4/18/2017. City Council City Hall Wilmington, North Carolina Dear Mayor and Councilmembers:

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1 ITEM R1 OFFICE OF THE CITY MANAGER (910) FAX (910) TDD (910) /18/2017 City Council City Hall Wilmington, North Carolina Dear Mayor and Councilmembers: Attached for your consideration is a resolution authorizing the City Manager to enter into a Memorandum of Understanding (MOU) between the City of Wilmington, Pier 33, LLC, and Northern Riverfront Marina and Hotel (NRMH), LLLP. The existing Development Agreement related to the northern riverfront area requires the owner of property now owned by Pier 33 to build public restrooms on the Pier 33 site prior to the issuance of a Certificate of Occupancy (CO) for restaurants constructed on NRMH owned property. The TRC approved development plans submitted to the City for the construction of buildings on the Pier 33 property show the inclusion of public restrooms in the proposed facility. NRMH has approached the City regarding their desire to modify the requirement to have the construction of the restrooms complete prior to the issuance of a CO for the restaurants. NRMH has booked events associated with the upcoming Wells Fargo PGA event that will be in Wilmington the first week in May. Pier 33 has yet to break ground on the construction of the facility that will ultimately house the public restrooms. NRMH would like to open the restaurants for this important community event and cannot do so without concurrence from the City to release NRMH and Pier 33 from the restrictions of the Development Agreement requiring the coincidental completion of the restrooms and of issuance of a CO for the restaurants. Staff has worked with both NRMH and Pier 33 to fashion an MOU that would clarify the restroom provision of the DA related to the issuance of a CO for the restaurants. All parties would agree to the inclusion of public restrooms in one of the two facilities expected to be constructed in the next three years. Pier 33 agrees to construct the public restrooms in their building and NRMH agrees to construct public restrooms in what is planned to be a hotel on a parcel of property immediately north of the existing restaurants. Whichever property owner begins construction of their facility first, will include public restrooms therein. Both property owners agree that should they not include public bathrooms in the first-to-be-constructed building, then the City will withhold the issuance of a CO for that building. Obviously, this MOU would result in a delay in the provision of public restrooms in the northern riverfront area. In order to address that concern, NRMH has agreed to install stand-alone restrooms on the property immediately to the north of the new restaurants. These would be available for three years or until either the Pier 33 project or the forthcoming NRMH project has completed public restrooms.

2 Given the short time in which all parties have to address the provision of the stand-alone restroom facilities prior to the opening of the restaurants, NRMH, through the provisions of the proposed MOU, agreed to allow the restrooms in the restaurants to serve as public restrooms open to the public. Passage of the resolution transfers the issuance of a CO as the triggering mechanism for the construction of public restrooms from the recently completed restaurants to two other properties. Failure to pass the resolution maintains the status quo restricting the issuance of a CO for the recently completed restaurants. Passage of the attached Resolution is recommended. Respectfully submitted, Sterling B. Cheatham, City Manager R1-2

3 Resolution City Council City of Wilmington North Carolina Introduced By: Sterling B. Cheatham, City Manager Date: 4/18/2017 Resolution Authorizing the City Manager to Enter into a Memorandum of Understanding with Pier 33, LLC, and Northern Riverfront Marina and Hotel, LLLP, Clarifying Development Agreement Provisions that Require the Provision of Public Restroom Facilities along the Northern Riverfront LEGISLATIVE INTENT/PURPOSE: Representatives from the Northern Riverfront Marina and Hotel, LLLP (NRMH) have approached the City regarding their desire to clarify the provisions of an existing development agreement to have constructed public restrooms prior to the issuance of a Certificate of Occupancy for two restaurants in the Northern Riverfront area. In consideration for entering into this MOU, NRMH, and Pier 33, LLC (Pier 33) as a successor in the assignment of developmental responsibility, have offered to exchange the issuance of a CO as assurance for the construction of public restrooms from the restaurants to either of two specifically proposed to-be-built facilities in the Northern Riverfront area. The agreement calls for the use of restrooms in the currently completed restaurants to be used as publicly open and accessible facilities until NRMH constructs stand-alone facilities designed to serve the public need until such time as the permanent restrooms are constructed on Pier 33 property or on NRMH property north of the existing restaurants. This MOU would allow the City to meet its goal of providing these necessary public facilities in a more timely fashion while assisting the developers to meet obligations they have for forthcoming PGA events associated with the Wells Fargo Championship to be played in Wilmington in May of THEREFORE, BE IT RESOLVED: THAT, the City Council does hereby authorize the City Manager to enter into the attached Memorandum of Understanding clarifying certain provisions of the existing Development Agreement between the City of Wilmington and Northern Riverfront Marina and Hotel (as well as their predecessors and successors in interest). Adopted at a meeting on 2017 ATTEST: Bill Saffo, Mayor APPROVED AS TO FORM: Penelope Spicer-Sidbury, City Clerk City Attorney R1-3

4 MEMORANDUM OF UNDERSTANDING This MEMORANDUM OF UNDERSTANDING ( Memorandum ) is made as of April, 2017, by and between PIER 33, LLC, a North Carolina limited liability company ( Pier ), NORTHERN RIVERFRONT MARINA AND HOTEL, LLLP, a North Carolina limited liability limited partnership ( Northern ), NRMH Holdings LLC, a North Carolina limited liability company ( NRMH ), and the CITY OF WILMINGTON, a North Carolina municipal corporation ( City ). RECITALS WHEREAS, the Pier, Northern, NRMH (or their predecessors-in-interest), and the City were parties, among others, to a Development Agreement recorded in Deed Book 5371, Page 1106 of the New Hanover County Registry (the Original Agreement ), as amended by that certain Amendment No. 1 to Development Agreement recorded in Deed Book 5790, Page 2173 of the New Hanover County Registry (the First Amendment )(the Original Agreement and the First Amendment are collectively referred to herein as the Development Agreement ); and WHEREAS, the Pier is the fee simple owner of the real property and improvements described on the attached Exhibit A as the Pier Property ; and WHEREAS, Northern is the fee simple owner of the real property and improvements described on the attached Exhibit A as the Northern Property ; and WHEREAS, NRMH is the fee simple owner of the real property described on the attached Exhibit A as the NRMH Property ; and WHEREAS, the First Amendment contains a requirement to construct certain Public Restrooms (as defined in the First Amendment) on the Pier Property (the Restroom Requirement ); and WHEREAS, the First Amendment contains a restriction stating that the Public Restrooms must be constructed prior to the issuance of a Certificate of Occupancy for any building in the location specified in the First Amendment ( CO Restriction ); and WHEREAS, Northern agrees and acknowledges that the Temporary Facility (defined below) must be installed prior to the CO Restriction being lifted as to the improvements located on the Northern Property; and WHEREAS, the City agrees and acknowledges that the Restroom Requirement shall be satisfied for purposes of issuing certificates of occupancy on the Northern Property provided the terms and conditions of this Memorandum are agreed to by and between the Pier, Northern, NRMH and the City; and Page 1 of 7 R1-4

5 WHEREAS, nothing contained in this Memorandum shall modify or change the Development Agreement but shall only clarify the CO Restriction and Restroom Requirement; NOW THEREFORE, for good and valuable consideration, the foregoing parties agree and acknowledge as follows: 1. Temporary Restroom Facility: a. No later than ninety (90) days after the approval of this MOU by the Wilmington City Council, Northern shall install and continuously maintain in good working order at all times a temporary restroom facility ( Temporary Facility ) in strict accordance with the plans and specifications attached hereto as Exhibit B, to temporarily satisfy the Restroom Requirement. b. The term maintenance as used in this section shall require the Temporary Facilities to be kept in working order and cleaned no less than three (3) times per week. Should the City determine the Temporary Facilities require more frequent cleaning, the City shall notify Northern in writing and Northern shall adjust the cleaning schedule to comply with the City s notice. c. The Temporary Facility shall be ADA compliant, open to the public from 8am to 6pm generally and at extended times for special events for which written notice shall be provided by the City no less than seven (7) days before such event, and shall remain in the location set forth on the attached Exhibit C until such time as the Permanent Facilities (as defined below) are constructed. d. Upon execution of this MOU, the CO Restriction shall no longer be applicable to the Northern Property. Once the restaurants on the Northern Property (hereinafter Restaurants ) are operational, the Restaurants restrooms shall be open for public use until the Temporary Facilities are installed. i. The Restaurants shall have a sign on the outside of the buildings stating the restrooms are open to the public. ii. The Restaurants restrooms shall be open to the public at all times the Restaurants are open for business. e. At such time as the Permanent Facilities are constructed and open to the public, Northern shall remove the Temporary Facility. The Temporary Facility shall comply with any and all applicable federal, state and local standards, regulations, laws, statutes, ordinances, and screening requirements as specified by the City. 2. Permanent Restroom Facility: At such time as the first building is constructed on either the Pier Property or NRMH Property, the owner of that property shall construct and thereafter the City shall continuously maintain in good working order at all times a public restroom facility in accordance with the provisions of the Development Agreement and open to the public from 8am to 6pm generally and at Page 2 of 7 R1-5

6 extended times for special events for which written notice shall be provided by the City no less than seven (7) days before such event. If Pier constructs the Building (as defined below) first, Pier shall construct and thereafter the City shall continuously maintain in good working order at all times the Permanent Facility located on the first floor in the northeast corner of the building ( Building ) shown on the plans submitted in connection with that certain Technical Review Approval ( TRC Approval ) for the project commonly known as Pier 33 Project # Any changes requested to the location or specifications of the Permanent Facility shall be subject to approval of the City Technical Review Committee. Pier understands and acknowledges that construction of the Permanent Facility shall be a condition of the certificate of occupancy for the Building. The City acknowledges and agrees that construction of the Permanent Facility shall satisfy the requirement in the First Amendment to construct Public Restrooms and the City shall not add any further requirements to the Permanent Facility except as may be provided in the TRC Approval or as otherwise requested by Pier. 3. Time. Construction of the Permanent Facility shall begin no later than thirty-six (36) months from the date of this Memorandum. 4. Remedy. Should construction of the Temporary or Permanent Facility not be commenced in the time frame listed in Sections 1 and 3 above, Northern shall pay to the City $250,000 which is a cost estimate for construction of the Temporary or Permanent Facility. Notwithstanding the foregoing, failure to construct the Permanent Facility at any time shall not be a breach by Pier of this Memorandum unless Pier has constructed the Building on the Pier Property. 5. Authority to Act. Each of the persons executing this Memorandum on behalf of Pier, Northern, NRMH, and the City does hereby covenant, warrant and represent that the party is a duly organized and validly existing entity in the State of North Carolina as undersigned, that the signor has full right and authority to enter into this Agreement, and that each and all persons signing on behalf of the parties were authorized to do so. [SIGNATURE PAGE AND EXHIBITS TO FOLLOW] Page 3 of 7 R1-6

7 IN TESTIMONY WHEREOF, the parties hereto have hereunto set their hands as of the day and year first above written. PIER: PIER 33, LLC, a North Carolina limited liability company By: Name: Thomas A. Saieed, Jr. Title: Manager NORTHERN: NORTHERN RIVERFRONT MARINA & HOTEL, LLLP, a North Carolina limited liability limited partnership, by and through its General Partner, Wilmington Riverfront Development, LLC By: Name: Charles J. Schoninger Title: Manager NRMH: NRMH Holdings LLC, a North Carolina limited liability company By: Name: Charles J. Schoninger Title: Manager Page 4 of 7 R1-7

8 EXHIBIT A Pier Property: Being all of Tract 1 (1.83 acres) and Tract 2 (4.83 acres) as shown on a map recorded in Map Book 59, Page 55, in the New Hanover County Registry. Northern Property: Being all of that certain parcel of land known as Tract 3 (2.20 acres) as shown on a map recorded in Map Book 59, Page 55, in the New Hanover County Registry. NRMH Property: Being all of that property located in New Hanover County, North Carolina and shown as Tract 4 (2.02 acres) on that recombination plat recorded with the New Hanover County Register of Deeds at Map Book 59, Page 55. Page 5 of 7 R1-8

9 Bat hr oom Speci f i cat i ons Page 6 of 7 Locat i onof Bat hr ooms Women:4sui t es.men:1sui t e& 3ur i nal s.genderneut r al :1sui t e( ADA) EXHIBIT B Plans and Specifications for Temporary Facility R1-9

10 EXHIBIT C Location of Temporary Facility Page 7 of 7 R1-10 Locationof Bathrooms Locationof Bathrooms