ITEM R1

OFFICE OF THE CITY MANAGER

(910) 341-7810 | FAX (910)341-5839
TDD (910)341-7873

4/18/2017

City Council
City Hall
Wilmington, North Carolina 28401

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.
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

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 City Council
Resolution 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 2017.

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 Bill Saffo, Mayor
APPROVED AS TO FORM:
ATTEST:

Penelope Spicer-Sidbury, City Clerk City Attorney

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 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

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 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 Citys 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

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 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 # 2014015. 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]

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 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

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 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.

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EXHIBIT B

Locat
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Plans and Specifications for Temporary Facility

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 EXHIBIT C
Location of Temporary Facility

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