
(2006201841).
Options:
N/A
Recommended Action:
The Fayetteville Public Works Commission recommends the Fayetteville City Council
award the purchase of One (1) 18K Excavator, equivalent to the CAT 3058 or Kubota
KX080 to Cumberland Tractor Kubota, Fayetteville, NC, the lowest responsive,
responsible bidder in the total amount of $91,962.00.
Attachments:
Bid Recommendation – 18K Excavator
Page 2 City of Fayetteville Printed on 1/9/2020
File Number: 19-1176
Page 3 City of Fayetteville Printed on 1/9/2020
PUBLIC WORKS COMMISSION
ACTION REQUEST FORM
TO: David W. Trego, CEO/General Manager DATE: December 04, 2019
FROM: Trent Ensley, Procurement Manager
ACTION REQUESTED: Approve award for the purchase of one (1) 18K Excavator, equivalent to the Cat
308 or Kubota KX080.
BID/PROJECT NAME: One (1) 18K Excavator
BID DATE: November 21, 2019 DEPARTMENT: Fleet Maintenance
BUDGET INFORMATION: Total funding in the amount of $130,000.00 is included in the FY2020 budget,
Fleet Maintenance Capital Budget Codes: 2006201841.
BIDDERS TOTAL COST
Cumberland Tractor Kubota, Fayetteville, NC $91,962.00
NON-RESPONSIVE BIDDERS TOTAL COST
Bobcat of Fayetteville, Fayetteville, NC $84,382.06
Gregory Poole, Fayetteville, NC $85,137.00
Company Wrench, Fayetteville, NC $85,662.45
Ascendum Machinery, Garner, NC $87,763.00
May/RHI, LLC, Clayton, NC $89,932.00
Company Wrench, Fayetteville, NC $91,030.00
AWARD RECOMMENDED TO: Cumberland Tractor Kubota, Fayetteville, NC
BASIS OF AWARD: Lowest responsive, responsible bidder
COMMENTS: The Commission is asked to approve award for the purchase of one (1) 18K Excavator to the
lowest responsive and responsible bidder, Cumberland Tractor Kubota of Fayetteville, NC. Notice of the bid
was advertised through our normal channels on October 30, 2019 with a bid opening date from November 21,
2019. Bids were solicited from fourteen (14) vendors, seven (7) bids were received. Bids were evaluated after
the bid opening to ensure compliance with PWC specifications. The evaluation concluded that 6 of 7 bids did
not meet the required specifications of the excavator; therefore, these bids are nonresponsive.
Cumberland Tractor Kubota of Fayetteville, NC is a local business that is not classified as a SDBE Minority or
Women-Owned business.
City Council Action Memo
City of Fayetteville 433 Hay Street
Fayetteville, NC 28301-5537
(910) 433-1FAY (1329)
File Number: 19-1171
Agenda Date: 1/13/2020 Status: Agenda ReadyVersion: 3
File Type: ConsentIn Control: City Council Regular Meeting
Agenda Number: 6.07
TO: Mayor and Members of City Council
THRU: Kristoff Bauer, ICMA-CM-Deputy City Manager
FROM: Sheila Thomas-Ambat, PE, CCM, CFM – Public Services Director
Kimberly Toon, CLGPO, Purchasing Manager
Michael Gibson, Parks, Recreation and Maintenance Director
Tracey Broyles, Budget and Evaluation Director
DATE: January 13, 2020
RE:
Adoption of Capital Project Ordinance Amendments 2020-30 and 2020-31 to
Transfer Grant Funding between the Project Appropriations for the Connector
Trail between the Cape Fear River Trail and Linear Park Connector and the Cape
Fear River Trail Phase II and to Appropriate Additional General Fund Transfer for
the Connector Trail, and Award of the Construction Contract for Cape Fear River
Trail Phase II – Part C as Re-Advertised
..end
COUNCIL DISTRICT(S):
All
..b
Relationship To Strategic Plan:
High Quality Built Environment
Executive Summary:
Council is asked to adopt Capital Project Ordinance Amendments (CPOA’s) 2020-30
and 2020-31 to transfer $161,392 of Federal Transportation Alternatives Program (TAP)
grant funds received through the North Carolina Department of Transportation (NCDOT)
from the Cape Fear River Trail (CFRT) – Linear Park Connector Trail (Connector Trail) to
CFRT Phase II and to appropriate $60,000 of General Fund funding to complete the
CFRT – Linear Park Connector Trail.
The Council is also requested to approve the award of and authorize the execution of a
contract for the construction of the Cape Fear River Trail Phase II – Part C Project, as
Page 1 City of Fayetteville Printed on 1/9/2020
File Number: 19-1171
re-advertised. The contract is recommended to be awarded to FSC II, LLC dba Fred
Smith Company, Raleigh, NC, as the lowest responsive, responsible bidder.
Background:
On March 27, 2017 the Parks and Recreation Department (PRM) was awarded a
$161,392 Federal TAP grant through the NCDOT. During preparations for the
construction of the Connector Trail, PRM staff determined that the construction standards
of the NCDOT could not be met as planned. At the request of the City, NCDOT issued
supplemental agreement #7 to transfer the grant funding for use to complete the CFRT
Phase II – Part C project.
The net impact of the transfer of $161,392 of grant funds out of and the $60,000 General
Fund transfer into the Connector Trail project reduces the total project appropriation from
$286,392 to $185,000. PRM staff advise that this amount is sufficient to complete the
Connector Trail.
The Cape Fear River Trail Phase 2, Part C project shall consist of the construction of
1,209 linear feet (0.23 miles) long 10-ft. wide asphalt/concrete multi-use trail with 2-ft.
crushed stone shoulders and 3-ft. turf shoulders from J. Bayard Clark Park & Nature
Center and Highway 301 near the Cape Fear Botanical Garden.
The project was advertised for bids to be opened on November 12, 2019; however, only
two bids were received. Therefore, in accordance with North Carolina General Statutes,
which require three bids in order to open the first advertisement, the project was
re-advertised and bids were opened on November 20, 2019.
Bids received are as follows:
$2,424,242.00 FSC II, LLC dba Fred Smith Company, Raleigh, NC
$3,242,627.51 Browe Construction Company, Selma, NC
$3,990,798.00 Crowder Construction Company, Charlotte, NC
Issues/Analysis:
Funds previously appropriated to the CFRT Phase II – Part C project are sufficient to
satisfy the required 20 percent non-federal local grant match.
Budget Impact:
The FY20 General Fund budget includes sufficient funding to provide for the $60,000
transfer for the Connector Trail project. The transfer of grant funds between the two
projects does not impact the current General Fund operating budget.
Options:
· Adopt CPOA’s 2020-30 and 2020-31, and authorize the award and execution of
the contract by the City Manager as recommended by staff.
Page 2 City of Fayetteville Printed on 1/9/2020
File Number: 19-1171
· Do not adopt the CPOA’s or award the contract and provide further direction to
staff.
Recommended Action:
Staff recommends that Council move to adopt Capital Project Ordinance Amendments
2020-30 and 2020-31 as presented, and to approve the contract award and to authorize
the City Manager to execute a contract for the construction of Cape Fear River Trail
Phase II – Part C as re-advertised, with the lowest, responsive, responsible bidder FSC II,
LLC dba Fred Smith Company, Raleigh, NC in the total amount of $2,424,242.00 as
presented.
Attachments:
· Capital Project Ordinance Amendment 2020-30 (CFRT – Linear Park Connector
Trail)
· Capital Project Ordinance Amendment 2020-31 (CFRT Phase II)
· Supplemental Agreement #7
· Bid Tab – Re-Advertisement Cape Fear River Trail Phase II – Part C
· CFRT Part C Map
Page 3 City of Fayetteville Printed on 1/9/2020
CITY OF FAYETTEVILLE
BE IT ORDAINED by the City Council of the City of Fayetteville, North Carolina, that pursuant to Section 13.2 of Chapter 159
of the General Statutes of North Carolina, the following capital project ordinance is hereby amended:
Section 1. The project change authorized is to Capital Project Ordinance 2008-7, adopted April 14, 2008, as amended, for the
funding of construction for Phase 2 of the Cape Fear River Trail.
Section 2. The project director is hereby directed to proceed with the project within the terms of the various agreements
executed and within the funds appropriated herein.
Section 3. The following revenues are anticipated to be available to the City to complete the project:
Listed As Amendment Revised
NC Department of Transportation 2,475,000$ -$ 2,475,000$
Federal Enhancement Funds 850,000 – 850,000
Required Match for Federal Grant – GF Transfer 212,500 – 212,500
Required Match for NCCWMTF Grant – GF Transfer 65,000 – 65,000
Additional Local Funds Committed – GF Transfer 1,188,802 – 1,188,802
Additional Local Funds Committed – Risk Mgmnt Fd Transfer 900,000 – 900,000
Investment Income 25,913 – 25,913
Federal Highway Administration – 161,392 161,392
(pass through N.C. Department of Transportation)
NC Clean Water Management Trust Fund 1,300,000 – 1,300,000
Total Revenues 7,017,215$ 161,392$ 7,178,607$
Section 4. The following amounts are appropriated for the project:
Expenditures – NCDOT/Federal Grant 2,537,500$ 161,392$ 2,698,892$
Expenditures – NCCWMTF Grant 1,365,000 – 1,365,000
Expenditures – NCDOT Grant 1,000,000 – 1,000,000
Non Grant Expenditures 2,114,715 – 2,114,715
7,017,215$ 161,392$ 7,178,607$
Section 5. Copies of the capital project ordinance amendment shall be made available to the budget officer and the finance officer for
direction in carrying out the projects.
Section 6.
Adopted this 13th day of January, 2020.
CAPITAL PROJECT ORDINANCE AMENDMENT
CHANGE 2020-31 (CPO 2008-7)
The City Manager is hereby authorized and directed to take such action as he may deem necessary or appropriate to
execute this ordinance.
January 13, 2020
Page 1 of 1
CITY OF FAYETTEVILLE
Section 1.
Section 2.
Section 3. The following revenues are anticipated to be available to the City to complete the project:
Listed As Amendment Revised
Federal Highway Administration 161,392$ (161,392)$ -$
(pass through N.C. Department of Transportation)
State of North Carolina, through the 125,000 – 125,000
NC Office of State Budget and Management
General Fund Transfer – 60,000 60,000
286,392$ (101,392)$ 185,000$
Section 4. The following amounts are appropriated for the project:
Project Expenditures 286,392$ (101,392)$ 185,000$
Section 5.
Section 6.
Adopted this 13th day of January, 2020.
January 13, 2020
CAPITAL PROJECT ORDINANCE AMENDMENT
CHANGE 2020-30 (CPO 2017-47)
BE IT ORDAINED by the City Council of the City of Fayetteville, North Carolina, that pursuant to Section 13.2 of Chapter 159 of
the General Statutes of North Carolina, the following capital project ordinance is hereby adopted:
This project change authorized is to Capital Project Ordinance 2017-47, adopted March 27, 2017, for the construction of a
trail that will connect the Cape Fear River Trail with the Linear Park Trail.
The project director is hereby directed to proceed with the project within the terms of the various agreements executed and
within the funds appropriated herein.
Copies of this capital project ordinance amendment shall be made available to the budget officer and the finance officer for
direction in carrying out the project.
The City Manager is hereby authorized and directed to take such action as he may deem necessary or appropriate to
execute this ordinance.
Page 1 of 1
LINE ITEM DESCRIPTION QTY. UNIT UNIT PRICE TOTAL AMOUNT UNIT PRICE TOTAL AMOUNT UNIT PRICE TOTAL AMOUNT
1
Comprehensive Grading (to include Section 200
Clearing and Grubbing). This line item does NOT
include borrow material. Item #4 is bid item to use
for select borrow fill material.
1 LS $383,000.00 $383,000.00 $350,000.00 $350,000.00 $200,000.00 $200,000.00
2 Proof Rolling 2 HR $200.00 $400.00 $225.00 $450.00 $330.00 $660.00
3
Select Granular Material (Screenings, Class II, Type
1, 2″ depth shoulders)
40 CY $218.00 $8,720.00 $82.00 $3,280.00 $135.00 $5,400.00
4
Select Granular Material (Screenings, Class II, Type
2 for Select Borrow Fill Material)
1083 CY $55.00 $59,565.00 $40.00 $43,320.00 $35.00 $37,905.00
5
Geotextile for Soil Stabilization (Trail and
Shoulders)
1370 SY $3.75 $5,137.50 $2.00 $2,740.00 $2.50 $3,425.00
6
Geotextile for Soil Stabilization (Type 2 for
Abutments, Channels and Pipe Inlets & Outlets and
under stone for Foundations)
410 SY $3.75 $1,537.50 $3.00 $1,230.00 $2.50 $1,025.00
7 (30″) Reinforced Concrete Pipe Culverts, Class III 40 LF $247.00 $9,880.00 $505.00 $20,200.00 $140.00 $5,600.00
8 (15″) Reinforced Concrete Pipe Culverts Class III 24 LF $132.00 $3,168.00 $551.00 $13,224.00 $120.00 $2,880.00
9 HP 12×53 Steel Pipes 150 LF $300.00 $45,000.00 $250.00 $37,500.00 $85.00 $12,750.00
10
Aggregate Base Course, (6″ depth at Trail and
Shoulders)
440 TN $100.00 $44,000.00 $120.00 $52,800.00 $75.00 $33,000.00
11
Bituminous Asphalt Concrete Surface Course Type
SF 9.5A, (2″ depth)
110 TN $214.50 $23,595.00 $140.00 $15,400.00 $200.00 $22,000.00
12
Bituminous Asphalt Concrete Surface Course Type
SF 9.5A, (1.5″ depth overlay existing trail)
105 TN $214.50 $22,522.50 $150.00 $15,750.00 $210.00 $22,050.00
13 Mobilization 1 LS $409,500.00 $409,500.00 $199,500.00 $199,500.00 $121,800.00 $121,800.00
14 Vinyl, three-(3) rail (corral) fence, (54″) height 500 LF $20.00 $10,000.00 $40.00 $20,000.00 $24.00 $12,000.00
15 Rip Rap, Class B (pipe dissipators only) 15 TN $165.00 $2,475.00 $90.00 $1,350.00 $85.00 $1,275.00
16 Rip Rap, Class 1 (channels only) 190 TN $110.00 $20,900.00 $90.00 $17,100.00 $100.00 $19,000.00
17
Rip Rap, Class II (abutments and auger cast
concrete piles only)
65 TN $350.00 $22,750.00 $125.00 $8,125.00 $220.00 $14,300.00
18 Temporary Silt Fence 2,500 LF $4.25 $10,625.00 $5.00 $12,500.00 $2.50 $6,250.00
19
Sediment Control Stone, #57 Stone (Haul Roads)
and #57 Washed Stone (under retaining wall
foundation and abutment)
50 Ton $71.50 $3,575.00 $89.00 $4,450.00 $100.00 $5,000.00
20 Seeding and Mulching 0.3 ACR $9,991.70 $2,997.51 $6,500.00 $1,950.00 $3,600.00 $1,080.00
Cape Fear River Multipurpose Trail Phase 2, Part C
BID TABULATION
FSC II, LLC dba Fred Smith Company
General
Browe Construction Company Crowder Construction Company
21
Reinforced Endwalls for pipes, retaining walls and
retaining wall foundations for boardwalks
8 CY $1,650.00 $13,200.00 $6,500.00 $52,000.00 $1,075.00 $8,600.00
22
Timber Boardwalk, (Trestle, 12′ clear width
without canopy) STA. 84+01.64 to STA. 85+14.45
1 LS $497,092.00 $497,092.00 $1,070,000.00 $1,070,000.00 $358,525.00 $358,525.00
23
Steel Boardwalk Section Under RailRoad Trestle
with canopy, 12′ clear width; (includes installation
of complete steel boardwalk, canopy, steel frame
sections, auger cast concrete piles, etc.) STA.
85+14.85 to STA. 86+79.94
1 LS $1,068,300.00 $1,068,300.00 $1,667,000.00 $1,667,000.00 $1,087,900.00 $1,087,900.00
24
Prefabricated Steel Bridge, (Falls Creek Bridge, 10′
clear width; (includes installation of complete
bridge, abutments, approach rails, etc.) STA.
86+79.94 to STA. 87+70.86
1 LS $495,585.00 $495,585.00 $309,000.00 $309,000.00 $388,200.00 $388,200.00
25 Sodding, (TifBlair Certified Centipede Sod) 750 SY $11.55 $8,662.50 $15.00 $11,250.00 $22.00 $16,500.00
26
Timber Pile embedment contract price adjustment
per Section 0600-Timber Piles paragraph 1.3 (A)
and (B)
40 LF $100.00 $4,000.00 $58.00 $2,320.00 $10.00 $400.00
27
Steel “H” Pile embedment contract price
adjustment per Section 02360 paragraph 2.2 (A)
20 LF $300.00 $6,000.00 $69.00 $1,380.00 $30.00 $600.00
28 Shallow Undercut 300 CY $55.00 $16,500.00 $80.00 $24,000.00 $40.00 $12,000.00
29
Class IV Subgrade Stabilization (at shallow
undercut areas)
624 TN $55.00 $34,320.00 $40.00 $24,960.00 $30.00 $18,720.00
30
Geotextile for Soil Stabilization (for shallow
undercut area)
936 SY $3.75 $3,510.00 $6.00 $5,616.00 $2.00 $1,872.00
31
Remove Existing and Install New Vinyl Coated
Chain Link Fence, (72″) Fabric (color black)
80 LF $42.00 $3,360.00 $20.00 $1,600.00 $30.00 $2,400.00
32
Remove Existing and Install New Metal Line Posts
For (72″) Chain Link Fence
7 EA $250.00 $1,750.00 $85.00 $595.00 $75.00 $525.00
33
Remove Existing and Install New Metal Terminal
Posts For (72″) Chain Link Fence
4 EA $250.00 $1,000.00 $52.00 $208.00 $150.00 $600.00
$3,242,627.51 $3,990,798.00 $2,424,242.00Total Project Cost
AutoCAD SHX Text
CAPE FEAR RIVER MULTIPURPOSE TRAIL PHASE 2, PART C STA. 76+79.73
AutoCAD SHX Text
EX. 24″ RCP
AutoCAD SHX Text
EXISTING ACCESS ROAD (CLEARED)
AutoCAD SHX Text
EXISTING 20′ ACCESS EASEMENT
AutoCAD SHX Text
50′ GAS LINE EASEMENT
AutoCAD SHX Text
20′ SAN. SEWER EASEMENT-DB: 566, PG: 273
AutoCAD SHX Text
50′ PWC ELECTRIC EASEMENT
AutoCAD SHX Text
100′ PWC DANGER TREE EASEMENT
AutoCAD SHX Text
100′ PWC DANGER TREE EASEMENT
AutoCAD SHX Text
100′
AutoCAD SHX Text
CUMBERLAND COUNTY LANDFILL
AutoCAD SHX Text
CSX TRANSPORTATION INC
AutoCAD SHX Text
WATER TREATMENT PLANT CITY OF FAYETTEVILLE PWC
AutoCAD SHX Text
CSX TRANSPORTATION INC
AutoCAD SHX Text
WATER TREATMENT PLANT CITY OF FAYETTEVILLE PWC
AutoCAD SHX Text
WATER TREATMENT PLANT CITY OF FAYETTEVILLE PWC
AutoCAD SHX Text
NOTE: FENCE TO BE RELOCATED
AutoCAD SHX Text
EX. ACCESS ROAD
AutoCAD SHX Text
EXISTING TRAIL
AutoCAD SHX Text
EXISTING TRAIL
AutoCAD SHX Text
EXISTING TRAIL
City Council Action Memo
City of Fayetteville 433 Hay Street
Fayetteville, NC 28301-5537
(910) 433-1FAY (1329)
File Number: 19-1179
Agenda Date: 1/13/2020 Status: Agenda ReadyVersion: 1
File Type: ConsentIn Control: City Council Regular Meeting
Agenda Number: 6.08
TO: Mayor and Members of City Council
THRU: Angel Wright-Lanier, ICMA-CM Candidate, Assistant City Manager
FROM: Bradley S. Whited, A.A.E., Airport Director
Tracey Broyles, Budget and Evaluation Director
DATE: January 13, 2020
RE:
Adoption of Clerical Correction for Capital Project Ordinance Amendment 2020-
29 Adopted by Council on December 9, 2019
..end
COUNCIL DISTRICT(S):
All
..b
Relationship To Strategic Plan:
Goal IV: Fayetteville will be a highly desirable place to live, work, and recreate with
thriving neighborhoods and a high quality of life for all residents.
· Objective D: To develop and maintain public transportation investments with high
quality transit and airport services.
· Target for Action: Ensure Airport Terminal Renovation project is on time and on
budget.
Executive Summary:
On December 9, 2019, Council adopted Capital Project Ordinance Amendment (CPOA)
2020-29 to appropriate $32,066,100 for the Part II Airport Terminal Renovation Project.
Through a clerical error, the CPOA appropriated total revenues $100 less than intended
and the ordinance was unbalanced. Staff recommends adopting the corrected version of
CPOA 2020-29 to appropriate the additional $100 transfer from the Airport Operating
Fund to balance the project ordinance appropriation as of the original adoption date.
Background:
The version of CPOA 2020-29 as adopted on December 9, 2019 is attached for
Page 1 City of Fayetteville Printed on 1/9/2020
File Number: 19-1179
reference purposes, along with the proposed correction.
Issues/Analysis:
There is no change to the total appropriation for the project. The corrected CPOA will
simply appropriate the originally intended amount of funding from the Airport Operating
Fund to balance the revenue and expenditure appropriations in the CPOA.
Budget Impact:
The additional $100 transfer is available in the current Airport Operating Fund budget.
Options:
· Adopt the corrected version of CPOA 2020-29 to add $100 to revenue
appropriations to balance against expenditure appropriations.
· Direct staff to amend the CPOA to reduce the total project appropriation by $100.
Recommended Action:
Staff recommends that Council move to adopt the corrected version of Capital Project
Ordinance Amendment 2020-29 effective with the original adoption date of December 9,
2019.
Attachments:
Capital Project Ordinance Amendment 2020-29 As Adopted (To be superseded)
Corrected Capital Project Ordinance Amendment 2020-29
Page 2 City of Fayetteville Printed on 1/9/2020
CITY OF FAYETTEVILLE
BE IT ORDAINED by the City Council of the City of Fayetteville, North Carolina, that pursuant to Section 13.2 of Chapter 159
of the General Statutes of North Carolina, the following capital project ordinance is hereby amended:
Section 1. The project change authorized is to Capital Project Ordinance 2019-20, adopted November 26, 2018, as amended, for
the design, cost estimation and bidding, and construction phases for the Part II Airline Terminal Improvement project.
Section 2.
Section 3. The following revenues are anticipated to be available to the City to complete the project:
Listed As Amendment Revised
Airport Operating Fund Transfer 1,404,260$ 5,726,984$ 7,131,244$
Federal Aviation Administration
AIP Grant 46 (3-37-0021-046-2019) – 11,500,000 11,500,000
AIP Grant 46 – Future Year Commitments – 4,041,008 4,041,008
North Carolina Department of Transportation
Commercial Service Airport Funding – FY2020 – 2,685,707 2,685,707
Commercial Service Airport Funding – FY2021 – 2,685,707 2,685,707
Passenger Facility Charges – 4,426,594 4,426,594
Customer Facility Charges – 1,000,000 1,000,000
1,404,260$ 32,066,000$ 33,470,260$
Section 4. The following amounts are appropriated for the project:
Listed As Amendment Revised
Project Expenditures 1,404,260$ 32,066,100$ 33,470,360$
Section 5.
Section 6.
Adopted this 9th day of December, 2019.
December 9, 2019
CAPITAL PROJECT ORDINANCE AMENDMENT
CHANGE 2020-29 (CPO 2019-20)
The project director is hereby directed to proceed with the project within the terms of the various agreements executed and
within the funds appropriated herein.
Copies of this capital project ordinance amendment shall be made available to the budget officer and the finance officer
for direction in carrying out the project.
The City Manager is hereby authorized and directed to take such action as he may deem necessary or appropriate to
execute this ordinance.
Page 1 of 1
CITY OF FAYETTEVILLE
BE IT ORDAINED by the City Council of the City of Fayetteville, North Carolina, that pursuant to Section 13.2 of Chapter 159
of the General Statutes of North Carolina, the following capital project ordinance is hereby amended:
Section 1. The project change authorized is to Capital Project Ordinance 2019-20, adopted November 26, 2018, as amended, for
the design, cost estimation and bidding, and construction phases for the Part II Airline Terminal Improvement project.
Section 2.
Section 3. The following revenues are anticipated to be available to the City to complete the project:
Listed As Amendment Revised
Airport Operating Fund Transfer 1,404,260$ 5,727,084$ 7,131,344$
Federal Aviation Administration
AIP Grant 46 (3-37-0021-046-2019) – 11,500,000 11,500,000
AIP Grant 46 – Future Year Commitments – 4,041,008 4,041,008
North Carolina Department of Transportation
Commercial Service Airport Funding – FY2020 – 2,685,707 2,685,707
Commercial Service Airport Funding – FY2021 – 2,685,707 2,685,707
Passenger Facility Charges – 4,426,594 4,426,594
Customer Facility Charges – 1,000,000 1,000,000
1,404,260$ 32,066,100$ 33,470,360$
Section 4. The following amounts are appropriated for the project:
Listed As Amendment Revised
Project Expenditures 1,404,260$ 32,066,100$ 33,470,360$
Section 5.
Section 6.
Adopted this 9th day of December, 2019.
December 9, 2019
CAPITAL PROJECT ORDINANCE AMENDMENT
CHANGE 2020-29 (CPO 2019-20)
The project director is hereby directed to proceed with the project within the terms of the various agreements executed and
within the funds appropriated herein.
Copies of this capital project ordinance amendment shall be made available to the budget officer and the finance officer
for direction in carrying out the project.
The City Manager is hereby authorized and directed to take such action as he may deem necessary or appropriate to
execute this ordinance.
Page 1 of 1
City Council Action Memo
City of Fayetteville 433 Hay Street
Fayetteville, NC 28301-5537
(910) 433-1FAY (1329)
File Number: 19-1187
Agenda Date: 1/13/2020 Status: Agenda ReadyVersion: 1
File Type: ConsentIn Control: City Council Regular Meeting
Agenda Number: 6.09
TO: Mayor and Members of City Council
THRU: Telly Whitfield, Ph.D., Assistant City Manager
FROM: Michael Gibson, Parks, Recreation and Maintenance Director
Tracey Broyles, Budget and Evaluation Director
DATE: January 13, 2020
RE:
Adoption of Special Revenue Fund Project Ordinance 2020-9 to Appropriate a
Grant Award for Phase 1 of the Conservation Restoration Plan for Cross Creek
Cemetery #1
..end
COUNCIL DISTRICT(S):
2
..b
Relationship To Strategic Plan:
Goal 4 – The City of Fayetteville will be a highly desirable place to live, work and recreate
with thriving neighborhoods and a high quality of life for its citizens.
Executive Summary:
The City has received notification of a $65,000 grant award from the Cumberland
Community Foundation. Funding from this grant will be used for site assessment,
surveying, and design; initial monument restoration; and partial planting of indigenous
flora for Cross Creek Cemetery #1. Staff is seeking authorization to accept the grant
award and Council adoption of Special Revenue Fund Project Ordinance 2020-9 to
appropriate the funding.
Background:
The Cumberland Community Foundation awards grant funds annually through a
competitive application process. These endowments provide support for the most
promising opportunities and greatest needs in the community at the discretion of the
Page 1 City of Fayetteville Printed on 1/9/2020
File Number: 19-1187
Foundation.
Cross Creek Cemetery #1, bounded by N. Cool Spring & Grove Street, is one the crown
jewels of the community. Over time its appearance and position in the community has
greatly diminished. Dating back to 1785, the lives of those interred span three periods of
history – Colonial, Revolutionary, and Civil War – and this location is the final resting place
of many notable patriotic citizens that were instrumental in shaping our community, state
and, in some cases, our nation.
This three phase project is designed to:
• Conserve the significant history of the site incorporating interpretive signage, historic
tours, educational outreach materials and community events;
• Restore the natural beauty of the cemetery using indigenous flora of the period as well
as restore its monuments, 100 of which are nationally recognized as “works of art” by the
US National Register of Historic Places, and
• Preserve the hallowed ground where so many are honored and respected.
Issues/Analysis:
The grant performance period is January 1, 2020 through December 31, 2020.
Budget Impact:
There is no impact to the General Fund as there is no local match required for the grant.
Options:
1) Adopt Special Revenue Fund Project Ordinance 2020-9.
2) Do not adopt Special Revenue Fund Project Ordinance 2020-9 and provide additional
direction to staff.
Recommended Action:
Staff recommends that Council move to adopt Special Revenue Fund Project Ordinance
2020-9 as presented.
Attachments:
CCF Grant Agreement Cross Creek 1
Special Revenue Fund Project Ordinance 2020-9
Page 2 City of Fayetteville Printed on 1/9/2020
1
GRANT AGREEMENT
Grantee: City of Fayetteville/Fayetteville /Cumberland Parks and Recreation
Grant Number: 2020-26544
Contact: Michael Gibson
Amount: $65,000.00
Project Name: Conservation Restoration Plan for Cross Creek Cemetery #1 – Phase 1
Grant Period: 01/01/2020– 12/31/2020
I. Acceptance of Grant
The grant to City of Fayetteville/Fayetteville /Cumberland Parks and Recreation (“Grantee”) from the
Cumberland Community Foundation, Inc. (“Foundation”) is made solely to support Conservation
Restoration Plan for Cross Creek Cemetery #1 – Phase 1. Payment of the grant is conditional upon
acceptance of the terms described in this Agreement and subject to funds available.
II. Program Description
(Description is from the grantee’s application.)
Conservation Restoration Plan for Cross Creek Cemetery #1 – Phase 1: Cross Creek Cemetery #1,
bounded by N. Cool Spring & Grove Street, is one the crown jewels of our community yet over time its
appearance and position in the community has greatly diminished. Dating back to 1785, the lives of those
interred span three periods of history – Colonial, Revolutionary, and Civil War – and is the final resting
place of many notable patriotic citizens that were instrumental in shaping our community, state and, in
some cases, our nation.
This three phase project is designed to:
• Conserve the significant history of the site incorporating interpretive signage, historic tours,
educational outreach materials and community events;
• Restore the natural beauty of the cemetery using indigenous flora of the period as well as restore its
monuments, 100 of which are nationally recognized as “works of art” by the US National Register of
Historic Places, and
• Preserve the hallowed ground where God, Service, and Sacrifice are honored and respected.
III. Payment Schedule and Conditions
1. Signed grant and communications agreement returned and approved by the Foundation.
2. First payment of $32,500 is available after agreements are signed and submitted.
3. Interim report due on or before June 1, 2020.
4. Second payment of $32, 500 is available after the interim report is submitted.
5. Final report due on or before January 1, 2021.
IV. Reporting of Grant Activity
Grantee will provide a final written report no later than 01/01/2021. The grant report will be used to
evaluate the impact of the grant. Report guidelines will be provided by the Grantor.
A final expenditure report will be required at the end of the grant period. Grantee agrees to maintain books
and records adequate to demonstrate that the grant funds were used for the purpose for which the grant is
made, and to maintain records of expenditures adequate to identify the purposes for which, and manner in
which, grant funds have been expended.
2
Grantee agrees to give the Foundation reasonable access to the grantee’s files and records for the purpose
of making such financial audits, verifications, and investigations as it deems necessary concerning the
grant, and to maintain such files and records for a period of at least four years after completion or
termination of the project.
V. Public Acknowledgement
Acknowledge that this grant came from Cumberland Community Foundation, Inc. in any printed,
electronic, and on-line communications. The attached Communications Agreement must be signed and
returned to the Foundation.
VI. Special Provisions
All grants are made, and must be used, in accordance with all applicable laws, regulations, rulings, and
grant guidelines. Please read the following carefully.
1. Public Charity Determination / Status
Grantee certifies to the Cumberland Community Foundation, Inc. that it is an organization that is currently
recognized by the IRS as a traditional public charity under Subsection 501(c)(3) and Section 509(a)1 of the
Internal Revenue Code and not a private Foundation as described in the Code. If Grantee has tax-exempt
status through another section of the Code, additional documentation will be requested and must be
provided to the Foundation. Grantee agrees to notify the Foundation immediately of any change in (a)
Grantee’s legal or tax status, (b) Grantee’s executive or key staff responsible for achieving the grant
purposes, and (c) Grantee’s ability to expend the grant for the intended purpose.
2. Expenditure of Grant Funds:
This grant is made expressly and solely for the charitable purposes stated in the grant application
(II. Program Description). The funds provided hereunder may be spent only in accordance with the
provisions in the application submitted and according to the budget in the application. The program is
subject to modification only with the Foundation’s prior written approval. Funds will be paid to the
Grantee upon receipt of the properly completed Grant Agreement and the satisfactory compliance with all
special conditions (III. Payment Schedule and Conditions).
a. Any special conditions that apply to this grant, as described above, should be complied with as
rapidly as feasible. These conditions may have to be satisfied before the grant funds will be paid.
In such cases, the Grantee must submit adequate evidence of compliance with the conditions before
the Foundation may release funds. If the Grantee has questions about the special conditions,
contact the Foundation’s office.
b. The Grantee organization is responsible for the expenditure of funds and for maintaining adequate
supporting records, consistent with generally accepted accounting practices.
c. Grantee agrees not to use Foundation funds for lobbying, electioneering, or political activities of
any kind.
d. In compliance with Executive Order 13224 and the Patriot Act, grantee certifies that it is not a
terrorist or terrorist-supporting organization and agrees not to promote or engage in violence,
terrorism, or bigotry.
3. Reversion of Grant Funds
Grantee will return to the Foundation any unexpended funds at the close of the project period. Funds also
will be promptly returned if the Foundation determines that the Grantee has not performed in accordance
with the Grant Agreement or satisfied the specific conditions of the approved program and its support
budget.
4. Limit of Commitment
Unless otherwise provided in writing, this grant is made with the understanding that the Foundation has no
obligation to provide other or additional support to the Grantee. The Foundation reserves the right to
discontinue, modify or withhold any payments under this grant award or to require a total or partial refund
3
of any grant funds if, in the Foundation’s sole discretion, such action is necessary: (a) because the Grantee
has not fully complied with the terms and conditions of this grant; (b) to protect the purpose and objectives
of the grant or any other charitable activities of the Foundation; or (c) to comply with the requirements of
any law or regulation applicable to the Grantee, the Foundation, or this grant.
5. No Benefits Provided
Acceptance of this grant signifies that no substantial benefit has been or will be provided to the Foundation,
its staff, Board of Directors, donors, donor advisors, or any individual other than those stated in the
charitable class or persons served by the organization.
************************************************************************************
Cumberland Community Foundation, Inc.
________________________________________________________________________
Mary M. Holmes, Executive Director Date
On behalf of City of Fayetteville/Fayetteville /Cumberland Parks and Recreation (grantee), I have read, understand
and accept the above conditions. I understand that, by accepting the Foundation’s grant check, I am agreeing to the
foregoing Grant Terms and Conditions and hereby certify my authority to make such acceptance and agreement on
the Grantee’s behalf.
________________________________________________________________________
(Grantee Executive Director/President and City of Fayetteville/Fayetteville /Cumberland Parks and Recreation)
Date
_________________________________________________________________________
(Grantee Board President/Chair and City of Fayetteville/Fayetteville /Cumberland Parks and Recreation)
Date
CITY OF FAYETTEVILLE
BE IT ORDAINED by the City Council of the City of Fayetteville, North Carolina, that pursuant
to Section 13.2 of Chapter 159 of the General Statutes of North Carolina, the following special
revenue project ordinance is hereby adopted:
Section 1.
Section 2. The project director is hereby directed to proceed with the project within the terms of the various
contract agreements executed and within the funds appropriated herein.
Section 3. The following revenues are anticipated to be available to the City to complete the project:
Cumberland Community Foundation 65,000$
Section 4. The following amounts are appropriated for the project:
Project Expenditures 65,000$
Section 5. Copies of this special revenue project ordinance shall be made available to the budget
officer and the finance officer for direction in carrying out this project.
Section 6.
Adopted this 13th day of January, 2020.
January 13, 2020
SPECIAL REVENUE FUND PROJECT ORDINANCE
ORD 2020-9
The City Manager is hereby authorized and directed to take such action as he may deem
necessary or appropriate to execute this ordinance.
The project authorized is for Phase 1 of the Conservation Restoration Plan for Cross Creek
Cemetery #1, to include site design and monument restoration, and other ancillary costs.
City Council Action Memo
City of Fayetteville 433 Hay Street
Fayetteville, NC 28301-5537
(910) 433-1FAY (1329)
File Number: 19-1183
Agenda Date: 1/13/2020 Status: Agenda ReadyVersion: 1
File Type: ConsentIn Control: City Council Work Session
Agenda Number: 6.010
TO: Mayor and Members of City Council
THRU: Douglas J. Hewett, City Manager, ICMA-CM
FROM: Kristoff Bauer, Deputy City Manager, ICMA-CM
DATE: January 13, 2020
RE:
Parks and Recreation Bond Spending Plan Approval and Adoption of Capital
Project Ordinance 2020-23 Appropriating Funding for the Tennis Center Project
..end
COUNCIL DISTRICT(S):
All
..b
Relationship To Strategic Plan:
Goal 4: Desirable Place to Live, Work and Recreate
Executive Summary:
As projects are completed, Council direction regarding the adjustments to the Park Bond
Spending Plan is needed. This plan was last updated in November of 2018. After
Council discussion during the Work Session of January 6, 2020, the following actions are
proposed:
· Adoption of the revised Park Bond Spending Plan
· Adoption of Capital Project Ordinance (CPO) 2020-23 to fund the Tennis Center
Background:
The initial financial plan was developed based on January 4, 2016, Council action to
identify the projects to be funded by the Park Bond and allocate funding to each (minutes
attached). The current plan includes adjustments to the timing of some projects based on
Council direction including increasing funding for the senior centers and adjusting the
timing and location for the sports field projects.
Page 1 City of Fayetteville Printed on 1/9/2020
File Number: 19-1183
The current plan, approved by Council in November 2018, responded to an offer from Ft.
Bragg to make property off of McArthur Rd. available to the City for the development of
sports fields. Ft. Bragg proposed to provide the property through a no cost 50 year lease
in subsequent conversations. Moving that project at that time from the Military Business
Park (the location identified by Council prior to that meeting) to the McArthur Rd. location
allowed funding that had been identified for property acquisition and site improvements to
be reallocated to sport field improvements.
Other actions taken by Council in November 2018 included:
· Identifying Cliffdale & E.E. Miller Splash Pads as Future Unfunded
· Split the funding for the “TBD” Splash Pad among two new projects;
o Stadium Play Space (installing a permanent play structure and other
improvements in this area of the stadium)
o Plaza Fountain (a water feature in the public plaza between the stadium,
Prince Charles, and the new parking garage and mixed use building)
· Split the Sports Field Complex project into two projects with soccer going to the
Jordan Soccer Complex and baseball going to the new McArthur Rd. location
· Reduce funding for the Cape Fear River Park to balance total expenditures at $35
million
· Adjusted timing of projects
There have been a few key developments since the Council’s last action. The City was
unable to develop an agreeable partnership with Methodist University to enhance the
Jordan Soccer Complex. Discussions with the Department of Defense regarding the
long-term lease of the property at McArthur Rd. have been slower than expected. The
Senior Center West project has been delayed.
Work Session Discussion:
The discussion focused on three issues described in the previous agenda memorandum
and reflected in the proposed Spending Plan:
· Moving the Tennis Center Project to FY20 and FY21
· The inclusion of net bond premium revenues and interest into the funding plan
· The location and configuration of the sports field project(s)
The consensus of Council supported moving forward with the Tennis Center Project. The
CPO to appropriate the necessary funding to initiate this project is attached for Council
consideration.
The discussion regarding the inclusion of additional funding sources into the spending
plan was less clear. While a slight majority of those present indicated a willingness to
utilize these sources, some concerns were expressed. Further, staff had allocated these
funding sources to the Cape Fear River Park project, but Council did not discuss whether
this allocation was appropriate. That project is not scheduled to begin until FY23 and, as
was clarified during the discussion, there is no urgency regarding the decision of whether
to use these funds and if so for what purpose. Staff has revised the proposed spending
plan to identify these funds as “Unallocated” in the “Other Sources” column of the
Page 2 City of Fayetteville Printed on 1/9/2020
File Number: 19-1183
spending plan. This will support tracking of these resources to support future Council
direction on their use whether that be to support projects or to pay off debt.
The Council did not reach consensus regarding the location for the sports field project.
That ambiguity was already reflected in the proposed spending plan which does not
identify a location for that facility. Staff will develop additional information regarding the
two sites discussed; McArthur Rd. and Fields Rd., and provide that to the Council to
support further discussion.
Issues/Analysis:
Project Timing: If Council adopts CPO 2020-23 appropriating the funding for the Tennis
Center, then staff will initiate the project by selecting and contracting with a design team.
Consistent with state law, the City muse use a Request For Qualifications (RFQ) based
selection process to identify the best qualified team with which to negotiate a design
contract. That process usually takes a minimum of 90 days. Once the design team is
under contract, the project will move through the three phases of design: Schematic,
Design Development (DD), and Construction Drawings (CD).
Key issues to be decided during the Schematic phase include:
· The preliminary site plan (this will determine if additional property should be
acquired)
· Project scope (square footage of building, parking spaces, number of tennis
courts, etc.)
· Initial project cost estimates.
The project will be put out to bid once full construction drawings have been completed.
This is a standard Design Bid Build process. The design process will require nine to
twelve months and construction from 18 to 24 months.
Sports Field Project:
With the removal of the Jordan Soccer Complex from the project list, there is a need to
adjust the approach to address the City’s needs for additional sport fields. There has
been significant discussion regarding where to locate this facility or these facilities should
multiple locations be identified. Council’s discussion during the Work Session focused
on the McAurthur Rd and Fields Rd locations. Council directed staff to perform more
analysis on the Fields Rd. location to address several questions that have arisen. Council
also requested further clarity regarding the process for working with the Dept. of Defense
on the McAurthur Rd. location.
There is certainly opportunities to get more detailed information regarding the Fields Rd.
site and to analyze the opportunities and constraints of both sites. Doing so, however, will
require both time and resources. The master plan that has been developed for the
McAurthur Rd. site, for example, cost over $50,000 and took over nine months to
complete beginning with the process of selecting a consultant. Staff will be compiling and
updating, as much as possible, existing information on the sites and developing
alternative paths forward for Council to consider.
Page 3 City of Fayetteville Printed on 1/9/2020
File Number: 19-1183
Funding Sources:
The Council discussed the use of interest and net bond premium as resources to cover
project costs. The Council asked for more information regarding the use of net bond
premium either as a resource for project costs or to repay debt: the two allowable uses.
Pros: The statutory limitation on issuing General Obligation (GO) debt is based on the
face value (par value) of the bonds issued. So if the City issues $10 million in bonds then
only $10 million of your statutory authority is used even if $12 million in revenue is
received due to a bond premium. The positive is that an addition $2 million is received to
support project costs that doesn’t count against the statutory limit and can address cost
increases due to inflation, unforeseen factors, or scope changes.
Cons: The premium is generated by the market determining that the interest rate on the
face of the bond exceeds the current “market” rate. Using the premium to retire a portion
of the debt effectively reduces the interest cost from the face value down to the current
market rate. The City would pay back less than face value of the bond with the identified
interest rate. Using the premium for project costs requires the City to pay the full face
value and interest rate to the bond holders thereby reducing the benefit from the market
rate being lower than the interest rate stated on the face of the bond note.
Illustrative Example: If City sells $10 million in bonds with a 5% interest rate, then it
must pay back $10 million plus 5%. If the market pays the City $12 million for the
bonds, then the City’s obligation is still to pay back $10 million plus 5%. The City
can choose, however, to use the $2 million premium to pay off $2 million in bonds
and then only have to pay back $8 million at 5%. Spending the $2 million premium
would obligate the City to pay back the full $10 million at the promised 5% interest
rate.
The proposed spending plan basically defers this decision as the bond premium and
accrued interest are identified an unallocated in that plan.
Budget Impact:
CPO 2020-23 appropriates $6 million for the tennis center project. This is consistent with
the previously approved spending plan. The funding is simply being appropriated six
months earlier.
Options:
– Approve CPO 2020-23 and the proposed spending plan
– Provide alternate direction to staff
Recommended Action:
Staff Recommends that Council approve the attached Park Bond Funding Plan and adopt
CPO 2020-23 appropriating $6 million for the Tennis Center Project.
Page 4 City of Fayetteville Printed on 1/9/2020
File Number: 19-1183
Attachments:
Minutes – Special Meeting January 4, 2016.
Proposed revised Funding Plan
McArthur Rd Master Plan Phasing
Page 5 City of Fayetteville Printed on 1/9/2020
FAYETTEVILLE CITY COUNCIL
SPECIAL MEETING MINUTES
COUNCIL CHAMBER
JANUARY 4, 2016
10:58 P.M.
Present: Mayor Nat Robertson
Council Members Kathy Jensen (District 1); Kirk deViere
(District 2); H. Mitchell Colvin, Jr. (District 3);
Chalmers McDougald (District 4); Robert T. Hurst, Jr.
(District 5); William J. L. Crisp (District 6); Theodore
Mohn (District 8); James W. Arp, Jr. (District 9)
Absent: Council Member Larry O. Wright, Sr. (District 7)
Others Present: Theodore Voorhees, City Manager
Karen McDonald, City Attorney
Kristoff Bauer, Deputy City Manager
Rochelle Small-Toney, Deputy City Manager
Jay Reinstein, Assistant City Manager
Michael Gibson, Parks, Recreation and Maintenance
Director
Kevin Arata, Corporate Communications Director
Tracey Broyles, Budget and Evaluation Director
Pamela Megill, City Clerk
Members of the Press
1.0 CALL TO ORDER
Mayor Robertson called the meeting to order at 11:58 p.m.
2.0 ITEM OF BUSINESS
2.1 Discussion and possible modification of the components contained
in the Parks and Recreation Bond Referendum.
Mayor Robertson introduced this item and asked for comments from
Council members.
Council Member Crisp stated he has received a tremendous amount
of negative feedback on the proposed aquarium, and recommended the
aquarium be taken off the Parks and Recreation Bond package.
Council Member Arp stated the feedback he has received regarding
the bond package is not positive, and further stated he is not in
favor of lease payments, and stated he is in favor of the Cape Fear
River Park.
Mayor Pro Tem Colvin stated he has received e-mails from
constituents that are not in favor of the aquarium, and further stated
he has been asking staff for an anatomization schedule, something
simple to get another alternative for funding the multiple aquatics
center without success. I support quality of life amenities.
Council Member Jensen stated she was in agreement with Council
Members Crisp, Arp, and Colvin.
Council Member McDougald stated the Council has confused the
public with their own confusion, and further stated the City did not
need to lease a parks and recreation facility; the Council needs to
get on the same page.
Council Member Mohn stated he does not want the bond package to
exceed the agreed upon $35 million package.
Council Member deViere stated he supports and believes in
investments in parks and recreation, and stated he thinks the motion
from the November 9, 2015, meeting was what started the confusion over
the $35 million and $64 million amounts, and further stated he thinks
the aquarium should be pulled from the package; we need to
collectively figure out which direction we are going.
Council Member McDougald stated we need to unconfuse the people.
MOTION: Council Member Crisp moved to remove the aquarium from the
$35 million Parks and Recreation Bond package and
disassociate the $28 million multi-purpose aquatic center
from the $35 million bond package, and (if the bond
referendum passes) set the tax rate to accommodate the $35
million package.
SECOND: Mayor Pro Tem Colvin
VOTE: PASSED by a vote of 8 in favor to 1 in opposition (Council
Member Arp)
Mayor Robertson stated we no longer have a senior center now.
Council Member Hurst stated it is the seniors in this City that
are the majority of our voters.
Council Member deViere provided a spreadsheet showing the
priority of each facility that Council agreed upon at the November 9,
2015, meeting.
Discussion ensued.
MOTION: Mayor Pro Tem Colvin moved to define the bond package to
contain the following facilities: 2 Senior Centers at an
approximate cost of $10,000,000.00; 6 existing parks at an
approximate cost of $800,000.00; 7 splash pads at an
approximate cost of $3,000,000.00; 1 Cape Fear River Park
at an approximate cost of $5,200,000.00; 1 Skateboard Park
at an approximate cost of $1,000,000.00; 1 Field Complex at
an approximate cost of $9,000,000.00; and 1 Tennis Center
at an approximate cost of $6,000,000.00 for a grand total
of $35,000,000.00.
SECOND: Council Member Jensen
VOTE: PASSED by a vote of 8 in favor to 1 in opposition (Council
Member Crisp)
3.0 ADJOURNMENT
There being no further business, the meeting adjourned at
11:58 p.m.
Respectfully submitted,
_________________________________ ________________________________
PAMELA J. MEGILL NAT ROBERTSON
City Clerk Mayor
010416
Project FY17 FY18 FY19 FY20 FY21 FY22 FY23
TOTAL
EXPENDITURES
GRANTS/OTHER
SOURCES
BOND/CITY
FUNDING TOTAL
FUTURE
UNFUNDED
Senior Center (West) $7,000,000 $7,000,000 $7,000,000
Construction $773,019 $5,736,296
Soft Costs $129,315 $118,091 $243,279
Senior Center (East) $5,525,800 $5,497,900 $5,525,800
Feasibility Study $53,010 $2,790 $27,900
Land Acquisition $70,396 $29,604
Site Development $21,200 $1,978,800
Soft Costs $590,000
Construction $2,780,000
Brentwood School Park $2,752 $75,698 $21,550 $1,190,000 $800,000 $1,190,000
Clark Park $5,794 $36,826 $58,497 $73,883
Mazarick Park $19,944 $1,398 $28,658
Seabrook Park $34,414 $34,180 $16,780 $14,626
Dorothy Gilmore Recreation $1,952 $20,333 $277,715 $100,000
Massey Hill $5,272 $344,543 $3,125 $12,060 $290,000
Martin Luther King, Jr. Park $100,000
Splash Pad Kiwanis $976 $427,073 $38 $2,092,139 $2,092,139 $2,092,139
Splash Pad Gilmore $110,608 $318,559
Splash Pad Cliffdale $425,000
Splash Pad E.E. Miller $425,000
Splash Pad Massey Hill $800 $418,271 $1,515 $8,989
Splash Pad Myers $341,530 $69,211 $14,569
Stadium Play Space $137,492 $192
Plaza Fountain $96,200 $146,116
Cape Fear River Park $3,681,153 $3,681,153 $3,681,153
Soft Costs $400,000
Construction $3,281,153
Skateboard Park $1,000,000 $1,000,000 $1,000,000
Soft Costs $38,194 $22,136 $89,670
Park Construction $6,825 $593,175
Support Construction $250,000
Sports Field Complex* $8,750,000 $8,750,000 $8,750,000
Soft Costs $121,230 $478,770
Land Acquisition $250,000
Site Infrastructure $1,500,000
Construction $6,400,000
McArthur Sports Field Complex $50,828 $50,828 $50,828
Design $50,828
Jordan Soccer Complex $31,365 $31,365 $31,365
Design $31,365
Tennis Center $6,000,000 $6,000,000 $6,000,000
Land Acquisition $380,000
Soft Costs $750,000
Construction $4,870,000
Unallocated $1,482,920
$131,985
Project Management $91,500 $96,615 $96,615 $96,615
Signage $4,275 $840
Annual Total $147,735 $1,919,424 $1,529,654 $11,861,164 $8,378,770 $8,300,000 $3,281,153 $35,417,900 $2,032,805 $35,000,000 $35,417,900 $850,000
Total per Issuance
*Location to be decided
Parks and Recreation Bond Funding Package
C:\My Files\Park Bond\Fin Plans\PR Bond Funding Plan Update_1‐7‐20 1/9/2020
CITY OF FAYETTEVILLE
Section 1. The project authorized is for the development of a Tennis Center, including land acquisition, design,
construction, and other ancillary costs.
Section 2.
Section 3. The following revenues are anticipated to be available to the City to complete the project:
Parks & Recreation Bond Issuance Phase 2 6,000,000$
Section 4. The following amounts are appropriated for the project:
Project Expenditures 6,000,000$
Section 5.
Section 6.
Adopted this 13th day of January, 2020.
January 13, 2020
CAPITAL PROJECT ORDINANCE
ORD 2020-23
BE IT ORDAINED by the City Council of the City of Fayetteville, North Carolina, that pursuant to Section 13.2
of Chapter 159 of the General Statutes of North Carolina, the following capital project ordinance is hereby
adopted:
The project director is hereby directed to proceed with the project within the terms of the various agreements
executed and within the funds appropriated herein.
Copies of this capital project ordinance shall be made available to the budget officer and the finance
officer for direction in carrying out the project.
The City Manager is hereby authorized and directed to take such action as he may deem necessary or
appropriate to execute this ordinance.
Page 1 of 1
City Council Action Memo
City of Fayetteville 433 Hay Street
Fayetteville, NC 28301-5537
(910) 433-1FAY (1329)
File Number: 19-1185
Agenda Date: 1/13/2020 Status: Agenda ReadyVersion: 1
File Type: ConsentIn Control: City Council Regular Meeting
Agenda Number: 6.011
TO: Mayor and Members of City Council
THRU: Douglas J. Hewett, City Manager ICMA-CM
FROM: Kristoff Bauer, Dep. City Manager ICMA-CM
Tracey Broyles, Budget and Evaluation Director
DATE: January 13, 2019
RE:
Amendment of the Use and Operating Agreement with Fayetteville Baseball Club
for Segra Stadium Regarding the Capital Repair, Maintenance and Improvements
Schedule (Exhibit E), and Adoption of Capital Project Ordinance 2020-24 to
Authorize Calendar Year 2020 Expenditures from the Capital Repair, Maintenance
and Improvements Account
..end
COUNCIL DISTRICT(S):
District 2
..b
Relationship To Strategic Plan:
Goal II: Diverse and Viable Economy
Executive Summary:
The Use and Operating Agreement (“Agreement”) for Segra Stadium references a
Capital Repair, Maintenance and Improvements Schedule (Exhibit E) (“Schedule”) that is
to guide expenditures from the Capital Repair, Maintenance and Improvements Account
(“Account”) over the term of that Agreement. The Schedule, however, was not developed
at the time that the Agreement was executed and is currently blank in the official copy of
the Agreement. Council action is needed to authorize amending the Agreement to add a
completed and agreed upon Schedule to the Agreement.
Further, the Woodpeckers have requested and the Board of Advisors have
recommended specific expenditures from the Account which the Council must consider
and authorize should they deem appropriate to do so. Capital Project Ordinance (CPO)
Page 1 City of Fayetteville Printed on 1/9/2020
File Number: 19-1185
2020-24 will appropriate $180,000 of contributions under the agreement to fund the
installation of 10 ceiling fans in the stadium concourse area and the extension of field
netting to the foul poles.
Background:
The City executed the Agreement with Fayetteville Baseball Club (“Operator”), a
subsidiary of Houston Baseball Partners, in December of 2016 (Attached). The stadium
had not even been designed at that time. The Agreement sets up a mechanism to
identify and fund capital improvements to the stadium over the life of the Agreement. The
foundation is a Schedule of potential capital repair and maintenance items referenced in
the Agreement as Exhibit E. It was impossible to complete this schedule without the final
design of the stadium and it is, therefore, blank.
The Agreement also set up a funding mechanism to support Capital Repair, Maintenance
and Improvements (“Capital Improvements”). The Agreement provides that the Operator
will annually deposit $1 for each ticket after the first 50,000 sold and half of the naming
rights revenue into the Account. The Agreement goes on to state that should the average
of these revenues, starting in year five, fall below 1% of the actual construction cost of the
stadium then both parties will be required to contribute 50% of any shortfall to ensure a
minimum revenue to the Account averaging 1% of the actual construction cost.
Finally, the Agreement calls for the establishment of a Board of Advisors (“Board”) to
annually recommend to the City Council any expenditures from the Account for Capital
Improvements consistent with the terms of the Agreement.
The City Council appointed the nine members of the Board on May 28, 2019. The Board
met on December 12, 2019, to consider the proposed Schedule and two funding
requests from the Woodpeckers. The draft minutes of the meeting are attached. The
Board voted to recommend the Schedule attached and to authorize the installation of fans
in the concourse area and the extension or replacement of the safety netting.
Issues/Analysis:
Capital Maintenance, Repair and Improvements Schedule (Exhibit E)
The attached Schedule was developed by Mike Wooley of Venue Solutions Group
(“VSG”) which is a firm that focuses on public assembly facilities. The preparation of
maintenance plans for public assembly facilities is one of their specialties. The Schedule
that they prepared is comprehensive and conservative (the attachment can be viewed by
zooming in). The total cost of the plan (lower right) is shown to be almost $44 million. Mr.
Wooley shared that it is not unusual in his experience for the estimated cost of a 30 year
schedule of this kind to approximate the total construction cost of the subject facility. He
also stated that it is not reasonable to plan for all of the included costs to actually be
incurred. The schedule is a tool for prioritization and planning.
Mr. Freier, CEO of Hardball Capital, the City’s consultant throughout this project who
owns and operates three minor league baseball teams, describes the schedule as a
Page 2 City of Fayetteville Printed on 1/9/2020
File Number: 19-1185
baseline that assists in making potentially difficult budget decisions over time. He goes
on to indicate that the funding mechanism included in the Agreement, which is based on
similar agreements he has negotiated for his teams, was never intended to fund
everything that might ever be wanted by the operator. It was intended to support
reasonable capital maintenance and to mitigate the City’s risk of facing future capital
demands from the operator.
Chris Cominse, Woodpeckers Director of Stadium Operations, reviewed the schedule
and prioritized each potential expenditure (priorities 1-4 to the right of the table). The total
of Priority 1 items is just under $21 million. Mr. Cominse’s priority evaluation is based
first on the safety for fans, players, and workers. This is consistent with the prioritization
method recommended by Mr. Wooley of VSG.
Board Recommendation: After significant discussion, the Board unanimously
recommended that the Council approve the proposed Schedule for inclusion in the
Agreement and to guide their work in the future.
Requested Expenditures from the Account
The Woodpeckers initially requested that they be authorized to make four investments in
the stadium at a total estimated cost of $285,000. That request was reduced to two items
with a total estimated cost of up to $180,000 after working with the City to develop the
Schedule. The two projects being requested are the installation of ceiling fans in the
concourse area ($30,000) and the extension of field netting all the way to the foul poles
(up to $150,000).
Field Netting Extension: The existing field netting extends to the outside edge of the
dugouts. This is farther than was required by MiLB standards at the time the stadium was
designed. The issue of how far to extend netting has evolved significantly over the last
year. This was a key design discussion that attempted to balance two opposing
interests; one, what was at that time a preference for seats that would allow the
opportunity to catch a foul ball and an unobstructed view of the field, and, two, fan safety.
The balance selected at that time was to extend the netting farther then what was required
and farther then existed in most MiLB stadiums. Over the last year, however, due to some
well publicized and truly unfortunate injuries caused by foul balls at the major league level,
public sentiment has shifted the balance dramatically and almost every field in the majors
and minors is in the process of extending field netting to enhance fan safety.
The cost estimate provided by the Woodpeckers would completely replace the field
netting with a net that has improved visibility characteristics and would extend all the way
to the outfield foul poles. The estimate of $150,000 is significantly higher than costs
experienced at other MiLB fields to extend field netting. This premium is believed to be
due to the need to add anchoring points in the outfield and the unwillingness of the vendor
who installed the existing netting to bid on extending that netting. This requires new
vendors to replace the existing netting and support system in order to achieve a uniform
system.
City purchasing has reached out to the vendor who installed the current netting and is
Page 3 City of Fayetteville Printed on 1/9/2020
File Number: 19-1185
attempting to get them to bid on extending the system that they installed. If successful, it
is anticipated that this would result in significant savings.
It should be noted that replacing field netting is included in the Schedule in years 10, 20,
and 30. This replacement in year 2 is not expected to revise that schedule.
Board Recommendation: The Board voted to recommend spending up to $150,000 to
extend the field netting.
Concourse Ceiling Fans: The Woodpeckers report that excessive heat and stuffiness in
the concourse area is the dominate complaint received from fans during the team’s first
season. They also report that heat related injuries and illness were the number one cause
of emergency service calls. They are recommending the installation of 10 large industrial
ceiling fans in the concourse area at cost of $30,000 to increase air movement and
improve the safety and experience of those fans that don’t have access to air conditioned
areas.
Ceiling fans in the concourse area were initially included in the design of the stadium, but
they were “value engineered” out during attempts to reduce the overall cost of the
stadium. Staff hasn’t been able to recover the notes on that change, but it is my
recollection that this change was valued as a savings in excess of $40,000. This
indicates that the estimated cost to add these fans is certainly reasonable and could be a
rare example of an addition after construction that results in a savings.
The addition of ceiling fans is not included in the Schedule as it is an improvement or
addition instead of maintenance or repair of an existing system. If installed, the
maintenance or replacement of these fans would need to be added to the Schedule.
Board Recommendation: The Board recommends authorizing $30,000 from the Account
to add 10 ceiling fans to the concourse area of the stadium.
Budget Impact:
The Woodpeckers report that their contribution to the City for the first year of operation,
which will fund the Account, will be $387,612. There is no impact to the City’s General
Fund for the adoption of CPO 2020-24. If approved, up to $180,000 would be authorized
to be expended from the Account.
Options:
– Authorize the City Manager to execute an amendment to the Agreement and adopt CPO
2020-24
– Provide alternate direction to staff (delay in action could make it difficult to complete the
requested improvements prior to the start of the next baseball season)
Recommended Action:
Page 4 City of Fayetteville Printed on 1/9/2020
File Number: 19-1185
The Board of Advisors recommends that Council move to authorize the City Manager to
execute an amendment of the Use and Operating Agreement to add the Capital Repair,
Maintenance and Improvements Schedule provided as Exhibit E; and, to adopt Capital
Project Ordinance 2020-24 to authorize up to $180,000 be expended from the Account
for calendar year 2020 for concourse ceiling fans and the field netting.
Attachments:
Stadium Operating Agreement
Excerpts from the Operating Agreement
Proposed Capital Maintenance, Repair and Improvements Schedule (Exhibit E)
Capital Project Ordinance 2020-24
Page 5 City of Fayetteville Printed on 1/9/2020
I
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USE AND OPERA TING AGREEMENT
{)
This Use and Operating Agreement (“Agreement”) is made and entered into this\ 311″\day of
C/.c.e,nb(/.C , 20 16, by and between the CITY OF FAYETTEVILLE, NORTH CAROLINA (“City”),
a municipal corporation, incorporated under the laws of the State of North Carolina, and
FAYETTEVILLE BASEBALL CLUB LLC (“Operator”), a limited liability company organized and
existing under the laws of the State ofN01th Carolina (City and Operator are sometimes referred to herein
individually as a “Party” and collectively as the ” Parties”);
W I T N E S S E T H:
WHEREAS, the Parties entered into that certain Memorandum of Understanding between the City of
Fayetteville, North Carolina, and Houston Baseball Partners, LLC, approved by Fayetteville City Council
on August 18, 2016, and dated August 24, 2016, to negotiate in good faith this Use and Operating
Agreement for the construction and operation of a minor league baseball stadium in the City, subject to
cettain terms and conditions set fotth therein (unless otherwise mutually agreed);
WHEREAS, Operator wishes to locate and operate a Class A – Advanced minor league baseball team in
the City, subject to approval by Sanctioning Association (as defined herein); and
WHEREAS; City and Operator desire that C ity construct a baseball stadium which will have the capacity
for approximately 4,500 – 5,500 attendees for use in connection with the Class A – Advanced minor
league baseball team to be located and operated in the City by Operator and for other sporting and
entertainment events, subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the payments herein required to be made by Operator, and the
covenants and agreements herninafter contained to be kept and performed by City and Operator, City
agrees to authorize Operator to control, manage, and operate the Premises (as defined below) for the term
and upon and subject to the terms and conditions hereinafter stated:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. ln addition to terms defined elsewhere in this Agreement, the following terms,
for the purposes of this Agreement, shall have the meanings set forth below:
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(a) “Abandonment of Premises” means that the Premises become vacant or deserted
for a continuous period of sixty (60) days, except by reason of Force Majeure.
(b) “Act of Bankruptcy” means the commencement of a bankruptcy or similar
proceeding by or against City or Operator, including, but not limited to, the
following: the making of a general assignment for the benefit of creditors, the
commencing of a voluntary or involuntary case under the Federal Bankruptcy
Code or the filing of a petition thereunder, petit ioning or apply ing to any tribunal
for the appointment of, or the appointment of, a receiver, or any trustee for a
substantial part of the assets of such person, commencing any proceeding under
any bankruptcy, reorganization, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect; provided, however, that with
respect to the filing of an involuntary petition in Bankruptcy or other involuntary
commencement of a bankruptcy or similar proceeding, such petition or
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proceeding shall fail to be dismissed within ninety (90) days of its filing or
commencement.
(c) “Affiliate” means a Person who directly or indirectly controls, is controlled by or
under common control with, Operator. For purposes of this definition, the term
“control” (including the tenns “controlled by” and “under common control with”)
means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether though ownership
of voting securities, by contract, or otherwise.
(d) “Agreement Year” means each consecutive twelve (12) month period
commencing on the Commencement Date and thereafter on each anniversary of
the Commencement Date.
(e) “Architect” means Populous Architects, P.C. or such other architect selected by
the City after consultation with Operator and in accordance with City’s selection
process, including any bidding process as may be required by Governmental Rule,
to design the Project Improvements.
(f) “Architect’s Contract” means the services contract between City and the
Architect for, among other things, the design of the Project Improvements, the
preparation of the Project Plans, and construction administration services, as the
same may be amended, supplemented, modified, renewed, extended or replaced
from time to time with the consent of City and Operator.
(g) “Authorized Representatives” means such officers, employees or other
representatives of City and Operator, respectively, authorized by such party to act
on its behalf under Section 14.14 of this Agreement as certified to the other in
writing.
(h) “Baseball Stadium” means the basebaU stadium to be constructed on the Land.
(i) “Board of Advisors” shall have the meaning ascribed to it in Section 13.1.
G) “Business Day” means any day which is not a Sunday, a Saturday, or a legal
holiday of City.
(k) “Capital Repair, Maintenance and Improvements Account” shall mean the
account held by City for the benefit of Capital Repair, Maintenance and
Improvements on the Premises and funded and disbursed pursuant to Section 7.3.
(I) “Capital Repair, Maintenance and Improvements” shall mean any and all design,
permitting, labor, repairs, maintenance, materials or other improvements related
to any Project Improvements beginning on the date of Substantial Completion,
related to the Minimum Personal Property Requirements or the Premises and
reasonably necessary to repair, restore, refurbish or replace any equipment,
facility, structure or any other component of the Premises, if such work is
necessitated by: (a) any material defects in design, construction or installation of
the Premises by or on behalf of the City; (b) Physical Obsolescence of a portion
or component of the Premises (including replacement necessitated by repeated
breakdown of a component of the Premises despite efforts to repair or restore it
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downtown neighborhoods; provided, however, that in determining compliance
with any “Comparable Facilities” standard or requirement set forth in this
Agreement (i) such stadiums shall be looked at together and no one stadium nor
any individual system or component at any such stadium shall be looked at alone
and (ii) if the standards applicable to such stadiwns or substantially similar
quality stadiums taken as a whole should materially change during the Term in
such a manner as to result in a material variation in the manner in which the
stadiums had previously been operated or maintained and such change has a
material and adverse impact on Operator’s costs to operate and maintain the
Premises, then Operator shall not be required to adopt such increased standards.
(v) “Controversy” shall have the meaning ascribed to it in Section 14.14.
(w) “Default Rate” means the lesser of (i) the Prime Rate plus three percent (3%) and
(ii) the maximum per amrnm rate of interest permitted to be charged either party
by applicable Governmental Rule.
(x) “Dispute” shall have the meaning ascribed to it in Section 14.14.
(y) “Effective Date” shall have the meaning given it in the header of this Agreement.
(z) “Environmental Law” means any applicable federal, state, or local Governmental
Rule relating to protection of natural resources or the environment.
(aa) “Event of Default” shall have the meaning ascribed to it in A1ticle XL
(bb) “Exclusive Use Areas” shall mean the areas that are identified in Exhibit “F”
attached hereto and made a part hereof which are reserved for the exclusive use
of the Operator during the Term. In addition, “Exclusive Use Areas” shall
include the “home” locker room each year of the Term for the period
commencing at least two (2) weeks prior to the beginning of the first Team Game
scheduled to be held at the Baseball Stadium and ending one (I) week after the
conclusion of the last Team Game. The City and Operator intend that the City
and Operator will execute the Exclusive Use Lease Agreement prior to the
Commencement Date.
(cc) “Exclusive Use Lease Agreement” shall mean that certain Exclusive Use Lease
Agreement to be entered by and between City and Operator granting Operator a
leasehold interest in the Exclusive Use Areas, substantially in the form attached
hereto as Exhibit “G”.
(dd) “Final Completion” means the final completion of all aspects of such work and
improvements in accordance with all Governmental Rules and in accordance
with the Minimum Project Requirements, including, but not limited to, the
completion of all punch-list items. Substantial Completion of such work and
improvements is a prerequisite to Final Completion of the same.
(ee) “Final Notice” shall have the meaning ascribed to it in Section 11.5.
(ff) “Force Majeure” means the occurrence of any of the following, but only for the
period of time, if any, that the performance of a Party’s material obligations
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sho1t of such replacement); (c) requirements imposed by the Sanctioning
Association after the date of Substantial Completion and applicable to the
Baseball Stadium; (d) modifications required by applicable Governmental Rule;
(e) structural maintenance and repairs; or (f) Functional Obsolescence any
equipment, fixture, furnishing, facility, surface, structure or any other component
at ·the Premises; or (g) any other design, pe1mitting, labor, repairs, maintenance,
materials or other improvements intended to ensure age, use, ordinary wear and
tear and deterioration of the Premises do not adversely impact its use or the cost
to maintain the Premises, and to prevent Physical Obsolescence of any asset
(excluding Maintenance obligations of the Operator pursuant to Section 7.1).
The te1m “Capital Repair, Maintenance and Improvements” shall not include (i)
any Maintenance, (ii) any casualty repair work pursuant to Section 12.1, (iii) any
condemnation repair work pursuant to Section 12.2, (iv) the portion of any
contract for the performa,1ce of any of the foregoing, (v) Operator’s Remedial
Work, (vi) maintenance or repairs on any prope11y, including Removables,
owned by Operator, or (vi i) the Premises as initially constructed.
(m) “Capital Repair, Maintenance and Improvements Schedule” means the schedule
of Capital Repai r, Maintenance and Improvements described on Exhibit “E”
attached hereto and made a part hereof.
(n) “City” shall have the meaning ascribed to it in the Preamble or any successor
thereto or assignee thereof permitted by this Agreement.
(o) “City Default” shall have the meaning ascribed to it in Section IL. l.
(p) “City Event(s)” shall have the meaning ascribed to it in Section 7.16.
(q) “City’s Contribution” shall mean the City’s obligation to pay up to
$33,000,000.00 toward the payment of Project Costs. Notwithstanding anything
herein to the contrary, the Parties understand that any Project Costs exceeding
$33,000,000.00 shall require the approval of City unless paid for by Operator.
(r) “City’s Remedial Work” shall have the meaning ascribed to it in Section 14.1 3.
(s) “City’s Share of the Naming Rights Revenue” shall have the mean ing ascribed to
it in Section 7.10.
(t) “Commencement Date” means the first to occur of (i) the thi1tieth (30
th
) day
following the Substantial Completion date or (ii) the date on which Operator
opens the Baseball Stadium for an open to the public general admission event
( excluding pre-opening tours and events for charities, suite holders or season
ticket holders). Occurrence of the Commencement Date prior to the Substantial
Completion date as contemplated by this definition shall in no event be construed
to release or waive (i) City’s obligations hereunder to cause Substantial
Completion of the Project Improvements Work to occur or (i i) any of Operator’s
rights and remedies hereunder in the event the Substantial Completion date does ·
not occur or does not occur on or before the Target Substantial Completion Date.
(u) ”Comparable Facilities” means Class A minor league baseball stadi ums
constructed in the five (5) years prior to the Effective Date within urban
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under this Agreement are actually delayed or prevented thereby: Acts of God,
strikes, lockouts, acts of the public enemy, orders of any kind of the government
of the United States of America, or of any state thereof, or any civil or military
authority, insun-ections, riots, epidemics, foes, restraining of government and
people, civil disturbances, explosions, nuclear accidents, wars, prut or entire
failure of utilities, or any other cause not reasonably within the control of the
party claiming inability to perform due to such cause.
(gg) “Functional Obsolescence” and “Functionally Obsolete” means any portion or
component of the Project Jmprovements (and, for the avoidance of doubt, not
including Removables or a11y other prope1ty owned by Operator) set fo1th in the
Minimum Project Requirements that is not dysfunctional (and thus not Physically
Obsolete), but is no longer reasonably optimal for its intended purposes, by
reason of (i) material innovations, inventions or improvements in the design,
manufactme, operation or production of comparable equipment, systems or
facilities which render more efficient, more satisfactmy or more technologically
advanced service, or (ii) business patterns or practices (such as methods for
selling tickets or admitting patrons to the Baseball Stadium) that require the
modification or addition of equipment or facility.
(hh) “Governmental Authority” means any federal , state or local government, agency,
court, commission or other body with jurisdiction over the matter in question .
(ii) “Governmental Rule” means any statute, law, treaty, rule, code, ordinance,
regulation, permit, interpretation, cettificate or order of any Governmental
Authority, or any judgment, decision, decree, injunction, writ, order or like action
of any court, arbitrator or other Governmental Authority .
UD “Guru·anty Agreement” is the agreement set forth in Exhibit “H” attached hereto
and made a part hereof.
(kk) “Hazardous Materials” means any substance o r material, including asbestos, now
or hereafter defined or listed by any Governmental Authority as a hazardous
substance, hazardous material, or hazardous waste, and terms of sim ilar meaning,
and shall include, without limitation, petroleum products.
( II) ”Land” means the land descr ibed on Exhibit “A” attached hereto and made a patt
hereof.
(mm) “Operator” shall have the meaning ascribed lo it in the Preamble or any successor
thereto or assignee thereof permitted by this Agreement.
(nn) “Operator Default” shall have the meaning ascribed to it in Section 11 .3.
(oo) “Operator Event(s)” shall m ean any event that is conducted o r sponsored,
organized or scheduled by the Operator, its licensee or designee, but not
including Team Games or City Events.
(pp) “Operator Requested Modifications” shall have the meaning ascribed thereto in
Section 3 .6.
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(qq) “Operator’s Remedial Work” shall have the meaning ascribed to it in Section
14.12.
(n) “Maint_enance” shall have the meaning ascribed to it in Section 7 .1.
(ss) “MiLB” or “Minor League Baseball” means the National Association of
Professional Baseball Leagues, Inc. , d/b/a Minor League Baseball.
(rt) “Minimum Concession Improvemehts Requirements” means the interior and
exterior improvements, build out and equipment required for concession
operations at the Baseball Stadium in a manner consistent with Comparable
Facilities which are described in the Project Plans and, whether or not shown on
such Project Plans, the items described on Exhibit “D” attached hereto and made
a pait hereof. The Minimum Concession Improvement Requirements shall be
subject to Operator’s approval.
(uu) ” Minimum Personal Properly Requirements” means all reasonable improvements,
fixtures, equipment, systems, facil ities, features and amenities necessary to
operate, repair, and maintain the Project Improvements in a manner consistent
with Comparable Facilities and, whether or not shown on such Project Plans,
described on Exhibit “B” attached hereto and made a part hereof. Minimum
Personal Properly Requirements shall not include equipment intended for on-
field use solely by the members of the Class A – Advanced minor league baseball
players in connection with the playing of baseball games, warm-ups, practices,
training rooms or weight training activities. The Minimum Personal Property
Requirements shall be subject to Operator’s approval.
(vv) “Minimum Project Requirements” shall mean the improvements, fixtures,
equipment, systems, faci lities, features and amenities required pursuant to this
Agreement, including, without limitation, the Minim um Stadium Requirements,
the Minimum Personal Property Requirements and the Minimum Concession
Improvements Requfrements, the Project Construction Documents, all applicable
Governmental Rules, the Project Plans and the requirements of the Sanctioning
Association, including, without limitation, the Professional Baseball Agreement
Minimum Facility Standards for Class A baseball stadiums and Major League
Rule 58.
(ww) “Minimum Stadium Requirements” means al l improvements, fixtures, equipment,
systems, facilities, features and amenities in a manner consistent with
Comparable Facilities which are described in the Project Plans and, whether or
not shown on such Project Plans, the items described on Exhibit “C” attached
hereto and made a pa1t hereof. The Minimum Stadium Requirements shal l be
subj ect to Operator’s approval.
(xx) “Mortgage” shall have the meaning ascribed to it in Section l 0.5.
(yy) “Naming Rights” shall have the meaning ascribed to it in Section 7.10.
(zz) “Operating Expenses” shall mean the costs to operate, repair, and maintain the
Project Improvements.
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(aaa) “Operating Fee” shall have the meaning ascribed thereto in Section 4.3.
(bbb) “Parking Area” means 100 parking spaces made available by City to Operator as
follows:
(i) Thirty (30) spaces for Team players and coaches. These spaces shall be
in a lot or deck proximate to the Premises and available during hours that
the Team will be at the Premises for Team Garnes, practices and/or
preparation therefore. City will also provide spaces for players and
coaches to park their cars dur ing road trips, though those spaces may be
different from and less proximate than the spaces provided players and
coaches for Team Games, practices and/or preparation therefore;
(ii) Twenty (20) spaces for full-time employees. These spaces will be
available during regular working hours as well as during Team Garnes
and Operator Events. These spaces will be within one-fourth (l/4) of a
mile from the Premises; and
(iii) Fifty (50) spaces for game day employees and other usage by Operator.
These spaces shall be available during Team Games (including hours of
pre-game preparation and post-game clean-up) and shall be one-fomth
( 1/4) of a mile of the Premises.
(ccc) “Person” means any association, individual, corporation, governmental entity,
paitnership, joint venture, business association, estate or any other organization
or entity.
(ddd) “Physical Obsolescence” and “Physically Obsolete” means any Project
Improvements (and, for the avoidance of doubt, not including Removables or any
other prope,ty owned by Operator) which does not comply w ith applicable
Governmental Rule or has become dysfunctional due to defects in design,
materials or workmanship or ordinary wear and tear other than as a result of
Operator’s fai lure to perform its Maintenance obligations under the Agreement.
For purposes of determining Physical Obsolescence or Physically Obsolete, any
equipment, fixture, furnishing, facility, surface, structure or any other component
shall be deemed dysfunctional if such equipment, fixture, furnishing, facil ity,
surface, structure or any other component has deteriorated to a degree that cam10t
be remedied through Maintenance (including replacement necessitated by
repeated breakdown of a component despite efforts to repair or restore it short of
replacement).
(eee) ” Premises” means (i) the Land; (ii) the Baseball Stadium; and (iii) any other
buildings, structures, additions, improvements, equipment,. fixtures and facilities
directly related to the Baseball Stadium, and all appurtenances to the same, which
are in the future constructed on the Land, pursuant to the terms and conditions
herein.
(fff) “Prime Rate” means the per annum rate of interest from time to time published
by the Wall Street Joumal as the “prime rate”.
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(ggg) “Priority Dates for City Events” shall have the meaning ascribed to it in Section
7. 16.
(hhh) “Project” means the Baseball Stadium, together with all the other Project
Improvements.
(iii) “Project Budget” shall mean the total Project budget, as from time to time
amended, for all Project Costs, broken down in reasonable detail by “hard” and
“soft” cost categories, including, but not limited to, separate line items for debt
service requirements (net of earned interest on invested funds), the amount
payable under each of the Project Construction Documents, allowances,
contingencies, and p re-opening expenses. City shall provide Operator the
opportunity to review and comment on the Project Budget prior to finalization
thereof and City shall consider, in good faith, any requests or suggestions made
by Operator with respect thereto. Notwithstanding the foregoing, in no event
shall the Project Costs fall below $31,000,000.00 without the prior approval of
Operator.
(jjj) “Project Change Order” shall have the meaning ascribed to it in Section 3.9.
(kkk) “Project Construction Contract” means the construction contract between City
and the Project Contractor for the construction of the Project Improvements, as
the same may be amended, supplemented, modified, renewed, extended or
replaced from time to time with the consent of City and Operator.
(LIi) ” Project Contractor” means the general contractor for the Project selected by the
City after consultation with Operator and in accordance with City’s selection
process, including any bidding process as may be required by Governmental Rule.
(mmm) “Project Construction Documents” means any and all contracts, documents or
other instruments entered into by or on behalf of City for the design, management,
monitoring or performance of the Proj ect Improvements Work, including, but not
limited to, the Architect’s Contract, Project Plans, and Project Construction
Contracts.
(rnm) “Project Costs” means all of the costs incurred or to be incurred on behalf of City
in order fo r City to fulfill its obligations under this Agreement to cause Final
Completion of the Project Improvements Work, including, but not limited to: (a)
all amounts payable under any of the Project Construction Documents; (b) costs
for project management services; (c) al l other costs incurred by City and paid to
third parties to fulfill its obligations under the Agreement and Project
Consh·uction Documents to develop, construct, equip or furnish the Project
including management fees and fees and expenses of architects, engineers,
testing firms, or other consultants (not including legal costs, accountants,
attorneys or other administrat ive persormel) necessary to complete the design,
development, construction, equipping and furnishing of the Project
Improvements, including Project Change Orders approved by Operator; (d) a ll
other costs in connection with the operation and maintenance of the Land prior to
the Commencement Date; (e) the following City development costs and fees :
structural steel inspection fee, oversize fee, regional detention fee, and water
meter fee, and (t) and al l insurance premiums on all pol icies of insurance
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required to be carried by City under this Agreement. Notwithstanding anything
herein to the contrary, City agrees to fund the City’s Contribution toward the
Project Improvements. The term “Project Costs” excludes, however, costs not
directly related to the fulfillment of City’s obligations under this Agreement to
cause Final Completion of the Project Improvements Work, including: (i) any
costs paid from the proceeds of insurance recoveries; (ii) land acquisition costs,
including all remediation and abatement costs arising from removal of Hazardous
Materials or addressing environmental conditions; (iii) costs to obtain necessary
easements, rights of way, or other infrastructure improvements; (iii) all financing
costs incurred by City, and/or on behalf of City, w ith respect to the Project
including any reserve funds or capital or repair accounts; or (iv) legal costs,
accountants, attorneys, and other consultants.
(ooo) “Project Improvements” means the Baseball Stadium and all other improvements,
fixtures, equipment, systems, facilities, features, amenities and appurtenances to
be situated on the Land and owned by City, all as described more fully in this
Agreement, including the Minimum Project Requirements, and specifically
excluding Removables.
(ppp) “Project (mprovements Work” means the design, development, construction,
furnishing, equipping and placement in service and Final Completion of the
Project Improvements at and within the Land in accordance with the Minimum
Project Requirements.
(qqq) “Project Plans” means individually and collectively, the concept drawings,
schematic drawings, design development drawings and detailed working
drawings and specifications for the Project Improvements (including the
Minimum Project Requirements) prepared by the Architect in the form approved
by City after consultation with Operator.
(rrr) “RemovabJes” shall have the meaning ascribed thereto in Section 5.4.
(sss) “Sanctioning Association” means Major League Baseball, its entities or affiliates,
the Carolina League, and the National Association of Professional Baseball
Leagues, lnc., and their respective successors, if any, and any replacement or
additional baseball association that Operator cettifies to City is a nationally
recognized baseball association that sanctions professional baseball teams
affiliated with Major League Baseball.
(ttt) “Seat Rights” shall have the meaning ascribed thereto in Section 7.10.
(mm) “State” means the State ofN01th Carolina.
(vvv) “Substantial Completion” (or “Substantially Complete”) means the stage in the
progress of the Project Improvements Work when the Project Improvements
Work is (i) sufficiently complete in accordance with the Minimum Project
Requirements so that Operator can occupy and use the Project Improvements for
their intended purpose, (i i) the Minimum Project Requirements and all other
improvements, equipment and systems included in the Project Improvements are
operational as designed and scheduled, (iii) all designated or required
govenunental inspections and certifications have been made and posted, (iv) the
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Project Contractor’s instruction of Operator’s designated personnel in the
operation of equipment and systems has been completed, (v) all final finishes
contemplated by the Minimum Project Requirements are in place and (vi) the
only Project Improvements Work that remains is minor in nature, has been
identified on a punch list approved by Operator, and may be completed without
interfering with Operator’s operation of the Premises.
(www) “Target Substantial Completion Date” shall have the meaning ascribed thereto in
Section 3 .5.
(xxx) “Targeted Tax” means any admission tax, parking tax, facility use tax and any
other tax imposed by City not in effect as of the date hereof that either by its
terms or effect of its application is not of general application but is designed to be
applicable to Operator, the revenues from Operator’s conduct of its business, the
activities on the Premises, or Operator’s personnel.
(yyy) “Team” means a minor league baseball franchise owned by Operator or its
Affiliate and approved by the Sanctioning Association to play baseball in the
Baseball Stadium and which has a player development contract associated with a
Major League Baseball franchise.
(zzz) “Team Game(s)” shall mean all professional baseball games, including, without
limitation, preseason games, exhibition games, regular season games, postseason
games and any all-star game.
(aaaa) “Term” shall have the meaning ascribed thereto in Section 4.2.
(bbbb) “Unacceptable Condition” shall mean the existence of any one of the fol lowing
conditions but only to the extent the same is not the result of tl1e failure of
Operator to perform its obligations as required under this Agreement:
(i) The Premises are not in compliance with rnles and regulations in effect
on the Effective Date of the applicable Sanctioning Association for any
reason, the result of such non-compliance is that the Sanctioning
Association, or its rules, prohibit Operator or its Affiliate from
conducting sanctioned games or authorizes the Sanctioning Association
to assess fines or penalties, and City fails to cause the same to be placed
into compliance within a reasonable time following City’s receipt of
written notice of such non-compliance (City hereby agreeing to perform
such work as necessary to keep the Premises in compliance);
(ii) The use or occupancy of the Premises for baseball games is not permitted
under applicable Governmental Rule or is restricted in any material
respect under applicable Governmental Rule, including, but not limited
to, denial of access; or
(iii) The use or occupancy of thirty percent (30%) or more of any of the
public seating areas, Parking Areas or other public areas, collectively,
within the Premises is materially restricted by City or are unusable (and
not replaced by suitable temporary accommodations) for a period of sixty
10
(60) consecutive days or ninety (90) days out of any consecutive one
hundred eighty (180) day period; or
(iv) The use or occupancy of thirty percent (30%) or more of the private
suites or thirty percent (30%) or more of the concession areas within the
Premises is materially restricted by City or unusable during the Team’s
season for a period of sixty (60) consecutive days or ninety (90) days out
of any consecutive one hundred eighty ( 180) day period.
(cccc) “Warranty Claim” shall have the meaning ascribed to it in Section 3.3 hereto.
ARTICLE II
REPRESENT A TIO NS AND WARRANTIES
Section 2.1. Representations and Warranties by City. City makes the following representations and
warranties as the basis for the undertakings on its part herein contained:
!01239803\V-21
(a) City is a municipal corporation, incorporated under the laws of the State, existing
and in good standing under the laws of the State, and has the power to enter into
the transactions contemplated by this Agreement and to carry out its obl igations
hereunder. The execution, delivery and performance by City of this Agreement
and the consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary action on the part of City.
(b) Each of the agreements related to the subject matter of this Agreement to which
City is a patty, including this Agreement, have been duly executed and delivered
by duly authorized representatives of City, and constitute valid and binding
obligations of City, enforceable against City in accordance with their respective
terms
(c) There is no litigation now pending or, to City’s knowledge, tlueatened
challenging the powers of City with respect to this Agreement or that is expected
to have a material adverse effect on the abi lity of the City to perform its
obligations under this Agreement.
(d) The execution, delivery and performance of this Agreement and any of the
transactions or documents contemplated hereby or thereby or compliance with
the terms and provisions hereof or thereof do not and will not (i) violate any
Governmental Rule of any Governmental Authority applicable to City, which
violation would materially and adversely affect the abi lity of City to perform its
obligations under this Agreement or the transactions or documents contemplated
hereby or thereby; (ii) conflict with or would result in the breach of, or constitute
a default under, this Agreement ox the transactions or documents contemplated
hereby or thereby or any other contract, lease, indenture, loan agreement,
mortgage, deed of trust or other agreement or instrument to which City is a patty
or by which City or its propetiy may be bound, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon
any of the property or assets of City under the term of any instrument or
agreement which conflict, breach, default or encumbrance would materially and
adversely affect the ability of City to perform its obligations under this
Agreement or any of the transactions or documents contemplated hereby or
11
thereby; or (iii) violate the chaiter of City. No consent, approval, authorization
or order of any Governmental Authority or other regulatory authority, agency,
commission or board of arbitration was or will be required in com1ection with the
execution, delivery and performance by City of this Agreement or the
transactions or documents contemplated hereby or thereby, or compliance with
the terms and provisions hereof or thereof, except (i) such as have been obtained
and are in full force and effect, (ii) any permits required to be obtained with
respect to the construction of the Project, (iii) the approval of the North Carolina
Local Govermnent Commission with respect to the issuance of any debt, and (iv)
the approvals contemplated by Section 14.25.1 .
(e) To the best of City’s knowledge, no event has occurred and no condition
currently exists, which constitutes or may, with the passage of time or t he giving
of notice, or both, constitute an Event of Default, breach, or default with respect
to or on the patt of City under this Agreement, any of the Project Construction
Documents to which it is a pariy, or that could materially adversely affect the
ability of City to perfo1m its obligations hereunder or the reunder.
Section 2.2. Representations and Warranties by Operator. Operator makes the following
representations and warranties as the basis for the undertakings on its part herein contained:
101239803\V-2I
(a) Operator is a limited liability company duly organized Lmder the laws of the State
and duly qualified to do business in the State, is in good standing in the State and
has power to enter into the transactions contemplated by this Agreement and to
carry out its obligations hereunder. The execution, delivery and performance by
Operator of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessai·y
action on the part of Operator.
(b) Each of the agreements to which it is a party related to the subject matter of this
Agreement, including this Agreement, have been duly executed and delivered by
duly authorized officers of Operator, and constitute valid and binding obligations
of Operator, enforceable against Operator in accordance with their respective
terms.
(c) There is no litigation now pending or, to Operator’ s knowledge, tlu·eatened,
challenging the corporate existence of Operator and there is no pending, or to
Operator’s knowledge, threatened action or proceeding before any court or
administrative agency that individually (or in the aggregale in the case of any
group of related lawsuits) is expected to have a material adverse effect on the
fina11cial condition of Operator or the ability of Operator to perform its
obligations under this Agreement.
(d) The execution, delivery and performance of this Agreement and any of the
transactions or documents contemplated hereby or thereby or compliance with
the terms and provisions hereof or thereof do not and will not (i) violate any
Governmental Rule of any Govermnental Authority applicable to Operator or any
of its Affi liates, which violation would materially and adversely affect the ability
of Operator to perform its obligations undex this Agreement or the transactions or
documents contemplated hereby or thereby; (ii) conflict with or would result in
the breach of, or constitute a default under, this Agreement, or any other contract,
12
lease, indenture, loan agreement, mo1tgage, deed of trust or other agreement or
instrument to which Operator is a party or by which Operator or its property may
be bound, or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the prope1ty or assets of
Operator under the term of any instrument or agreement, which conflict, breach,
default or encumbrance would materially and adversely affect the ability of
Operator to perform its obligations under this Agreement or the transactions or
documents contemplated hereby or thereby; or ( iii) violate the charter, atticles of
incorporation or bylaws of Operator. No consent, approval authorization or order
of any Governmental Authority or other regulatory authority, agency,
commission or board of arbitration was or will be required in connection with the
execution, delivery and performance by Operator of this Agreement or the
transactions or documents contemplated hereby or thereby or compliance with
the terms and provisions hereof, except (i) such as have been obtained and are in
full force and effect, (ii) any permits required to be obtained with respect to the
construction of the Project and (iii) the approvals contemplated by Section
14.25.1.
(e) Operator has duly and validly obtained all material certificates, licenses and
permits from all public authorities, both federal and state, required as of the
Effective Date to enable Operator to carry on its business as it is now conducted
and to enter into this Agreement.
(t) To the best of Operator’s knowledge, no event has occurred and no condition
cmrently exists, which constitutes or may, with the passage of time or the giving
of notice, or both, constitute an Event of Default with respect to or on the part of
Operator under this Agreement or that could materially adversely affect the
ability of Operator to perform its obligations hereunder.
(g) Operator or its Affi liate will secure the right to locate and operate a Class A –
Advanced MiLB team in City, approved by a Sanctioning Association that is
affiliated with a major league baseball team; Operator or its Affiliate shall locate
such team in City and play its regular season home games, postseason home
games in which Team is eligible to participate and any all-star games awarded to
Operator by the Sanctioning Committee at the Baseball Stadium (subject to
temporary changes in “home” vs. “away” stah1s as may be directed from time to
time by the Sanctioning Association).
ARTICLE ill
PROJECT DEVELOPMENT
Section 3.1. Project Design. City will enter into lhe Architect’s Contract and, except as set forth in
Section 3.6, shall be solely responsible for the payment of all fees and reimbursable expenses due and
payable from time to time under the Architect’ s Contract. Subject to Force Majeure, City shall be
responsible for the timely completion of the design of the Project. The Project Plans shall be in
compliance with applicable written rules and regulations of the Sanctioning Association in effect on the
Effective Date and permit Final Completion of the Project Improvements Work for an amount not to
exceed City’s Contribution. City shall provide Operator the opportunity to review and comment on the
Architect’s Contract prior to execution by City of the Architect’s Contract and City sha ll consider, in
good faith, any requests or suggestions made by Operator with respect thereto. Operator agrees to assist
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City with respect to ensuring such compliance with the applicable rules and regulations of the Sanctioning
Association.
Section 3.2. Project Improvements. City agrees to fund the City’s Contribution toward the Project
Improvements. Should Operator require any changes to the Minimum Project Requirements or any
changes to Project Plans and such changes result in the Project Costs exceeding City’s Contribution,
unless otherwise mutually agreed, Operator agrees to be solely responsible for the payment of such
amounts in excess of City’s Contribution, and shall timely deposit with City in such manner as City and
Operator shall determine such additional amounts for the purpose of funding the Project Improvements.
City shall enter into a Project Construction Contract for the Project Improvements Work for the Project
Improvements, in accordance with the Minimum Project Requirements. City shall provide Operator the
opportunity to review and comment on the Project Construction Contract prior to execution by City of the
Project Construction Contract and City shall consider, in good faith, any requests or suggestions made by
Operator with respect thereto. The Project Plans (including detailed plans and specifications) shall be
developed and prepared by the Architect at City’s expense and direction and in cooperation with Operator
and submitted by City to Operator for its review and approval, which approval will not be unreasonably
withheld, conditioned or delayed (it being understood, however, that Operator may only withhold its
approval to the extent the Project Plans are not in compliance with the applicable written rules and
regulations of the Sanctioning Association or do not include all of the Minimum Project Requirements).
In addition, City shall consider, in good faith, any requests or suggestions made by Operator with respect
to the Project Plans. Operator shall have thirty (30) days to review the Project Plans and if they do not
object within such time, they are deemed approved. In the event there is a dispute between City and
Operator regarding the Project Plans, provided they (i) are in compliance with applicable written rules and
regulations of the Sanctioning Association in effect on the Effective Date and (ii) include all of the
Minimum Project Requirements, City shall have the final approval of the Project Plans. Any changes to
the final Project Plans shall be subject to the prior approval of City.
Section 3.3. Contract Requirements and Warranty Claims. City shall ensure that the Project
Construction Contract for the Project lmprovements and all subcontracts for the supply of equipment or
systems to the Project Contractor for the Project Improvements shall provide for the assignment of all
warranties, maintenance agreements thereunder to Operator and give Operator the independent right to
enforce the same as an express third party beneficiary thereunder, and permit Operator to use (but not
own) any plans and specifications to which City is then entitled pursuant to any such contracts. City
covenants and agrees that without the prior consent of Operator, which consent shal1 not be unreasonably
withheld, conditioned or delayed, City will not (i) voluntarily, involuntarily, by operation of law or
otherwise, sell, assign or transfer any of the maintenance and warranty contracts to any person other than
Operator; (ii) terminate any of the maintenance and warranty contracts; (iii) waive or release any of the
respective obligations of any person under any of the maintenance and warranty contracts; or (iv) in any
way voluntarily modify or amend any of the maintenance and warranty contracts. further, City agrees
that Operator is a third-patiy beneficiary of the warranty contracts and hereby conveys, transfers and
assigns to Operator the nonexclusive right to enforce any and all of the respective obligations of any
person under the maintenance and warranty contracts, including, but not limited to, any and all
representations and warranties thereunder. City and Operator shall cooperate with each other regarding
the enforcement of any and all warranty and similar claims under any and all contracts or other
agreements with third paities for the design, construction, supply, alteration, improvement, maintenance
or renewal of the Project Improvements and Premises, including, but not limited to, any and all such
claims under the Project Construction Contract (each a “Warranty Claim”). All recoveries from any such
Warranty Claims shall be applied, first, to the cost of collection, second, on a proportional basis to City
and Operator to (x) reimburse Operator for the cost and expenses incurred in order to repair, restore,
renew or replace any part of the Project Improvements or Premises as to which such Warranty Claim
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10 1239803\V-2I
relates and which have not been paid out of the Capital Repair, Maintenance and lmprovements Account
and (y) to reimburse City for amounts paid by City as City’s expenses relating to such Warranty Claim.
Section 3.4. Access to the Project. Operator and its agents, contractors, licensees, and concessionaires
shall have the right of access at normal construction hours during the construction period, for themselves
and their authorized representatives, to the Land and the Project Improvements and all portions thereof for
the following purposes, without charges or fees or the commencement of payment of Operating Fees
under this Agreement, provided Operator and all such agents, contractors, licensees, and concessionaires
(i) notify City at least forty-eight (48) hours in advance of such proposed entry, (ii) do not hinder or
interfere with the Project Improvements Work or the activities of City’s contractors, (iii) take such
reasonable protective precautions or measures as City or the Project Contractor may reasonably request,
given the stage of the Project Improvements Work at the time of such entry; and (iv) comply with the
provisions of the Project Construction Contract relating to City’s rights to access: (a) conducting
inspections for purposes of determining compliance with this Agreement; (b) construction and installation
of any improvements permitted by the Agreement so long as, in either case, Operator does not
unreasonably interfere with the construction of the Project Improvements Work by the Project Contractor;
(c) preparation and use of its offices for ticket sales and promotions and other normal and customary
business, and equipping locker room and related facilities for Operator; (d) installation of any additional
fixtures or equipment desired by Operator; (e) tours of the Land and Project Improvements sponsored by
Operator; and (f) the erection and maintenance of billboards and signs during the construction period
consistent with Operator’ s Naming Rights and advertising rights under this Agreement. Prior to Operator
starting any work on the Premises, it shall obtain and cause all of its contractors and subcontractors to
obtain insurance in amounts and upon terms reasonably acceptable to City (but not exceeding the
requirements City imposes on contractors working on City property). Subject to compliance with City’s
ordinances related to occupancy of buildings, Operator shall have the right to take possession of its
offices (subject to the terms hereof) and use the same for the conduct of Operator’s normal and customary
business. Any entry, access or occupancy provided to Operator pursuant to the terms of this Section 3.4
shall not be deemed to be acceptance of the Project Improvements Work or commence the Term.
Operator shall be responsible for all utility and other costs associated with taking possession of its offices.
Operator shall cooperate with City in all aspects of the development and construction of the Baseball
Stadium and not unreasonably hinder, delay or interfere with the development and construction of the
Project Improvements.
Section 3.5. Schedule for Substantial Completion and Liquidated Damages. City shall cause
Substantial Completion of the Project Improvements Work to occur, or shall have obtained a temporary
certificate of occupancy for the Project Improvement Work (a “Temporary CO”) on or before twenty (20)
days prior to the first Team Game of the 2019 Carolina League season (the “Target Substantial
Completion Date”). In addition, City agrees to use commercially reasonable efforts to include in the
Project Construction Contract a provision whereby the Project Contractor agrees to pay liquidated
damages (i) in the amount of $1,000 per day for each day beyond the Target Substantial Completion Date
that the Project Contractor fails to achieve Substantial Completion, and (ii) in the amount of $50,000 for
each scheduled regular season baseball game which Operator is unable to conduct in the Project
Improvements due to the failure of the Project Contractor to have achieved Substantial Completion on or
before the Target Substantial Completion Date, except, in each case, to the extent that the failure to
achieve Substantial Completion on or before the Target Substantial Completion Date is the result of
Operator Requested Modifications or is otherwise caused by Operator or its representatives or a Force
Majeure. for purposes hereof, Operator will be deemed to be unable to conduct its first scheduled
baseball game if Substantial Completion has not been achieved or a Temporary CO has not been obtained
at least fourteen (1 4) days prior to the scheduled date of such opening or subsequent game and the
$50,000 liquidated damages shall be due and payable fo r each such game unless the game is in fact
played at the Baseball Stadium. Notw ithstanding anything in this Agreement, the Project Construction
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Documents or any other agreements related hereto to the contrary, Operator agrees that Operator’s sole
remedy for any delay in Substantial Completion of the Project Improvements Work beyond the Target
Substantial Completion Date is to obtain the liquidated damages from the Project Contractor; provided,
however, that if City uses commercially reasonable efforts but fails to include the liquidated damages
amount above in the Project Construction Contract, Operator is unable to play any of its scheduled regular
season home baseball games at the Baseball Stadium as a result of the failure of the Project Contractor to
have achieved Substantial Completion on or before the Target Substantial Completion Date, then the
Operating Fees for such year shall be reduced on a pro-rated basis based on the number of such home
baseball games that were not able to be played at the Baseball Stadium, provided that in the event
Substantial Completion occurs after the Target Substantial Completion Date, but prior to the first
scheduled regular season home baseball game, Operator shall use commercially reasonable and good faith
efforts to cause such baseball game to be played at the Baseball Stadium. For the avoidance of doubt,
Operator acknowledges and agrees that in no event shall City be responsible for the payment of any
liquidated damages contemplated by this Section 3.5 or the Project Construction Contract.
Section 3.6. Operator Requested Modifications. ln the event that Operator determines that it desires
any additions or modifications to the Minimum Project Requirements or any changes to Project Plans
(“Operator Requested Modifications”), Operator shall submit a written request along with plans and
specifications for the Operator Requested Modifications to City and City shall consider, in good faith, any
such requests. In the event that City accepts any Operator Requested Modification and such Operator
Requested Modification results in an increase in the Project Cost over and above City’s Contribution,
unless otherwise mutually agreed, such increase shall be the sole responsibility of Operator, and it will be
the sole responsibility of Operator to timely pay the cost of the Operator Requested Modification. After
confirming Operator’s commitment to pay such increase, City shall direct the Project Contractor to
perform the same.
Section 3.7. Performance and Payment Bonds. Prior to Operator commencing any construction project
estimated to cost greater than $500,000, Operator shall provide to City for its approval a statutory form
payment and performance bond for such project.
Section 3.8. Change Orders. No changes in plans or specifications shall be made to the Project or the
Minimum Project Requirements unless agreed to in a written change order (“Project Change Order”)
approved in writing by City and Operator, provided, that Operator may not withhold its approval to any
such change to the Project unless such change results in the Project’s fai lure to comply with the
applicable written rules and regulations of the Sanctioning Association or to include all of the Minimum
Project Requirements. City shall consider, in good faith, any requests or suggestions made by Operator
with respect to any Project Change Order. Unless otherwise agreed with respect to any specific Project
Change Order, the Patty submitting the proposed Project Change Order shall be responsible for all costs
relating to the preparation of such Project Change Order.
ARTICLE IV
ENGAGEMENT OF THE OPERATOR
Section 4.1. Engagement of the Operator.
4.1.1 In consideration of and pursuant to the covenants, agreements, and conditions set fo1th
herein, the City hereby engages the Operator, and the Operator hereby accepts such
engagement, to control, manage, operate and promote the Premises, with the right to
exploit the econom ic rights arising out of or relating to the Premises as provided for in
this Agreement. On the Commencement Date, subject to the terms and conditions of this
Agreement, City will give and deliver to Operator the exclusive right to control, manage,
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operate and promote the Prem ises the Premises free of all tenancies, licenses, and parties
in possession of such Premises (other than those arising by, through or under Operator)
and free of Hazardous Materials in concentrations that exceed applicable standards under
Environmental Law. City shall make the Premises available to Operator on the
Commencement Date and shall ensure that the Premises are in good condition and repair
and are in a clean and orderly condition.
4.1.2 City covenants for the Term that Operator, upon paying the Operating Fees and upon
keeping, observing and performing the terms, covenants and condition of this Agreement
to be kept, observed and performed by Operatoi’, including, without limitation, the terms,
covenants and conditions set forth in A1ticle YI of this Agreement, shall and may occupy,
use, and enjoy the Premises without .interference by or from City, subject only to the
terms and provisions set fo1th herein.
4.1.3 City covenants that Operator’s rights to the Premises arising under this Agreement shall
be senior and prior to any lien, lease or other encumbrance existing, created or arising in
cmmection with the acquisition, development, construction or financing of the Premises
or the Project Improvements Work or any portion thereof. The foregoing does not extend
to any liens, leases or encumbrances aris ing by, t lu·ough or under Operator or its agents
acting in such capacity.
Section 4.2. Term. The term (the “Term”) of this Agreement shall commence upon the Commencement
Date and shall continue for a period of thirty (30) years thereafter, unless earlier terminated in accordance
with the terms hereof; provided, however, that if the expiration date of the Term shall fall during a
baseball season, then the Term shall be automatically extended to the day that is thi1ty (30) days after the
last home game (regular or postseason) of such season and the Operating Fee shall be prorated for such
extension period based on the Operating Fee then in effect for such final Agreement Year.
Section 4.3. Operating Fees.
4.3.1 lt is the intent of lhe Parties that the City have a secure and definite annual revenue
stream from the operations of the Project. The amounts agreed to in this Section shall be
a combination of the lease payments made by the Operator under the Exclusive Use
Lease Agreement and the Operating Fee pursuant to this section.
4.3.2 Whereas the exact amount of the lease payments due and payable under the Exclusive
Use Lease Agreement cannot be accurately determined until final plans and construction
drawings for the Project are agreed to by both Parties, the exact nature and square footage
of the Exclusive Use Areas is determined, and a market rate lease payment calculated and
agreed to by both parties for the Exclusive Use Areas, the Parties agree that the combined
annual payments that the Operator shall pay to the City shall be an annual Operator Fee
for each agreement Year during the base Agreement Term, plus the amount agreed to in
the Exclusive Use Lease Agreement, such that the total of the two payments shall equal
the following amounts:
ID 1239803\V-2 l
Agreement Years 1 – 5
Agreement Years 6 – 1 0
Agreement Years 11 – 15
Agreement Years 16 – 20
Agreement Years 21 – 25
– $250,000.00 per Agreement Year
– $275,000.00 per Agreement Year
– $300,000.00 per Agreement Year
– $325,000.00 per Agreement Year
– $350,000.00 per Agreement Year
17
Agreement Years 26 – 30 – $375,000.00 per Agreement Year
4.3.3 Operator shall pay to City on or before June 1st of each Agreement Year the Operator Fee
portion of the payment as calculated above, without deduction or setoff ( except as
otherwise expressly provided in this Agreement), at City’s address provided for in this
Agreement or as otherwise specified by City in writing.
Section 4.4. Permitted Uses. Throughout the Term, Operator shall occupy and use the Premises for the
primary purposes of conducting its regular season home games, any postseason home games in which
Team is eligible to paiticipate and any all-star games awarded to Operator by the Sanctioning Association
(including radio and television broadcasting or other transmission of same) in accordance with the rules
and regulations of the Sanctioning Association. In addition to the foregoing, the permitted uses shall
include the conducting of meetings, trade shows, exhibitions, concerts, public entertainment events,
private events, other baseball games and spotting events, and other similar traditional baseball functions
that will encourage economic development and tourism in City; and for purposes related and incidental
thereto including, without limitation, operation of restaw·ants and concession facilities in and adjacent to
the Baseball Stadium (during games and events and at other times), sale of food and beverages (alcoholic
and non-alcoholic), conducting tours, storage, and office uses, and for any other lawful purpose that is not
a prohibited use described in Section 4.7.
Section 4.5. Compliance with Laws.
4.5.1 Operator shall, throughout the Term, and at no expense to City, promptly comply or
cause compliance in all material respects with all laws, ordinances, orders, rules,
regulations and requirements of duly constituted Governmental Authorities, which may
be applicable from time to t ime to its use of the Premises and its operation, repair and
alteration thereof.
4.5.2 Operator shall not, however, be required to comply or cause compliance with such laws,
ordinances, orders, rules, regulations or requirements, if Operator is, after prior written
notice to City, contesting the same or the validity thereof in good faith, at Operator’s
expense by appropriate proceedings; and provided further, such noncompliance will not
have a material adverse effect on the Premises or Operator or the performance of its
obligations hereunder. Such contest may be made by Operator in the name of Operator
and City shall , at Operator’s expense, cooperate with Operator in any such contest to such
extent as Operator may reasonably request; provided, however, that Operator may not
contest in the name of City any law, ordinance, rule, regulation, order or requirement of
City, and City has no obligation to cooperate in any such contest against City. City shall
not, however, be subject to any liability for the payment of any costs or expenses in
connection with any such proceedings brought by Operator, and Operator covenants to
pay, and to indemnify and save City harmless from, any such costs or expenses, including,
but not limited to, cowt costs and attorneys’ fees.
Section 4.6. Obligations of Operator Unconditional. The obligations of Operator under this Agreement
including, but not limited to, the obligations to pay the Operating Fees, to maintain the Premises and to
pay the premiums or charges necessary to maintain or cause to be maintained the insurance required
herein, and to provide the indemnity required herein shall be absolute and unconditi onal and shall not be
subject to any defense (other than payment) or any right of set-off, counterclaim, abatement or otherwise
except as expressly permitted by this Agreement.
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Section 4.7. Prohibited Uses. Operator shall not allow the Premises to be used for any of the following
purposes: public nuisance; any use violating law; use as a sexually oriented business as defined in the
City Code; or use as an industrial site or waste disposal facility. If conducting professional baseball
games at the Baseball Stadiwn shall be or become prohibited uses under this Section 4.7, then Operator
may terminate this Agreement.
ARTICLEV
BEGINNING CONDITION, ALTERATIONS AND IMPROVEMENTS
Section 5.1. Beginning Condition. On the Commencement Date, City shall deliver exclusive and vacant
possession of the Premises to Operator with all Project Improvements Work being Substantially Complete
and in good working order and condition and having been accepted in writing by Operator (subject only
to immaterial items which can be completed by City or the Project Contractor without interfering with
Operator’s operation of the Premises); provided, Operator may only withhold acceptance if the Premises
are not in compliance with the applicable written rules and regulations of the Sanctioning Association or
do not include all of the Minimum Project Requirements. In no event shall Operator’s acceptance
pursuant to this Section be construed to release or waive (i) City’s obligations hereunder to cause
Substantial Completion of the Project Improvements Work to occur or (ii) any of Operator’s rights and
remedies hereunder in the event the Substantial Completion date does not occur or does not occur on or
before the Target Substantial Completion Date.
Section 5.2. Alterations. Any subsequent alterations, additions, or construction of new improvements on
or in the Premises must be consistent with the permitted uses of the Premi ses as set forth in Section 4.4
and must be consistent with the then appearance of the Premises and the uses being made thereof; and
must be approved in advance in writing by City in its sole discretion; provided, however, that Operator is
not required to obtain City’s prior approval for (a) non-structural remodeling or installation or removal of
Removables or other trade fixtures and equipment; (b) temporary improvements or alterations to
accommodate particular events; (c) alterations required to comply with any applicable Governmental Rule
or any requirements of the Sanctioning Association; (d) alterations resulting from restorations or repairs
of existing facilities; or (e) any other nonstructural alterations. For the avoidance of doubt, Maintenance
does not require the prior consent or approval of City. Operator may not, without the consent of City,
construct additional facil ities upon the Land or make structural alterations. For work req1.1iring City’s
approval, Operator shall submit the plans, specifications and construction drawings to City with
Operator’s request for approval.
Section 5.3. Compliance with Regulatory Requirements . Operator agrees that all additions and
alterations on or to the Premises constructed by it shall be constructed in accordance with all applicable
ordinances and statutes of Governmental Authority as well as the codes of City. Operator shall, at its sole
cost and expense, procure or cause to be procured all necessary building permits, other permits, licenses
and other authorizations required for the lawful and proper addition to or alteration, use, occupation,
operation, and management of the Premises (City agrees to cooperate with Operator’s efforts with respect
to obtaining such permits, licenses or other authorizations).
Section 5.4. Ownership of Improvements. Tit le to and ownership of the Premises during the Term of
this Agreement shall be and remain in City, except for trade fixtures, furniture, equipment, fmnishings
and their personal prope1ty installed in or affixed to the Premises by or on behalf of Operator and owned
by Operator (collectively, the “Removables”), all of which shall remain Operator’s sole prope1ty. At the
expiration or other termination of the Agreement, all alterations, additions, and improvements to the
Premises (except for the Removables) must remain upon and be surrendered with the Premises. For the
avoidance of doubt, any trade fixtures, furniture, equipment, furni shings and items of personal prope1ty
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paid for by City as pait of City’s Contribution or out of the Capital Repair, Maintenance and
Improvements Account shall be the property of City.
Section 5.5. City’s Right of Inspection. Prior to City giving or withholding its consent to any proposed
construction, alteration, addition to the Premises requiring such consent as set forth in Sections 5.2, City
may review Operator’s conceptual design drawings and construction drawings for such construction work,
the reasonable, out-of-pocket costs paid to third parties therefore to be paid by Operator. Upon
completion of any new construction or alteration or addition to existing improvements for which City’s
approval is needed under the terms of this Agreement, Operator shall obtain a written certification
addressed to City from a licensed architect or engineer reasonably acceptable to City stating that the
construction has been completed substantially in accordance with the construction drawings and that, to
the best of each professional’s knowledge, the completed improvements are in compliance with all
applicable ordinances, statutes, and the requirements of all Governmental Authority. Addit ionally, City
may, at its sole discretion, cost and expense, have the Premises inspected by an inspector qualified to
determine compliance with the standards and regulations of the Sanctioning Association, in order to
determine whether or not Operator is maintaining the Premises commensurate with the standards and
regulations of the Sanctioning Association and/or whet11er or not Operator is maintaining the Premises at
a level commensurate with the Comparable Facilities, as required in Section 6.1.5 herein.
ARTICLE VI
THE OPERATOR’S RIGHTS AND OBLIGATIONS
Section 6.1. Management. Subject to City’s rights to host City Events (as defined below), Operator shall
be the exclusive manager and operator of the Baseball Stadium and shall have the exclusive right to
contract for its license or use during the Tenn in a manner that will promote and further the purposes for
which the Baseball Stadium has been constructed; provided, however, that if, at any poi nt after the fi fth
Agreement Year the total average attendance per year at Operator Events and City Events over the
preceding three (3) year period is less than 50,000 attendees, City shall have the right to revoke from
Operator the right to manage and operate the Baseball Stadium in accordance with Section 7.16.3 below.
Operator shall do all things and take all commercially reasonable actions necessary for the operation and
maintenance of the Baseball Stadium as a baseball stadium and entertainment facility in accordance with
this Agreement and in a manner generally consistent with the operation and maintenance of the
Comparable Facilities as of the Effective Date, subject to normal wear and tear. Without limiting the
generality of the foregoing, Operator is authorized to and shall:
6.1.1 charge and collect all operating revenue, concession revenue, and seat and s uite use
charges for the Baseball Stadium and Premises and, in connection therewith, use all
commercially reasonable efforts to obtain all fees, rents and other amounts due from
licensees, concessionaires and other users of the Baseball Stadium and Premises; and
shall cause notices to be served upon such 1 icensees and other users to quit and surrender
space occupied or used by them where desirable or necessary in the opinion of Operator
and shall ask for, demand, collect and give receipts for all amounts which at any time
may be due from any licensees and other users of the Baseball S tadium and Premises;
6.1.2 commence, defend and settle in good faith such legal actions and proceedings concerning
the operation of the Baseball Stadium (except for City Events) as are necessary or
required in the opinion of Operator and shall retain counsel in connection therewith;
6.1.3 employ, pay and supervise all pers01mel that Operator determines to be necessary for the
operation of the Baseball Stadium (such personnel, during the course of such
employment, shall be employees of Operator and shall not be employees of City);
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determine all matters with regard to such personnel, including without limitation,
compensation, bonuses, fringe benefits, hiring and replacement and shall prepare, on its
own behalf and file when due, all fonns, reports and returns required by law relating to
the employment of such personnel;
6.1.4 maintain the Baseball Stadium in accordance with Comparable Facilities subject to
normal wear and tear, and maintain and operate the Baseball Stadium in compliance with
all requirements necessary for the conduct of all home games;
6.1.5 prepare, coordinate, implement, revise as necessary and administer a preventative
maintenance plan and program for the Baseball Stadium, its machinery and equipment,
and provide a maintenance log for each prior Agreement Year;
6.1.6 from and after the Commencement Date, arrange for and provide all utility and other
services for the Baseball Stadium and pay or cause to be paid when due all charges for
water, sewer, gas, light, heat, telephone, electricity, and other utilities and services
rendered to or used on or about the Baseball Stadium (City and/or the Project Contractor
shall be responsible for arranging and paying for all utility services necessary for the
construction and Final Completion of the Project Improvements Work and for providing
permanent utility services infrastructure and hook-ups for Operator’s use); provided,
however, that City and Operator shall reasonably cooperate in an effort to obtain the most
favorable rates for electricity and other utility services;
6.1.7 maintain or cause to be maintained all necessary licenses, permits and authorizations for
the operation of the Baseball Stadium;
6.1.8 furnish to City a statement on or before the 15th day of the first month following the end
of each calendar quarter during the Term showing the following for the prior qua1ter and
year to date:
10123980) \V-2 1
(a) a current user summary and detailed use activity report;
(b) invoices for reimbursement from City or the Capital Repair, Maintenance and
Improvements Account;
(c) expenses and receipts for all City Events;
(d) all expenditures by Operator with respect to Operator’ s Maintenance obligations;
(e) a detailed accounting of Official Attendance (as defo1ed below) together with a
calculation of all amounts to be paid by Operator to City pursuant to Section 7 .3
with respect to Official Attendance; and
(f) such other related information as the City may reasonably request; it being
understood, however, that Operator shall not be required to generate any special
reports pursuant to this clause (f) but rather just make available to City any
reports already prepared by Operator in the normal conduct of its business.
Receipt and acceptance of any statement furnished by Operator or payments paid by
Operator to City hereunder shall not preclude City from questioning the correctness
thereof for a period of five (5) years after such receipt and acceptance. In the event any
21
errors are disclosed, either tlu-ough questioning or as the result of an audit of such
statements, all enoneous statements shall be rectified and any differences in payments
shall be remitted to City by Operator within ten (10) days. In the event that an audit
reveals an underpayment by Operator, Operator shall, in addition to the payment and
interest provided for in this Agreement, reimburse City for reasonable costs and expenses
of such audit if the underpayment is five percent (5%) or more than the amount required
to be paid for the applicable period that was audited.
6.1.9 permit City (including its accountants, attorneys and other representatives designated by
City) to inspect and copy such books and records during the Te1m and for five (5) years
thereafter at Operator’s office, at all reasonable times upon not less than forty-eight ( 48)
hours’ written notice; provided, that, the books and records subject to inspection by City
include only the books, records and data re lated to the Premises itself and activities
thereat (such as attendance records, facilities maintenance records, City Events records
and accounting, parking records, etc.) not of Operator itself (such as, without limitation,
Operator’s tax returns) or the Team and neither Operator nor the Team shall be required
to provide its private financial information of any kind whatsoever not otherwise required
to be provided under this Agreement.
6.1.10 for a period of five (5) years after the end of the calendar year to which they pertain,
Operator shall keep and maintain the following books, records and documents at
Operator’s office at the Premises and, upon expiration or termination of this Agreement,
Operator shall provide City with a complete and accurate copy of such books and records
for immediate access and use by City:
(a) executed use agreements for Operator Events, or other use or license agreements
relating to the Premises, original insurance certificates, and related
correspondence, all of which may be maintained by Operator in electronic form;
(b) maintenance and repair files;
(c) accounting books and records and supporting documentation for amounts
payable to City pursuant to this Agreement;
(d) operation files, including HVAC, concessions, and equipment maintenance
schedules, warranties, and operation manuals;
(e) service contracts, including cleaning, maintenance, landscaping, trash removal,
etc.;
(t) permits and licenses;
(g) copies of insurance policies OT certificates; and
(h) such other books, records and documents as City may reasonably require
Operator to maintain.
6.1.11 procure and negotiate contracts with concessiona ire(s) for the operation of consumable
and/or non-consumable concessions at the Baseball Stadium (unless Operator shall
self-operate s uch concessions);
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6.1.12 provide adequate supervision and security and shall strictly enforce all rules, regulations,
and safety procedures that are required by law or regulation and usual and customary for
Comparable Facilities and that are required in general for the safe and orderly use of the
Premises. At all times the Premises shall be under the control, supervision and security
of Operator;
6.1.13 control the issuance of and issue all credentials for events at the Baseball Stadium; and
6.1.14 employ commercially reasonable methods to protecl City’s assets from theft, gross
negligence or fraudulent activity on the part of Operator’s employees or other agents.
Uninsured losses arising from theft, gross negligence or fraud of Operator, its employees
or agents are to be borne by Operator and not as an operating expense of the Premises.
Section 6.2. Promotions and Marketing. Operator’s obligation to operate the Baseball Stadium
generally consistent with Comparable Facilities shall not apply to promotional, event, or marketing
activities, and Operator shall have the discretion to adopt and implement such promotional and marketing
practices as Operator deems appropriate for the operation of its business at the Premises, subject to
Governmental Rule.
ARTICLE VII
ADDITIONAL COVENANTS OF CITY AND OPERATOR
Section 7.1. Maintenance of the Premises. Operator shall, at its sole cost and expense, perform all
Maintenance (as defined below) required to keep, maintain, and operate the Premises, including the
interior and exterior, structural (to the extent such maintenance is non-structural in natm·e) and
nonstructural po1tions of the improvements, in as good repair as exists on the Commencement Date and in
compliance with all appli cable Governmental R ules of any Governmental Authority applicable to the
Premises from time to time, and generally consistent with the operation and maintenance practices of the
Comparable Facilities, subject to ordinary wear and tear, Force Majeure events and events of
condemnation. “Maintenance” includes all work performed and expenses incurred for routine, regular,
and/or ordinary course maintenance and repairs reasonably necessary for the cleaning, upkeep and/or
operation of any equipment, facility, structure (to the extent such maintenance and repairs are non-
structural in nature) of· other component of the Premises. City has no maintenance and repair obligations
under this Agreement and, subj ect to City’s obligations as set forth in Section 7.16 below, City has no
obligation to perform or incur expenses related to Maintenance. “Maintenance” shall not include Capital
Repair, Maintenance and Improvements.
Section 7.2. Capital Repair, Maintenance and Improvements.
7.2.1 As of the Effective Date, City and Operator mutually agree that the Capital Repair,
Maintenance and Improvements Schedule is a reasonable estimate of Capital Repair,
Maintenance and improvements (for the avoidance of doubt, excluding Maintenance, as
defined in Section 7.1) expected to be performed during the Term. The Capital Repair,
Maintenance and Improvements Schedule may be amended from time to time upon
mutual agreement of City and Operator. Notwithstanding the foregoing, Operator agrees
annually, on or before September 30°’ of each year, or such later date as may be agreed to
by City, to present to the Board of Advisors a list of proposed Capital Repair,
Maintenance and Improvements (the “Proposed Improvements”) together with a
proposed schedule for and estimated budget for such Proposed Improvements for the
upcoming calendar year, which schedule shall be based on the Capital Maintenance
Schedul e and which budget, to the extent practicable, shall be based on estimates
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obtained by Operator. The Board of Advisors shall review such Proposed Improvements,
budget and schedule and offer a recommendation or recommendations to the Fayetteville
City Council regarding each such Proposed Improvements, and the budget and schedule
for such items. The Proposed Improvements together with the estimated budget and
schedule for each Capital Repair, Maintenance and Improvement shall be subject to the
approval of the Fayetteville City Council.
7.2.2 The Fayetteville City Council shall not umeasonably withhold its approval of the
Proposed Improvements so long as (i) the Proposed Improvements are consistent in
exterior appearance with the architectural theme of the Baseball Stadium, (ii) when
completed, the Proposed Improvements will not have reduced the overall utility of the
Baseball Stadium or weakened or impaired the structural integrity of the Baseball
Stadium and (i ii) there are sufficient funds in the Capital Repair, Maintenance and
Improvements Account to complete such Proposed Improvements and any expected
Capital Repair, Maintenance and Improvements schedule to occur in subsequent years
pursuant to the Capital Repair, Maintenance and Improvement Schedule after taking into
account payment for the Proposed Improvements; provided, however, that if such
approval is withheld solely as a result of clause (ii i), the Parties shall approve such
Proposed Improvements if Operator agrees in writing to pay for (x) the balance of the
cost of such Proposed Improvements not paid for out of the Capital Repair, Maintenance
and Improvements Account and (y) the cost of any Capital Repair, Maintenance and
Improvements scheduled for subsequent years if the payment for the Proposed
Improvements shall cause the Capital Repair, Maintenance and lmprovements Account to
have insufficient funds to pay for scheduled Capital Repair, Maintenance and
Improvements pursuant to the Capital Repair, Maintenance and Improvement Schedule,
after taking into account the forecasted amount of funds to be conh·ibuted into such
account in subsequent years, as determined by City.
7.2.3 In the event Operator pays for any such Proposed Improvements pursuant to Section
7.2.2, Operator shall be reimbursed from the Capital Repair, Maintenance and
Improvements Account when such account has sufficient funds to make such payment
and such reimbursement will not cause the Capital Repair, Maintenance and
Improvements Account to have an insufficient amount of funds, after taking into account
the forecasted amount of funds in the Capital Repair, Maintenance and Improvements
Account, as determined by City, to pay for Capital Repair, Maintenance and
Improvements that are scheduled to be completed in subsequent years pursuant to the
Capital Maintenance Schedule.
7.2.4 Operator shall perform all Capital Repair, Maintenance and Improvements approved
pursuant to this Section 7.2; provided, however, that, Operator and City may mutually
agree that the approved Capital Repair, Maintenance and Improvements shall be
performed by City, or indirectly by City’s vendors, and City shall be reimbmsed from the
Capital Repair, Maintenance and Lmprovcments Account for the cost of any such work.
City will reasonably cooperate with Operator, at Operator’s request, to perform, or
indirectly perform through City’s vendors, in whole or in pait, the Capital Repair,
Maintenance and Improvements. If, in Operator’s reasonable discretion, it is necessary to
immediately perform any Capital Repair, Maintenance and Improvements to protect the
safety of fans, players and/or operate of the Premises without interruption, Operator may
perform such improvement without the approvals required hereunder and submit to the
Fayetteville City Council for reimbursement from the Capital Repair, Maintenance ahd
Improvement Account. Approval of such reimbursement shall be subject to the same
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standards as approval and payment of Capital Repair, Maintenance and Improvements as
set f01th above in this Section 7.2.
Section 7.3. Capital Maintenance and Improvement Account. Each calendar year, Operator shall pay
to City the following amounts, which amounts shall be contributed to the Capital Repair, Maintenance
and Improvements Account: (i) City’s Share of the Naming Rights Revenue applicable to such calendar
year; and (ii) One dollar ($J .00) per attendee at paid or ticketed Team Games and Operator Events (the
“Attendance Revenue”), calculated based on the total official attendance at all Team Games (as repo1ted
to Sanctioning Association) and official attendance at Operator Events (“Official Attendance”), which
Attendance Revenue shall be paid to City on or prior to January 15th of the next year. Such one dollar
($ 1.00) payment shall only be owed for Official Attendance in excess of 50,000 attendees per calendar
year. For example, if Official Attendance is 50,001 in a calendar year, Operator shall pay One Dollar
($1.00) to City in Attendance Revenue. Should the average of the total annual deposits in the Capital
Repair, Maintenance and Improvements Account with respect to any year during the Term (such year, the
“Applicable Year”), determined as of January 31 of the following year and taking into account any
Attendance Revenue that was due and payable with respect to the Applicable Year; fall below one percent
(1.0%) of the hard construction costs included in the Project Costs, City and Operator shall each deposit
fifty percent (50%) of such deficiency into the Capital Repair, Maintenance and Improvements Account
on or before March 1 of the year following the Applicable Year (so that the average of the total annual
deposits in the Capital Repair, Maintenance and Improvements Account, calculated as if such deficiency
was cured by January 3 1 of such year, is equal to one percent ( 1.0%) of the hard construction costs
included in the Project Costs). Upon written approval by the Fayetteville City Council of Operator’s
proposed Capital Repair, Maintenance and Improvements pursuant to Section 7.2 herein, subject to
appropriation by the Fayetteville City Council, and subject to Operator’s compliance with all applicable
statutory requirements, City shall reimburse Operator for such approved expenditures through the Capital
Repair, Maintenance and Improvements Account. For the avoidance of doubt, any request for
reimbursement of Operator from the Capital Repai r, Maintenance and Imprnvements Account shall first
be presented to the Board of Advisors for a recommendation to then be presented to the Fayetteville City
Council for approval.
Section 7.4. Taxes and Other Charges. Operator shall pay prior to delinquency, in addition to the
payment of Operating Fees, each and every lawful cost, expense and obligation of every kind and nature,
foreseen or unforeseen, by reason of Operator’s interest in the Premises or any portion thereof or by
reason of or in any manner connected with or arising out of Operator’ s possession, operation,
maintenance, alteration, repair, rebuilding, use or occupancy of the Premises, or any part thereof.
Operator shall pay and discharge, prior to the delinquency thereof, all lawful assessments, ad valorem
taxes, sales taxes, business and occupation taxes, occupation license taxes, water charges, sewage disposal
charges, or other utility charges imposed on the Premises and Operator’s use and occupancy of the
Premises, and all other governmental taxes, impositions, and charges of every kind and nature, ordinary
or extraordinary, general or special, foreseen or unforeseen, whether similar or dissimilar to any of the
foregoing, and all applicable interest and penalties, if any, which at any time during the Tenn becomes
due and payable by Operator because of its rights or obligations under this Agreement and which is
lawfully levied, assessed or imposed on Operator or its interest in the Premises under or by virtue of any
present or future law, statute, ordinance, regulation or other requirement of any Governmental Authority,
whether federal, state, county, city, municipal, school or otherwise. Operator, upon written notice to City,
may contest in good faith any such tax, impositi on, charge or assessment levied by any Governmental
Authority (other than water charges or sewage disposal charges), and in such event may permit such tax,
imposition, charge or assessment (other than water charges or sewage d.isposal charges) to remain
unsatisfied during the period of such contest and any appeal, provided, however, that prior to the
commencement of such contest Operator shall demonstrate to City either (a) that Operator will have
sufficient funds to pay such assessment (together with any interest and penalties thereon) if the contest is
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10123980l\V-1.I
unsuccessful (as determined to be acceptable in the sole discretion of City) or (b) that Operator has
deposited into a separate escrow account funds equal to the contested amount, together with the
anticipated interest and penalties, if any, that would be incurred in the event of an unfavorable disposition.
Operator also shall pay or cause to be paid all lawful charges for gas, water, sewer, electricity, light, heat,
power, telephone, and other utilities and services used, rendered or supplied to, upon or in co1mection
with the Premises (Operator to pay or cause to be paid all of such charges directly to the provider thereof
except to the extent any of the same are provided by City as contemplated by Section 6.1.6 above, in
which case, Operator shall reimburse City for such payments or, at City’s request, make such payments
on behalf of City). Operator shall furnish to City promptly upon request, proof of the payment or timely
contest of any such tax, assessment or other governmental or similar charge, or any utility charge which is
payable by Operator, or evidence of the deposit of such funds into a reserve account, all as set forth above.
Notwithstanding the foregoing, in the event the City’s interest in the Premises is not exempt from
property taxation due to any failure of City, then City shall be solely responsible for such tax.
Furthermore, in the event a Targeted Tax is ever imposed by City, then Operator shall be entitled to a
credit against all Operating Fees then due and thereafter becoming due so as to enable Operator to
recapture the amount of the Targeted Tax paid by Operator; provided, that, in the event there are
insufficient Operating Fees due and to become due hereunder to enable Operator to recapture through
offset against the Operating Fees the amount of Targeted Tax paid by Operator, City shall directly pay to
Operator the amount of such excess Targeted Tax within thirty (30) days following Operator’s submittal
to City of the payment of the Targeted Tax and an invoice for the reimbursement therefore. The
provisions of this paragraph shall expressly survive the expiration or sooner termination of this
Agreement.
Section 7.5. Liens and Encumbrances. Operator covenants and agrees that, except for this Agreement,
it will not create or suffer to be created by, through or under Operator any lien, encumbrance or charge
upon the Premises. Operator shall satisfy or cause to be discharged, or will make adequate provision to
satisfy and discharge, within sixty (60) days after the same occurs, all such claims and demands for labor,
materials, supplies or other items which, if not satisfied, might by law become a lien upon the Premises or
any patt tilereof. If any such lien is filed or asse1ted against Operator or the Premises by reason of work,
labor, services or materials supplied or claimed to have been supplied on or to Operator or the Premises at
the request or with the permission of Operator or of anyone claiming under it, Operator shall, within s ixty
(60) days after it receives notice of the filing thereof or the asse,tion thereof against the Premises, cause
the same to be discharged of record, or effectively prevent the enforcement or foreclosure thereof, by
contest, payment, deposit, bond, order of cowt or otherwise.
Section 7.6. Franchise Liens. Operator may, at any time or from time to time, grant liens upon the Team
and/or any and all ownership or franchise rights Operator has in or with respect to the Team (the
“Franchise”); provided, however, that (i) any such liens shall be made or granted in compliance with and
subject to the requirements and obligations of Operator pursuant to this Agreement, (ii) if any person
acquires the Franchise pursuant to any foreclosure or other transaction under any such liens, such
occurrence shall be an Event of Default by Operator and (iii) any person who acquires the Franchise
pursuant to any foreclostu·e or other transaction under any such liens shall take the Franchise strictly
subject to and assume the requirements and burdens imposed on Operator pursuant to this Agreement.
Upon any such granting of such liens, Operator shall obtain from each such lien holder a written
acknowledgment and acceptance of the terms, provisions, and restrictions contained herein and shall
provide an executed copy thereof to City and shall state in the instruments creating and perfecting such
lien that any transfer is subject to the terms herein. In the event involuntary liens or material
encumbrances are placed on the Franchise that, upon foreclosure, would result in a violation hereof,
Operator will use its good faith efforts to promptly remove such liens or material encumbrances after
reasonable contest periods.
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Section 7.7. Surrender of Possession. Upon the te1mination of this Agreement, Operator shall surrender
the Premises (including all improvements thereon) to City in a condition which would have been in
compliance with the Maintenance requirements of Section 7 .1 of this Agreement had the Agreement not
terminated, reasonable wear and tear and damage by casualty and condemnation excepted.
Section 7.8. Operation. Operator agrees to operate and maintain the Premises throughout the Term in a
condition necessary to conduct the permitted uses described in Section 4.4, consistent with the general
quality of operations at Comparable Facilities. Except as provided herein, Operator may not assign any
rights, duties or obligations to operate and maintain the Premises throughout the Term to any party, other
than its Affiliates, without the prior written consent of City. City acknowledges that the foregoing does
not prohibit Operator from contracting with third parties to provide services such as concessions, security,
janitorial and similar services. Operator acknowledges and agrees that one of the primary reasons for
City’s financial and other commitments to build the Baseball Stadium and enter into this Agreement is to
provide for the betterment of the community generally. Operator will make reasonable efforts to provide
opportunities for local and regional charities and non-profits to utilize and gain exposure through the
Premises. Operator acknowledges that use of the Premises reflects upon the image and goodwill of City,
and Operator agrees that no Operator Event, signage at the Premises, promotion of Operator Events, or
any other use of the Premises by Operator or its agents, contractors or sublicensees shall be inconsistent
with prevailing community standards. Without limiting the generality of the fo regoing, no signage,
advertising or other promotions at the Premises shall be authorized or permitted by Operator for any of
the following: political candidates or matters, cigarettes, tobacco, firearms, contraceptives, adult
entertainment, sports books, or any illegal activities of any kind or nature, nor shall Operator authorize or
pe1mit any advertising or promotions which violate applicable Governmental Rules.
Section 7.9. Right of Operator to Revenues. Except as provided in Section 7.16 and except as set forth
herein with respect to City Events, Operator shall be entitled to, and is hereby granted the exclusive right
to, contract for, collect, receive and retain all gross income and revenues and other consideration of
whatever kind or nature realized by, from or in connection with the Premises, including, without
I imitation, all gross revenues, royalties, license fees, concession fees and income and receipts of any
nature, including, without limitation, those arising from (a) all adve1tising rights, (b) all broadcast rights,
(c) promotion of events at the Premises, (d) the sale of food, beverages at the Premises, (e) the sale of
merchandise, programs and other goods and wares of any nature whatsoever at the Premises, and (f) all
telecommunications rights. Operator shall have the right, without the prior consent of City, to sell or
grant rights to purchase future tickets for reserved seats, club seats and luxury suites, including personal
seat licenses (collectively, “Seat Rights”). All Seat Rights shall be subject and subordinate to the
provisions of this Agreement and shall not survive the termination or expiration of this Agreement. The
Operator shall have no responsibility or obligation to sell Seat Rights and City shall not have any liability
or responsibility to assure the sale of Seat Rights. Operator shall be entitled to, and is hereby granted the
exclusive right to, collect, receive and retain all gross income and revenues and other consideration of
whatever kind or nature (but excluding any Targeted Taxes) realized by, from or in connection with the
sale or other distribution of Seat Rights, tickets or passes (including general admission) for any seats in
the Premises. Except with respect to the Naming Rights, City shall have the right to sell and retain
revenue generated from the sale of advertising associated with City Events, including temporary signage,
adve1tisi ng on the field-side scoreboard message center and video display, print media and broadcast
media. Such advertising shall be provided at City’s cost and shall not replace or cover existing signage,
except where appropriate to secure a particular event, nor shall advertising displayed by City at the
Premises for a City Event conflict with promotional category exclusivities granted by Operator with
respect to the Premises for which Operator has provided City notice of such exclusivities.
Section 7.10. Naming aud Other Rights. Operator and City shall mutually agree on a name for the
Baseball Stadium and Operator and City shall jointly market the naming rights for the Baseball Stadium
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(the “Naming Rights”) during the Term of this Agreement and cooperate with each other in such
marketing. City shall be entitled to fifty percent (50%) of any revenue generated from the sale of the
Naming Rights to a licensee or Affiliate, net of costs attributable to the implementation of such Naming
Rights (the ”City’s Share of the Naming Rights Revenue”). City’s Share of the Naming Rights Revenue
in the applicable calendar year shall be credited to the Capital Repair, Maintenance and Improvements
Account. The name of the Baseball Stadium shall be a name that is appropriate for a City-owned facility.
After either Party proposes a name of the Baseball Stadium to the other Party, such other Party shall have
thi1ty (30) days to disapprove and thus prohibit such name for the Baseball Stadium (including the name
for the concourses or other part of the Baseball Stadium), includi ng, if disapproved by City, if the City
Council reasonably deems such name to be in bad taste, offensive to City’s image, a potential source of
embarrassment to City or in conflict with community standards. Any such proposal made in connection
with the sale or proposed sale of the Naming Rights shall include a written summary of the material terms
of such sale. Any advertising, documents or media infonnation prepared by or within the control of
Operator describing any event al the Baseball Stadium shall identify City as the location of the Baseball
Stadium. Without limiting the foregoing, Operator shall have the exclusive right to contract with any
person with respect to use and enjoyment of such name for the Baseball Stadium and the exclusive right
to enter into agreements with others whereby such others may display names, logos, trademarks,
advertisements, slogans, emblems, brand names, and the like in or about the Premises. The Paities
reserve the right to change the name of the Baseball Stadium from time to time subject to the provisions
of this Section 7 .10. Except as set forth herein with respect to City Events, Operator also retains
exclusive rights of conh·ol over, and the right to grant to others, the rights to broadcasts to and from the
Premises, regardless of the medium used (e.g., television, radio, internet, satellite) and all revenues
therefrom. City retains exclusive rights of control over, and the right to grant to others, the rights to
broadcasts to and from the Premises with respect to City Events, regardless of the medium used (e.g.,
television, radio, internet, satellite) and all revenues therefrom. Any agreement executed by Operator that
sells the right to name the Baseball Stadium shall provide that should the party to whom said right has
been sold perform or be the subject of any Act of Bankruptcy, Operator shall have the right to
immediately terminate such agreement and have the right to seek a new agreement with respect to the
Naming Rights for the Baseball Stadimn. Each party shall bear their own expenses in marketing tbe
Naming Rights for the Baseball Stadium. Notwithstanding anything herein to the conh-m-y, the Naming
Rights shall be subject to and subordinate to this Agreement.
Section 7.11. Advertising Content. Operator agrees that no advertising shall be allowed on the Premises
for political candidates or matters, cigarettes, tobacco, firearms, contraceptives, adult entertainment,
sports books, or any illegal activities of any kind or nature.
Section 7.12. Notification of Certain Events. Operator shall promptly notify City in writing if Operator
becomes aware of any of the following:
7.12.1 Any breach or alleged breach by Operator under this Agreement or the occurrence of an
Event of Default specifying the details of such Event of Default and the action that
Operator proposes to take with respect thereto.;
7.12.2 any litigation or potential litigation affecting the Premises or City, or any litigation or
potential litigation affecting Operator that could reasonably be expected to have a
material and adverse effect on Operator and/or its services or obligations under this
Agreement;
7.12.3 any bankruptcy filings, whether voluntary of involuntary with respect to Operator or, to
the eh.1enl of Operator’s actual knowledge (and without any obligation of clue inquiry or
investigation) any party perform ing any Capital Repair, Maintenance or Improvements;
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10123?80]\V-2 1
7.12.4 any casualty, loss, injury, claim or other event relating to the Premises that might result in
a claim against City or under any applicable insurance policies;
7.12.S any violation or alleged violation of applicable Governmental Rules or insurance
requirements; and
7.12.6 any involuntary lien filed against the Premises.
Section 7.13. City to Provide Scoreboard. City shall provide and install at the Baseball Stadium, at its
cost and expense and as part of City’s Contribution, a high definition LED video board scoreboard
approved by Operator, which approval shall not be unreasonably withheld, conditioned or delayed, and
meeting the M inimum Project Requirements and the requi rements of the Sanctioning Association and of
comparable quality to scoreboards at Comparable Facilities.
Section 7.14. City to Provide Signage. City shall provide and install at the Baseball Stadium, at its cost
and expense and as part of City’s Contribution, wayfinding signage and other signage as may be required
by Governmental Rule and meeting the Minimum Project Requirements, the requirements of the
Sanctioning Association and of comparable quality of signage at Comparable Facilities. City will use
commercially reasonable efforts to cause the United States and North Carolina Departments of
Transp01tation and other appropriate Governmental Authorities to alter or construct new directional
signage on freeways and other major thoroughfares (which may include, at City’s discretion, a Baseball
Stadium marquee), directing vehicles to the Premises. City will assist Operator in obtaining permission
and approval to hang banners with.in City limits (subject to reasonable restrictions) to generate interest in
the Baseball Stadium and in major events to be held at the Premises.
Section 7.15. City’s Right of Entry and Inspection. City shall have the right, at reasonable times, upon
reasonable request, or, at such time as City has reason to bel ieve that an emergency situation exists at the
Premises, to enter upon the Premises, for the purpose of inspecting the same and verify ing Operator’s
compliance with the terms and conditions of this Agreement.
Section 7.16. Use of Premises .
7.16.1 City shall have the right to schedule events at the Premises (the “City Event(s)”). City
shall be responsible for all costs associated with a City Event, including, without
limitation, maintenance and preparation of the Prernises, ticket-takers, ushers, in-stadium
security, scoreboard/sound and other personnel, trash removal, repai rs, supplies, and all
other event costs in connection with all City Events. City or its designee shall retain all
revenue generated from City Events, including, without limitation, ticket, sponsorship,
merchandising and other sales revenue. In com1ection with City Events, Operator shall
operate all food and beverage concessions at the Premises; provided, City shall receive
twenty-five percent (25%) of all gross revenues (after taxes) generated by the concessions
operations at the City Event. For the avoidance of doubt, Operator shall retain the
remaining seventy-five percent (75%).
7.16.2 Throughout the Term, Operator shall provide its schedule of all Team Games (including
tentative postseason home games) for each baseball season as soon as that schedule is
finalized and approved by the Sanctioning Association. City shall have thirty (30) days,
after receipt of the schedule, to reserve up to fifteen (15) priority dates for City Events
(“Priority Dates for City Events”) during the upcoming calendar year, provided such
elates do not interfere with or otherwise disrupt Operator’s use, operation, preparation or
maintenance of the Premises for Team Games, including, w ithout limitation, the baseball
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playing surface. Rights to use the Premises shall be in accordance with the following
order of priority: 1) Team Games; 2) Priority Dates for City Events; and 3) then, on a
first-come-first served basis, Operator Events and other City Events. Except with respect
to Team Games (including, without limitation, tentative postseason home games), which
take priority over all other events, once an event is approved and scheduled, that event
cannot be cancelled as a result of a subsequently requested event without the express
written approval of the entity that scheduled the currently scheduled event, which
permission may be granted or denied in the sole and absolute discretion of that entity;
provided, however, that, to assure full, equitable usage of the Premises and to provide
community access, City and Operator will each consider requests to reschedule events if
requested by the other pa1ty and will negotiate in good faith to reschedule smaller or
movable events to accommodate larger and/or less movable events, provided that the
party requesting that the other party reschedule an event shall be responsible for
reimbursing the other pmty for any incremental costs actually incurred in rescheduling
such event. If City or Operator has reserved the Premises for a City Event or Operator
Event, respectively, and such event is cancelled or is not otherwise scheduled to occur on
the reserved date, the reserving party shall notify the other pmty that no City Event or
Operator Event, as applicable, will occur on such date, as early as practicable after
learning or determining that no such event will occur. No event may interfere with or
otherwise disrupt Operator’s use, operation, preparation or maintenance of the Premises
for Team Games, including, without limitation, the baseball playing surface.
7.16.3 Due to the importance of additional events (beyond Team Games) to the success of the
Project, if, at any point after the fifth Agreement Year the total average attendance per
year at Operator Events and City Events over the preced ing three (3) year period is less
than 50,000 attendees, City shall have the right to revoke from Operator the right to
program Operator Events at the Premises, and may grant such right to either itself or a
third-party. If Operator’s right to program Operator Events is revoked pursuant to this
Section 7. 16.3, any event held at the Premises shall be managed and operated in the same
manner as a City Event. City, or the third party appointed by City to program Operator
Events, shall be responsible for all costs associated with any event held at the Premises,
including, without limitation, preparation and clean-up of the Premises with respect to
such Operator Event, ticket-takers, ushers, in-stadium security, scoreboard/sound and
other personnel, trash removal, repairs, supplies, and all other event costs in com1ection
with such events.
7.16.4 Operator sha ll keep certain mutually agreed areas of the Premises open during non-event
times for use by the public as a public park, provided Operator shall have no such
obligation if, (i) in Operator’s reasonable discretion, doing so will pose a safety or
security risk to the Premises or any persons or property or (ii) doing so will impose
incremental costs upon Operator of more than Twenty Five Thousand Dollars
($25,000.00) per Agreement Year (the “Opening Expense”), which amount shall be
increased each year by an amount equal to the product of t he prior year’s Opening
Expense times a number equal to the percentage increase in the CPI over a 12 month
period, calculated by using the most recently published CPl and the CPI published 12
months earlier. Such public use shall be from dawn to dusk and only extend to certain
outdoor fan areas of the Premises and not to the playing field or interior areas. Operator
may close the Premises a reasonable time in advance of any Team Game or event in order
lo properly prepare for such Team Game or event. For purposes hereof, ”CPI” shall
mean the Consumer Price Index for Urban Wage Earners and Clerical Workers (1982-
1984=100), U.S. City Average, All Items, Not Seasonally Adj usted, as published by the
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United States Depaitment of Labor, Bureau of Labor Statistics of the United States
Department of Labor, provided, that, in the event such index is discontinued, comparable
statistics in the purchasing power of the consumer dollar, as published at the time of said
discontinuance by a responsible financial authority shall be selected at City’s reasonable
discretion and shall be used in lieu of such index.
7.16.5 Notwithstanding anything to the contrary in this Section, Operator shall have the
exclusive right to use the Exclusive Use Areas.
Section 7.17. Obligation to Provide Professional Baseball Team. Operator agrees that during the Term
of this Agreement that it will ensure that the Team continuously uses the Premises for all of its home
games (subject to temporary changes in “home” vs. “away” status as may be directed from time to time
by the Sanctioning Association). The Team will initially be either a Class A – Advanced baseball team
(or the equivalent thereof sanctioned by the Sanctioning Association) which is affiliated with a Major
League Baseball team. All home games of the Team during the Term shall be played at the Premises
(subject to temporary changes in “home” vs. “away” status as may be directed from time to time by the
Sanctioning Association). If Operator shall lose or relinquish its baseball Franchise, league affiliation, or
player development contract, the Operator sha ll continue to be obligated to field a team sanctioned by a
Sanctioning Association which is affiliated with Major League Baseball at the Premises . Failure to
provide said Team will be considered as a Operator Default under Section 11.3.
Section 7.18. Concession Improvements; Access. City shall cause the Concession Improvements to be
constructed at City’s sole cost and expense. Concession Improvements shall be of a quality generally
consistent with concession improvements at Comparable Facilities. City agrees that Operator and its
agents, contractors, licensees, and concessionaires shall, subject the requirements of City’s insurers, have
the right of access, for themselves and their authorized representatives, to the Premises, without charges
or fees or the commencement of payment of Operating Fees hereunder, as described in Section 3.4.
Section 7.19. Security and Traffic Control. Subject to Operator’s payment of City’s customary charges
for similar activities, City will provide traffic control and security as is reasonably necessary outside of
the Premises to direct traffic to and from events at the Baseball Stadium at a level of service comparable
to that provided to other venues within City. The Paities shall cooperate in good faith to develop a traffic
control management plan to facilitate the ingress and egress of traffic to and from events at the Baseball
Stadium; provided, however, that the Pa1ties are under no obligation under the preceding clause to incw-
any costs in excess of costs otherwise required by this Agreement.
Section 7.20. City Tickets to Events. Operator agrees that City shall be provided with the use of (i) a
suite at up to ten (10) Team Games or Operator Events held at the Baseball Stadium; aod (ii) up to twelve
(1 2) tickets to any Team Game or Operator Event. The use of such tickets shall be for economic
development, tourism and other official business in City and shall be distributed by City at no cost.
Section 7.21. Use for Disaster Recovery Efforts and Disaster Preparedness. If City or surrounding
area is threatened by a hurricane or some other emergency situation, Operator shall comply with all
lawful orders of City Manager under City’s disaster preparedness plan. In the event of a declared federal,
state, or local emergency as allowed by law or in the event of an actual or imminently threatened event of
Force Majeure or similar emergency situation (a “Declared Emergency”) City shall have the right to use
the Facility, but not including the Exclusive Use Areas, as a stag ing area for disaster preparations,
response or other re lated uses purposes. ln cOJmection with a Declared Emergency use, City shall be
responsible for the costs of any damage to the Facil ity, personal injury, bodily injury and /or loss of life
caused by City’s use, provided that City shall not be responsible to Operator for any loss arising
from the underly ing Declared Emergency event.
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Section 7.22. Parking Area. City shall make the Parking Area available to Operator at no cost to
Operator. Jn addition, City shall assist Operator in creating a parking study to demonstrate adequate
parking within one-half (1/2) mile of the Baseball Stadium in compliance with the recommendations of
the Sanctioning Association.
Section 7.23. Permits. City will assist Operator in the procurement of all licenses, permits and clearance
from all public authorities, both federal and state, required to enable Operator to carry on its business as
required or permitted hereunder, including, without limitation, the acquisition of a liquor license(s) and
rights to use and display fireworks shows.
Section 7.24. Competitive Bidding. When required by applicable Governmental Rule, all contracts for
repairs, capital improvements, goods and services with respect to the Premises will be awarded on the
basis of competitive bidding or other process required by applicable Governmental Rule that is conducted
in accordance with applicable Governmental Rule. Even if not required by Governmental Rule, Operator
agrees to use its good faith efforts to ensure that local and local disadvantaged business enterprises and
minority businesses have an equal opportunity to patiicipate in the procurement of contracts relating to
Maintenance and Capital Repair, Maintenance and lmprovernents and will actively seek and identify
qualified local and local disadvantaged business enterprises and minority businesses and offer them the
opportunity to participate in the procurement of conh·acts relating to Maintenance and Capital Repair,
Maintenance and Improvements.
Section 7.25. Membership in MiLB. Operator shall at all times throughout the Tenn own a Team that
(a) is a full-season Class A ( or higher) minor league baseball team in a league that is a member of Mi LB,
(b) has a player development contract associated with a Major League Baseball franchise , and (c) is
authorized by the Sanctioning Association to play its home games at the Premises.
ARTICLE VIJI
INSURANCE
Section 8.1. Operator Insurance Policies. Operator shall, effective as of the date that Operator is
permitted to occupy the Premises pursuant hereto, obtain and maintain throughout the Term of this
Agreement Commercial General Liability coverage including bodily injury, personal injury, property
damage, and contractual liability in combined single limit of One M illion Dollars ($1,000,000) per
occurrence and Two Million Dollars ($2,000,000) aggregate; automobile liability coverage with limits of
One Million Dollar ($1 ,000,000) combined covering all owned, non-owned, leased and hired vehicles;
umbrella excess liability with limits of at least Five Million Dollars ($5,000,000) per occurrence and in
the aggregate; and workers compensation coverage to protect Operator’s permanent and temporary
employees. Such coverage shall be evaluated by the Parties, upon consultation with the Board of Advisors,
every fifth (5th) year during the term hereof and if the amount of coverage falls below industry standards,
coverage will be increased to conform to industry standards. Operator will name City as additional
insured on the commercial general liability and umbrella policies and will provide certificates of all
insurance. Insurance coverage required herein shall be placed with carriers licensed to do business in the
applicable State, have a rating in the most current edition of A.M Best’ s Property Casualty Key Rating
Guide that is reasonably acceptable to City. Operator shall maintain All-Risk property insurance on all
assets within the Premises that are owned by Operator on a full replacement cost basis. City will be
named as additional insured on policies except Workers’ Compensation. Operator will provide to City
certificates of all insurance.
Section 8.2. City Insurance Policies. City shall maintain property insurance, against damage or
destruction by fire, flood, hurricanes, tornados, terrorism or other casualty under a standard “all risk”
pol icy (“Damage”). Insurance shall be for one hundred percent (100%) replacement value. City shall be
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responsible for paying deductible costs, except that in the event the damage by fire or by other casualty is
due to any fault or neglect of the Operator, then the Operator shall be responsible for paying a reasonable
deductible, not to exceed One Hundred Thousand Dollars ($100,000.00) in the aggregate. on the Premises
(other than for assets therein owned by Operator) on a full replacement cost basis; Commercial General
Liability with minimum limits of $1,000,000 per occurrence, $2,000,000 aggregate for bodily liability,
premises and operations, personal and advertising injury; products and completed operations; contractual
liability; Excess Umbrella with minimum limits of $5,000,000 per occurrence and in the aggregate;
Workers’ Compensation covering City’s employees meeting statutory Hmits in compliance with the
applicable state and federal laws; Operator will be named as additional insured on such policies and City
will provide to Operator ceitificates of insurance. Ce11ificates of Insurance shall be produced to Operator
prior to the beginning of the Term of this Agreement. Insurance coverage required herein shall be
furnished by a company approved by the insurance commission of the State.
Section 8.3. Cooperation. Should any claims, demands, suits or other legal proceedings be made or
instituted by any person against or affecting City which arise out of any of the matters relating to this
Agreement or otherwise, Operator shall notify City promptly upon becoming aware of same and Operator
shall give City all pe1tinent information possessed by Operator and reasonable assistance in the defense or
other disposition thereof. Should any claims, demands, suits or other legal proceedings be made or
instituted by any person against or affecting Operator which arise out of any of the matters relating to this
Agreement or otherwise, City shall notify the Operator promptly upon becoming aware of same and City
shall give Operator all pe1tinenl information possessed by City and reasonable assistance in the defense or
other disposition thereof.
ARTICLE IX
INDEMNIFICATION
Section 9.1. Indemnification.
9.1.1 Operator shall, except as otherwise provided in this Section 9.1.1, defend, protect,
indemnify and hold City and its officers, directors, employees, and agents harmless from
and against any and all liabilities, damages, suits, claims and judgments of any nature
(including, without limitation, reasonable attorneys’ fees and expenses), arising from or
in connection with any injury to or death of a Person or any damage to property resulting
from, arising out of or in cmmcction with (i) the use or occupancy of the Premises by
Operator or Operator’s contractors, employees, officers, directors or agents on or after the
Commencement Date, (ii) Operator’s failure to comply with its obligations under this
Agreement or (iii) the gross negligence or willful misconduct of Operator or Operator’s
contractors, employees, officers, directors or agents. Notwithstanding the provisions of
tl1e preceding paragraph, Operator shall not be liable for any liabilities, damages, suits,
claims and judgments of any nature (including, without limitation, reasonable attorneys’
fees and expenses) arising from or in connection with:
101 23980]\V-21
(a) Any injury to or death of a person or any damage to property (including loss of
use) to the extent of the gross negligence or willful misconduct of City, its
employees, officers, directors, contractors, agents or invitees;
(b) City’s violation of any provisions of this Agreement or any applicable
Governmental Authori ty or deed restriction or insurance policy, now or hereafter
in effect and applicable to City;
33
(c) The existence of any Hazardous Materials in, on or under the Premises prior to
the Commencement Date; or
(d) Any environmental event caused by City or any of its employees, officers,
directors, contractors, agents or invitees.
9.1.2 To the maximum extent pennitted by applicable Governmental Rule, City shall, except as
otherwise provided in this Section 9.1.2, defend, protect, indemnify and hold Operator
and its officers, directors, employees, and agents harmless from and against any and al l
liabilities, damages, suits, claims and judgments of any nature (including, without
limitation, reasonable attorneys’ fees and expenses), arising from or in connection with
any injmy to or death of a person or any damage to property resulting from, arising out of
or in connection with (i) the use or occupancy of the Premises prior to the
Commencement Date, (ii) City’s failure to comply with its obligations under this
Agreement, or (iii) the gross negligence or willful act of City or City’s contractors,
employees, officers, directors, agents or invitees. Notwithstanding the provisions of the
preceding paragraph, City shall not be liable for any liabilities, damages, suits, c laims and
judgments of any nature (including, without limitation, reasonable attorneys’ fees and
expenses) arising from or in connection with:
(a) Any injury to or death of a person or any damage to property (including loss of
use) to the extent of the gross negligence or willful act of Operator, its employees,
officers, directors, contractors, agents or invitees;
(b) Operator’s violation of any provisions of this Agreement or any applicable
Governmental Rules or deed restriction or insurance policy, now or hereafter in
effect and applicable to Operator;
(c) Any Hazardous Materials that are introduced to the Premises after t he
Commencement Date by Operator, or any of its employees, officers, directors,
contractors, or agents; or
(d) Any environmental event caused by Operator or any of its employees, officers,
directors, contractors, or agents.
The provisions of this Section 9.1 are solely for the benefit of City and Operator and are not intended to
create or grant any rights, contractual or otherwise, to any other person.
Section 9.2. Indemnification Procedures. In case any claim shall be brought or, to the knowledge of any
indemnitee, tlu·eatened against any indemnitee in respect of which indemnity may be sought, such
indemnitee shall promptly notify the other in writing; provided, however, that any failure so to notify
shall not relieve the indemnitor of its obligations under Section 9.1 or 9.2, as applicable, unless (i) such
failure so to notify precludes investigation and defense of such claims as a matter of law, and (i i) the
indemnitor does not otherwise have knowledge, either actual or constructive, of such claim. The
indemnitor shall have the right (and obligation, subject to the terms below) to assume the investigation
and defense of all claims, including the employment of counsel, reasonably acceptable to the indemnitee,
and the payment of a ll expenses. Each indemnitee shall have the right to employ separate counsel in any
such action and participate in the investigation and defense thereof, but the fees and expenses of such
counsel shall be paid by such indemnitee unless (i) the employment of such counsel has been specifical ly
authorized by indemnitor, in writing, (ii) indenmitor has failed after receipt of notice of such claim to
assume the defense and to employ counsel, or (iii) the named parties to any such action (including any
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impleaded patties) include both paities, and the indemnitee, after consultation with its counsel, reasonably
believes that there may be one or more legal defenses available to it which are different from or additional
to those available to the indemnitor (in which case, if such indemnitee notifies the indemnitor in writing
that it elects to employ separate counsel at indemnitee’s expense, indemnitor shall not have the right to
assume the defense of the action on behalf of such indemnitee; provide, however, that indemnitor shall
not, in connection with any one action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegation or c ircumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys for the indemnitee, which firm shall be
designated in writing by the indemnitees). Each indemnitee shall cooperate with the indemnitor in the
defense of any action or claim. The indemnitor shall not be liable for any settlement of any action or
claim without its consent, but if any such action or claim is settled with the consent of the indemnitor or
there be final judgment or agreement for the plaintiff in any such action or with respect to any such claim,
the inde1m1itor shall indemnify and hold harml ess the indemnitees from and against any damages by
reason of such settlement or judgment.
Section 9.3. Survival Right to Enforce. The provisions of this Atticle IX shall slU’vive the termination of
this Agreement. In the event of failure by an indemnitor to observe the covenants, conditions and
agreements contained in this Article IX, any indemnitee may take any action at law or in equity to collect
amounts then due and thereafter to become due, or to enforce performance ai1d observance of any
obligation, agreement or covenai1t of the indemnitor under this Article IX. Except as otherwise provided
in Article X below, the obligations of the parties under this Article IX shall not be affected by any
assignment or other transfer of its rights, titles or interests under this Agreement and will continue to
inure to the benefit of the indemnitees after any such transfer.
Section 10.1. Assignment.
ARTICLEX
ASSIGNMENTS; MORTGAGES
10.1.1 Except as provided below, Operator shall not assign its interest in this Agreement or any
of its rights or obligations hereunder without the prior written consent of City, which
consent may be witW1eld if in City’s sole judgment such assignment might materially and
adversely affect the financial condition or operations of the Baseball Stadium or if, in
City ‘s sole judgment, such assignment is to a party that is less credit-worthy than
Operator.
10.1.2 Notwithstanding the foregoing, without City’s consent, Operator shall have the right
upon thi1ty (30) days prior written notice to City to assign its interest in this Agreement to
any Affiliate of Operator. In addition, without City’s consent, Operator shall have the
right to transfer oi• assign any non-controlling interest (less than 50%) in Fayettevi lle
Baseball Club LLC.
10.1.3 Notwithstanding the foregoing, after the conclusion of the seventh Agreement Year, with
City’s consent, which shall not be unreasonably withheld, conditioned or delayed,
Operator shall have the right upon thirty (30) days prior written notice to City to assign
its interest in this Agreement in connecti on with a sale of the Team or a sale by Operator
of all or substantially all of its assets, in a single transaction or a series of transactions,
that has been approved by tl1e Sanctioning Association.
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10.1.4 Upon any assignment or transfer as described above, the assignor shall be released frorn
liability under this Agreement (other than any liabilities arising or accruing prior to the
date of assignment).
10.1.5 Nothing in this section shall provide the City with any approval or consent rights relating
to any transfer or assignment of Houston Baseball Partners, LLC or the Houston Astros
Major League Baseball Franchise, at any time, even if such transfer or assignment shall
result in the transfer or assignment of Fayetteville Baseball Club LLC.
Section 10.2. Notice of Intent. If Operator shall , at any time during the Term, desire to assign this
Agreement or all or part of its interests under this Agreement to a party (other than as permitted without
City’s consent under Section 10.l above), Operator shall give notice thereof to City, which notice shall be
accompanied by: (a) a conformed or photo static copy of the proposed assignment; (b) a statement setting
fo1th, in reasonabl e detail, the identity of the proposed assignee and the nature of its business; (c) current
financial information with respect to the proposed assignee, including its most recent financial statement
(which may take into account the effects of the transfer); (d) banking and business references of the
proposed assignee; and (e) evidence satisfactory to City that the proposed assignee has been approved by
a Sanctioning Association to own and operate a minor league baseball team and have its home games
played at the Baseball Stadium.
Section 10.3. Conditions Upon City’s Consent to Assignment. In the event that Operator complies
with all of the provisions of Sections 10.1 and 10.2 and provided no Event of Default then exists, City’s
consent to a proposed assignment shall not be unreasonably withheld or delayed, provided and upon
condition that: (a) The proposed assignee is a reputable person or entity of good standing in the business
community and with financial wo1th (after giving effect to tbe transfer) not less than that of Operator as of
the date hereof, and City has been furnished with reasonable proof thereof; (b) The proposed assignment
shall be in a form reasonably satisfactory to City and shall comply with the provisions of this Agreement;
and (c) Operator shall reimburse City on demand for any costs and overhead that may be incurred and
substantiated by City in connection with said assignment, including the costs of making investigations as
to the acceptability of the proposed transferee and reasonable legal costs incurred in connection with the
granting or withholding of any requested consent. If the foregoing conditions to an assignment are
satisfied and the assignment is made, then upon such assignment the named Operator herein shall be
released herefrom with respect to obligations, covenants, and agreements to be observed and performed
by the Operator under this Agreement after such date.
Section 10.4. Assignments and Concession Arrangements. Notwithstanding the foregoing, this
Section IO shall not limit or otherwise restrict Operator’ s exercise of its rights or performance of its
obligations hereunder, including, without limitation, Operator’s right to enter into or grant certain
contractual rights, subcontracts, sublicenses, and other arrangements for concessions, retail, security,
services and other providers as Operator may desire, all without consent from City, to the extent such
contrncts, subcontracts, sublicenses and other arrangements do not c ircumvent any prohibition or
restriction on the assignment of Operator’s rights or obligations hereunder as a whole.
Section 10.5. Mortgages. Operator shall have no right to encumber by mortgage, deed of trust, security
agreement or other instrument in the nature thereof (collectively, a “M01tgage”) or otherwise to encumber
or affect in any way the titles, interests, or estates of City in or to the Land or the Premises, but Operator
may encumber Operator’s right lo use and occupy the Premises or Operator’s receivables, accounts, or
revenue streams from the Premises, ahd Removables, all without the need for obtaining City’s consent.
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ARTICLE XI
DEFAULT
Section 11.1. City Default. The occurrence of any of the following shall be an “Event of Default” by
City or a “City Default”: (a) the failure of City to pay any of its monetary obligations under this
Agreement when due and payable under this Agreement if such failure continues for thirty (30) days after
Operator gives notice to City that such amount was not paid when due; (b) abandonment of the Project by
C ity or any termination, in whole or in part, of any of the Project Construction Contract or any of the
work thereunder by City without the consent of Operator unless pursuant to a right of tem1 ination based
upon the existence of an event of default under such Project Construction Contract; (c) any suspension of
the Project Improvements Work by City for longer than sixty (60) consecutive days or one hundred
twenty (120) days in any three hundred sixty-five (365) day period for any reason other than Force
Majeure; (d) the failure of City to substantially perform or substantially observe any of the obligations,
covenants or agreements to be performed or observed by City under this Agreement, including the non-
appropriation of any funds, if necessary, to fulfill City’s monetary obligations prior to the date such
obligations are due, within thi1ty (30) days after notice from Operator of such failure; provided, however,
that if s uch performance or observance caimot reasonably be accomplished within such thirty (30) day
period, then no Event of Default by City shall occur unless City fails to commence such performance or
observance within such thhty (30) day period and fails to diligently prosecute such perfotmance or
observance to conclusion thereafter; provided further, however, that if such performance or observance
has not been accomplished within one hundred twenty (120) days after notice from the Operator to City
of such failure (notwithstanding City’s diligent prosecution of its curative efforts), then such failure shall
constitute an Event of Default by City hereunder; or (e) the occurrence of an Act of Bankruptcy with
respect to City.
Section 11.2. Operator·’s Remedies. If a City Default shall have occurred and be continuing, Operator
may, at its sole discretion, pursue any one or more of the following remedies without any notice or
demand whatsoever, other than any notice expressly provided in this Agreement: (a) Operator may
terminate this Agreement, as provided in Section 11.5 (except that the notice requirements of Section 11.5
shall not be required with respect to City Default specified in Section 11. l (e) above); (b) enforce the
performance of this Agreement by seeking specific performance or injunctive relief or by any other
means; and (c) Operator may exercise any and all other remedies available to Operator at law or in equity,
but subject to any limitations thereon set forth in this Agreement.
Section 11.3. Operator Default. The occurrence of the following shall be an “Event of Default” by
Operator or a “Operator Default” : (a) the failure of Operator to pay any of its monetary obligations to
City under this Agreement when due and payable if such failure continues for thitiy (30) days after City
gives notice to Operator that such amount was not paid when due; (b) the failure of Operator to
substantially perfonn or substantially observe any of the obligations, covenants or agreements to be
performed or observed by Operator under this Agreement or the Exclusive Use Lease Agreement within
thirty (30) days after notice from City of such failure; provided, however, that if such performance or
observance cannot reasonably be accomplished within such thirty (30) day period, then no Event of
Default by Operator shall occur unless Operator fails to commence such performance or observance
within such thilty (30) day period and fails to diligently prosecute such performance or observai1ce to
conclusion thereafter; provided further, howeve1~ that if such performance or observance has not been
accomplished within one hundred twenty (120) days after notice from City to Operator of such fa ilure
(notwithstanding Operator’s diligent prosecution of its curative efforts), then such failure shall constitute
an Event of Default by Operator hereunder; (c) the occurrence of an Act of Bankruptcy with respect to
Operator; (d) Abandonment of Premises by Operator; (e) failure to maintain location in City of the Team
owned by Operator and located in City, as required in Section 2.2(i), Section 4.4, and Section 7 .17 herein;
(f) fai lure to maintain approval by a Sanctioning Association of the Team owned by Operator and located
37
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in City, as required in Section 2.2(i) and Section 7.17 herein; (g) failure to maintain the Premises
commensurate with Major League Baseball facilities’ standards and regulations and/or at a level
commensurate with the Comparable Facilities, whichever level is detennined to be a higher standard by a
qualified inspector, as referenced in Section 5.5 herein; or (h) the transfer of the Franchise as set forth in
Section 7.6(ii).
Section 11.4. City’s Remedies. If any Operator Default shall have occurred and be continuing, City may,
at its sole discretion, pursue any one or more of the following remedies without any notice or demand
whatsoever, other than any notice expressly provided in this Agreement: (a) City may terminate this
Agreement or Operator’s right of possession of the Premises as provided in Section 11.5 ( except that the
notice requirements of Section 11 .5 shall not be required with respect to the Operator Default specified in
Section l I .3(c) above); (b) seek another professional or amateur (including, collegiate) baseball team to
conduct its regularly scheduled home games at the Baseball Stadium; (c) City may, in its own name and
for its own account, without impairing the ability of City to pursue any other remedy provided for in this
Agreement or now or hereafter existing at law or in equity or by statute, institute such action against
Operator as may appear necessary or desirable to collect such Operating Fees and any other amounts then
due under this Agreement, or to enforce performance and observance of such covenant, condition or
obligation of Operator hereunder, or to recover damages for Operator’s non-payment, non-performance or
non-observance of the same; (d) City may exclude Operator from possession of the Premises and reenter
the same and take whatever action at law or in equity as may appear necessary or desirable to collect the
Operating Fees and any other amounts then due, to enforce pe1formance and observance of any covenant,
condition or obligation of Operator hereunder, or to recover damages for Operator’s non-payment,
nonperformance or non-observance of the same; provided that City shall be required to mitigate its
damages to the extent required by law and Section l 1.6(b) hereof; (e) enforce the performance of this
Agreement by seeking specific performance or injunctive relief or by any other means; and (t) exercise
any and all other remedies available to City at law or in equity, but subject to any limitations thereon set
forth in this Agreement.
Section 11.5. Termination. Upon the occurrence of a City Default as described in Section 11.1 or an
Operator Default as described in Section J 1.3, the non-defaulting Party, in addition to its other remedies
at law or in equity, shall have the right to give to the defaulting Party notice (a “Final Notice”) of the
non-defaulting Party’s intention to terminate this Agreement or, in the event of an Operator Default ,
Operator’s right of possession of the Premises, after the expiration of a period of ninety (90) days from
the date such Final Notice is delivered unless the Event of Default is cured, and upon expiration of such
ninety (90) day period, if the Event of Default is not cured, this Agreement shall terminate and/or
Operator’s possessory interest shall terminate, as applicable, without liabi lity to the non-defaulting Party.
If, however, within such ninety (90) day period the defaulting Paity cures such Event of Default, then this
Agreement shall not terminate by reason of such Final Notice. Notwithstanding the foregoing, no Final
Notice shall be required and the non-defaulting Party may declare this Agreement immediately terminated
if the Event of Default with respect to the defaulting Patty is an Act of Bankruptcy. In the event of a
termination of this Agreement by either Party under this Section 11.5, then notwithstanding anything to
the conh·ary set fotth in this Agreement all obligations of the Patties hereunder automatically shall
terminate also, without liability to the other Party except for those obligations which, by their terms, are
intended to survive termination of the Agreement.
Section 11.6. The Operator to Remain Liable for Payments; Replacement of Operator.
11.6.1 Notwithstanding the exercise by City of its remedies pursuant to Section 11.4 hereof
( other than termination), Operator shall continue to be liable for the payment of all
Operating Fees payable under Section 4.3 hereof and other amow1ts, if any, payable
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under this Agreement and Operator shall make such payments at the same times and in
the same manner as provided in this Agreement.
11.6.2 ln the event City elects to exclude Operator from possession of the Premises and re-enter
same, then City shall use commercially reasonable effo1ts to find a new operator for the
Premises for the maximum operating fees it may reasonably obtain, provided, however,
that City shall have no obligation to engage as a new operator for the Premises any
person who will not use the Premises for the purposes set forth in Section 4.5 hereof.
Any such Operating Fees received prior to the stated termination date of th is Agreement
shall be applied first to the payment of reasonable expenses incrnTed by City in
connection with finding and engaging a new operator, and second, to reimburse City for
Operating Fees due hereunder.
Section 11.7. No Remedy Exclusive. No remedy herein conferred upon either party is intended to be
exclusive of any other available remedy or remedies, and each such remedy shall be cumulative and shall
be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in
equity or by statute. No delay or omission to exercise any right or power accruing upon any default
granted under this Agreement shall impair any right or power or shall be construed to be a waiver thereof,
and any such right or power may be exercised from time to t ime and as often as may be deemed expedient,
and the exercise of any one right or remedy shall not impair the right to any or a ll other remedies wider
this Agreement. NOTWITHSTANDING ANY CONTRARY PROVISIONS HEREOF IN NO
EVENT SHALL CITY OR OPERA TOR BE LIABLE UNDER ANY PROVISION OF THIS
AGREEMENT FOR LOST PROFITS, INCLUDING LOST OR PROSPECTIVE PROFITS, OR
FOR ANY OTHER SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY
OR PUNITIVE DAMAGES, IN CONTRACT, TORT OR OTHERWISE, WHETHER OR NOT
CAUSED BY OR RESULTING FROM THE SOLE OR CONCURRENT NEGLIGENCE OF
CITY OR OPERATOR OR ANY OF THEIR AFFILIATES OR RELATED PARTIES.
WITHOUT LIMITING THE FOREGOING, THIS LIMITATION OF LIABILITY SHALL NOT
APPLY TO CLAIMS OF CITY OR OPERATOR FOR RECOVERY OF SUCH DAMAGES
PURSUANT TO ARTICLE IX TO THE EXTENT SUCH DAMAGES WERE A WARDED TO A
THIRD PARTY AGAINST CITY OR OPERATOR, AS APPLICABLE.
Section 11.8. No Additional Waiver Implied By One Waiver; Consents to Waiver. The waiver of
either party of any breach by the other party of any covenant, condition or obligation under this
Agreement shall not operate as a waiver of any subsequent breach of the same or a waiver of any breach
of any other covenant, condition or obligation under this Agreement, nor shall any forbearance by the
non-defaulting pa1ty not breaching to seek a remedy for any breach by the other party be a waiver by such
non-defaulting party not breaching any of its rights and remedies with respect to such breach or any
subsequent breach of the same or with respect to any other breach.
Section 11.9. Delay not a Waiver. No delay or omission in the exercise of any right or power accruing
upon any default shall impair any s uch right or power or shall be construed to be a waiver of any such
default or any acquiescence therein, and every power or remedy given by this Agreement may be
exercised from time to time and as often as may be deemed expedient. Either party may waive any
default whi ch in its opinion has been remedied before the entry of final judgment or decree in any suit,
action or proceeding instituted by it under the provisions of this Agreement or before the completion of
the enforcement of any other remedies under this Agreement. No such waiver shall extend to or affect
any other existing or subsequent default or impa ir any rights or remedies consequent thereon.
Section 11.10. Declaratory or Injunctive Relief. Each Party acknowledges and agrees that (a) a breach
or threatened breach by such Patty of any of its obligations under this Agreement would give rise to
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irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b)
if a breach or a threatened breach by such Party of any such obligations occurs, then, in addition to the
remedies set forth in this Article X I, the Patties shall be entitled to seek equitable relief, including a
temporary restraining order, an injunction, specific performance and any other relief that may be available
from a court of competent jurisdiction, and declaratory relief with respect to any matter under this
Agreement.
Section 11.11. Interest on Overdue Obligations. If any sum due hereunder is not paid on the due date
thereof, the Patty hereto owing such obligation to the other Party shall pay to the other Pa1ty interest
thereon at the Default Rate, concurrently with the payment of the amount from the date such amount was
due until paid. Any payment of interest at the Default Rate pursuant to this Agreement shall not excuse or
cure any default hereunder.
Section 11.12. Attorney’s Fees. The defaulting Paity shall pay all of the non-defaulting Party’s
reasonable fees and expenses, including reasonable attorneys’ fees, in enforcing any covenant to be
observed by the defaulting Party or pursuing any remedy upon an Event of Default with respect to such
Patty.
ARTICLE XII
DAMAGE AND CONDEMNATION
Section 12.1. Damage and Destruction .
12.1.1 If the Premises are destroyed (in whole or in patt) or are damaged by fi re or other
casualty, Operator shall promptly give written notice thereof to City. All applicable
insurance proceeds shall be appl ied by City either to repair, rebuild or restore the
property damaged or, if the patties determine and mutually agree that it is impracticable
to rebuild the Premises, subject to the provisions of Section 12.1 .2, such proceeds shall be
used to effect the defeasance or prior redemption of obligations issued for the
construction of the Baseball Stadium. Any remaining balance after payment for such
repair, rebuilding or restoration shall be deposited into the Capital Repair, Maintenance
and Improvements Account.
12.1.2 City will proceed promptly to repair, rebuild or restore the prope1ty damaged or
destroyed to substantially the same condition as it existed prior to the event causing such
damage or destruction, with such changes, alterations and modifications (including the
substitution and addition of other property) as may be desired by City after consultation
with Operator and which will not impair productive capacity or the character of the
Premises. City shall consider, in good faith, any requests or suggestions made by
Operator with respect to any such changes, alterations and modifications. If such damage
results in an Unacceptable Condition, all Operating Fees shall abate during the period of
repair and restoration. Notwithstanding the forego ing, in the event that (a) substantially
all of the improvements shall be damaged or destroyed by casualty at any time during the
final five (5) years of the Term creating an Unacceptable Condition or (b) any portion of
the Premises shall be damaged or destroyed by casualty at any time during the Term and
the Governmental Rules then applicable to the Premises do not permit the restoration of
the Premises so as to eliminate an Unacceptable Condition, then either City or Operator
may, at such patty’s option (exercised with reasonable promptness in the c ircumstances,
but in all events within ninety (90) days after such damage or destruction), te rminate this
Agreement by serving upon the other pa1ty hereto notice within such period setting forth
City’s or Operator’s, as applicable, e lection to terminate this Agreement as a result of
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such damage or destruction as of the end of the calendar month in which such notice is
delivered to the other party hereto. Upon the service of such notice and the making of
such payments within the foregoing time period, this Agreement shall cease and
terminate on the date specified in such notice with the same force and effect as if such
date were the date originally fixed as the expiration date of this Agreement and neither
party shall have no further obligations hereunder, except for any obligations which, by
their terms, are intended to survive termination of the Agreement.
Section 12.2. Condemnation.
12.2.1 ln the event that title to the Premises or the interest of Operator created by this
Agreement or any part of e ither thereof shall be taken under the exercise of the power of
eminent domain by any governmental body or by any person, firm or corporation acting
under Governmental Authority, or shall be conveyed in lieu thereof, this Agreement shall
terminate. Any condemnation award attributable to any interest of Operator created by
this Agreement shall be paid to Operator and any condemnation award ath·ibutable to the
temporary use or temporary condemnation of the Premises shall be divided equitably
between Operator and City based on Operator’s and City’s scheduled use of the Premises
during such period. ff only a part of the Premises or interest of Operator is taken City
will cause any proceeds received by it from any award made in such eminent domain
proceedings with respect to the Premises, to be applied towards t he restoration of the
Premises to allow for the operation of the Premises in substantially the same manner and
to the extent that it was operated prior to the exercise of the said power of eminent
domain. City shall use good faith and reasonable diligence to restore the Premises. If
City does not restore the Premises as set forth above, then Operator may terminate this
Agreement and shall have no further obligations hereunder, except for any obligations
which, by their terms, are intended to survive termination of the Ag1·eement.
12.2.2 City shall cooperate fully with Operator in the handling and conduct of any prospective
or pending condemnation proceedings with respect to the Premises or any pait thereof
and will, to the extent it may lawfully do so, permit Operator to litigate in any such
proceedings for the purpose of seeking and obtaining a separate award for damage to the
Removables, the value of Operator’s interest, and damage to Operator’s business. In no
event will City voluntarily settle, or consent to the settlement of, any prospective or
pending condemnation proceeding with respect to the value of Operator’s interest, and
damage to Operator’s business without the written consent of Operator, w hich consent
shall not be unreasonably withJ1eld, conditioned or delayed. Notwithstanding the
foregoing, if as a result of any condemnation, an Unacceptable Condition exists or if the
damage caused thereby occurs during the last tlu·ee (3) years of the Term, e ither City or
Operator may terminate this Agreement by providing written notice to the other party
hereto to such effect whereupon this Agreement shall terminate as of the date set forth in
such notice and Operator shall have no fuither obligations hereunder, except for any
obligations which, by their terms, are intended to survive termination of the Agreement.
The provisions of this Article XII shall survive the termination of this Agreement.
ARTICLE XIIl
BOARD OF ADVISORS
Section 13.1. Generally. During the Term, a Board of Advisors (the “Board of Advisors”) shall consult
with the City regarding the operation and management of the Premises. Except as expressly set forth
herein, the Board of Advisors is purely advisory and is intended to provide areas of expertise for tl1e
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Parties, input from various constituents with an interest in the Premises, and a forum for presenting and
considering matters concerning the Premises, its operation and management. Except as expressly set fo1th
herein, the Board of Advisors has no power to make any decisions of any kind that bind Operator or the
City.
Section 13.2. Composition. The Board of Advisors shall have nine (9) members comprised as follows:
13.2.1 One(]) member appointed by Operator;
13.2.2 One (1) member appointed by the master developer of the Project and the immediately
surrounding area;
13.2.3 One (1 ) member appointed by the then-current holder of the Naming Rights; and
13.2.4 Six (6) members appointed by the City or such organizations or indiv iduals as designated
by the City.
Members may be appointed and/or replaced only by the applicable constituent upon written notice to the
other constituents.
Section 13.3. Meetings; Board Approval Procedures. DLU’ing the first twelve (l 2) months of after
occupancy of the Baseball Stadium by Operator, the Board of Advisors shall meet at least once every
calendar quaiter. For each year of this Agreement thereafter, the Board of Advisors shall m eet at least on
an annual basis. The location of the meetings shall be at the Baseball Stadium, unless the members of the
Board of Advisors agree otherwise. Members may participate in a meeting by means of conference
telephone or similar communications equipment by means of which all persons participating in the
meeting can bear each other. The vote of a majority of members of the Board of Advisors present at a
meeting at which all members had reasonable advanced notice of such meeting shall be the act of the
Board of Advisors. Notwithstanding any other provision in this Agreement to the contrary, the Board of
Advisors will conduct its meetings and activities in full accordance with any applicable Governmental
Rules.
ARTICLE XIV
MJSCELLANEOUS
Section 14.1. Amendments, Changes and Modification. No amendment, change, addition to or waiver
of any of the provisions of this Agreement shall be binding upon the pait ies hereto unless in writing
signed by an Authorized Representative of Operator and an Authorized Representative of City.
Section 14.2. Applicable Law Venue. The Agreement shall be governed exclusively by the provis ions
hereof and by the applicable Governmental Rules of the State, without giving effect to the principles of
conflicts of law thereof. Venue for any proceeding to enforce this Agreement shall be in C umberland
County, North Carolina. Each Party irrevocably submits to the exclus ive jurisdiction of such cowts in
any such suit, action or proceeding. Service of process, summons, notice or other document by mail to
such party’s address set forth herein shall be effective service of process for any suit, action or other
proceed ing brought in any such court. The paities irrevocably and unconditionally waive any objection to
the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree
not to plead or claim in any such court that any such suit, action or proceeding brought in any such court
has been brought in an inconvenient forum . Notwithstanding the foregoing, no party may initiate any
lawsuit regarding this Agreement, except for an action to enforce the performance of this Agreement
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seeking specific performance or injunctive relief, until after the Parties have complied with the provisions
of Section 14.14, including having completed any mediation as may be required pursuant to Section 14.14 .
Section 14.3. Scverability. If any provision of this Agreement is held by a cowt of competent
j urisdiction to be illegal, invalid, or unenforceable under present or future laws effective during the Term
such provision shall be fully severable and this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part hereof, and the remaining
provisions hereof shall remain in full force and effect and shall not be affected by the illegal , invalid, or
unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of such illegal,
invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a
provision as similar in terms to such i11egal , invalid, or unenforceable provision as may be possible and
still be legal, valid, or enforceable.
Section 14.4. Notices and Demands. Any notices or other communications required or desired to be
given to the other party hereto shall be given in writing and delivered by courier, overnight delivery
service, facsimile transaction or through the U.S. postal service, postage prepaid and by ce1iified mail,
return receipt requested, at the following addresses:
To City:
With copy to:
To Operator:
With copy to:
City of Fayetteville
433 Hay Street
Fayetteville, NC 28301-5537
Attention : City Attorney
and
City ofFayetteville
433 Hay Street
Fayettev ille, NC 28301-5537
Attention: City Manager
Dentons US LLP
303 Peachtree Street NE
Suite 5300
Atlanta, GA 30308
Attention: Steven Labovitz, Esq.
Reid Ryan
President, Business Operations
501 Crawford Street, Suite 500
Houston, TX 77005
Giles Kibbe
Sr. VP and General Counsel
50 I Crawford Street, Suite 500
Houston, TX 77005
Section 14.5. References. AH references in this Agreement to particular Articles or sections are
references to Articles or sections of this Agreement, unless otherwise indicated . Article and section
headings are furnished for convenience only and do not constitute a part of this Agreement. References in
the singular number in this Agreement shall be considered to include the plural, if and when appropriate,
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and vice versa. Any times referred to herein shall be deemed references to Fayetteville, No1th Carolina
time.
Section 14.6. Successors and Assigns. The terms and provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Section 14.7. Multiple Counterparts. Th.is Agreement may be executed in multiple counterparts, each
ofwbich shall be an original but all of which together shall constitute but one and the same instrnment.
Section 14.8. Recordation. City and Operator shall not record this Agreement, but both parties agree, on
request of the other, to execute a memorandum of this Agreement in recordable form and complying with
applicable Governmental Rules of the State, which memorandum may be recorded by the requesting party.
Section 14.9. Attorneys’ Fees. The prevailing party in any litigation related to this Agreement shall be
entitled to recover from the non-prevailing party or patties the reasonable attorneys’ fees and costs
incurred by such prevailing patty in connection with such litigation.
Section 14.10. Time is of the Essence. Time is expressly declared to be of the essence in this Agreement.
Section 14.11. Parties’ Relationship. It is the intent of the Pa1ties, as evidenced by this Agreement, that
the relationship between the City and the Operator is solely a contractual relationship pursuant to which
the Operator will provide specified third-party management and operational services necessary for the
operation of the Premises as set forth herein. Nothing contained in this Agreement shall be deemed or
construed by the Parties hereto, or by any third patty, to create the relationship between the Parties of
partnership, joint venture, or landlord and tenant, but only a contractual relationship pursuant to which the
Operator will act as a third-paity service provider having all the rights and obligations conferred upon and
assumed by the Operator as herein set forth. The employees or agents of either Party may not be, nor be
construed to be, the employees or agents of the other Party for any purpose.
Section 14.12. Operator’s Remedial Work. Operator shall be responsible for performing or causing to
be performed, and for paying the cost of performing, any and all corrective or remedial actions required
by applicable Governmental Authority to be perfo1·med with respect to (i) any violation of Environmental
Law caused by Operator or any of its agents, contractors or subcontractors or (ii) environmental
contamination from any Hazardous Materials that were introduced to the Premises on or after the
Commencement Date by Operator or its agents, contractors or subcontractors at any time (“Operator’s
Remedial Work”). Operator shall promptly inform City and all applicable Governmental Authorities of
any such violation of Environmental Law or any Hazardous Materials discovered by Operator (or any
agent, contractor or subcontractor of Operator) in, on or under the Premises, promptly furnish to City any
and all reports and other information available to Operator concerning the matter, and diligently
unde1take such actions required by the Governmental Authority pursuant to Environmental Law.
Section 14.13. City’s Remedial Work. City shall be responsible for performing or causing to be
performed, and for paying the cost of performing, any and all corrective or remedial actions required by
applicable Govermnental Authority to be performed with respect to (i) any violation of Enviromnental
Law caused by City or any of its agents, contractors or subcontractors or (ii) environmental contamination
from Hazardous Materials that were introduced to the Premises on or before the Commencement Date
(but excluding Hazardous Materials introduced by Operator or its agents, contractors or subcontractors at
any time) (the “City’s Remedial Work”). City shall promptly inform Operator and all applicable
Governmental Authorities of any such violation of Enviromnental Law or any Hazardous Materials
discovered by City (or any agent, contractor or subcontractor of City) in, on or under the Premises,
promptly furnish to Operator any and all reports and other information available to City concerning the
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matter, and diligently undertake such actions required by the Governmental Authority pursuant to
Environmental Law.
Section 14.14. Settlement By Mutual Agreement. In the event any dispute, controversy or claim
between or among the Paiiies arises under this Agreement or is co1mected with or related in any way to
this Agreement or any right, duty or obligation arising herefrom or the relationship of the Parties
hereunder (a “Dispute or Controversy”), including, but not limited to, a Dispute or Controversy relating to
the effectiveness, validity, interpretation, implementation, termination, cancellation or enforcement of this
Agreement, the Paiiies shall first attempt in good faith to settle and resolve such Dispute or Controversy
by mutual agreement in accordance with the terms of this Section 14.14. 111 the event a Dispute or
Controversy arises, either Paiiy shall have the right to notify the other that it has elected to implement the
procedures set fotih in this Section 14.14. Within fifteen (15) days after delivery of any such notice by
one Party to the otheJ regarding a Dispute or Controversy, the Authorized Representative of the Pa1iies
shall meet at a mutually agreed time and place to attempt, with diligence and good faith, to resolve and
settle such Dispute or Conti’Oversy. Should a mutual resolution and settlement not be obtained at the
meeting of the Authorized Representatives for such purpose or should no such meeting take place within
such fifteen (15) day period, then e ither paiiy may by notice to the other Patiy submit the Dispute or
Controversy to mediation.
Section 14.15. Binding on Successors and Assigns. The Patties hereto covenant and agree that all of the
conditions, covenants, agreements, rights, privileges, obligations, duties, specifications, and recitals
contained in this Agreement, except as otherwise expressly stated herein, shall extend to, inure to the
benefit of and bind, City and Operator, and their permitted successors and assigns, to the same extent as if
such successors and assigns were named as original parties to this Agreement, such that this Agreement
shall always bind the successors of Operator and City, or any portion thereof, and shall bind predecessors
thereof except as otherwise expressly provided herein.
Section 14.16. Non-Appropriation.
14.16.1 Current Expenses. Except for the funds to be provided pursuant to Section 3.2, the
obligations of City for payment and other monetary obligations under this Agreement are
each subject to an appropriation and, accordingly, (i) shall constitute a current expense of
City in the fiscal year of City to which an obligation applies and (b) shall not constitute
an indebtedness of City within the meaning of any applicable Governmental Rule.
Nothing herein shall constitute a pledge by City of any funds, other than funds designated
pursuant to lawful appropriations from time to time to pay any money or satisfy any other
monetary obligation under any provision of this Agreement.
14.16.2 Result of Non-Appropriation. If a non-appropriation occurs in response to a request for
a proposed appropriation, City shall provide Operator with written notice of such non-
appropriation on or before the twentieth (20th) day after the non-appropriation.
Section 14.17. Authority to Execute. Each of the Parties acknowledges that the individual who has
executed this Agreement has been duly authorized to execute this Agreement. A cetiified copy of the
required City ordinance or action of Operator’s board of directors has been furnished by each Patiy to the
other Party for attachment to this Agreement.
Section 14.18. Captions. The captions in this Agreement are for convenience only and are not a part of
this Agreement. The captions do not in any way limit or amplify the terms and provisions of this
Agreement.
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Section 14.19. Limitations Regarding Premises. City does not warrant its title to the Premises. This
Agreement and the rights and privileges granted Operator in and to the Premises are subject to all
covenants, conditions, restrictions, and exceptions of record or apparent. Nothing contained in this
Agreement may be construed to imply the conveyance to Operator of rights in the Premises that exceed
those owned by City.
Section 14.20. Non-Discrimination. Operator warrants that it is and will continue to be an Equal
Opportunity Employer. Operator covenants and agrees that Operator will not discriminate nor permit
discrimination against any person or group of persons, with regard to employment and the provision of
services at, on, or in the Premises, on the grounds of race, religion, national origin, marital status, sex, age,
disability, or in any manner prohibited by the laws of the United States or the State. City hereby reserves
the right to take the action as the United States may direct to enforce this covenant.
Section 14.21. Not for Benefit of Third Parties. This Agreement is only for the benefit of City and
Operator, and no third party has any rights or claims under this Agreement. No provision of this
Agreement creates a third party claim against City or Operator beyond that which may legally exist in the
absence of any provision of this Agreement.
Section 14.22. Other City Ordinances. This Agreement and the ordinance that authorized the execution
of this Agreement do not operate to repeal, rescind, modify, or amend any ordinances or resolutions of
City relating to the use or obstruction of streets, the granting of permits, and any regulations relating to
the preservation of order and movement of traffic, or any other ordinances, resolutions, or regulations not
specifically set forth in the ordinance authorizing this Agreement. Notwithstanding the foregoing, if any
of such ordinances or resolutions prohibit Operator from operating professional baseball games at the
Baseball Stadium in accordance with the terms and condi tions of this Agreement, then Operator shall
have the right to terminate this Agreement in accordance with Section 11.5, including after giving effect
to any applicable cure periods, without further liabil ity to City.
Section 14.23. Publication. Operator agrees to pay the costs of newspaper publication of this Agreement
and the ordinance authorizing the execution of this Agreement, as required by City Chaiter.
Section 14.24. Surrender. Operator acknowledges and understands that City’s agreement to engage
Operator to operate the Premises as provided by this Agreement is expressly conditioned on the
understanding that the Premises must be surrendered, upon the expiration, termination, or cancellation of
this Agreement, in as good a condition as received, reasonable use and wear, Force Majeure events, acts
of God, fire and flood damage or destruction where Operator is without fault, excepted.
Section 14.25. Conditions Precedent. This Agreement and the obligations of City and Operator
hereunder shall not become effective unless and until the following conditions are met:
14.25.1 The Fayetteville City Council must approve this Agreement together with the Exclusive
Use Lease Agreement and the Project Construction Docmnents and all other
governmental approvals, including any required approval of the North Carolina Local
Government Commission with respect to the financing of the Project, must have been
obtained;
14.25.2 City or its designee shall have acquired fee ownership of the Land on commercially
reasonable terms;
14.25.3 City shall have secured bond financing, on commercially reasonable terms (as determined
by City, in its sole discretion), for the development of the Premises;
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14.2S.4 Fayetteville Baseball Club LLC shall have acquired (or have proof of a contractual right
to acquire, in a form acceptable to City) an affiliated, full-season Class A – Advanced
MiLB team to play at the Premises; and
14.2S.S Fayetteville Baseball Club LLC and Operator shall have acquired all necessary baseball
approvals from the Sanctioning Association, in a form reasonably satisfact01y to City,
with respect to (a) the transactions contemplated by Section 14.25.4 above, (b) the
relocation of a full season minor league baseball team that is a member of MiLB to
Fayetteville, North Carolina, which will be the Team, (c) the Team to play its home
games at the Baseball Stadium, and (d) such other approvals as are required by the
Baseball Authorities with respect to the transactions contemplated by this Agreement.
The Parties agree to work in good faith and use commercial best efforts to assure that all of the
conditions set out in this section are satisfied. If any of the foregoing conditions are not satisfied
on or before September 30, 2017, as it may be extended by mutual agreement of the Paities,
either Paity may terminate this Agreement upon written notice to the other, whereupon it shall be
null and void and neither Party shall have any futther obligations to the other under this
Agreement. Upon satisfaction of the foregoing conditions either Party may request execution of a
supplement to this Agreement establishing the satisfaction of the foregoing conditions.
Section 14.26. City Approvals. Except as expressly set forth herein or as may be required by applicable
Governmental Rule, any provision in this Agreement requiring the consent or approval of the City, such
consent or approval shall be given by the City Manager of the City or his/her designee.
Section 14.27. Guaranty. Payment of the Operating Fees shall be guaranteed by Houston Baseball
Partners, LLC pursuant to the Guaranty Agreement.
Section 14.28. Survival. Sections Article XI and XIV shall survive termination of this Agreement
together with any other provisions hereof which, by their terms, are intended to survive termination of the
Agreement.
Section 14.29. No Waiver of Immunity. Nothing contained in this Agreement shall be construed as any
waiver of govermnental immunity to the extent that it is possessed or enjoyed by the City, provided that
the City shall not be entitled to assert, nor will the City assert, governmental immunity as a bar to
enforcement by Operator of any of the City’s obligations under this Agreement.
[Signatures Appear on Following Page]
47
101 239803\V,2 1
EXECUTED IN DUPLICATE, each of which shall be considered an original, to be effective as of the
Effective Date.
CITY:
ATTEST:
Date: I~ / 13 / ;)-D i &:,
OP/fuli10R:
F’tYET~L
By: _ ~ ~~—-+______:1,–.:::::,..,~– —
Name: -i—=-=’-=–=.l-=- ..,__–.__– —
Title: -+..:….,,-=e:==-“‘-‘—====”-+-“====
Date: _ _._.,) ;;)”-+\ ~l 3:_+j-=-&-D-=—=—=l ~:,:__ _ _
[Signature Page to Use and Operating Agreement}
101239803\V-21
EXHIBIT A
Site Map
49
EXHIBITB
Minimum Personal Property Requirements
• Stadium click effects – audio systems
• Video board driver system
• Televisions for the club, suites and clubhouses
• 2 – S0lb washers and 2- 751b dyers for clubhouses
• 1 cube and 1 flaker ice machine for each clubhouse (4 total)
• Grounds equipment professional grade
• Greensmaster 3050 (2), 1 walk-behind infield mover, hand powered mowers, trimmers, top
dressers and hand tools (or comparable equipment)
• Toro Workman 3200 (or comparable equipment)
• Toro Sand Pro 2020 (or comparable equipment)
• (overmaster tarps, field and mounds (or comparable equipment)
• Teleco/lT infrastructure for data, video and security
50
101239803\V-21
EXHIBIT C
Minimum Stadium Requirements
• Weight room -1,000 square feet
• 2 enclosed and air conditioned batting cages
• Stadium Wi-Fi for ticketing and concession operations, 50 access points
• 4,000- 5,000 chair back seats with cup holders
• LED video board & scoreboard
• 360-degree concourse
• Concession point of sale for every 200 fans
• Press box with 4 media bays, writing press area and scoreboard operations
• Kids play zone
• Final approval of location of team store, ticket office and administrative offices
• Distributed sound system
• Stadium concourse above seating sections
• Stadium club
• 6 – 8 Suites
• Concourse advertising signage backlit cabinets with wiring and cabling
51
l01239803\V-2 I
EXHIBITD
Minimum Concession Improvement Requirements
• Concession equipment based on kitchen/stands/equipment for modern 5,000 seat stadium;
• stoves, freezer, refrigerator, dishwasher, blenders, and microwave
• Fixed and portable concession areas totaling 50 POS (based on a 1/100 ratio on a 5,000 seat
stadium)
• Portable concession power & water stub out in outfield and berm areas
• Power supply – Minimum of a 150 amp 120/208 service per fixed concession area
• Wi-Fi for POS system
• Operator offices
• Integrated POS system w/ hardware
• Digital menu boards
• Hood System for flat iron grills and gas powered fryers servicing each concession stand
• Up to 5 flat iron grills and 10 gas powered fryer machines for concessions
52
I012J980J\\l-21
EXHIBITE
Capital Repair, Maintenance and Improvements Schedule
See attached. The Parties acknowledge and agree that this Exhibit “E” will be updated, as agreed to by
the Parties, upon completion of Construction of the Project. The attached preliminary below identifies
the categories of potential capital maintenance, the anticipated frequency of investment for investment in
such categories, the approximate amount of the expenditure in each area in cunent dollars and the
anticipated expe11ditures on a year-by-year basis.
53
10123980]\V-2 1
Capital Repair, Maintenance and Improvements Schedule
Item Frequency Amount YEAR
of Repair or in I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3
Replacement Current 0
Dollars
54
IOl23980J\V-21
EXHIBITF
Exclusive Use Areas
The following areas, all as specifically identified on the final Project Plans:
I. Team offices
2. Team store
3. Team storage space
4. The “home” locker room, but only for the period commencing at least two (2) weeks prior to the
beginning of the first Team Game scheduled to be held at the Baseball Stadium each year of the
Term and ending one (1) week after the conclusion of the last Team Game each year of the Term.
55
101239803\Y-2 1
EXHIBITG
Exclusive Use Lease Agreement
See attached.
56
101239803\V-21
EXCLUSIVE USE AREA LEASE AGREEMENT
THIS EXCLUSIVE USE AREA LEASE AGREEMENT (the “Lease”) is made and entered into
as of the 1 ‘3-\–h day of Or,ce.m b.e-1′ , 20 16, by and between THE CITY OF
FAYETTEVILLE, NORTH CAROLINA (hereinafter called “City” or “Landlord”) and
FA YETTEV1LLE BASEBALL CLUB, LLC (hereinafter called the “Operator”). The City and the
Operator are sometimes each reforred to herein individually as a “Patty” and collectively as the “Parties”
W l T N E S S E T H:
In consideration of the mutual covenants and agreements contained herein, the Parties agree for
themselves and their successors and assigns as follows:
1. DESCRIPTION OF DEMJSED PREMISES
The Parties have entered into a “Use and Operating Agreement” dated – – – ~ _ _ , 2016
(“Agreement”), that governs the construction and management of a Baseball Stadium (as that term is
defined in the Agreement) on certain Land (as that term is defined in the Agreement) within the City of
Fayetteville, North Carolina. The Agreement is attached to this Lease as Exhibit A and is incorporated
into this Lease by reference. Defined terms used in this Lease shall have the meanings assigned to them
in the Agreement.
Landlord hereby leases to Operator, and Operator hereby accepts and rents from Landlord, in
accordance with this Lease’s terms and condit ions, the Exclusive Use Areas that are pa1t of the Baseball
Stadium and that are defined and identified in the Agreement, with those Exclusive Use Areas being
referred to as the “Demised Premises” in this Lease.
2. TERM
(a) initia l Term. The term of this Lease shall commence on the date (the “Lease
Commencement Date”) that is the Commencement Date under the Agreement and shall continue for a
period of ten ( 10) years from the Lease Commencement Date (the ” Initial Term”). Once the Lease
Commencement Date is established, the Landlord and the Operator agree to execute a document
confirming the Lease Commencement Date, and the Memorandum of Lease to be recorded as required by
Paragraph 21 of this Lease shall reflect the Lease Commencement Date and scheduled expiration date of
this Lease. Upon expiration of the Initial Term and provided that the Agreement is still in effect, City and
Operator shall use their best efforts to enter into a new lease agreement on substantially the same terms
and conditions as contained herein.
(b) Occupancy of the Demised Premises. During each calendar year during the Initial Term
and during any Renewal Peri ods, Operator shall have the right to control, occupy, and use the Demised
Premises pursuant to this Lease only during the period commencing two (2) weeks prior to the beginning
of the first Team Game scheduled to be held at the Baseball Stadium and ending one (I) week after the
conclusion of Lhe last Team Game. At all other times during the calendar year, Operator shal l not have
the right to control, occupy, or use the Demised Premises pursuant to this Lease and, instead, the
Landlord shall have the right to control, occupy, and use (and grant to others the right to control, occupy,
and use) the Demised Premises. Nothing in this paragraph, however, shall affect any rights that Operator
may have w ith respect to the Demised Premises by virtue of the Agreement.
(c) Automatic Termination. Notwithstanding anything herein to the contrary, this Lease
101810336\V-3
shall terminate automatically upon the termination of the Agreement.
3. RENTAL AND OTHER TENANT PAYMENTS
(a) Rental
(i) Initial Term Rental. Dming the Initial Tenn, on or before the Lease Commencement
Date and then each year on or before the anniversary of that date, the Operator shall pay to Landlord,
without notice, demand, reduction, setoff or any defense in accordance with the payment instructions set
fotth in Paragraph 3(f) below, an annual rental (the “Initial Tenn Rental”) equal to a market rate lease
payment calculated and agreed to by both parties for the Exclusive Use Areas based on the square footage
of the Exclusive Use Areas to be determined after final plans and construction drawings for the Project
are agreed to by both Parties and the exact nature and square footage of the Exclusive Use Areas is
determined. It is the Patties’ intention that after final plans and construction drawings for the Project are
agreed to by both Pa1ties and the exact nature and square footage of the Exclusive Use Areas is
determined, this Section 3(a)(i) will be amended to reflect the actual amount of the Initial Term Rental.
(ii) The lnitial Term Rental and any extension or holdover period are sometimes hereinafter
referred to as “Rental.”
(b) Taxes. The Operator shall pay all ad valorem taxes (or any tax hereafter imposed in lieu
thereof) assessed against this Lease pursuant to applicable provisions ofNotth Carolina law. The
Operator shall further pay all taxes assessed against its personal property in the Demised Premises. The
Operator shall have the right to contest the applicability or amount of any tax by appropriate proceedings.
(c) Operating and Maintenance Costs. The Patt ies obligations with respect to the payment of
operating and maintenance costs with respect to the Baseball Stadium, including the Demised Premises,
are set forth in the Agreement.
( d) Documentary Tax. ln the event that any documentary stamp tax, sales tax or any other
tax or similar charge (exclusive of any income tax payable by the Landlord as a result hereof) levied on
the rental, leasing or letting of the Demised Premises, whether local, state or federal, is required to be paid
due to the execution hereof or otherwise with respect to this Lease or the payments due hereunder, the
cost thereof shall be borne by the Operator and shall be paid promptly and prior to same becoming past
due. The Operator shall provide the Landlord with copies of all paid receipts respecting s uch tax or
charge promptly after payment of same.
(e) Late Payment. All unpaid Rental and other sums of whatever nature owed by the
Operator to the Landlord under this Lease shal l bear interest from the due date thereof until paid at an
interest rate per annum (the “Default Rate”) that is two percent (2%) per annum over the “prime rate” of
interest announced, reported or published from time to time in The Wall Street Journal on the Money
Rates Page (or a similar publication if The Wall Street Journal is no longer published or no longer
announces, reports or publishes such rate), changing as and when said “prime rate” changes, unless a
lesser rate is then the maximum rate permitted by law with respect thereto, in which event said lesser rate
shall apply. Acceptance by the Landlord of any payment from the Operator hereunder in an amount less
than that which is currently due shall in no way affect the Landlord’s rights under this Lease and shall in
no way constitute an accord and satisfaction.
(f) Payment Instructions. All rental and other payments required of the Operator hereunder
shall be made payable to the Landlord and mailed or hand delivered to the Landlord at the address for
2
101810336\V-3
notices set forth in Sectionl4.4 of the Agreement or at such other address as shall be designated in writing
by the Landlord.
4. DELIVERY OF POSSESSION
Landlord will deliver the Demised Premises to the Operator on or before the Lease
Commencement Date with the Landlord’s work on the Baseball Stadium completed as and to the extent
required by the Agreement.
5. AL TERA TIONS AND IMPROVEMENTS BY OPERA TOR
Except as set forth in the Agreement, the Operator shall make no permanent changes or other
a lterations, additions, or improvements to the Demised Premises without the prior written consent of the
City.
6. USE OF DEMlSED PREMISES
(a) The Operator sha ll comply with all laws, ordinances, orders, regulations or zoning
classifications of any lawful governmental authority, agency or other public or private regulatory
authority (including insw-ance underwriters or rating bureaus) having jurisdiction over the Demised
Premises. The Operator sha!J not do any act or follow any practice relating to the Demised Premises that
shall constitute a nui sa1_1ce or detract in any way from the reputation of the Baseball Stadium as a first-
class facility. The Operator’s duties in this regard shall include allowing no material noxious or offensive
odors, fumes, gases, smoke, dust, steam or vapors, or any unusual loud or disturbing noise or vibrations to
emit from the Baseball Stadium.
(b) Without limiting the generality of (a) above, the Demised Premises shaJI not be used for
the treatment, storage, transportation to or from, use or disposal of toxic or hazardous wastes, materials,
or substances in violation of law.
(c) The Operator shall exercise due care in its use and occupancy of the Demised Premises
and shall not commit or allow waste to be committed on any pmtion of the Demised Premises; and at the
expiration or earlier termination of this Lease, subject to the provisions of Paragraph 3(c) hereof, the
Operator shall deliver the Demised Premises to the City in as good condition as on the Commencement
Date, ordinary wear and tear and acts of God alone excepted.
(d) The Operator shall indemnify, defend, and save the Landlord harmless from any claims,
liabilities, penalties, fines, costs, expenses or damages resulting from the failure of the Operator to
comply with the provisions of this Paragraph 6. This indemnification shall survive the termination or
expiration of this Lease.
7. TAXES
The Operator shall pay any taxes or assessments of any nature imposed or assessed upon this
Lease or upon the Operator’ s trade fi xtures, equipment, machinery, inventory, merchandise or other
personal property located on the Demised Premises and owned by or in the custody of the Operator as
promptly as all such taxes or assessments may become due and payable without any delinquency.
3
101810336\\1-J
8. INSURANCE COVERAGE
The Parties’ ob1igations with respect to insurance shall be governed by the Agreement.
9. REPAIRS AND MAINTENANCE
The Parties obligations with respect to the repair and maintenance of the Baseball Stadium,
including the Demised Premises, are set forth in the Agreement.
I 0. UTlLITIES
The Agreement requires the Operator to pay for the utilities of the Baseball Stadium, which
includes the Demised Premises.
11. DAMAGE OR DESTRUCTION OF DEMISED PREMISES
Damage or destruction of all or any po1tion of the demised premises shall be governed by Article
XII of the Agreement.
12. COMPLIANCE WJTH LAWS
The Operator agrees, at its own expense, to comply promptly with all laws that may be in effect
from time to time that area applicable to the Operator’s use or occupancy of the Demised Premises.
13. INDEMNIFICATION
(a) Indemnification by Operator. Operator shall, except as otherwise provided in this Section
13(a), defend, protect, indemnify and hold City and its officers, directors, employees, and agents harmless
from and against any and all liabilities, damages, suits, claims and judgments of any nature (including,
without limitation, reasonable attorneys ‘ fees and expenses), arising from or in connection with any injury
to or death of a Person or any damage to property resulting from, arising out of or in connection with (i)
the use or occupancy of the Demised Premises by the Operator or Operator’s contractors, employees,
officers, directors, agents on or after the Commencement Date, (ii) Operator’s failure to comply with its
obligations under this Agreement or (iii) the gross negligence or willful misconduct of Operator or
Operator’s co11tractors, empl oyees, officers, directors or agents. Notwithstanding the provisions of the
preceding paragraph, Operator shall not be liable for any liabilities, damages, suits, claims and judgments
of any nature (including, without limitation, reasonable attorneys’ fees and expenses) arising from or in
connection with:
(i) Any injury to or death of a person or any damage to property (including loss of
.use) to the extent of the gross negligence or willful misconduct of City, its employees,
officers, directors, contractors, agents or invitees;
(ii) City ‘ s violation of any provisions of this Agreement or any applicable
Governmental Authority or deed restriction or insurance policy, now or hereafter in effect
and applicable to City; ·
(iii) The existence of any Hazardous Materials in, on or under the Demised Premises
prior to the Commencement Date; or
(iv) Any environmental event caused by City or any of its employees, officers,
4
10 18 1033(,\V-J
directors, contractors, agents or invitees.
(b) Indemnification by C ity. To the maximum extent permitted by applicable Governmental
Rule, City sha ll , except as otherwise prov ided in this Section I 3(b), defend, protect, indemnify and hold
Operator and its officers, directors, employees, and agents harmless from and against any and all
liabilities, damages, suits, claims and judgments of any nature (including, without limitation, reasonable
attorneys’ fees and expenses), arising from or in connection with any injury to or death of a person or any
damage to property resulting from, arising out of or in connection with (i) the use or occupancy of the
Demised Premises prior to the Commencement Date, (ii) City’s failure to comply with its obligations
under this Agreement, or (iii) the gross negligence or willful act of C ity or City’s contractors, employees,
officers, directors or agents. Notwithstanding the provis ions of the preceding paragraph, City shall not be
liable for any liabi lities, damages, suits, c laims and judgments of any nature (including, without
limitation, reasonable attorneys’ fees and expenses) aris ing from or in connection with:
(i) Any injury to or death of a person or any damage to propetty (including loss of
use) to the extent of the gross negligence or w illful act of Operator, its employees,
officers, directors, contractors, agents or invitees;
(i i) Operator’s vio lation of any provisions of this Agreement or any applicable
Governmental Rules or deed restriction or insurance policy, now or hereafter in effect
and applicable to Operator;
(iii) Any Hazardous Materials that are introduced to the Demised Premises after the
Commence ment Date by Operator, or any of its employees, officers, directors,
contractors, or agents; or
(iv) Any environmental event caused by Operator or any of its employees, officers,
directors, contractors, or agents.
The provis ions of this Section 13 are solely for the benefit of City and Operator and are not intended to
create or grant any rights, contractual or otherwise, to any other person.
(c) Indemnification Procedures. In case any claim shall be brought or, to the knowledge of
any indenmitee, tlu·eatened against any indemnitee in respect of which indemnity may be sought, such
indemnitee shall promptly notify the other in writing; provided, however, that any failure so to noti fy
shall not re lieve the indemnitor of its obligations under Section 13(a) o r (b), as applicable, unless (i) such
fail ure so to notify precludes investigation and defense of such claims as a matter of law, and (ii) the
indemnitor does not otherwise have knowledge, either actual or constructive, of such claim. The
indemnitor shall have the right (and obligation, subject to the terms below) to assume the investigation
and defense of all c la ims, inc luding the em ployment of counsel, reasonably acceptable to the indemnitee,
and the payment of all expenses. Each indcmnitee shall have the right to employ separate counsel in any
such action and participate in the investigation and defense thereof, but the fees and expenses of such
counsel shal l be paid by s uch indemn.itee unless (i) the employment of such w unsel has been specifically
authorized by indemnitor, in writing, (ii) indemnitor has fai led after receipt of notice of such claim to
assume the defense a nd to employ counsel, or (i ii) tlie named parties to any such action (including any
impleaded parties) include both parties, and the indemnitee, after consultation with its counsel, reasonably
believes that there may be one or more legal defenses available to it which are different from or additional
to those avai lable to the indemnitor (in which case, if such indemnitee notifies the indemnitor in writing
that it elects to employ separate counsel at indemnitee’s expense, indemnitor shall not have the right to
assume the defense of the action on behalf of such indemnitee; provide, however, that indemnitor shall
not, in coru1ection with any one action or separate but substantially similar or related actions in the same
5
10 1810336\V-3
jurisdiction arising out of the same general allegation or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys for the indemnitee, which firm shall be
designated in writing by the indemnitees). Each indemnitee shall cooperate with the indemnitor in the
defense of any action or claim. The indemnitor shall not be liable for any settlement of any action or
claim without its consent, but if any such action or claim is settled with the consent of the indemnitor or
there be final judgment or agreement for the plaintiff in any such action or with respect to any such claim,
the indemnitor shall indemnify and hold hannless the indemnitees from and against any damages by
reason of such settlement or judgment.
( d) Survival Right to Enforce. The provisions of this Section 13 shall survive the termination
of this Agreement. In the event of failure by an indemnitor to observe the covenants, conditions and
agreements contained in this Section 13, any indemnitee may take any action at law or in equity to collect
amounts then due and thereafter to become due, or to enforce performance and observance of any
obligation, agreement or covenant of the indemnitor under this Section 13. Except as otherwise provided
herein, the obligations of the parties under this Section I 3 shall not be affected by any assignment or other
transfer of its rights, titles or interests under this Agreement and will continue to inure to the benefit of the
indemnitees after any such transfer.
14. LANDLORD’ S RIGHT OF ENTRY
The Landlord, and those persons authorized by it, shall have the right to enter the Demised
Premises at all reasonable times and upon reasonable notice for any reasonable purpose, including making
inspections or showing the same to lenders and other interested parties, as well as at any time in the event
of emergency involving possible injury to property or persons in or around the Demised Premises or the
Baseball Stadium. Except in the case of any emergency, Operator shall have the right to have a
representative of Operator accompany the Landlord or persons authorized by the Landlord while in the
Demised Premises. Further, during the last six (6) months of the Initial Term or of any Renewal Period,
the Landlord and those persons authorized by it shall have the right at reasonable times and upon
reasonable notice to show the Demised Premises to prospective tenants.
15. EVENTS OF DEFAULT AND REMEDIES
(a) The occurrence of any one or more of the following events shall constitute an “Event of
Default” hereunder:
(i) Operator’s failure to pay when due any rental or other sum of money payable
hereunder and such failure is not cured within thirty (30) days after wr.itten notice thereof;
(ii) Operator’s failure to perform any other of the material terms, covenants or
agreements contained in this Lease to be performed by Operator if not remedied within
thirty (30) days after receipt of written notice thereof, or if such default cannot be
remedied within such period, Operator does not within thirty (30) days after written
notice thereof commence such act or acts as shall be necessary to remedy the default and
shall not thereafter complete such act or acts within a reasonable time;
(iii) The Operator shall commit an Act of Bankruptcy (as such term is defined in the
Agreement); or
(iv) There is an Operator Default wider the Agreement.
(b) Upon the occurrence and during the continuation of any Event of Default by the Operator
6
IUl810JJ6\V-J
hereunder, the City shall have the following rights and remedies, it being understood that,
notwithstanding anything to the contrary in this Lease, the City shall not have any right to terminate this
Lease as a result of an Event of Default by the Operator hereunder unless such Event of Default causes a
termination of the Agreement in accordance with the Agreement’s provisions:
(i) To institute any and all proceedings or claims permitted by law or equity to
recover all unpaid sums and amounts then due and payable by the Operator under this
Lease, and any and all amounts necessary to compensate the City fo r all the damage
proximately caused by the Operator’s fai lure to perfonn its obligations under this Lease;
and/or
(ii) To institute any and all proceedings or claims pe1mitted by law or equity to
compel specific performance with respect to the Operator’s _obligations under this Lease
and one or more actions to seek and obtain a temporary restraining order, together with
such other temporary, preliminary and permanent injunctive or other equitable relief,
from any colllt of competent jurisdiction capable of issuing or granting such relief, to
compel the Operator to comply with or refrain or cease from breaching or violating the
terms, covenants and conditions of this Lease.
(c) Notwithstanding anything contained herein to the contrary, if a court of competent
jurisdiction has determined pursuant to a final non-appealable order that an Event of Default has occurred
under this Lease and such Event of Default is continuing w1der this Lease, the Landlord shall have the
right, in addition to any other rights it may have pursuant to this Lease, to cure such Event of Default on
behalf of the Operator, and the Operatrn· shall reimburse the Landlord upon demand for any sums paid or
costs incutTed by the Landlord in curing such Event of Default, including interest thereon at the Default
Rate and reasonable attorneys’ fees and other legal expenses.
16. PRIORITY OF LIEN OF LEASE
This Lease and any permitted or approved subleases shall at all times be superior and senior in
lien to the lien of any and all mortgages or deeds of trust now or hereafter placed on the property of which
the Demised Premises are a pait.
17. ASSIGNING AND SUBLETTING
Except to the extent authorized by this paragraph, the Operator may not assign, sublet, mortgage,
p ledge or encumber this Lease, the Demised Premises, or any interest in the whole or in any portion
thereof, directly or indirectly, without the prior written consent of the Landlord, which the Landlord may
with.hold in its sole discretion. Notwithstanding the foregoing, the Operator may assign its interest in this
Lease without the Landlord ‘s consent to the same extent, and to the same assignee, that the Operator may
assign its interest in the Agreement without the Landlord’s consent in accordance w ith A1t icle X of the
Agreement. The Landlord’s consent to one assignment or sublease will not waive the requirement of its
consent to any subsequent assignment or sublease as required herein.
18. COVENANT OF OUlET ENJOYMENT
Landlord represents that Landlord has full right and authority to lease the Demised Premises and
the Operator shall peacefully and quietly hold and enjoy the Demised Premises for the full term hereof,
subject to the provisions of this Lease.
7
101810336\V-3
19. ESTOPPEL CERTIFICATES
Within ten (10) days after a request by the Landlord, the Operator shall deliver a written estoppel
certificate, in form supplied by or acceptable to the landlord, ce1tifying, to the extent true, that this Lease
is in full force and effect, that, to the Operator’s knowledge, no default exists on the part of the Landlord
or the Operator, that the Operator is in possession, that the Operator has commenced the payment of
Rental, that the Operator claims no defenses or offsets with respect to payment of Rental under this Lease,
and such otheJ matters as may reasonably be requested. -Likewise, within ten ( I 0) days after a request by
the Operator, the Landlord shall deliver to the Operator a similar estoppel certificate covering such
matters as are reasonably required by the Operator.
20. PROTECTION AGAINST LIENS
The Operator shall do all things necessary to prevent the filing of any mechanics, materialmen’s
or other types of liens whatsoever, against all or any part of the Demised Premises by reason of any
claims made by, against, through or under the Operator. If any such lien is filed against the Demised
Premises, the Operator shall either cause the same to be discharged of record within thirty (30) days after
filing or, if the Operator in its discretion and in good faith determines that such lien should be contested, it
shall flffnish such security as may be necessary to prevent any foreclosure proceedings against the
Demised Premises during the pendency of such contest. If the Operator shall fail to discharge such lien
within said time period or fail to furnish such security, then the Landlord may al its election, in addition to
any other right or remedy available to it, discharge the lien by paying the amount claimed to be due or by
procuring the discharge by giving security or in such other manner as may be allowed by law. If the
Landlord acts to discharge or secure the lien then the Operator shall immediately reimburse the Landlord
for all sums paid and all costs and expenses (including reasonable attorneys’ fees) incurred by the
Landlord involving such lien together with interest on the total expenses and costs at the maximum lawful
rate.
21. MEMORANDUM OF LEASE
The Landlord and the Operator shall execute a recordable Memorm1dum of Lease specify ing the
term of this Lease and such other terms as the parties shall mutually determine, and the Memorandum of
Lease shall be recorded in the Office of the Register of Deeds of Cutnberland County, North Carolina.
22. FORCE MAJE URE
In the event the Landlord or the Operator shall be delayed, hindered or prevented from the
performance of any act required hereunder, by reason of Force Majeure (as defined in the Agreement), the
performance of such act shall be excused for the period of delay, and the period for performance of any
such act shall be extended as necessary to complete performance after the delay period. However, the
provisions of this paragraph shall in no way be applicable to the Operator’s obligations to pay Rental or
any other sums, monies, costs, charges or expenses required by this Lease.
23. REMEDIES CUMULATIVE- NONWAIVER
Unless otherwise specified in this Lease, no remedy of the Landlord or the Operator shall be
considered exclusive of any other remedy, but each shall be distinct, separate and cumulative with other
available remedies. Each remedy available under this Lease or at law or in equity may be exercised by
the Landlord or the Operator from lime to time as often as the need may arise. No course of dealing
between the Landlord and the Operator or any delay or om ission of the Landlord or the Operator in
8
101810ll6\V-J
exercising any right arising from the other patty’s default shall impair such right or be construed to be a
waiver of a default.
24. HOLDING OVER
If the Operator remains in possession of the Demised Premises or any patt thereof after the
expiration of the term of this Lease, whether with or without the Landlord’s acquiescence, the Operator
shall be deemed only a tenant at will and there shall be no renewal of this Lease without a written
agreement signed by both parties specifying such renewal. The annual rental payable by the Operator
during any such tenancy at will period shall be one hundred percent (100%) of the Rental being paid in
the most recent period until the thittieth anniversary of the date hereof, after which the annual rental
payable by the Operator during any such tenancy at will period shall be two hundred percent (200%) of
the Rental being paid in the most recent period. The Operator shall also remain liable for any and all
damages, direct and consequential, suffered by the Landlord as a result of any holdover without the
Landlord’s unequivocal written acquiescence.
25. NOTICES
Any notice allowed or required by this Lease shall be deemed to have been sufficiently served if
the same shall be in writing and placed in the United States mail, via certified mail or registered mail,
return receipt requested, with proper postage prepaid and addressed as provided in Section 14.4 of the
Agreement.
26. LEASING COMM ISSI ON
The Landlord and the Operator represent and warrant each to the other that they have not dealt
with any broker(s) or any other person c laiming any entitlement to any commission in connection with
this transaction. The Landlord and the Operator agree to indemnify and save each other harmless from
and against any and all claims, suits, liabilities, costs, judgments and expenses, inc luding reasonable
attorneys’ fees, for any leasing commissions or other commissions, fees, charges or payments resulting
from or arising out of their respective actions in connection with thfa Lease.
27. MISCELLANEOUS
(a) Evidence of Authority. If requested by the Landlord, the Operator shall furnish
appropriate legal documentation evidencing the valid existence and good standing of the Operator and the
authority of any patties signing this Lease to act for the Operator.
(b) Nature and Extent of Agreement. This Lease, together with the Agreement, contain the
complele agreement of the parties concerning the lease by the Operator of the Demised Premises, and
there are no oral or written understandings, representations, or agreements pertaining thereto which have
not been incorporated herein or therein. This Lease creates only the relationship of the landlord and
tenant between the parties, and nothing herein shall impose upon either party any powers, obligations or
restrictions not expressed herein.
(c) Binding Effect. This Lease shall be binding upon and shall inure to the benefit of the
parties here to and their respective heirs, successors and assigns.
9
101810336\V~J
(d) Captions and Headings. The captions and headings in this Lease are for convenience and
reference only, and they shall in no way be held to explain, modify, or construe the meaning of the terms
of this Lease.
(e) Governing Law. This Lease shall be governed by the laws of the State ofN011h Carolina.
(f) Counterparts. This Lease may be executed by the parties in separate counterpat1s, each
of which when so executed and delivered shall be an original, but a ll such counterparts shall together
constitute one instrument. All signatures need not be on the same counterpart.
(g) Conflicting Terms. In the event of any conflict or inconsistency between the terms set
forth in this Lease and the terms set forth i11 the Agreement, the terms set forth in the Agreement shall
govern and control.
(h) Severability. If any term or provis ion of this Lease or the application thereof to any
person or circumstance shall, to any extent, be ruled by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Lease, or the application of such tenn or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of th.is Lease shall be valid and enforced to the fullest extent
pennitted by law notwithstanding the invalidity of any other term or provision hereof.
[Signature Pages to Follow]
10
101810336\V-3
EXECUTED IN DUPLICATE, each of which shall be considered an original, to be effective as of the
Effective Date.
CITY:
ATTEST: ORTH CAROLINA
?~ –
PAMELA MEGILL~
Date: \ 2. J I “”3 / Z O I b
I I
Date: ~ /~J..–/~13=–,/–=,;).,_D~I {a ___ _
This instrument has been pre-audited in the manner
required by the Local Government Budget and Fis’ci:t~ ‘
Control Act. o;,; ..
LI
OPERATOR:
FAYETT /
By: – +-‘<--- ~ ----1--==---~--- -
Name: ....µ,~=~'-'--'f--------\-----',._ __ _
Title: ~~==~IL----~~~::!!:!...~~e~r~a~t~i~o'..!..!ns
Date: _ _LJ=o2..=/__,___J '-L.3_,/_, ~-=!D~ I (ar.,c__ __ _
t I
/Signature Page to Exclusive Use Area Lease Agreement}
EXHIBIT A
Use and Operating Agreement
101810JJ6\V-J
EXHIBITH
See attached.
57
101239803\V-2 1
Guaranty Agreement
Houston Baseball Partners, LLC. (together with its petmitted successors and assigns referred to in this
Guaranty Agreement as the "Guarantor"), a limited liability corporation organized and existing under the
laws of the State of Texas, and an affiliate of Fayetteville Baseball Club LLC, a limited liability
corporation organized and existing under the laws of the State of No1th Carolina (the "Company") hereby
absolutely, unconditionally and i1tevocably guarantees the full, faithful and punctual payment by the
Company of each and every one of the Company's covenants, duties and obligations of every nature
whatsoever under Section 4.3 of the Use and Operating Agreement dated as of~ day of December,
2016 (the "Agreement") between the Company and the City of Fayetteville, North Carolina, a municipal
corporation organized and existing under the laws of the State of North Carolina (together with its
successors and permitted assigns, "Fayetteville"), as and when required to be performed under the
Agreement; including the full, faithful and punctual payment when due of each and every sum due or to
become due from the Company under or in connection with Section 4.3 of the Agreement and the
Company's covenants, duties and obligations of every nature whatsoever under Section 4.3 of the
Agreement ( collectively, the "Obligations").
ln connection with the Obligations, Guarantor hereby agrees that:
(a) ln the event of the failure of the Company to pay any Obligations owed when due, which
failure is not timely cured (if a right to cure is afforded), the obligations of Guarantor hereunder with
respect to the Obligations shall, upon demand by Fayetteville, become immediately due and payable to
Fayetteville by the Guarantor. This guaranty is a guaranty of payment and not of collectability and is no
way conditioned or contingent upon any attempt to collect from the Company or any other person liable
for the payment of the Obligations. The liability of Guarantor for the Obligations is primary, and
Fayetteville may proceed against Guarantor with respect to such Obligations without first proceeding
against the Company, or any other person primarily or secondarily liable on any of the Obligations.
Guarantor hereby waives any statutory or common law right to require Fayetteville to take action against
the Company with respect to the Obligations.
(b) Unless and until the Obligations are paid in full , the Guarantor waives any and all claims
and rights (whether arising in equity, at common law, or under a statute or agreement) of subrogation,
contribution, indemnity and exoneration against the Company or any other person li able for payment of
a l I or any part of the Obligations.
(c) For so long as Guarantor or any affi liate of Guarantor has a direct or an indirect
controlling interest in the Company, Guarantor hereby authorizes the Company and Fayetteville, without
notice and without affecting Guarantor's liabi lity hereunder, to modify and amend the Agreement from
time to time. At sucb time as Guarantor and each affi liate of Guarantor ceases to have a direct or an
indirect controlling interest in the Company, and provided that Guarantor has informed Fayetteville that it
no longer has a direct or an indirect controlling interest in the Company, the terms of this subparagraph
(b) shall cease to apply and no material modifications or amendments to the Agreement may occur absent
consent of Guarantor, such consent not to be unreasonably withheld.
(d) The rights provided for in this Guaranty Agreement are cumulative and are not exclusive
of other rights, powers, privileges or remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter arising.
101239803\V-21
(e) The Guarantor agrees to pay costs and expenses, including reasonable attorneys' fees,
actually incurred by Fayetteville in connection with the collection by Fayetteville from the Guarantor of
the Obligations.
(f) Unless otherwise set forth herein, the rights and obligations of the Guarantor and
Fayetteville under this Guaranty Agreement may not be assigned by e ither party except as is allowed
pursuant to A1ticle X of the Agreement. In the event such an assignment is made and consented to (if
such consent is required), the assigning party shall be released ( except as specified below) and discharged
from all obligations to the other party hereunder thereafter arising, and such assignee shall be substituted
in place of the assigning patty herein. Notwithstanding the foregoing, Fayetteville may unilaterally assign
this Guaranty Agreement to any person to whom the Agreement is assigned in accordance with the terms
of the Agreement.
(g) This Guaranty Agreement is binding upon the successors and assigns of Guarantor.
(h) This Guaranty Agreement shall in all respects be governed by, and construed in
accordance with, the laws (excluding principles of conflict of laws) of the State of No11h Carolina
applicable to such agreements made and to be performed entirely within this State or other jurisdiction,
including all matters of construction, validity and perfoTmance.
(i) All notices required to be given by a Party under this Agreement shall be in writing and
sent by national, traceable overnight courier, or sent by registered or certified U.S. mail, retw·n receipt
requested to the other Pa1ty at the address specified below:
Jfto the Faye/teville:
Jfto Guarantor:
101239803\V-21
City of Fayetteville, North Carolina
433 Hay Street
Fayetteville, NC 28301-5537
Attention: City Attorney
and
City of Fayettevi lle
433 Hay Street
Fayetteville, NC 2830 1-5537
Attention: City Manager
or to such other person or place as Fayetteville may designate in writing.
Houston Baseball Partners, LLC
501 Crawford, Suite 500
Houston, Texas 77002
Attn: Giles Kibbe, Legal Counsel
[Signatures Appear on Following Page]
IN WITNESS WHEREOF, Guarantor and Fayetteville have executed this Guaranty Agreement
by their duly authorized officers, as ofthisl..2l:bday ofDecember, 2016.
I--IOUST
By: ------1c-----1--'1-------"--<-----
Name:_-+--~~-+---------,t-
Its: erations
FAYETTEVILLE:
ATTEST:
H . PA~Jl;~
Date: _1_~~(_1 "3-f--) Z_O_I ~--
1
Date: --"-'/ dl~/ /~3"'---'/0---'-~-0=-------c.-,I fe"'----_ r I
This instrument has been pre-audited in the manner /'
required by the Local Government Budget and Fisc . Three additional administrative reports will be provided with
more information regarding the: 1) Future Land Use Map and Character Area
Descriptions, 2) Future Land Use Goals and Recommendations, and 3) Land Use
Policies and Strategies. After Council has had time to thoroughly review the information a
Public Hearing for the adoption of the Map and Plan will be set.
Background:
The City’s FY 2020 Strategic Plan “A Focus on the Future” and it’s Goals, Objectives and
Targets for Action support a need and interest in planning for the City ’s future growth
through a Comprehensive Land Use Plan.
Goal III objectives and targets for action resulted in the Development Services staff taking
on the task of creating a Comprehensive Land Use Plan with the first phase being the
creation of the Future Land Use Map. The overall plan will include a Future Land Use
Map, character area descriptions, goals and objectives and associated polices and
implementation strategies.
Also, in recent years the NC General Statutes were amended, placing more emphasizes
on comprehensive planning by requiring that rezoning’s and development approvals be
based on and be consistent with an adopted Comprehensive Plan.
The Planning Commission recommended Approval of adoption of the plan on October
15, 2019 after holding two previous meetings to discuss and review the contents of the
plan.
Issues/Analysis:
Comprehensive Plans and Future Land Use Maps are the primary tools used to provide
land use guidance to staff, government officials, and the public for decisions regarding
long-term land use (rezonings, special use permits, development and redevelopment,
etc.). These plans interpret the information received from public input and the use of best
planning practices to establish the desired future land use of areas and the type and scale
of development that should occur within those areas.
The five Sections of the Plan are summarized below:
Section 1: Visual Preference
The public was asked to provide input on their visual preferences for residential and
commercial development. They were asked which type of development they preferred
and what type of uses they wanted to preserve, change and create.
Section 2: Character Areas (Additional Administrative Report to be provided)
The Plan establishes 15 new Character Areas that instead of separating different uses
tend to mix uses in appropriate areas. (The 2010 Land Use Plan had 19 districts.)
Page 2 City of Fayetteville Printed on 1/9/2020
File Number: 19-1192
Section 3: Goals and Policy Recommendations (Additional Administrative Reports to be
provided)
The Plan establishes six Future Land Use Goals with Polices to meet the Goals as
summarized below:
Goal 1: Focus value & investment around infrastructure and strategic nodes
LU 1: Encourage growth in areas well served by infrastructure and urban
services.
Goal 2: Promote compatible economic and commercial development in key identified
areas.
LU2: Encourage strategic economic development.
Goal 3: Encourage redevelopment of strip commercial areas.
LU3: Encourage redevelopment along underutilized commercial strip
corridors and reinvestments in distressed residential
neighborhoods.
LU 4: Create well designed and walkable commercial and mixed use
districts.
LU 5: Improve gateways.
Goal 4: Foster safe, stable and attractive neighborhoods.
LU 6: Encourage development standards that result in quality
neighborhoods.
LU 7: Encourage a mix of housing types for all ages and incomes.
Goal 5: Preserve and enhance environmental features through open space protection.
LU 8: Require the reservation of open space and unique natural features in
new developments.
LU 9: Plan for connected system of open space and greenways.
LU 10: Support land use, site design, and capital improvement initiatives
that increase resiliency and reduce impacts from flooding and
natural disasters.
Goal 6: Compliment and capitalize on the strategic importance of military installations
and educational and medical institutions.
LU 11: Encourage a development pattern and community growth that respects the
training and operational mission of the military, while also allowing for
reasonable, appropriate uses on properties near Fort Bragg.
LU 12: Coordinate with Fort Bragg.
LU 13: Coordinate with local governments, non-profits and education and medical
institutions on economic development initiatives and complimentary
development in the vicinity of campuses.
Section 4: Implementation Recommendations
The Plan establishes five Strategies to accomplish the Goals with Polices as summarized
below:
Strategy 1: Use the plan and map to guide policy decisions to promote sound
development patterns.
Page 3 City of Fayetteville Printed on 1/9/2020
File Number: 19-1192
Strategy 2: Build on the recommendations and the map with plan updates as needed.
Strategy 3: Remove barriers for reinvestments and redevelopment in target areas.
Strategy 4: Coordinate efforts among departments to create opportunities for
reinvestment in destressed areas.
Strategy 5: Increase public engagement efforts in support of goals and action steps in
the plan.
Section 5: Community Profile
The plan summarizes the demographics, housing, income, education & employment,
commuting, natural resources & environmental constraints, existing land use & supply
and provides a suitability analysis.
Budget Impact:
None
Options:
1) Read and accept the report.
2) Read and request further explanation on the information provided within the report.
Recommended Action:
Option 1:
For information purposes, no action required. The Future Land Use Map and Plan will be
provided in a future meeting agenda packet for your complete review prior to the Public
Hearing requesting Adoption of the Plan.
Attachments:
· Draft Future Land Use Plan with Map
Page 4 City of Fayetteville Printed on 1/9/2020
ayetteville FUTURE LAND USE MAP
November, 2019
Future Land Use Plan
ayetteville FUTURE LAND USE MAP
Table of Contents
Purpose/Overview ………………………………………………………….. 1
Planning Process …………………………………………………………….. 3
District Meetings Summary ……………………………………………… 3
Future Land Use Map and Character Area Descriptions ……… 10
Future Land Use Goals and Recommendations …………………. 14
Future Land Use Goals ………………………………………………… 23
Land Use Policies and Strategies …………………………………… 24
Implementation Recommendations ……………………………… 37
Community Profile ………………………………………………………… 44
Prepared by the Development
Services Department with
assistance from:
ayetteville FUTURE LAND USE MAP | 1
Acknowledgements
City Council (District)
• Mayor Mitch Colvin
• Mayor Pro Tem
Theodore Mohn (8)
• Kathy Jensen (1)
• Dan Culliton (2)
• Tisha Waddell (3)
• D.J. Haire (4)
• Johnny Dawkins (5)
• William Joseph Leon
Crisp (6)
• Larry Wright (7)
• James William Arp, Jr.
(9)
Planning Commission
• Jack Cox
• Christopher Davis
• George “Mike” Dudley
• Joseph Humphries
• Marshall Isler
• Barbara James
• Clabon Lowe
• Perry Massey
• Stephen Milburn
LTC(R)
• Lakeshia Payton
• Teddy Warner
Staff
• Dr. Gerald Newton,
AICP – Development
Services Director
• Taurus Freeman –
Planning & Zoning
Divisional Manager
• Marsha Bryant –
Development
Advocate
Residents, Stakeholder, and Concerned Citizens
Thank you for your contributions in crafting this plan for the
City of Fayetteville.
ayetteville FUTURE LAND USE MAP | 2
Purpose and Document Organization
Future land use maps, along with comprehensive plans, are the primary tools used by local
governments to provide land use guidance to staff, appointed, and elected officials, and for
decisions regarding long-term land use (rezonings, special use permits, etc.). The
preparation of Fayetteville’s future land use map update provided an opportunity for the
community, staff, stakeholders and others to participate in a city-wide conversation about
development pressures facing land within Fayetteville’s municipal limits and within its
municipal influence area (MIA). In addition to a map with designated future land uses,
character area descriptions and policy recommendations are provided to assist with
implementation. This plan communicates to the public and the development community
the desired future land use of areas and the type and form of development that should
occur. The planning process for this update lasted approximately six months. During that
time there were a series of public involvement meetings that included:
• Four Public Meetings that included representation from each city Council District
• Six Stakeholder meetings that included business and community leaders
• Presentations to the Planning Commission and City Council
Additional public input was received through a city-led survey effort. The survey was an
opportunity for residents unable to attend public meetings to provide input on concerns
and development preferences, all of which helped in the crafting of the land use map and
supporting character area descriptions.
Section 1, Planning Process, describes information gleaned from public input meetings and
survey results. Section 2, Future Land Use Map and Character Areas, outlines the guiding
land use map for the city as well as Character Area descriptions. Section 3, Goals and
Policies, provides specific guidance and recommendations on land use-related issues such
as community reinvestment and smart growth. Section 4, Implementation, offers up six big
ideas related to the map update and potential to spur positive change in the City. Section
5, Community Profile, provides background information on land use, demographics and
economics data.
Fayetteville’s future land use map
update provided an opportunity
for the community, staff,
stakeholders and others to
participate in a city-wide
conversation.
ayetteville FUTURE LAND USE MAP | 3
Section 1: Planning Process
This map update was meant to bring together a cohesive vision for the future
growth and development of Fayetteville. Fayetteville’s population has risen steadily
over the years, and because of its proximity to one of the Nation’s largest military
bases, its economy has been largely sheltered from recessions in years past. Over
the years, a number of small area plans have been developed to guide growth and
development. Recently a city-wide strategic plan included a recommendation to
develop strategic land use policy to support quality development. This effort builds
on that recommendation.
Figure 1: Previous Plans 1983-2017
ayetteville FUTURE LAND USE MAP | 4
Public Meetings Summary
As part of the public engagement process for the Fayetteville Future Land Use Map, a
series of public meetings were conducted throughout City Council Districts during March
and April 2019. A meeting was also held in September to provide a chance for members of
the public to comment on the draft plan. The results of these meetings, shown below,
provide valuable insight about priorities and goals for future development in Fayetteville
and the results will inform the creation of Fayetteville’s Future Land Use Map. Additional
outreach is expected to occur as part of a broader effort to create a city-wide
Comprehensive Plan beginning in 2020.
OVERVIEW
DISTRICT MEETING LOCATIONS
To learn about specific land use issues and preferences among the various
neighborhoods in Fayetteville, the nine City Council Districts were consolidated into
groups and a public meeting was held to hear from area residents. Several city council
members attended the meetings for their districts. All meetings began at 6:00 p.m.
and took place at city-owned recreation centers.
MEETING FORMAT
The meetings were held in a casual open-house format to allow participants the
opportunity to provide feedback at their own pace. Each district meeting began with a
brief presentation highlighting the need for a future land use map and explaining the
planning process. Following the presentation, participants visited stations where they
expressed their opinions about land use and development via hands-on activities.
Activities at each station were facilitated by consultants from Stewart and Crawford
Design and City of Fayetteville Staff.
DRAFT PLAN MEETING
A meeting was held at City Hall in September of 2019 to unveil the draft Future Land
Use map and recommendations. Public comments were collected and used to revise
draft recommendations prior to approval of the Planning Commission and City
Council.
City Council Districts Meeting
Date
Meeting Location
District 1(Kathy
Jensen) & District 3
(Tisha Waddell)
3/19/2019
College Lake
Recreation Center,
4945 Rosehill Rd.
District 4 (D.J.
Haire),
District 7 (Larry
Wright) &
District 9 (Jim Arp)
3/21/2019
EE Miller Recreation
Center,
1347 Rim Rd.
District 6 (Bill Crisp)
&
District 8 (Ted
Mohn)
4/3/2019
Lake Rim
Recreation Center,
1455 Hoke Loop Rd.
District 2 (Dan
Culliton) &
District 5 (Johnny
Dawkins)
4/4/2019
Myers Recreation
Center,
1015 Rochester Dr.
Table 1: District Meeting Locations
Figure 2: Image from District Meetings
ayetteville FUTURE LAND USE MAP | 5
VISUAL PREFERENCE
To gain an understanding of the development styles that people prefer, meeting
attendees were asked to give feedback on images depicting specific building types for
residential, neighborhood, commercial, and office & industrial development.
RESIDENTIAL PREFERENCE
Residential design style preferences show split support for low-density single-family
development and medium density single family development. In terms of
neighborhood character and design, there was strong preference for mixed use areas
and for conservation subdivisions (subdivisions with smaller lots but more open space
and parks).
Participants preferred
developments with larger
amounts of open space (aka
“conservation subdivisions”) over
conventional subdivision design
by 2 to 1.
Low Density Residential
Medium Density Residential
Walkable Mixed Use
Conservation Subdivisions
ayetteville FUTURE LAND USE MAP | 6
COMMERCIAL PREFERENCE
Strong preference was shown for commercial/residential mixed-use development and
Lifestyle Centers—commercial centers with architectural detail, outdoor seating and
landscaping. For office and industry, there was a very strong preference for infill and
re-use and support for office and technology centers.
Mixed Use
– Mix of commercial, retail, and service-oriented businesses with a variety of
residential options including apartments and townhomes
o Buildings sited generally close to the street for downtown feel
o Walkable with outdoor seating
o Pedestrian-focused
Lifestyle Centers
– Commercial center that is an auto-oriented destination with pleasant
outdoor spaces
o Distinct architectural detail
o Landscaping
o Outdoor plaza spaces
Infill & Reuse
– Reuse of buildings(s) for a new purpose or developing vacant/underutilized
parcels that are already surrounded by substantial development
o Can incorporate historic preservation
o Reduces sprawl
Mixed-Use Development
Precedent: Baxter Village, Fort Mill, SC
Lifestyle Center
Precedent: Colony Place, Charlotte, NC
Infill & Reuse
Precedent: Rocky Mills, Rocky Mount, NC
ayetteville FUTURE LAND USE MAP | 7
IN CERTAIN PLACES
Meeting attendees showed mixed support for apartments, duplexes and townhomes
with most people indicating such development is appropriate only in certain places. In
general, respondents indicated support for office and industrial development (other
than infill and reuse) in certain places only. This is especially true for manufacturing
and industrial development.
DON’T LIKE
In terms of residential preferences, people indicated a lack of interest in Traditional
Neighborhood Design, however this could be due to the fact that there are not many
local examples. Overall, people were supportive of commercial development, but the
least preferred type was Neighborhood Commercial.
These images capture the
results of the visual
preference exercise from
the first community meeting.
Votes were tallied from all
four meetings and
summarized to determine
community preference for
different types of land uses
and development designs.
ayetteville FUTURE LAND USE MAP | 8
KEEP, TOSS, CREATE
During the public meetings attendees participated in a map-based exercise to convey
what parts or aspects of their neighborhoods and districts they wanted to keep
(support or preserve), toss (change) and what they wanted to see created. A
summary of findings from these activities is included below.
Keep (Support or Preserve)
– Destinations and Assets
o Mall, Parks, Swimming pools, Airport
– Nature and Open Space
o Trees in residential areas for stormwater / Replace trees cut down for
development
o Natural trails along the river, greenway on Big Cross Creek
o Green space in residential areas
o Keep Carvers Creek Trail, but ensure privacy
o Protect farmland
o Botanical gardens
– Investing in Downtown
o Scenic downtown
o Market House
Toss (Change)
– Concurrency and Infrastructure
o Roadway improvements should keep pace with housing developments
o Stormwater issues, failing infrastructure
o Lack of sidewalks, unsafe intersections
– Land Uses, Design and Safety Concerns
o Strip development, gas stations
o Overhead power lines (i.e. Ramsey St.)
o Junk yards (esp. along the river)
o Ministorage businesses, blood banks
o Dangerous places, crime/illicit activity
Meeting attendees viewed maps of their district and
offered ideas on what to preserve, change or create to
improve quality of life .
ayetteville FUTURE LAND USE MAP | 9
Create
– More recreation options
o More parks, recreation centers
o Safer playgrounds, public pool, skate park; dog park
o Park on shaw mill road on city owned property
o Basketball courts, walking trails
– Walkable destinations and transportation networks that support them
o More walkable areas and shopping districts
o Bike trails, pedestrian bridges; more sidewalks
i.e. Bike trail from Lake Rim Park to Ridge Road
o Transit connections to key locations, bus shelters
o Activate downtown; more opportunities downtown
o Greater connectivity from neighborhoods
– Redevelopment
o Tax incentives for older neighborhoods
o New tenants in shopping centers
o New apartments on vacant land near Blounts Creek; high quality
apartments (instead of existing duplex)
o Reinvestment to major assets (parks, schools, hospitals, etc)
– Activities, Shopping, Restaurants
o Movie theater, aquarium, sports stadium, soccer stadium
o Upscale/sit down restaurant, restaurant x 3; restaurants in neighborhoods
o Riverfront development – walkable corridor from stadium to river/ river
walk for cross creek
o Neighborhood commercial at interchange
– Diversify housing stock
o Walkable, mixed-use development / village
– Infrastructure, aesthetic improvements and beautification
o Bridges over creeks, dam repairs from flooding
o Street lights at gateways; beautify gateways
o Beautification on creeks (Cross Creek and Blounts creek)
– Support for jobs
o Technology co-location centers on I-95, Locally owned businesses
Greenways, trails and sidewalks were mentioned as a
priority for many residents during the public meetings.
ayetteville FUTURE LAND USE MAP | 10
Survey
An online, public survey was conducted over a period of a month to gauge public priorities
and perspectives related to development types and land uses. These results helped inform
the development of strategies to further the public vision for their community. Highlights
include:
Section 2: Future Land Use Map and Character
Area Descriptions
The Future Land Use Map (FLUM) as well as the goals, policies, and strategies that
supplement it, are presented in a way that acknowledges Fayetteville’s existing land use
character and past planning efforts while offering up policy guidance and solutions for
sustainable growth in the future.
Along with existing land use, land supply, and suitability analysis, plans from the city’s past
planning efforts were taken into consideration when drafting this map. To compare against
the last city-wide land use planning effort, the Cumberland County 2010 Land Use Plan
contained 19 distinct future land use districts, including 5 districts for land on Fort Bragg.
This plan identifies 15 future land use districts (referred to as character areas) and refrains
from assigning any future land use categories on the base.
Many of the proposed character areas are new, as the prior land use plan had more a more
traditional, Euclidean approach to land use types that did not include mixed use
designations. The new character areas avoid a traditional approach of separating different
uses in most districts and instead reflect a trend of mixing uses in appropriate areas and
scales.
Rural and less intensive uses will be found east of the Cape Fear River, where a lack of
utility availability and poor soils will continue to hinder development. Neighborhood mixed
use centers are in areas one might expect such as Haymount, but also designated in areas
that may see future development like north Ramsey Street. “Commercial Strip
Redevelopment” areas are composed of areas like Eutaw Shopping Center and Bragg
Boulevard as it approaches downtown Fayetteville. The commercial and retail area
centered around Cross Creek Mall and Skibo Road corridor is designated as a “Regional
Center”.
Fayetteville’s FLUM is a tool to meet the needs of current and future residents. The new
FLUM will supersede all prior land use plan recommendations to serve as both visual and
policy guidance for land use planning moving forward in the City.
A Future Land Use Map (described in more detail later) is
one way of guiding development decisions in the City.
ayetteville FUTURE LAND USE MAP | 12
Figure 3: Future Land Use Map
Note: Area maps are included in this report beginning on page 16. A larger format version of this map is maintained by the Planning Dept.
ayetteville FUTURE LAND USE MAP | 13
ayetteville FUTURE LAND USE MAP | 14
ayetteville FUTURE LAND USE MAP | 15
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Figure 4: Downtown Fayetteville
ayetteville FUTURE LAND USE MAP | 17
Figure 5: Eastern Fayetteville
ayetteville FUTURE LAND USE MAP | 18
Figure 6: North of I-295
ayetteville FUTURE LAND USE MAP | 19
Figure 7: Bragg Boulevard to Ramsey Street
ayetteville FUTURE LAND USE MAP | 20
Figure 8: Southern Fayetteville
ayetteville FUTURE LAND USE MAP | 21
Figure 9: Cross Creek Mall Area
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Figure 10: West Fayetteville
ayetteville FUTURE LAND USE MAP | 23
Section 3: Goals and Policy Recommendations
FUTURE LAND USE GOALS
GOAL #1: FOCUS VALUE AND INVESTMENT AROUND INFRASTRUCTURE
AND STRATEGIC NODES
GOAL #2: PROMOTE COMPATIBLE ECONOMIC AND COMMERCIAL
DEVELOPMENT IN KEY IDENTIFIED AREAS
GOAL #3: ENCOURAGE REDEVELOPMENT OF STRIP COMMERCIAL AREAS
GOAL #4: FOSTER SAFE, STABLE, AND ATTRACTIVE NEIGHBORHOODS
GOAL #5: PRESERVE AND ENHANCE ENVIRONMENTAL FEATURES
THROUGH OPEN SPACE PROTECTION
GOAL #6: COMPLIMENT AND CAPITALIZE ON THE STRATEGIC
IMPORTANCE OF MILITARY INSTALLATIONS AND EDUCATIONAL AND
MEDICAL INSTITUTIONS
The Future Land Use Plan goals
support Goal III from the overall
City Strategic Plan:
Goal III: Strategic Land Use Policy
Objective A – Manage growth and support
strategic land use policy by supporting quality
development.
ayetteville FUTURE LAND USE MAP | 24
LAND USE POLICIES AND STRATEGIES
STRATEGIC, COMPATIBLE GROWTH
LU-1: ENCOURAGE GROWTH IN AREAS WELL-SERVED BY INFRASTRUCTURE
AND URBAN SERVICES, INCLUDING ROADS, UTILITIES, PARKS, SCHOOLS,
POLICE, FIRE AND EMERGENCY SERVICES.
• 1.1: Work with the Public Works Commission (PWC) and other utility provider to
ensure that public facilities and services are planned in a coordinated manner
o Utilize the Future Land Use map as a guide for infrastructure expansion
• 1.2: Encourage more intense uses, greater mix of uses and denser residential
types in key focal areas
o Regional Centers & Community Centers
o Neighborhood Mixed Use
o Downtown
• 1.3: Consider the costs and benefits of future extensions of utility service
• 1.4: Require annexation and adherence to development standards for any
development proposal within the city’s Municipal Influence Area (MIA) if city
services are to be provided
• 1.5: Limit utility service extensions in areas that are designated as Rural on the
Future Land Use Map
• 1.6: Require adequate infrastructure to be in place prior to or in tandem with
new development
o This includes road infrastructure such as roads, turn lanes and sidewalks
as well as public services such as parks, schools, water/sewer, police, fire
and emergency services
• 1.7: Encourage a logical progression of housing development and discourage
“leapfrog” development
o Leapfrog development is development that occurs in areas away from
existing development and in areas currently not served by infrastructure
or adjacent to services, esp. water/sewer. This type of growth can lead to
higher costs of providing urban services.
Farm and forest land east of the Cape Fear River is
currently not served by City sewer. Extension of sewer to
much of this area is not advisable due to cost to provide
service and environmental constraints.
ayetteville FUTURE LAND USE MAP | 25
LU-2: ENCOURAGE STRATEGIC ECONOMIC DEVELOPMENT
• 2.1: Encourage economic development in designated areas
o Encourage economic development in key areas including Downtown,
Office / Institutional Areas, Industrial / Employment Areas, Regional and
Community Centers, and Highway Commercial Areas
• 2.2: Identify opportunity sites for manufacturing and technology industry based
on transportation access, nearby land uses, environmental constraints and other
considerations
o Discourage large-scale residential rezonings and development that
impacts prime industrial sites
o Coordinate with City departments to determine necessary utility,
transportation and stormwater upgrades to accommodate target
industries
• 2.3: Coordinate with the Fayetteville Cumberland County Economic
Development Corporation (FCCEDC)
o Conduct economic development activities that contribute to local jobs, a
high quality of life, business retention and recruitment
o Promote a stable economic base by recruiting a diverse industry base
o Continue to maintain an up-to-date inventory of buildings and sites
o Work toward the creation of certified industrial sites
o Conduct small area planning studies for Economic Development catalyst
sites to determine access improvements and potential building
configurations to utilize in marketing materials
o Consider strategic infrastructure investments for catalyst sites
• 2.4: Coordinate with the Fayetteville Area Convention and Visitors Bureau, the
Cool Spring Downtown District and other entities to encourage visitation and
tourism in the City
o Work to encourage events and conventions in Downtown Fayetteville and
other activity centers
o Invest in public improvements to streetscapes including sidewalks, street
trees, landscaping, lighting, and furnishings to create pedestrian-oriented
environments Downtown and in other activity centers
o Study the feasibility of new greenways and extensions to existing
greenways
The pedestrian friendly environment of Hay Street
could be extended to other parts of Downtown and
replicated in different form in other activity centers to
encourage redevelopment, and shopping and
dining destinations
Marketing existing industrial and business parks with
can help increase local jobs and improve property
values
ayetteville FUTURE LAND USE MAP | 26
Recent studies have shown that access to greenways can help
spur economic development and visitation
• 2.5: Partner to determine specific uses that could be supported through
adaptive reuse and redevelopment opportunities
LU-3: ENCOURAGE REDEVELOPMENT ALONG UNDERUTILIZED
COMMERCIAL STRIP CORRIDORS AND REINVESTMENT IN DISTRESSED
RESIDENTIAL NEIGHBORHOODS
• 3.1: Examine and identify targeted redevelopment and infill areas throughout
the city
• 3.2: Identify potential barriers for redevelopment and reinvestment and provide
flexibility through modification to development regulations while maintaining
high standards
o Consider incentives for redevelopment of underutilized commercial
properties including:
Allowance of higher density residential types
Reduced setbacks and parking
o Consider incentives for reinvestment in distressed neighborhoods
including:
Develop land use regulations that allow for diverse housing
offerings that allow people to transition to multiple types of
housing in different stages of life without having to leave their
neighborhood
Create targeted, city-funded grant opportunities for developers
and individual property owners alike to invest in their homes and
neighborhoods.
Using previous plans such as the Bonnie Doone Redevelopment
Plan or Shaw Heights Plan as a guide, readdress and develop
concept area plans for neighborhoods that need it the most and
advertise the results created to help spur private sector interest
• 3.3: Coordinate efforts among departments to create synergistic opportunities
for reinvestment in distressed areas.
o Study opportunities for public improvements that spur private
investment. Opportunities may include transportation improvements,
Example redevelopment
strategies:
Incentives:
• Develop façade or upfit grants to offset
private costs of reuse of buildings
• Revise parking requirements to allow
greater flexibility where public transit is
available
Regulatory:
• Allow higher-intensity, higher-return
land uses in key areas
• Adjust setbacks to allow structure
expansions that make walkable
environments
• Create neighborhood plans to organize
private efforts and communicate local
vision
Investment:
• Coordinate public streetscape and
beautification efforts with private
redevelopment projects
• Explore establishing a dedicated funding
source to implement targeted
improvements or a community
redevelopment agency
• Develop a revolving loan fund or
investment strategy to incubate local
entrepreneurs
ayetteville FUTURE LAND USE MAP | 27
regional stormwater facilities, greenways and parks, and/or school
construction or upgrades.
o Consider acquisition of strategic properties and potential catalyst sites to
sell to developers via RFP process to accomplish community goals
LU-4: CREATE WELL-DESIGNED AND WALKABLE COMMERCIAL AND MIXED-
USE DISTRICTS
• 4.1: Ensure new development meets basic site design standards
o Standards should include:
Connected streets, entrances, and parking lots
Sidewalks and pedestrian pathways on both sides of all public
rights-of-way (at the minimum)
High quality building materials
Landscaping, shade, and street trees
Perimeter buffers
Lower-level parking lot screening
Stormwater retention and infiltration
• 4.2: Encourage context-sensitive site design
o Design commercial and mixed-use areas to be walkable areas with
pedestrian connections between uses and buildings
Encourage buildings to be located close to the street, especially
near key intersections, with parking located to the side or behind
the buildings
Require short block lengths (max. 400 to 600 feet) and
connections to adjacent development (crosswalks, etc.)
o Ensure development standards specify:
Transition in building scale between new buildings and
surrounding neighborhoods
Building and parking orientation and design
Landscaped buffers, tree save areas and site design that provides
transitions between more and less intense uses
• 4.3: Preserve Historic Resources and Encourage Reuse
o Pursue grants to inventory historic resources
Thirty-six percent of commercial properties in the City are
underutilized, indicating an oversupply of commercial
property. One-third of total commercial properties are
under two acres in size.
New development standards are improving some
commercial corridors. Recent development along Ramsey
Street sports heightened perimeter landscaping and
screening of parking areas.
ayetteville FUTURE LAND USE MAP | 28
o Encourage reuse of historic structures through development regulations
o Modify land use regulations to encourage the scale and architectural
detail of new infill development to be compatible with older
neighborhoods.
LU-5: IMPROVE GATEWAYS
• 5.1: Continue to require perimeter landscaping and planting islands in significant
renovations and redevelopment along commercial corridors.
o There is currently a number of gateways into the City that have
underutilized commercial areas. Recent changes to development
standards are improving some areas incrementally, however approving
exceptions during rezonings and/or for small properties can stall this
incremental improvement and potentially have a negative effect on
adjacent properties and future development.
• 5.2: Consider strategic investment in transportation and public realm
improvements along gateway corridors
o Identify key gateways into Fayetteville (such as Murchison Street, Bragg
Boulevard and Ramsey Street) and study potential transportation
improvements, public realm improvements and redevelopment
opportunities
Roadway improvements such as access management projects,
medians, collector street connections and roundabouts can
be catalysts for new development or redevelopment along
gateway corridors.
Landscaping, beautification, public art and the addition of
pedestrian facilities can help the City leverage public rights-of-
way for neighborhood improvement.
Where appropriate, focus planning efforts and regulations to
facilitate transit stops along future development and infill
with consideration placed upon potential rail service from
Fayetteville State University to Downtown Fayetteville.
Require any high-density, vertical mixed-use development in
these areas to cluster and make the most of transportation
improvements constructed.
Town of Hickory, NC: Inspiring Places
Following their most recent community visioning and plan
adoption, the citizens of Hickory passed a $40 million
bond by referendum. This bond is currently being used to
design and construct catalyst projects identified in the
vision plan. The major thrusts of the plan include:
• A corporate business park for contemporary
manufacturing companies
• New public recreational facilities in downtown and
along the river
• Enhanced gateways and streetscape beautification
• Investing in the connection between downtown and
the university
These major public projects are anticipated to generate
private sector investment that will multiply the total
economic and societal benefit.
More information can be found here:
https://www.hickorync.gov/content/bond-information
(Photo from the Town of Hickory website.)
o Re-align key major and minor intersections (and establish minor
connections from existing neighborhoods) to create logical connections
and nodes for investment, intensification, and public realm enhancements
Develop, with assistance from city transportation officials, a
list of intersections that can benefit from realignment.
Coordinate with FAMPO and NCDOT to add projects to the
STIP for funding.
Use this plan as a mechanism to retrofit areas with other
amenities found elsewhere within the city such as street
trees, sidewalks, and bike lanes.
ayetteville FUTURE LAND USE MAP | 30
SAFE, STABLE AND ATTRACTIVE NEIGHBORHOODS
LU-6: ENCOURAGE DEVELOPMENT STANDARDS THAT RESULT IN QUALITY
NEIGHBORHOODS
• 6.1: Encourage quality neighborhood design through maintaining and improving
standards for streets, sidewalks, stormwater and open space.
o Require a connected system of streets in new development and stub-
outs to areas of future development
o Require sidewalks in new developments along both sides of public
roadways (including the frontage of properties and internal roads)
o Encourage commonly-accessible open spaces in new residential
subdivisions
o Require street trees in high density residential developments and
commercial areas
o Require canopy trees in new single-family neighborhoods
• 6.2: Encourage Crime Prevention Through Environmental Design (CPTED)
principles in development design and the design of public facilities
o Building and site design that includes clear delineation between public
and private spaces, street lighting, and windows and/or balconies
facing the street can help increase informal surveillance of space and
reduce crime
LU-7: ENCOURAGE A MIX OF HOUSING TYPES FOR ALL AGES AND
INCOMES
• 7.1: Allow a mix of housing, including attached and multi-family homes, to create
diverse neighborhoods, especially within and near Downtown and designated
Regional, Community and Neighborhood Centers
o Establish incentives for encouraging select underutilized commercial areas
and strip malls to be converted to higher density residential uses
• 7.2: Allow a mix of smaller scale detached and attached housing in Medium
Density Residential and Neighborhood Improvement areas (as identified on the
Future Land Use Map)
Requiring high quality design and construction of
public facilities in new subdivisions can encourage
development that raises property values, and create
a visually appealing public realm.
A variety of housing type options allows people in
different stages of their lives to be able to invest in the
social fabric of their neighborhood and community.
Providing spaces within neighborhoods for these
“missing middle” housing types can allow people to
find their own special niche within the City.
ayetteville FUTURE LAND USE MAP | 31
o Housing types in these areas could include smaller-lot patio homes,
duplexes, triplexes, quadplexes and townhomes
Greater flexibility in allowable housing types, setbacks or parking
requirements could be considered for Neighborhood Improvement
areas to encourage reinvestment
o Design standards could be implemented to encourage compatibility with
existing development in these areas. Standards could include:
Architectural standards
Open space requirements
Parking design criteria (i.e. location, planting requirements)
• 7.3: Work with non-profits to increase affordable and workforce housing
o Pursue federal Choice Neighborhoods Implementation grants for planning
and creating mixed-income housing
• 7.4: Conduct neighborhood stabilization activities
o Coordinate with Cumberland County on programs that help homeowners
repair existing homes and/or remain in neighborhoods experiencing
change can help stabilize neighborhoods that are experiencing change and
retain NOAH (Naturally Occurring Affordable Housing)
o Develop partnerships and programs that encourage renovation of rental
housing stock
U.S. Department of Housing and
Urban Development: Choice
Neighborhoods
This federal program leverages public and private
dollars to support locally-driven strategies that
address struggling neighborhoods with distressed
public or HUD-assisted housing. Local leaders,
residents, and stakeholders create and implement a
plan that revitalizes distressed HUD housing and
addresses the challenges in the surrounding
neighborhood. The program helps communities
transform neighborhoods by revitalizing severely
distressed public and/or assisted housing and
catalyzing critical improvements in the neighborhood,
including vacant property, housing, businesses,
services and schools.
Choice Neighborhoods is focused on three core goals:
1. Housing: Replace distressed public and assisted
housing with high-quality mixed-income housing;
2. People: Improve outcomes related to employment
and income, health, and children’s education; and
3. Neighborhood: Create the conditions necessary for
public and private reinvestment in distressed
neighborhoods.
More information can be found here:
https://www.hud.gov/cn
(Information adapted from HUD website.)
https://www.hud.gov/cn
ayetteville FUTURE LAND USE MAP | 32
PRESERVE AND ENHANCE ENVIRONMENTAL FEATURES
LU-8: REQUIRE THE RESERVATION OF OPEN SPACE AND UNIQUE NATURAL
FEATURES IN NEW DEVELOPMENTS
• 8.1: Evaluate open space requirements for residential development and consider
increasing requirements to be competitive with or exceed peer communities
o Currently 5-10% of most sites is required to be reserved as open space and
50% of the open space is required to be usable for active or passive
recreation facilities.
Size, location and access criteria should be evaluated to ensure
adequate, quality open space is being provided in new subdivisions
Regulations should accomplish the following:
• Require open space to be connected to the maximum
extent practical
• Specify allowable types of open space (i.e. parks, valuable
natural features, amenities such as greenways, walking
paths, picnic areas, etc.)
• Specify lands not counted toward the open space
requirement (i.e. remnants, rights-of-way, etc.)
• 8.2: Preserve unique natural features through site design
o Regularly review and update Unified Development Ordinance to specify
priority open space types (i.e. natural features that should be preserved
first with new development)
o Continue to incentivize tree preservation, especially mature native tress
and Champion Trees
Currently preservation and protection of specimen trees or groves
of three or more trees over a certain caliper results in a 300%
credit toward open space requirements
o Consider expanding incentives to:
Include larger vegetated riparian buffers (up to 150ft) to maintain
water quality
Include future greenway locations
Open space can take many forms and can be
public, private, or semi-public. Finding the right,
context-sensitive mix can add value to a
neighborhood and improve health outcomes of
residents.
ayetteville FUTURE LAND USE MAP | 33
• 8.3: Incentivize cluster / conservation subdivisions, especially in areas with high
value natural assets and Open Space Subdivisions areas (on the Future Land Use
Map)
o Evaluate doubling or tripling the current density bonus for additional open
space and consider modifications to encourage subdivisions with more
open space in developing areas on the edges of the City
Currently, a density bonus is available that is equal to a 1 percent
increase in allowable density for every 1 percent of land devoted to
open space over base requirement. Maximum density bonus is set
to a 20 percent increase in the allowable density.
LU-9: PLAN FOR A CONNECTED SYSTEM OF OPEN SPACE AND
GREENWAYS
• 9.1: Improve access to parks and greenways
o Coordinate with Fayetteville Cumberland Parks & Recreation to improve
access to existing facilities and address level of service deficiencies within
the City and Municipal Influence Area
o Prepare an open space and greenway master plan for the City and/or
coordinate with Cumberland County to create a plan for the entire county
Analyze existing level of service and equitable access to parks as a
first step in this process
• 9.2: Prioritize connecting neighborhoods and destinations with greenways
o Expedite the development of the Cape Fear River Trail and key connections
o Create a master plan and improve wayfinding for the Cross Creek Linear
Park
o Study future greenway connections along major creeks including Little
Cross Creek, Beaver Creek, Bones Creek and other tributaries identified as
potential greenways in previously completed Small Area Plans
Greenways (multi-use trails) are a local amenity as well as
a regional recreational attractor.
ayetteville FUTURE LAND USE MAP | 34
LU-10: SUPPORT LAND USE, SITE DESIGN AND CAPITAL IMPROVEMENT
INITIATIVES THAT INCREASE RESILIENCY AND REDUCE IMPACTS FROM
FLOODING AND NATURAL DISASTERS
• 10.1: Encourage on-site stormwater control measures that reduce impacts of new
development
o Stormwater requirements should seek to mimic pre-development
conditions, limit impacts from new development on adjacent properties
and reduce the rate of stormwater runoff to avoid erosion of stream banks
and encourage groundwater recharge
• 10.2: Incentivize Low Impact Development (LID) techniques in new development
• 10.3: Plan for stormwater management at the stream basin level, especially in
areas that have been developed with limited on-site detention
• 10.4: Carefully control development within the floodplain
o Encourage open space, passive parks and restoration of native vegetation
within the 100-year floodplain
o Require all structures to be built with additional “freeboard” or distance
above habitable floors and a base flood elevations (BFE)
o Discourage uses that include hazardous material storage in the floodplain
The best (and safest) use of high- to moderate-frequency
floodplains is to be reserved for the storage of floodwater
during storm events. Passive recreational uses can also
increase the utility of these areas.
ayetteville FUTURE LAND USE MAP | 35
MILITARY INSTALLATIONS AND INSTITUTIONS
LU-11: ENCOURAGE A DEVELOPMENT PATTERN AND COMMUNITY
GROWTH THAT RESPECTS THE TRAINING AND OPERATIONAL MISSION OF
THE MILITARY, WHILE ALSO ALLOWING FOR REASONABLE, APPROPRIATE
USES OF PROPERTIES NEAR FORT BRAGG
• 11.1: Discourage higher intensity development in Critical and Important areas
identified in the 2018 Joint Land Use Study (JLUS)
• 11.2: Require notice of military installation commanders when new major
subdivisions are proposed within 5 miles of Fort Bragg
• 11.3: Limit height of buildings proximal to major military installations (per JLUS
recommendation)
• 11.4: Discourage residential uses and gathering places within the Noise-Accident
Potential (NPO) Districts identified in the JLUS plan
o Continue to discourage residential uses and public gathering places
o Consider requiring adherence to development standards include:
Maximum density of residential uses of 1 dwelling unit per five
acres
Clubhouses and gathering places should not be allowed
Noise attenuation in impacted structures
LU-12: COORDINATE WITH FORT BRAGG
• 12.1: Regularly communicate with Fort Bragg and ensure that local government
representatives are participants in the Regional Land Use Advisory Commission
(RULAC)
• 12.2: Fort Bragg shall be included in all major infrastructure planning locally. This
will be especially important as Fort Bragg and surrounding local communities
seek mutually beneficial opportunities to enhance services
• 12.3: Consider the co-location and joint development of park facilities in
cooperation with institutions such as colleges, public schools, the military, other
federal, state and local government agencies, as well as private and non-profit
interests
The operations at Fort Bragg are impacted by the uses
of surrounding lands, as detailed in the recently revised
Joint Land Use Study (JLUS).
(Source: Fort Bragg JLUS, Sept. 2018)
ayetteville FUTURE LAND USE MAP | 36
• 12.4: Coordinate with Cumberland County, the Fayetteville-Cumberland County
Chamber of Commerce and the military to encourage compatible economic
development near the base
• 12.5: Coordinate with the military, affordable housing interests and housing
developers to increase supply of high-quality housing that is conveniently located
and attractive to a variety of individuals and family types
LU-13: COORDINATE WITH LOCAL GOVERNMENTS, NON-PROFITS AND
EDUCATION AND MEDICAL INSTITUTIONS ON ECONOMIC DEVELOPMENT
INITIATIVES AND COMPLIMENTARY DEVELOPMENT IN THE VICINITY
CAMPUSES
• 13.1: Encourage growth and development that is complimentary to higher
education institutions
• 13.3: Coordinate with institutions to determine long-term off campus needs and
priorities surrounding their campuses
o This coordination could include identifying areas for student housing,
placemaking initiatives, transportation improvements and/or small area
planning priorities
Methodist University, Fayetteville State University and
Fayetteville Technical Community College are anchor
institutions that great assets to the City. Coordinating with
representatives of these institutions will be key during small
area planning initiatives in the future.
ayetteville FUTURE LAND USE MAP | 37
Section 4: Implementation Recommendations
The following strategies represent near-term recommendations for
implementing key components of the Future Land Use Plan.
STRATEGY #1: USE THIS DOCUMENT AND THE FUTURE LAND USE MAP TO
GUIDE LAND USE POLICY DECISIONS AT STAFF, BOARD, AND ELECTED
OFFICIAL LEVELS TO PROMOTE SOUND DEVELOPMENT PATTERNS
THROUGHOUT THE CITY.
• CONTEXT: The last City-wide land use plan was included in the
Cumberland County 2010 Land Use Plan, completed in 1996, which
resulted from a joint effort between Cumberland County and the City
of Fayetteville. Since this time a number of small area plans have
been completed in the City that have included land use
recommendations. Oftentimes, there could be multiple plans that
address the future land use of a parcel in the city. This fact, and not
having a clear understanding of what plan recommendations take
precedence, could create issues between staff and the
development community when those parcels are being considered
for development. This document and the associated Future Land Use
Map was created based on updating a city-wide vision for growth
and development that is based on previous small area plans and a
planning and public engagement process that included stakeholder
interviews, public meetings, a survey and staff worksessions. It is
meant to supersede previous land use planning efforts and be
updated regularly.
• IMPLEMENTATION RECOMMENDATIONS:
o Formally adopt the Future Land Use Map and
Recommendations
o Review all land use petitions (rezonings, conditional and/or
special uses, site plans and etc.) for consistency with the future
Implementation
Recommendations
#1: Use this document and the
Future Land Use Map to guide land
use policy decisions
#2: Update the City’s comprehensive
plan
#3: Remove barriers for reinvestment
and redevelopment in target areas
#4: Coordinate efforts among
departments to create synergistic
opportunities for reinvestment in
distressed areas
#5: Increase public engagement
efforts in support of the goals and
action steps in this document
ayetteville FUTURE LAND USE MAP | 38
land use map as well as the goals, policies, and strategies of
this plan.
o Implement targeted development regulations that support the
future land use goals and character area descriptions.
o Refine the city’s development codes in a clear and
consistently applied manner and use them as a tool for
implementation of the land use goals and strategies found
in this document.
o Regularly update the Future Land Use map based on rezoning
decisions, future small area planning initiatives and major
updates every 5 years
STRATEGY #2: BUILD ON THE RECOMMENDATIONS AND THE FUTURE LAND
USE MAP WITH A COMPREHENSIVE PLAN UPDATE
• CONTEXT: Outside of recent planning efforts for small areas within the
city, there has not been a full-fledged comprehensive plan since the
2008 Growth Vision Plan. As comprehensive plans typically have a
shelf-life of 5-10 years, an update is necessary to properly represent
the wants and wishes of stakeholders and citizens alike. While this
mapping update took much of the city’s available land use,
environmental, and socio-economic data to create a thoughtful
approach to its future development, a comprehensive plan update
will also address items and topics not touched on this update, such as
economic development, parks and open space, transportation, and
others.
• IMPLEMENTATION RECOMMENDATIONS: Planning managers should
work closely with elected officials and city management to explain
the necessity of a comprehensive planning update and coordinate its
completion with planning staff or dedicate funding for completion by
a private planning firm. Specific recommendations include:
• Encourage City Council to appropriate funds for a citywide
comprehensive plan to update the 2010 Plan with public
participation as a key element.
ayetteville FUTURE LAND USE MAP | 39
• Supplement that planning effort with other corridor and small area
plans that are focused on implementation, specifically for areas
within the city with distressed neighborhoods or marginal
commercial development.
STRATEGY #3: REMOVE BARRIERS FOR REINVESTMENT AND
REDEVELOPMENT IN TARGET AREAS, ESPECIALLY MARGINAL COMMERCIAL
STRIP CORRIDORS AND/OR RESIDENTIAL NEIGHBORHOODS
• CONTEXT: There is an oversupply of commercial property in
Fayetteville, which has led to high vacancies and underperforming
commercial strip development along many major thoroughfares.
Encouraging commercial reinvestment and redevelopment at key
nodes and allowing the marginal strip commercial properties to
redevelop into apartments and multi-family residential (with cross
access between properties) could simultaneously reinvigorate
distressed and blighted strip commercial properties and reinforce the
neighborhood nodes. This will provide stability and focused
investment in key nodes that will build community value that will
permeate the surrounding neighborhoods, while also providing a
useful and important function for underutilized properties.
Over the years, strip development has occurred on nearly every
major or minor arterial in the city. This effect has been exacerbated
by the numerous, incremental road realignments as well as
unpredictable and significant fluctuations in demand and population
(in part due to the military base). The changes have created an
unreliable backdrop for investment, with an ever-changing
landscape of population density, income, access, and availability. As
each new strip develops, it disenfranchises the previous strip
development by lowering demand, and partially underutilized land
and marginal businesses and rental spaces are all that is left. Some
parcels were so highly prized for their frontage on an arterial that the
entire back 75% of the parcel was ignored, with just a parking lot and
shallow commercial space developed along the roadway. With the
Strip commercial centers with
reinvestment potential existing on many
of the major commercial corridors.
Often, these commercial strip buildings
have vacant land behind them that is
underutilized.
ayetteville FUTURE LAND USE MAP | 40
newly proposed focal activity areas, it is important to encourage and
incentivize redevelopment of these marginal strip commercial
centers. By doing so, these properties can redevelop as higher value
contributors to a better organized community quit that will reinforce
activity centers.
• Strip properties within Commercial Strip Redevelopment character
areas will be incentivized to redevelop as higher density residential
properties. They have good vehicular access for residents and the
reduction in commercial properties will heighten demand for the
remaining commercial at the activity centers. These activity centers
will then benefit by increased demand for upfits and redevelopment,
which will increase their attractiveness and vibrancy. The existing and
future pedestrian facilities along these redeveloped corridors will
connect the residents of the redeveloped Commercial Strip
Redevelopment areas with the activity centers, which will help those
businesses flourish by having a high population of potential consumers
nearby.
• Neighborhood Improvement/Redevelopment character areas offer a
similar opportunity for marginal residential neighborhoods that have
failed to grow value as much as other neighborhoods. If context-
sensitive redevelopment of appropriate density is allowed and
encouraged to occur, it can lead to aggregation of parcels and
redevelopment that will build wealth and spur reinvestment. The city
will need to find ways to encourage slight increases in density while
maintaining neighborhood character. Public improvements, such as
sidewalks, street trees, curb-and-gutter, street lights, upfitting sewer
pipes, etc. could be targeted to spur reinvestment.
• IMPLEMENTATION RECOMMENDATIONS:
o Identify properties and reach out to owners and the
development community to identify strategies and incentives
for encouraging the desired redevelopment.
o If necessary, make changes to the land development
regulations and zoning code, including a potential zoning
overlay with relaxed lot sizes, dimensional standards, use
ayetteville FUTURE LAND USE MAP | 41
allowances or housing type allowances, etc., to allow the
desired development to occur.
o Begin a targeted incentive program that encourages the
desired outcomes. If possible, establish a standing funding
stream for redevelopment activities, which may include a
municipal services district, dedicated general fund revenues,
low interest revolving loan fund, waiver of utility or inspection
fees, etc.
STRATEGY #4: COORDINATE EFFORTS AMONG DEPARTMENTS TO CREATE
SYNERGISTIC OPPORTUNITIES FOR REINVESTMENT IN DISTRESSED AREAS
• CONTEXT: Incremental, disjointed improvements by multiple players
across a broad area will fail to communicate priorities and direction
that will focus private sector investment to build community wealth.
This issue may be addressed by the public sector in the following
ways:
o upzoning select parcels
o upsizing water, sewer, stormwater, electric, and broadband
infrastructure
o adding pedestrian and transportation improvements
o providing outdoor recreation, open space, and stormwater
management
o school improvements
By coordinating and focusing public sector energy, funding, and
improvements into key locations, the city can leverage private
investment in those locations to build community value that extends
into neighboring residential properties.
Specifically, transportation improvements such as realigning key major
and minor intersections and establishing connections near activity
nodes is an opportunity in areas that could benefit from investment or
public realm enhancements. This will require a coordinated effort
between planning staff and transportation agencies. Identifying and
realigning minor road sections and/or establishing connections
between neighborhoods and commercial centers can lead to more
ayetteville FUTURE LAND USE MAP | 42
intuitive neighborhood centers and focus private sector investment
decisions in areas that will build community focus and wealth,
including opportunities for walkable, distinct, and active nodes.
• IMPLEMENTATION RECOMMENDATIONS:
o Identify a lead from each city department, establish a regular
coordination/meeting framework. Evaluate the current
development review and implementation process, as well as
intended and unintended consequences of current efforts
including public facility planning, redevelopment, cost
recovery, beautification, etc.
o Map out priority focus neighborhoods or areas and discuss
ways to align efforts. Create a group priority recommendation
and get community buy-in, including extensive outreach to the
community and private sector.
o Inventory and identify misaligned intersections and gaps in the
road network.
o Prioritize those interventions, in part using public input, and then
budget for acquisition and construction.
o Ensure that these new connections include pedestrian facilities
that connect residences to activity centers, to help reinforce
these new nodes of commercial activity.
o Connect neighborhoods to commercial nodes to support and
activate these areas. Method for realigning should rank parcels
relative distance to key nodes and seek interventions that have
highest cost (purchase + construction) – to – benefit (increased
connectivity to node).
STRATEGY #5: INCREASE PUBLIC ENGAGEMENT EFFORTS IN SUPPORT OF
GOALS AND ACTION STEPS IN THIS DOCUMENT
• CONTEXT: Public engagement is the cornerstone of plan
implementation. Without public buy-in, a plan will meet resistance
when it comes time to implement, budget, prioritize, and appropriate
funds. By building a network of contacts in local institutions,
ayetteville FUTURE LAND USE MAP | 43
neighborhoods, and districts, and reaching out for education,
momentum can be built for implementing plan recommendations.
• IMPLEMENTATION RECOMMENDATIONS: Identify and designate a
responsible internal team and task them with making contacts and
establishing small-scale neighborhood meetings throughout the city.
Outreach beginning in the Fall of 2019 can help validate
recommendations in the Future Land Use Map and this document
and can contribute to an understanding of priority issues to inform a
new Comprehensive Plan. A “road show” should be developed that
highlights key recommendations in this plan and familiarizes
community members and organizations with the goals of the plan.
Create and disseminate other informational material, including a
website, to help educate the community and provide avenues for
them to discuss, comment on, and revise the Plan. Establish metrics for
successful engagement and track and report on those metrics to an
appropriately accountable body. Additional implementation steps
include:
o Utilize the city’s planning staff and public information office to
serve as the “front line” for implementation of all goals and
strategies in this map update.
o Involve other local partners (NCDOT, developers, etc.) when
necessary to serve as conduits in the implementation of the goals
of this planning effort to assist in the coordination of regulatory
compliance
o Ensure that the land use map, its character areas, and their
descriptions are regularly updated according to the city’s
development trends and the desires of the citizens of Fayetteville
o Facilitate training and education on the implications of this report
to areas of the city that would be affected the most by the
changes outlined within these policies and strategies.
ayetteville FUTURE LAND USE MAP | 44
302,963 319,431
332,766
121,015
200,564 210,324
100,000
200,000
300,000
400,000
500,000
600,000
2000 2010 2017
Population Growth
Cumberland County Fayetteville
Source: 2000 Census, 2010 Census, 2017 ACS
73%
65%
47%
62%
127%
96%
30%
53%
116%
71%
77%
123%
– 10,000 20,000 30,000 40,000
Under 5 years
5 to 9 years
10 to 14 years
15 to 19 years
20 to 24 years
25 to 34 years
35 to 44 years
45 to 54 years
55 to 64 years
65 to 74 years
75 to 84 years
85 years and over
Growth by Age Cohort
2000 2017
Source: 2000 Census, 2017 ACS
Section 5: Community Profile
The Community Profile focuses on the Fayetteville planning area and includes demographic
indicators and trends (i.e. population, employment, income, housing, education, health,
aging, etc.) which provide a context for growth and change in Fayetteville and Cumberland
County. Natural resources, environmental constraints, existing land use patterns and land
use suitability is also documented.
DEMOGRAPHICS
POPULATION & AGE
Growth has primarily occurred within the City of Fayetteville with an annual growth
rate of 3.3% between 2000 and 2017. This compares with an annual growth rate of
0.6% for Cumberland County during this period.
The median age in Fayetteville has generally gotten younger between 2000 and 2017
going from a median age of 31.9 years to 30 years. This is due to a 96% increase of
14,461 persons in the 20 to 24-year age cohort.
VETERANS & PERSONS WITH DISABILITIES
Within Fayetteville, Veterans make up approximately 21% of the civilian population of
persons over the age of 18. For these Veterans, 28.7% report having a disability. This
contributes to the general population of the City having a higher than average number
of persons with disabilities (16.7%) than the rest of North Carolina (13.7%). The most
prevalent type of difficulty is ambulatory meaning that 9.6% of the population
(civilian, non-institutionalized) reports having serious difficulty walking or climbing
stairs.
Veteran /Disability Status City NC
Veteran Status 20.8% 8.7%
Reported Disability 20.5% 16.6%
SOURCE: 2017 ACS ESTIMATES; CIVILIAN POPULATION 18+
ayetteville FUTURE LAND USE MAP | 45
HOUSING
The City of Fayetteville has experienced a 77% increase in the number of housing units
between 2000 and 2017, at a rate of approximately 3.6% per year during that time
period. Most of this growth can be attributed to annexation. The County experienced
slower growth in housing units (23%) during this same time period at a rate of
approximately 1% per year. The housing table below indicates the types of units in the
City and the year that they were built. Most of the housing within Fayetteville is 1 unit
detached (62.3%), separated on all sides from any other structure except its own
garage or shed. Apartment buildings with 5+ units are also a prevalent housing type
within the City. Three quarters of all housing units have been built since 1970. While
the dataset is not current to 2019, it appears that construction of units has tapered off
since 1999.
Since 2010, there has been a gradual shift towards renter-occupied housing. In 2013
the balance tipped toward renter-occupied housing. Currently, Fayetteville has 45.2%
owner-occupied housing. Median rent is $892 and 85% of housing units are occupied
(2017 ACS, 5-Year Estimates).
Housing by Type Housing Year Built
1 unit – detached 58,966 62.3% 2014 or later 853 0.9%
1 unit – attached 3,575 3.8% 2010 to 2013 4,234 4.5%
2 units 2,872 3.0% 2000 to 2009 12,453 13.2%
3 or 4 units 4,228 4.5% 1990 to 1999 16,692 17.6%
5 to 9 units 8,610 9.1% 1980 to 1989 16,829 17.8%
10-19 units 6,847 7.2% 1970 to 1979 19,917 21.0%
20 or more units 6,228 6.6% 1960 to 1969 12,725 13.4%
Mobile Home 3,326 3.5% 1950 to 1959 6,812 7.2%
Other – 0.0% 1940 to 1949 2,641 2.8%
1939 or later 1,496 1.6%
Total 94,652
SOURCE: 2017 ACS, 5-YEAR ESTIMATES
Housing by Type
1 unit – detached 1 unit – attached
2 units 3 or 4 units
5 to 9 units 10-19 units
20 or more units Mobile Home
Source: 2017 ACS, 5-Year Estimates
0% 50% 100%
2000
2010
2011
2012
2013
2014
2015
2016
2017
Owner vs Renter Occupied
Own Rent
Source: 2000 Census, 2010 Census, 2011-2017 ACS
Estimates
ayetteville FUTURE LAND USE MAP | 46
INCOME
Median household income in Fayetteville was $43,439 in 2017. Median household
income in 2017 is approximately 11% less than in 2010 when adjusting for inflation.
This decrease in household income is consistent with an increase in family poverty.
During this time period, there has also been a small increase in the ratio of income
spent on rent as a percentage of overall household income.
Socio-economic Indicators 2000 2010 2017
Median HH Income (Inflation Adjusted
to 2017)
$36,287
($51,653)
$43,284
($48,656) $43,439
Family Poverty 11.7% 13.8% 15.8%
Median Gross Rent as % of HH Income – 28.2% 31.6%
Unemployment – 11.7% 10.8%
Households with No Vehicles Available – 6.7% 7.2%
Source: 2000 Census, 2010 Census, 2017 ACS Estimates
EDUCATIONAL ATTAINMENT & EMPLOYMENT
One quarter of persons aged 25 and older residing in Fayetteville hold a Bachelor’s
degree or higher. The Educational services, health care, and social assistance sector
has the greatest percentage of those employed in the City with an increase of 57% and
0% 10% 20% 30%
Less than 9th grade
some High School, no diploma
High School graduate (incl.…
Some college, no degree
Associate’s degree
Bachelor’s degree
Graduate or professional degree
Educational Attainment
Source: 2017 ACS, 5-Year Estimates
0 5,000 10,000 15,000 20,000
Educational services, and
health care and social…
Retail Trade
Manufacturing
Arts, entertainment, and
recreation, and…
Public administration
Professional, scientific, and
management, and…
Construction
Finance and insurance, and
real estate and rental and…
Other services, except public
administration
Transportation and
warehousing, and utilities
Information
Wholesale Trade
Agriculture, forestry, fishing
and hunting, and mining
Employment by Industry
2000 2017
Source: 2017 ACS, 5-Year Estimates
ayetteville FUTURE LAND USE MAP | 47
nearly 10,000 persons employed since 2000. While all sectors gained employment,
Public administration (139% increase) and Arts, entertainment and recreation, and
accommodation and food services (121% increase) had the highest gains in
employment since 2000. Manufacturing (10.4%) and Finance and insurance, and
real estate and rental and leasing (14.9%) saw the smallest amount of growth among
employment sectors.
COMMUTING
Mean travel time to work decreased between 2010 and 2017. At the same time
Fayetteville saw a 1% decrease in driving alone, a 3% increase in people walking to
work and a 3% drop in those working from home. Based on 2015 commute data,
58% percent of people employed in the Fayetteville Municipal Influence Area (MIA)
live in areas outside. Most of these individuals are commuting to areas South and
West of Fayetteville. Conversely, 47% of people that live in the Fayetteville MIA are
employed and commute to areas outside of the area.
Commuting to Work
2010 2017
Mean Travel Time 19.2 Minutes 18.7 Minutes
Car, truck or van, drove alone 71,452 79% 78,883 78%
Car, truck or van, carpooled 8,513 9% 8,836 9%
Public transportation 513 1% 771 1%
Walked 3,723 4% 7,463 7%
Other means 1,352 1% 1,097 1%
Worked at home 5,442 6% 3,474 3%
Source: 2000 Census, 2017 ACS Estimates
INFLOW OUTFLO
Source: 2015 Census OnTheMap, Center for Economic
Studies
Job Counts by Area for Commuters
Source: 2015 Census OnTheMap, Center for Economic
Studies
Commuting Patterns to/from MIA
LIVE AND WORK IN MIA
ayetteville FUTURE LAND USE MAP | 48
NATURAL RESOURCES AND ENVIRONMENTAL CONSTRAINTS
Floodplain and Hydric Soil
Hydric soils primarily exist in and around the Cape Fear River, making
these areas unsuitable for intense development. The vast floodplain of
the Cape Fear River has a significant footprint, especially on the older
parts of town, including east of downtown. New development should
respect these constraints, especially since a changing future climate
predicts stronger, more intense rainfall events, which will test the ability
of the floodplain to absorb and store water. Minimizing or eliminating
development in the floodplains should be pursued as a way to protect
existing investment on the fringe, and allow these lands to serve their
highest and best function: storing floodwaters. Floodplains can also have
secondary uses, however, such as passive recreation and wildlife habitat
preservation.
Natural Resources and Environmental Constraints
The area’s natural heritage elements and natural areas are somewhat
fragmented, as is common in highly urbanized and suburbanized areas.
The majority of natural resources follow riparian corridors, preserved
areas, or are contained on the military base property, which includes
significant tracts of fairly undisturbed natural areas. Focused study and
acquisition of key properties could enhance natural resources in the
region by connecting habitat corridors and refuge areas.
ayetteville FUTURE LAND USE MAP | 49
EXISTING LAND USE AND LAND SUPPLY
Existing Land Use
Existing land use was analyzed for all land within
Fayetteville’s municipal limits and municipal influence area.
The exercise of mapping an area’s existing land use is
different from the city’s zoning map or future land use
designation in that it utilizes the city’s tax parcel records and
confirmation through aerials and other means to verify what
is occurring on any given parcel. For example, a parcel in the
western part of the city may be zoned commercial but have
an institutional use on-site (such as a church or school). For
this analysis, the existing land use of that parcel would be
considered institutional.
The dominant land uses in within Fayetteville’s municipal
limits are detached single family residential land (40%),
vacant land (28%), and institutional land (9%). Much of the
vacant land is located along the I-295 corridor and east of the
Cape Fear River. Single family residential land was broken up
into three categories:
o Single family residential <.5 acres
o Single family residential .5 – 1 acre
o Single family residential > 1 acre
The majority of single-family residential land (26%) is made up of residential parcels
on lots less than .5 acres.
Additional existing land use observations include:
o There is more commercially zoned land than there are actual commercial land
uses
o Much of existing commercial areas is older strip development along many
older routes into Base and could benefit from targeted reinvestment.
o Much of the vacant land within the city is located around the I-295 corridor.
This is expected to change over the next decade as the project nears
completion.
ayetteville FUTURE LAND USE MAP | 50
Land Supply
Using data derived from county tax records, a land supply
analysis was conducted to identify land into three categories:
o Available
o Underutilized
o Utilized
Available land is typically vacant land and may be, for
example, currently used for farming purposes with no
significant structure onsite.
Underutilized parcels are those that have a low structure
value to land value ratio. Although some land identified as
underutilized might already be developed, it provides insight
into land that could conceivably be redeveloped if
development pressures are experienced.
Utilized or “built” lands are those that have homes,
businesses, churches or schools on them. This exercise showed that approximately 53
percent of the land in Fayetteville is either available or underutilized. Much of the
available and underutilized land is situated along the Study Area’s periphery,
predominantly east of the Cape Fear River where hydric soil and floodplain are found
most frequently.
The methodology to develop a land supply estimate included the steps below:
o Calculate improvement value ratio (building / land value)
o Any parcels with an improvement to land value ratio of 1 or more were
considered “Utilized”
o Parcels with a value under one but not zero were considered “Underutilized”
o Parcels with a value of zero not classified as utilities, cemeteries, parks, or
institutional uses were considered “Available”.
o Additional adjustments were made for areas within the city that have a low
land and building value.
ayetteville FUTURE LAND USE MAP | 51
SUITABILITY ANALYSIS
To supplement and support the future land use map, suitability analysis was
conducted utilizing geographic information systems (GIS) software to
identify lands within Fayetteville that would be most appropriate for
residential, commercial, and industrial land uses. Data that was factored into
this analysis included identifying lands proximal to compatible uses (e.g.
commercial centers close to residential neighborhoods or industrial
development away from residential neighborhoods), proximity to Fort
Bragg, lands located within or close to environmental constraints, and lands
close to major intersections and interchanges (both existing and proposed).
Results from the suitability analysis exercise include:
• Identification of focal commercial and industrial nodes
• Better illumination of residential constraints
• Understanding the impacts and externalities of corridors
0000_Agenda
0001_0_City Council Action Memo
0001_1_111419 Special (NCCWHC Public Forum)
0001_2_112519 Discussion of Agenda Items
0001_3_112519 Regular
0001_4_120219 Inauguration
0001_5_120919 Discussion of Agenda Items
0001_6_120919 Regular
0002_0_City Council Action Memo
0002_1_Bid Tab – Sykes Pond Road Bridge Replacement 12062019
0002_2_Sykes Pond Road
0003_0_City Council Action Memo
0003_1_Bid Recommendation – HWY 401 CONTRACT 2
0004_0_City Council Action Memo
0004_1_Bid Recommendation – Cross Creek Outfall Blue St to Gale St
0005_0_City Council Action Memo
0005_1_Bid Recommendation – 2019 Transformer Contract
0006_0_City Council Action Memo
0006_1_Bid Recommendation – 18K EXCAVATOR
0007_0_City Council Action Memo
0007_1_CPOA 2020-31 (Cape Fear River Trail – Phase 2)
0007_2_CPOA 2020-30 (Connector Trail – Cape Fear River Trail to Linear Park)
0007_3_CFRT Supplemental Agreement 7
0007_4_Bid Tab -Cape River Multipurpose Trail Phase 2 Part C 12062019
0007_5_CFRT Part C MAP
0008_0_City Council Action Memo
0008_1_CPOA 2020-29 (Airport Terminal Improvements Part II) As Adopted 12 9 19
0008_2_CPOA 2020-29 (Airport Terminal Improvements Part II) Corrected 1 13 20
0009_0_City Council Action Memo
0009_1_CCF Grant Agreement 2019_Cross Creek 1
0009_2_SRO 2020-9 (Conservation Restoration Plan Cross Creek Cemetery)
0010_0_City Council Action Memo
0010_1_010416 Special (Parks and Recreation Bond)doc
0010_2_PR Bond Funding Plan Update_1-7-20
0010_3_CPO 2020-23 (Tennis Center)
0011_0_City Council Action Memo
0011_1_Fayetteville Baseball Club LLC 12-2016 sm
0011_2_Capital Reserve Account Excerpts
0011_3_Segra Stadium 30 Year Capital Plan 12-10-19 Final
Cap Ex-30 Years
0011_4_CPO 2020-24 (Segra Stadium Capital Repairs, Maintenance and Improvements CY 2020)
0011_5_121219 DRAFT Minutes
0012_0_City Council Action Memo
0012_1_Finance Memorandum and Cumberland Cty Notification of Approved Tax Refund
0013_0_City Council Action Memo
0013_1_Future Land Use Map Plan, Draft, 11-5-2019, Reduced
Acknowledgements
Purpose and Document Organization
Section 1: Planning Process
Public Meetings Summary
Overview
District Meeting Locations
Meeting Format
Visual Preference
Residential Preference
In Certain Places
Don’t Like
Keep, Toss, Create
Survey
Section 2: Future Land Use Map and Character Area Descriptions
Section 3: Goals and Policy Recommendations
Future Land Use Goals
Goal #1: Focus value and investment around infrastructure and strategic nodes
Goal #2: Promote compatible economic and commercial development in key identified areas
Goal #3: Encourage redevelopment of strip commercial areas
Goal #4: foster safe, stable, and attractive neighborhoods
Goal #5: Preserve and enhance environmental features through open space protection
Goal #6: COMPLIMENT AND CAPITALIZE ON THE strategic importance of military installations and educational and medical institutions
Land Use Policies and Strategies
Strategic, Compatible Growth
LU-1: Encourage growth in areas well-served by infrastructure and urban services, including roads, utilities, parks, schools, police, fire and emergency services.
LU-2: Encourage strategic economic development
LU-3: Encourage redevelopment along underutilized commercial strip corridors and reinvestment in distressed residential neighborhoods
Safe, Stable and Attractive Neighborhoods
Preserve and enhance environmental features
LU-8: Require the reservation of open space and unique natural features in new developments
LU-9: Plan for a connected system of open space and greenways
LU-10: Support land use, site design and capital improvement initiatives that increase resiliency and reduce impacts from flooding and natural disasters
Military installations and institutions
LU-12: Coordinate with Fort Bragg
Section 4: Implementation Recommendations
Strategy #1: Use this document and the future land use map to guide land use policy decisions at staff, board, and elected official levels to promote sound development patterns throughout the city.
Strategy #2: build on the recommendations and the future land use map with a comprehensive plan update
Strategy #3: Remove barriers for reinvestment and redevelopment in target areas, especially marginal commercial strip corridors and/or residential neighborhoods
Strategy #4: coordinate efforts among departments to create synergistic opportunities for reinvestment in distressed areas
Strategy #5: increase public engagement efforts in support of goals and action steps in this document
Section 5: Community Profile
Demographics
Population & Age
Veterans & Persons with Disabilities
Housing
Income
Educational Attainment & Employment
Commuting
Natural Resources and Environmental Constraints
Floodplain and Hydric Soil
Natural Resources and Environmental Constraints
Existing Land Use and Land Supply
Existing Land Use
Land Supply
Suitability Analysis
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