HomeMy WebLinkAboutMarch 11, 2025 Regular MeetingAGENDA
Lillington Board of Commissioners
Regular Monthly Meeting
Lillington Town Hall
102 East Front Street
Lillington, North Carolina 27546
March 11, 2025 6:00pm
CALL TO ORDER MAYOR GLENN MCFADDEN
WELCOME MAYOR GLENN MCFADDEN
PLEDGE OF ALLEGIANCE MAYOR GLENN MCFADDEN
INVOCATION COMMISSIONER MARSHALL PAGE
CONSIDERATION OF AGENDA
PUBLIC COMMENT Public comment is an opportunity for citizens wishing to present unscheduled items of concern or
interest to the Commissioners. It is requested that citizens limit their presentations to three (3)
minutes.
CONSENT AGENDA
All items on the Consent Agenda are considered routine, to be enacted by one motion without discussion. If a Governing Body member or citizen requests discussion of an item, the item will be removed from the Consent Agenda and considered separately.
Item #1 Approval of Regular Session Meeting Minutes from February 11, 2025
Item #2 Approval of Closed Session Meeting Minutes from February 11, 2025
NEW BUSINESS
Item #3 Consideration of Approval to Amendment to Exhibit A to the AIA Document
A141 Agreement between the Town of Lillington and Bobbitt Construction, Inc. (Subject to Review and Approval from Attorney Tony Buzzard)
PUBLIC HEARING
Item #4 Public Hearing to Enter into an Installment Financing Contract with Webster Bank, National Association in the Amount Not to Exceed $5,000,000 for the Acquisition and Construction of a New Fire Station located at Pin# 0661-13-0467.000 & 0661-
13-0694.000Joseph Jeffries, Town Manager
Town of Lillington | 2
Item #4A Consideration of Approval of Resolution to Enter into an Installment Financing Contract with Webster Bank, National Association in the Amount Not to Exceed $5,000,000 for the Acquisition and Construction of a New Fire Station located at
Pin# 0661-13-0467.000 & 0661-13-0694.000 Joseph Jeffries, Town Manager
Item #5 Public Hearing on the Question of Rezoning of .95 acres located on E Front Street
being PIN#’s 0650-50-3054.000 & 0650-50-4127.000.
(Harnett County Farm Bureau)
Landon Chandler, Planning Director
Item #5A Consideration and Approval of an Ordinance Amending the Town of Lillington
Zoning Ordinance for property identified as PIN#’s 0650-50-3054.000 & 0650-
50-4127.000.(Harnett County Farm Bureau)Landon Chandler, Planning Director
Item #6 Public Hearing on the Consideration of a Capital Reimbursement and Allocation
Agreement Between the Town of Lillington and Wade Park Developers, LLC
Shane Cummings, Town Engineer
Item 6A Consideration of a Capital Reimbursement and Allocation Agreement Between
the Town of Lillington and Wade Park Developers, LLC
Shane Cummings, Town Engineer
NON-AGENDA ITEMS
Non-Agenda items is an opportunity for the Commissioners, Attorney or Staff to present unscheduled
items that need consideration by the Board.
ADJOURNMENT
AGENDA ITEM SUMMARY
Date of Meeting: March 11, 2025
Staff Work By: Lindsey B. Lucas, Town Clerk
Lisa B. Young, Assistant Town Manager
Joseph Jeffries, Town Manager
Alicia Adams, Administrative Services Director
AGENDA ITEM
Consent Agenda Items
ITEM SUMMARY
All items on the Consent Agenda are considered routine, to be enacted by one motion without discussion.
If a Governing Body member or citizen requests discussion of an item, the item will be removed from the
Consent Agenda and considered separately:
Item #1 Approval of Regular Session Meeting Minutes from February 11, 2025
Item #2 Approval of Closed Session Meeting Minutes from February 11, 2025 RECOMMENDED ACTION Approve consent agenda items as recommended by staff.
AGENDA ITEMS #1-2
Lillington Board of Commissioners February 11, 2025
Regular Board Meeting of the Town Board of the Town of Lillington, Tuesday, February
11, 2025 at 6:00 p.m. at the Lillington Town Hall (102 E. Front Street), Lillington, North
Carolina.
Board Members Present: Mayor Glenn McFadden
Mayor Pro Tempore Neil McPhail
Commissioner Marshall Page
Commissioner Danny Babb
Commissioner Patricia Moss
Board Members Absent: Commissioner Rupert Langdon
Staff Present: Joseph Jeffries, Town Manager
Lisa Young, Assistant Town Manager
Lindsey B. Lucas, Town Clerk
Landon Chandler, Planning Director
Shane Cummings, Town Engineer
John Bethune, Fire Chief
Frank Powers, Police Chief
Tony Buzzard, Town Attorney
Call to Order & Welcome: Mayor Glenn McFadden called the meeting to order and welcomed
those in attendance at 6:00 p.m.
Invocation: Commissioner Page held the invocation.
Agenda Consideration: Mayor Glenn McFadden presented the agenda for consideration by the
Town Board. Commissioner Page moved to approve the agenda as presented. The motion was
seconded by Commissioner Moss and approved unanimously. (Minute Book Notation: Agenda is
on file at Lillington Town Hall).
Public Comment: Mayor Glenn McFadden inquired as to whether anyone wished to address the
Town Board.
No one signed up.
Consent Agenda: Commissioner McPhail moved that the consent agenda items be approved as
amended to the Board. The motion was seconded by Commissioner Babb and the following
consent agenda items were approved unanimously.
Lillington Board of Commissioners February 11, 2025
Item #1
Work Session Meeting Minutes from January 13, 2025
Approved
Item #2
Closed Session Meeting Minutes from January 13, 2025
Approved
Item #3
Regular Session Meeting Minutes from January 14, 2025
Approved
Item #4
Budget Amendment FY24-25 Budget Amendment #7
Approved
Item #5
Contract to Audit Accounts – Thompson, Price, Scott, Adams & Co., P.A.
Approved
PUBLIC HEARINGItem #6 Public Hearing on the Question of Annexation of the non-contiguous Satellite Area
PIN #: 0662-90-5908.000. Case Number ANX-24-03 – G&J Development, LLC.
Mayor McFadden opened the Public Hearing at 6:02 p.m.
Mayor McFadden recognized Lindsey Lucas, Town Clerk. Ms. Lucas stated at the previous
board meeting on January 14th, the Board voted to set aside your decision from the July 9, 2024
Board Meeting. We advertised this public hearing in the newspaper. The map for this property is
attached in your packet and for your approval is an ordinance to extend the corporate limits of
the Town of Lillington.
Don Curry – Civil Engineer- 205 S Fuquay Avenue – Fuquay-Varina NC 27526 – Mr. Curry
spoke in favor of the annexation and explained he thought it was a reasonable request considering surrounding annexations in that area.
As there were no other speakers, the Public Hearing was closed at 6:08 p.m.
Item #6A Consideration of Approval of An Ordinance to Extend the Corporate Limits of the Town of Lillington – G&J Development, LLC Commissioner Page made a motion to Deny an ordinance to extend the corporate limits of the Town of Lillington. Commissioner McPhail seconded the motion that passed unanimously.
Item #8 Public Hearing on Text Amendment to Title VII Traffic Code Chapter 70 Section 70.99: Traffic Code Penalty and Chapter 71: Parking Regulations of the Lillington Code of Ordinances
Lillington Board of Commissioners February 11, 2025
Mayor McFadden opened the Public Hearing at 6:08 p.m.
Mayor McFadden recognized Lindsey Lucas, Town Clerk. Ms. Lucas stated at the last meeting
on January 14th a No Parking ordinance was approved for multiple town streets. These
amendments that are brought before you today are to update the enforcement side of the No
Parking ordinance. Chapter 70 Section 70.99 Traffic Code Penalty will be completely removed
from the ordinance as the new fees will be listed in the Town of Lillington Annual Operating
Budget. Under Chapter 71: Parking Regulations of the Lillington Code of Ordinances - A $50
citation will be issued for parking in a “No Parking” area and if deemed necessary, the vehicle
will be towed. Ms. Lucas explained that these enforcements are comparable to surrounding
towns and cities.
As there were no other speakers, the Public Hearing was closed at 6:10 p.m.
Item #8A Consideration of Approval of Text Amendment to Title VII Traffic Code Chapter 70 Section 70.99: Traffic Code Penalty and Chapter 71: Parking Regulations of the Lillington Code of Ordinances
Commissioner Babb made a motion to approve Text Amendment to Title VII Traffic Code Chapter 70 Section 70.99: Traffic Code Penalty and Chapter 71: Parking Regulations of the Lillington Code of Ordinances. Commissioner Page seconded the motion that passed unanimously.
NEW BUSINESS Item #9 Closed Session to Meet per §143-318.11(a)(5) Commissioner Page made a motion to enter Closed Session per §143-318.11(a)(5). Commissioner Moss seconded the motion that passed unanimously.
Commissioner Page made a motion to come out of Closed Session. Commissioner McPhail seconded the motion that passed unanimously.
Non-Agenda Items: Mayor Glenn McFadden inquired as to whether there were any non-agenda items that should be addressed by Town Board members or staff.
-Commissioner McPhail informed the Board that the Four Seasons Garden Club would liketo donate 10 wooden Bluebird houses to the Town to be placed in the parks. They will also
be supplying the posts but would need Public Works to install them. The Board thought itwas a very nice gesture from the Four Seasons Garden Club and accepted the donation.
Adjournment: The meeting adjourned following the unanimous approval of a motion by
Commissioner Babb and a second by Commissioner McPhail.
Attest:
____________________________ ____________________________ Lindsey B. Lucas, Town Clerk Glenn McFadden, Mayor
AGENDA ITEM SUMMARY
Date of Meeting: March 11, 2025
Staff Work By: Joseph Jeffries, Town Manager
AGENDA ITEM
Consideration of Approval to Amendment to Exhibit A to the AIA Document A141 Agreement
between the Town of Lillington and Bobbitt Construction, Inc. (Subject to Review and Approval from Attorney Tony Buzzard)
ITEM SUMMARY
Consideration of Approval to Amendment to Exhibit A to the AIA Document A141 Agreement
between the Town of Lillington and Bobbitt Construction, Inc. (Subject to Review and Approval
from Attorney Tony Buzzard)
RECOMMENDED ACTION
Approve Amendment to Exhibit A to the AIA Document A141 Agreement between the Town of
Lillington and Bobbitt Construction, Inc. (Subject to Review and Approval from Attorney Tony
Buzzard)
AGENDA ITEM #3
AGENDA ITEM SUMMARY
Date of Meeting: March 11, 2025
Staff Work By: Joseph Jeffries, Town Manager Lisa Young, Assistant Town Manager Lindsey Lucas, Town Clerk
AGENDA ITEM
Public Hearing to Enter into an Installment Financing Contract with Webster Bank, National
Association in the Amount Not to Exceed $5,000,000 for the Acquisition and Construction of a New
Fire Station located at Pin# 0661-13-0467.000 & 0661-13-0694.000
ITEM SUMMARY
Consideration of Approval of Resolution to Enter into an Installment Financing Contract with
Webster Bank, National Association in the Amount Not to Exceed $5,000,000 for the Acquisition
and Construction of a New Fire Station located at Pin# 0661-13-0467.000 & 0661-13-0694.000
RECOMMENDED ACTION
Approve The Resolution of The Town of Lillington, North Carolina Approving A Proposal From
Webster Bank, National Association To Enter Into An Installment Financing Contract In The
Amount Of Not To Exceed $5,000,000 In Order To Finance The Acquisition, Construction And
Installation Of A New Fire Station; And Authorizing The Execution And Delivery Of Related
Instruments, And Determining Other Matters In Connection Therewith
AGENDA ITEM #4-4A
TOWN OF LILLINGTON
RESOLUTION FY2025-12
RESOLUTION OF THE TOWN OF LILLINGTON, NORTH CAROLINA APPROVING A PROPOSAL FROM WEBSTER BANK, NATIONAL ASSOCIATION TO ENTER INTO AN INSTALLMENT FINANCING CONTRACT IN THE AMOUNT OF NOT TO EXCEED $5,000,000 IN ORDER TO FINANCE THE ACQUISITION, CONSTRUCTION AND INSTALLATION OF A NEW FIRE STATION; AND AUTHORIZING THE EXECUTION AND DELIVERY OF RELATED INSTRUMENTS, AND DETERMINING OTHER MATTERS IN CONNECTION THEREWITH
WHEREAS, the Town of Lillington, North Carolina (the “Town”), proposes to finance the acquisition,
construction and installation of a new fire station (the “Project”), as more fully described in the Contract (hereinafter defined); and
WHEREAS, after consideration and a public hearing thereon, which public hearing was duly noticed
pursuant to applicable law, the Town of Lillington Board of Commissioners (the “Town Board”) has determined that the most advantageous manner of financing the Project is by an installment financing contract pursuant to Section 160A-20 of the General Statutes of North Carolina, as amended; and
WHEREAS, pursuant to Section 160A-20, the Town is authorized to finance the Project by entering into an installment financing contract and a deed of trust or other security instrument that creates a security interest in the property financed to secure repayment of the financing; and
WHEREAS, Webster Bank, National Association (the “Lender”) submitted a proposal dated November 6, 2024 (the “Webster Bank Proposal”), pursuant to which the Lender would lend the Town the amount of approximately $5,000,000 to finance a portion of the costs of the Project, pursuant to an Installment Financing Contract between the Town and the Lender (the “Contract”).
NOW THEREFORE, BE IT RESOLVED BY THE TOWN OF LILLINGTON BOARD OF
COMMISSIONERS:
Section 1. The Town Board hereby accepts the Webster Bank Proposal, and authorizes and directs the Mayor, Town Manager, Assistant Town Manager and Administrative Services Director, or any of them acting
alone, to execute, acknowledge and deliver the Contract, the Deed of Trust, Security Agreement and Fixture Filing (the “Deed of Trust”) and the Federal Tax Agreement (collectively, the “Town Documents”) on behalf of the Town in such form and substance as the person executing and delivering such instruments on behalf of the Town shall
find acceptable. The Clerk of the Town is hereby authorized to affix the official seal of the Town of Lillington, North Carolina to the Town Documents as may be required and attest the same.
Section 2. The proper officers of the Town are authorized and directed to execute and deliver any and all papers, instruments, opinions, certificates, affidavits and other documents as required by the Lender and to do or cause to be done any and all other acts and things necessary or proper for carrying out this Resolution, the Town Documents and such other documents.
Section 3. Notwithstanding any provision of the Contract, no deficiency judgment may be rendered against the Town in any action for breach of a contractual obligation under the Contract and the taxing power of the
Town is not and may not be pledged directly or indirectly to secure any moneys due under the Contract, the security provided under the Contract and the Deed of Trust being the security for the Lender in such instance.
Section 4. The Town covenants to take such action as may be required in the opinion of nationally recognized bond counsel to cause the Contract and all actions of the Town with respect to the proceeds thereof to comply with Internal Revenue Code of l986, as amended (the “Code”) in order that interest with respect to the Contract be or continue to be excluded from gross income for federal income tax purposes.
Section 5. This Resolution shall take effect immediately upon its adoption.
Adopted this 11th day of March, 2025.
________________________________ Glenn McFadden, Mayor
* * * * *
I, Lindsey B. Lucas, Town Clerk for the Town of Lillington, North Carolina, DO HEREBY CERTIFY that
the foregoing is a true and complete copy of a resolution adopted by the Town Board at a regular meeting duly called and held on March 11, 2025, and that the proceedings of such meeting are recorded in the Minutes of the Town. Pursuant to G.S. § 143-318.12, a current copy of a schedule of regular meetings of the Town Board is on
file in my office.
WITNESS my hand and the official seal of the Town this 11th day of March, 2025.
Lindsey B. Lucas, Town Clerk Town of Lillington, North Carolina
(SEAL)
AGENDA ITEM SUMMARY
Date of Meeting: March 11, 2025
Staff Work By: Landon Chandler, Planning Director
AGENDA ITEM
Discussion & Consideration of Rezoning Application submitted by Harnett County Farm Bureau, INC for .95 acres located at 105 E. Front St. being PIN#’s 0650-50-3054.000, 0650-50-4127.000
ITEM SUMMARY
Consideration of Rezoning Application submitted by Harnett County Farm Bureau, INC for .95 acres located at 105 E. Front St. being PIN#’s 0650-50-3054.000, 0650-50-4127.000
RECOMMENDED ACTION
Approve Rezoning Application submitted by Harnett County Farm Bureau, INC for .95 acres located at 105 E. Front St. being PIN#’s 0650-50-3054.000, 0650-50-4127.000
Suggested Statement of Consistency As stated in the evaluation, the requested zoning assignment to Office Services, O/S is
compatible with Town of Lillington regulatory documents and would not have an unreasonable impact on the surrounding community based on the uses in this area as well as the Town’s Land Use Plan designation for this area. Therefore, the ordinance for the zoning assignment request be Approved.
The requested zoning assignment to Office Services, O/S is not compatible with Town of Lillington regulatory documents and would not only have an unreasonable impact on the surrounding community, but would also fail to enhance the public health, safety, and general welfare as stated in the evaluation. Therefore, the ordinance for the zoning assignment request be Denied.
AGENDA ITEM #5-5A
ZONING ASSIGNMENT STAFF REPORT
CASE NUMBER: RZ-25-02 Landon Chandler, Planning Director Ltchandler@lillingtonnc.org Phone: (910) 893-0316 Fax: (910) 893-3693 www.lillingtonnc.org
Planning Board: February 17, 2025 Town Commissioners: March 11, 2025
To Rezone two parcels totaling approximately .95 acres located as pictured below. The applicant is proposing changing the existing zoning classification of Central Business (C/B) to Office & Services (O/S). This is a
conventional zoning
Applicant Information
Owner of Record: Applicant:
Name: Harnett County Farm Bureau, INC Name: Same as Owner
Address: 105 E. Front St. Address: PO Box 369
City/State/Zip: Lillington, NC 27546 City/State/Zip: Lillington, NC 27546
Property Description
PIN(s): 0650-50-3054.000, 0650-50-4127.000 Acreage: .95
Address/SR No.: 105 E. Front St.
Vicinity Map
Physical Characteristics and Existing Land Uses: Site Description: The Site currently contains an unoccupied commercial structure and associated parking areas.
The applicant’s intent is to demolish the structure and parking areas and rebuild an upgraded office building
with additional parking. There is a site plan contained within your packet.
Current Zoning: Central Business (C/B)
Future Town Land Use Classification: Main Street Mixed Use:
Characteristics Downtown will include a mix of predominately commercial uses, along with office,
institutional, and residential uses. It will be safe and comfortable for pedestrians and those with limited mobility
(old, young, or with physical limitations). Motor vehicles are accommodated, but will not dominate. Vacant buildings are re-used and vacant sites are developed. Buildings and their sites are well taken care of. Studio apartments are located in upper floors and other appropriate locations. Downtown sidewalks will connect to trails and recreational sites and neighborhoods. The Lillington Small Town Main Street (STMS) downtown
streetscape plan will be implemented so that suitable sidewalks and street trees are installed and maintained.
Good sidewalks, safe street crossings, and a storefront orientation of buildings produce a continuous pedestrian experience. Parking locations are sited appropriately for downtown: at curbside, in the interior of blocks, and at the rear of buildings. A National Register Historic District designation will enable owners of historic buildings to take advantage of large tax credits for renovations.
Services Available Water: Sewer: Other:
Public (Town Of Lillington) ☒Public (Town of Lillington)
☐Public (Harnett County)☐Private (Septic)☐Private (Well)☐Other (Unverified)☐Other: (Unverified)
Other: No technical review has been performed on this project, all non-specified items will have to meet the Town of Lillington Unified Development Ordinance. Fire flow has not been assessed but will have to meet the Town’s requirement of 1500gpm for residential development.
Staff Evaluation: Recommended Approval
The impact to the adjacent property owners and the surrounding community is reasonable, and the benefits of the Zoning Assignment outweigh any potential inconvenience or harm to the community: REASONING: The requested zoning assignment to Office & Services (O/S) Will Not have a negative impact on the community as it is similar in nature to existing uses within proximity to the project area, as well as the previous business use. Staff believes that there is no increase in impact to the surrounding community.
The requested zoning assignment is compatible with the existing Land Use Classification:
REASONING: The requested zoning district and plan are in line with the existing land use classification of Main Street Mixed Use. This classification promotes businesses and offices that serve the community as a whole. It is staff’s opinion that this project Is or Will be Compatible with the Land Use Plan moving forward.
The proposal does enhance or maintain the public health, safety and general welfare:
REASONING: The requested Rezoning to Office & Services (O/S) Would Maintain or Enhance the public health, safety, and general welfare. Improvements to the site will allow for additional entrances, improve
visibility, and provide for safer ingress and egress from the property.
TOWN OF LILLINGTON
102 East Front Street ● P.O. Box 296 ● Lillington, North Carolina 27546 Phone: (910) 893-2654 ● Fax (910) 893-3693 ● www.lillingtonnc.com
ORDINANCE FY2025-18 AN ORDINANCE AMENDING THE TOWN OF LILLINGTON ZONING ORDINANCE PROPERTY OWNED BY HARNETT COUNTY FARM BUREAU
0.45 ACRES PIN#: 0650-50-3054.000 & 0.50 ACRE PIN#: 0650-50-4127.000 CENTRAL BUSINESS, CB TO OFFICE SERVICES, O/S
WHEREAS, a petition has been received from Harnett County Farm Bureau, Inc. to rezone 0.95-acres from Central Business, CB to Office Services, O/S; and WHEREAS, the required newspaper notices have been given, adjacent property owners notified, the recommendation from the Lillington Planning Board received, and a public hearing held at a
Regular meeting on March 11, 2025 with members of the public soliciting input on the matter. NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL of the Town of Lillington that: Section 1. The Zoning Ordinance of the Town of Lillington is amended to change the following area from Central Business, CB to Office Services, O/S and to amend the Lillington Zoning Map to show the area change:
Beginning at an iron stake located in the northern right of way line of East Front
Street, which stake is South 68 degrees 30 minutes East 76 feet from the intersection of the eastern right of way of First Street and the northern right of way of East Front Street, said beginning point being the southeast corner of a lot conveyed to Robert Buren Morgan by Federal Land Bank Association of Sanford
by Deed dated June 8, 1977, and recorded in Book 656 at Page 713, Harnett
County Registry, and runs thence as the line of said Morgan lot and parallel with the eastern right of way line of First Street North 21 degrees 30 minutes East 165 feet to an iron stake, the northeast corner of the Morgan lot; thence a new dividing line South 68 degrees 30 minutes East and parraleel with the North margin of East
Front Street 122 feet to a stake, corner in the Hockaday line; thence as the
dividing line between this property and the Hockaday property South 21 degrees
Town of Lillington | 2
102 East Front Street ● P.O. Box 296 ● Lillington, North Carolina 27546 Phone: (910) 893-2864 ● Fax (910) 893-3607 ● www.lillingtonnc.com
30 minutes West 165 feet to an iron pipe, a corner in the northern right of way line of East Front Street; thence as the northern right of way line of East Front
Street North 68 degrees 30 minutes West 122 feet to the point of beginning and
being a lot 122 feet by 165 feet. Beginning at an iron stake located in the southern margin of Harnett Street, said stake being located South 68 degrees 30 minutes East 66 feet from the intersection of the eastern margin of First Street and the southern margin Harnett
Street in the Town of Lillington, and runs thence with the southern margin of
Harnett Street, South 68 degrees 30 minutes East 132.0 feet to an iron stake, thence parallel with First Street, South 21degrees 30 minutes West 165.0 feet to an iron stake, a dividing corner between a lot owned by the Cape Fear Production Credit Association and Cape Fear Federal Land Bank Association, and runs
thence with the line of the Cape Fear Production Credit Association and the Cape
Fear Federal Land Bank Association, North 68 degrees 30 minutes West 132.0 feet to a stake in the line of Robert Morgan and runs thence with the line of Robert Morgan, North 21 degrees 30 minutes East 165.0 feet to the point and place of Beginning.
Section 2. All laws and clauses in conflict with this Ordinance Amendment are hereby repealed.
Section 3. This Ordinance Amendment shall be effective immediately upon adoption.
Adopted this 11th day of March, 2025
__________________________
Glenn McFadden, Mayor
Attest:
__________________________
Lindsey B. Lucas, Town Clerk
AGENDA ITEM SUMMARY
Date of Meeting: March 11, 2025
Staff Work By: Shane Cummings, Town Engineer
AGENDA ITEM
Consideration of a Capital Reimbursement and Allocation Agreement Between the Town of
Lillington and Wade Park Developers, LLC.
ITEM SUMMARY
Attached for your review and Consideration of a Capital Reimbursement and Allocation Agreement Between the Town of Lillington and Wade Park Developers, LLC.
§ 160D-1001. Authorization.(a)The General Assembly finds the following:(1)Development projects often occur in multiple phases over several years,requiring a long-term commitment of both public and private resources.
(2)Such developments often create community impacts and opportunities that are
difficult to accommodate within traditional zoning processes.(3)Because of their scale and duration, such projects often require carefulcoordination of public capital facilities planning, financing, and constructionschedules and phasing of the private development.
(4)Such projects involve substantial commitments of private capital, which
developers are usually unwilling to risk without sufficient assurances thatdevelopment standards will remain stable through the extended period of thedevelopment.(5)Such developments often permit communities and developers to experiment
with different or nontraditional types of development concepts and standards,
while still managing impacts on the surrounding areas.(6)To better structure and manage development approvals for such developmentsand ensure their proper integration into local capital facilities programs, localgovernments need flexibility to negotiate such developments.
(b)Local governments may enter into development agreements with developers, subject
to the procedures of this Article. In entering into such agreements, a local government may not exercise any authority or make any commitment not authorized by general or local act and may not impose any tax or fee not authorized by otherwise applicable law. (c)This Article is supplemental to the powers conferred upon local governments and does
not preclude or supersede rights and obligations established pursuant to other law regarding
development approvals, site-specific vesting plans, or other provisions of law. A development
AGENDA ITEM #6-6A
agreement shall not exempt the property owner or developer from compliance with the State Building Code or State or local housing codes that are not part of the local government's
development regulations. When the governing board approves the rezoning of any property
associated with a development agreement executed and recorded pursuant to this Article, the provisions of G.S. 160D-605(a) apply. (d)Development authorized by a development agreement shall comply with all applicablelaws, including all ordinances, resolutions, regulations, permits, policies, and laws affecting the
development of property, including laws governing permitted uses of the property, density,
intensity, design, and improvements. (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
§ 160D-1002. Definitions.
The following definitions apply in this Article:
(1)Development. - The planning for or carrying out of a building activity, themaking of a material change in the use or appearance of any structure orproperty, or the dividing of land into two or more parcels. When appropriate tothe context, "development" refers to the planning for or the act of developing
or to the result of development. Reference to a specific operation is not intendedto mean that the operation or activity, when part of other operations or activities,is not development. Reference to particular operations is not intended to limitthe generality of this item.(2)Public facilities. - Major capital improvements, including, but not limited to,
transportation, sanitary sewer, solid waste, drainage, potable water, educational,parks and recreational, and health systems and facilities. (2019-111, s. 2.4;2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
§ 160D-1003. Approval of governing board required.
(a)A local government may establish procedures and requirements, as provided in this
Article, to consider and enter into development agreements with developers. A development agreement must be approved by the governing board of a local government following the procedures specified in G.S. 160D-1005. (b)The development agreement may, by ordinance, be incorporated, in whole or in part,
into any development regulation adopted by the local government. A development agreement may
be considered concurrently with a zoning map or text amendment affecting the property and development subject to the development agreement. A development agreement may be concurrently considered with and incorporated by reference with a sketch plan or preliminary plat required under a subdivision regulation or a site plan or other development approval required under
a zoning regulation. If incorporated into a conditional district, the provisions of the development
agreement shall be treated as a development regulation in the event of the developer's bankruptcy. (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
§ 160D-1004. Size and duration.
A local government may enter into a development agreement with a developer for the
development of property as provided in this Article for developable property of any size.
Development agreements shall be of a reasonable term specified in the agreement. (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
§ 160D-1005. Hearing.Before entering into a development agreement, a local government shall conduct a legislativehearing on the proposed agreement. The notice provisions of G.S. 160D-602 applicable to zoning map amendments shall be followed for this hearing. The notice for the hearing must specify the
location of the property subject to the development agreement, the development uses proposed on
the property, and must specify a place where a copy of the proposed development agreement can be obtained. (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 25, 51(a), (b), (d).)
§ 160D-1006. Content and modification.
(a)A development agreement shall, at a minimum, include all of the following:
(1)A description of the property subject to the agreement and the names of its legaland equitable property owners.(2)The duration of the agreement. However, the parties are not precluded fromentering into subsequent development agreements that may extend the original
duration period.
(3)The development uses permitted on the property, including population densitiesand building types, intensities, placement on the site, and design.(4)A description of public facilities that will serve the development, including whoprovides the facilities, the date any new public facilities, if needed, will be
constructed, and a schedule to assure public facilities are available concurrent
with the impacts of the development. In the event that the developmentagreement provides that the local government shall provide certain publicfacilities, the development agreement shall provide that the delivery date ofsuch public facilities will be tied to successful performance by the developer in
implementing the proposed development, such as meeting defined completion
percentages or other performance standards.(5)A description, where appropriate, of any reservation or dedication of land forpublic purposes and any provisions agreed to by the developer that exceedexisting laws related to protection of environmentally sensitive property.
(6)A description, where appropriate, of any conditions, terms, restrictions, or other
requirements for the protection of public health, safety, or welfare.(7)A description, where appropriate, of any provisions for the preservation andrestoration of historic structures.(b)A development agreement may also provide that the entire development or any phase
of it be commenced or completed within a specified period of time. If required by ordinance or in
the agreement, the development agreement shall provide a development schedule, including commencement dates and interim completion dates at no greater than five-year intervals; provided, however, the failure to meet a commencement or completion date does not, in and of itself, constitute a material breach of the development agreement pursuant to G.S. 160D-1008 but must
be judged based upon the totality of the circumstances. The developer may request a modification
in the dates as set forth in the agreement.
(c)If more than one local government is made party to an agreement, the agreement mustspecify which local government is responsible for the overall administration of the development
agreement. A local or regional utility authority may also be made a party to the development
agreement. (d)The development agreement also may cover any other matter, including definedperformance standards, not inconsistent with this Chapter. The development agreement may include mutually acceptable terms regarding provision of public facilities and other amenities and
the allocation of financial responsibility for their provision, provided any impact mitigation
measures offered by the developer beyond those that could be required by the local government shall be expressly enumerated within the agreement, and provided the agreement may not include a tax or impact fee not otherwise authorized by law. (e)Consideration of a proposed major modification of the agreement shall follow the same
procedures as required for initial approval of a development agreement. What changes constitute
a major modification may be determined by ordinance adopted pursuant to G.S. 160D-1003 or as provided for in the development agreement. (f)Any performance guarantees under the development agreement shall comply withG.S. 160D-804.1. (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 26, 51(a), (b), (d).)
§ 160D-1007. Vesting.(a)Unless the development agreement specifically provides for the application ofsubsequently enacted laws, the laws applicable to development of the property subject to a development agreement are those in force at the time of execution of the agreement.
(b)Except for grounds specified in G.S. 160D-108(c) or G.S. 160D-108.1(f), a localgovernment may not apply subsequently adopted ordinances or development policies to a development that is subject to a development agreement. (c)In the event State or federal law is changed after a development agreement has beenentered into and the change prevents or precludes compliance with one or more provisions of the
development agreement, the local government may modify the affected provisions, upon a finding that the change in State or federal law has a fundamental effect on the development agreement. (d)This section does not abrogate any vested rights otherwise preserved by law. (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 27, 51(a), (b), (d).)
§ 160D-1008. Breach and cure.
(a)Procedures established pursuant to G.S. 160D-1003 may include a provision requiringperiodic review by the zoning administrator or other appropriate officer of the local government, at which time the developer shall demonstrate good-faith compliance with the terms of the development agreement.
(b)If the local government finds and determines that the developer has committed a
material breach of the agreement, the local government shall notify the developer in writing setting forth with reasonable particularity the nature of the breach and the evidence supporting the finding and determination and providing the developer a reasonable time in which to cure the material breach.
(c)If the developer fails to cure the material breach within the time given, then the local
government unilaterally may terminate or modify the development agreement, provided the notice
of termination or modification may be appealed to the board of adjustment in the manner provided by G.S. 160D-405.
(d)An ordinance adopted pursuant to G.S. 160D-1003 or the development agreement may
specify other penalties for breach in lieu of termination, including, but not limited to, penalties allowed for violation of a development regulation. Nothing in this Article shall be construed to abrogate or impair the power of the local government to enforce applicable law. (e)A development agreement shall be enforceable by any party to the agreement
notwithstanding any changes in the development regulations made subsequent to the effective date
of the development agreement. Any party to the agreement may file an action for injunctive relief to enforce the terms of a development agreement. (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
§ 160D-1009. Amendment or termination.
Subject to the provisions of G.S. 160D-1006(e), a development agreement may be amended orterminated by mutual consent of the parties. (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
§ 160D-1010. Change of jurisdiction.
(a)Except as otherwise provided by this Article, any development agreement entered intoby a local government before the effective date of a change of jurisdiction shall be valid for the duration of the agreement or eight years from the effective date of the change in jurisdiction, whichever is earlier. The parties to the development agreement and the local government assuming
jurisdiction have the same rights and obligations with respect to each other regarding matters
addressed in the development agreement as if the property had remained in the previous jurisdiction. (b)A local government assuming jurisdiction may modify or suspend the provisions ofthe development agreement if the local government determines that the failure of the local
government to do so would place the residents of the territory subject to the development
agreement or the residents of the local government, or both, in a condition dangerous to their health or safety, or both. (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
§ 160D-1011. Recordation.
The developer shall record the agreement with the register of deeds in the county where the
property is located within 14 days after the local government and developer execute an approved development agreement. No development approvals may be issued until the development agreement has been recorded. The burdens of the development agreement are binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the
agreement. (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
§ 160D-1012. Applicability of procedures to approve debt.In the event that any of the obligations of the local government in the development agreementconstitute debt, the local government shall comply, at the time of the obligation to incur the debt
and before the debt becomes enforceable against the local government, with any applicable
constitutional and statutory procedures for the approval of this debt. (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
RECOMMENDED ACTION
Approve Capital Reimbursement and Allocation Agreement Between the Town of Lillington and
Wade Park Developers, LLC.
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CAPITAL REIMBURSEMENT AND ALLOCATION AGREEMENT
THIS CAPITAL REIMBURSEMENT AND ALLOCATION AGREEMENT
(hereafter "Agreement"), is made and entered into as of the day of ____________, 2025, by and between WADE PARK DEVELOPERS, LLC (hereafter collectively referred to as "Developer") and the TOWN OF LILLINGTON, a North Carolina municipal corporation (hereafter the "Town");
WHEREAS, this Agreement relates to the following properties:
A.That property consisting of approximately 164.88 acres located on the eastern sideof NC Highway 210 South in Lillington, North Carolina, further described asHarnett County PIN 0548-89-9755.000 (the “Wade Park Property") and
located within the Town’s corporate limits; andB.That property consisting of approximately 125.44 acres located on the western sideof NC Highway 210 South in Lillington, North Carolina, further described asHarnett County PIN 0548-68-9957.000 (the “Blake Landing Property") andlocated within the Town’s corporate limits; the Wade Park Property and the Blake
Landing Property are referred to collectively herein as the “Properties”; and
WHEREAS, the Developer requires water and sewer services for the development of the Wade Park Property into a residential development containing approximately 365 single-family homes and approximately 253 townhome units (the “Wade Park Project”), and for the development
of the Blake Landing Property into a residential development containing approximately 197 single-family homes and approximately 166 townhome units (the “Blake Landing Project,” and together with the Wade Park Project the “Projects”), and wishes to construct improvements that will connect to the Town’s water and sewer system in order to enable development of the Projects; and
WHEREAS, the Town operates and manages wastewater collection systems located within its boundaries and has established a Department of Public Works for the purpose of operating and managing the facilities and systems; and
WHEREAS, for the purposes of this agreement the term “Capacity” shall mean available
water supply or wastewater treatment capability, as applicable, and transmission capability.
Capacity allocation requests shall be evaluated on a first-come, first-serve basis, provided capacity allocations are available; and
WHEREAS, the parties recognize that the water and wastewater collection is an important
issue concerning long term environmental soundness; and
WHEREAS, in order for the water system of the Town be available to the Projects in the future, Developer has requested that it be permitted to make certain improvements and connections to the water system of the Town for the purpose of installing and extending the water system to
serve the Projects; and
WHEREAS, the parties affirm that it is necessary that permits be obtained in order that the subject construction be completed and Developer will obtain the necessary permits from
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NCDEQ to effectuate said improvements required by Town; and
WHEREAS, the water main specified by Town to Developer for the Town of Lillington
water system (the “210 Water Transmission Main”) may be greater in capacity and materials than would be required to serve the Projects, necessitating greater costs and expense to construct and install than would have been incurred by Developer; and
WHEREAS, Developer is willing to construct the 210 Water Transmission Main, and the
necessary related appurtenances in accordance with all Federal, State and Local rules and regulations and in accordance with Town Requirements (as defined herein); and to comply with all regulations and ordinances adopted or made by Town as to the control, maintenance, and protection of all lines and systems installed pursuant to this Agreement; and
WHEREAS, Developer desires to convey to the Town and Town agrees to reimburse Developer for the increased costs associated with the material size increase of the 210 Water Transmission Main as described herein, if any; and
WHEREAS, the Town desires for Developer to have a licensed utility contractor construct
and install the 210 Water Transmission Main; and
WHEREAS, the Town desires to reimburse and pay Developer upon the terms and conditions set forth in this Agreement;
WHEREAS, at its meeting held _______________________________, the Town Council authorized this Agreement in accordance with the terms set forth below;
NOW THEREFORE, in consideration of ten dollars and other valuable consideration, the receipt of which is hereby acknowledged, the Developer and the Town, and their heirs, successors, and assigns agree:
1.Effective Date. The obligations of this Agreement shall become effective upon executionof this Agreement by the parties.
2.Definitions. In this Agreement, the following terms, whether capitalized or not, shall have
the meanings set forth below, unless it is clear in the Agreement that the context requires
otherwise."Town" means the Town of Lillington.
"Town Requirements" mean all ordinances, policies, standards, and specifications
prescribed by the Town applicable to the development activity, work, or construction
undertaken pursuant to this Agreement. Such Town Requirements may include, but are not limited to, the Unified Development Ordinance, the Town Code, and water and sewer system specifications which are contained in the Town's policies and guidelines maintained by the Town’s Department of Public Works, including the Town of Lillington –Standards
and Specifications.
"Developer" owns the Properties and consists of the entity(ies) identified in the
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first paragraph of this Agreement. "Developer" includes successors in interest and assigns.
"Improvements" means all infrastructure required by the Town, including the 210 Water Transmission Main, that allows water and sewer to be delivered to or from the Properties and integrated into the Town's utility system. It includes the lines, mains, outfalls, and water and sewer connections to the street mains including meter box and
meter yoke, and water meters to the extent required under Town Requirements.
"Person" includes natural persons, firms, companies, associations, partnerships, trusts, corporations, governmental agencies and units, and other legal entities.
"Projects" has the meaning set forth above. "Property" has the meaning set forth above.
3. Developer's Obligations; Town’s General Review Obligations. The Developer shall bear the total cost and expense of all the obligations and duties created by this Agreement unless otherwise explicitly stated in this Agreement. The Developer shall design, build, and construct the Projects and Improvements according to the Town Requirements and the plans and utility
construction drawings (as approved by the Town). Where Town review and approval is required,
the Town acknowledges its obligation to review submittals from the Developer in accordance with Town Requirements and policies, and to perform its review in a professional and timely manner. Developer shall pay all fees applicable to the Projects to include but not limited to water and sewer system development fees, stormwater fees, review fees, recreational fees, and as
prescribed by the Town’s Code of Ordinances and Annual Budget at the rate current at the time of
payment, such fees being reviewed and acknowledged by Developer to be reasonable and fair. 4. Sewer Capacity Reservation. The Town shall reserve capacity in the downstream sewer system for the Projects as follows and as capacity is available following plan review and approval
by the Town:
A. Wade Park Project:
i. Following the Town’s approval of the construction drawings in accordance with Town Requirements for Phase 1, Phase 2, and Phase 3 of the Wade Park Project, the Town shall allocate capacity for the number of lots shown on the approved construction drawings for Phase 1 and Phase 2 of the Wade Park Project.
ii. Following the Town’s issuance of the One Hundred Tenth (110th) building permit for the Wade Park Project, installation of the Phase 2 infrastructure, and recordation of the Phase 2 plat, the Town shall allocate capacity for the number of lots shown on the approved construction drawings for Phase 3A of the Wade Park Project, but in no event shall said allocated capacity exceed One Hundred Fifty (150) lots.
iii. Following the Town’s issuance of the One Hundred Fifty-Sixth (156th) building permit for the Wade Park Project, installation of the Phase 3A infrastructure, and
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recordation of the Phase 3A plat, the Town shall allocate capacity for the number of lots shown on the approved construction drawings for Phase 3B of the Wade Park
Project, but in no event shall said allocation capacity exceed One Hundred Fifty
(150) lots.
iv. Following the Town’s issuance of the One Hundred Ninety-Eighth (198th) building
permit for the Wade Park Project, installation of the Phase 3B infrastructure, recordation of the Phase 3B plat, and approval of the construction drawings for Phases 4 and 5, the Town shall allocate capacity for the number of lots shown on the approved construction drawings for Phase 4 of the Wade Park Project, but in no
event shall said allocation capacity exceed One Hundred Fifty (150) lots.
v. Following the Town’s issuance of the Two Hundred Forty-Fifth (245th) building permit for the Wade Park Project, installation of the Phase 4 infrastructure, and recordation of the Phase 4 plat, the Town shall allocate capacity for the number of lots shown on the approved construction drawings for Phase 5 of the Wade Park
Project, but in no event shall said allocation capacity exceed One Hundred Fifty (150) lots. vi. The preliminary versions of the construction drawings referenced in subsections 4.A.i. through 4.A.v. above are attached hereto as Exhibit A, which preliminary
construction drawings will be replaced with the final versions upon the Town’s approval thereof.
vii. In order to receive a capacity allocation as outline in subsections 4.A.i through 4.A.v above, Developer shall make a formal allocation request to the Town as set forth in the Town Requirements. Developer shall complete the site construction and buildout of the phases of the Wade Park Project by the following deadlines:
a. Phase 1 and Phase 2: within two (2) years following the later to occur of (i) the issuance of the Town’s approval of the construction drawings
in accordance with Town Requirements for Phase 1 and Phase 2, or (ii)
the issuance of all state and federal permits required for Phase 1 and Phase 2 of the Wade Park Project. b. Phase 3A: within two (2) years following the Town’s allocation of the sewer capacity for Phase 3A pursuant to subsection 4.A.ii. above.
c. Phase 3B: within two (2) years following the Town’s allocation of the
sewer capacity for Phase 3B pursuant to subsection 4.A.iii. above. d. Phase 4: within two (2) years following the Town’s allocation of sewer capacity for Phase 4 pursuant to subsection 4.A.iv. above. e. Phase 5: within two (2) years following the Town’s allocation of sewer
capacity for Phase 5 pursuant to subsection 4.A.v. above.
If the deadlines above are not met, the Town reserves, and shall have the right to, rescind the unused amount of allocated capacity for future allocated by the Town. If this occurs, Developer shall be required to initiate the review process again to
include updated plans and construction drawings in order to request re-allocation
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of capacity in accordance with Town Requirements. B. Blake Landing Project i. Following the Town’s approval of the construction drawings in accordance with Town Requirements for Phase 1 of the Blake Landing Project, the Town shall allocate
capacity for the number of lots shown on the approved construction drawings for Phase 1 of the Blake Landing Project. ii. Following the Town’s issuance of the Fiftieth (50th) building permit for the Blake Landing Project, installation of the Phase 2A infrastructure, and recordation of the Phase 2A plat, the Town shall allocate capacity for the number of lots shown on the
approved construction drawings for Phase 2A of the Blake Landing Project, but in no event shall said allocated capacity exceed One Hundred Fifty (150) lots. iii. Following the Town’s issuance of the One Hundredth (100th) building permit for the Blake Landing Project, installation of the Phase 2B infrastructure, and recordation of the Phase 2B plat, the Town shall allocate capacity for the number of lots shown on the
approved construction drawings for Phase 2B of the Blake Landing Project, but in no event shall said allocated capacity exceed One Hundred Fifty (150) lots. iv. Following the Town’s issuance of the One Hundred Fiftieth (150th) building permit for the Blake Landing Project, installation of the Phase 3 infrastructure, and recordation of the Phase 3 plat, the Town shall allocate capacity for the number of lots shown on the
approved construction drawings for Phase 3 of the Blake Landing Project, but in no event shall said allocated capacity exceed One Hundred Fifty (150) lots. v. The preliminary versions of the construction drawings referenced in subsections 4.B.i. through 4.B.iv. above are attached hereto as Exhibit B, which preliminary construction drawings will be replaced with the final versions upon the Town’s approval thereof.
vi. In order to receive a capacity allocation as outline in subsections 4.B.i through 4.B.v above, Developer shall make a formal allocation request to the Town as set forth in the Town Requirements. Developer shall complete the site construction and buildout of the phases of the Blake Landing Project by the following deadlines: a. Phase 1: within two (2) years following the later to occur of (i) the issuance of the Town’s approval of the construction drawings in accordance with Town
Requirements for Phase 1, or (ii) the issuance of all state and federal permits
required for Phase 1 of the Blake Landing Project. b. Phase 2A: within two (2) years following the Town’s allocation of the sewer capacity for Phase 2A pursuant to subsection 4.B.ii. above. c. Phase 2B: within two (2) years following the Town’s allocation of the sewer
capacity for Phase 2B pursuant to subsection 4.B.iii. above.
d. Phase 3: within two (2) years following the Town’s allocation of sewer capacity for Phase 3 pursuant to subsection 4.B.iv. above. If the deadlines above are not met, the Town reserves, and shall have the right to,
rescind the unused amount of allocated capacity for future allocated by the Town.
If this occurs, Developer shall be required to initiate the review process again to include updated plans and construction drawings in order to request re-allocation of capacity in accordance with Town Requirements.
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5.210 Water Transmission Main. Developer intends to design, construct, and install certainImprovements to serve the Projects in accordance with the Plans, including without limitation the210 Water Transmission Main running from Harnett County parcel number 0559-36-8016.000 tothe entrance to the Project in the approximate location shown on Exhibit C attached hereto and
incorporated herein by reference, which Exhibit will be replaced with the final version thereof
when available. It is contemplated that the Town may request that Developer oversize the 210Water Transmission Main to a diameter in excess of the size required for service to the Projects,in order to serve the public by providing the ability for the public to connect to the 210 WaterTransmission Main. For purposes of this Section 5, Developer’s water main design for an
adequately sized water main to serve the Projects, as the same may be modified or amended from
time to time pursuant to change orders, is referred to herein as the “Initial Water Main Plans andSpecifications;” The Developer and the Town have agreed the parties shall share in the cost of thedesign, construction, and installation of the 210 Water Transmission Main pursuant to thefollowing terms and conditions:
A.The provisions of this subsection 5.A. are referred to collectively herein as the “CostSharing Provisions.” The Town shall reimburse to the Developer an amount asdetermined pursuant to this subsection 5.A. to upsize the size of the 210 WaterTransmission Main as may be elected by the Town. The actual amount to bereimbursed to Developer, shall be determined as follows:
i.All costs and expenses of designing, constructing, and installing the 210 WaterTransmission Main shall be advanced by Developer. The Town will reimbursethe Developer for the cost of oversizing the 210 Water Transmission Main from
the diameter specified in the Initial Water Main Plans and Specifications (the
“Initial Diameter,” as the same may vary for different portions of the 210 WaterTransmission Main) to the diameter specified in the Oversized Water Main Plansand Specifications (as that phrase is defined below) (the “Oversized Diameter,”as the same may vary for different portions of the 210 Water Transmission Main).
ii.Developer’s engineer will prepare an updated version of the Initial Water LinePlans and Specifications with an Oversized Diameter water main while ensuringapplicable fire flow requirements and all Town Requirements are met (the finalversions of said updated plans and specifications, as the same may be modified
or amended from time to time pursuant to change orders, being the “Oversized
Water Main Plans and Specifications”).
iii.The Town’s share of the cost of the construction and installation of the 210 WaterTransmission Main (the “Reimbursable Costs”) shall be calculated as the
difference between the dollar amount of the Construction and Installation Cost(as that phrase is defined herein below) of the 210 Water Transmission Main ifconstructed pursuant to the Initial Water Line Plans and Specifications and thedollar amount of the Construction and Installation Cost of the 210 WaterTransmission Main if constructed pursuant to the Oversized Water Line Plans
and Specifications, determined based on the Developer’s contractor’s final bidpricing, including and together with all change orders, for an Initial Diameter
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water line and the Developer’s contractor’s final bid pricing, including and together with all change orders, for an Oversized Diameter water line, including
without limitation any related valves and valve boxes shown on the Oversized
Water Line Plans and Specifications. Notwithstanding the foregoing, any and all increases to the Construction and Installation Cost of the 210 Water Transmission Main incurred by Developer as a result of upsizing the size of the 210 Water Transmission Main shall be added to and included in the Reimbursable Costs.
The term “Construction and Installation Cost” means all costs and expenses
incurred by Developer with respect to the design, construction, and installation of the 210 Water Transmission Main, including without limitation costs and expenses incurred with respect to engineering, labor, and materials.
iv.Prior to bidding the Projects as required in this Section 5, Developer shall secure
and provide to the Town a third-party Engineer’s estimate of the ReimbursableCosts.
v.The Town will reimburse Developer for the Reimbursable Costs, determined as
provided in this Section 5, in accordance with the following procedures:
a.Upon the installation of fifty percent (50%) of the total linear feet ofthe 210 Water Transmission Main shown on the Oversized Water MainPlans and Specifications and the certification of the same by the
engineer of record for the 210 Water Transmission Main
construction, and not less than thirty (30) days before the date onwhich Developer desires a reimbursement for fifty percent (50%) ofthe total estimated Reimbursable Costs for the construction andinstallation of the 210 Water Transmission Main determined based on
the Developer’s contractor’s final bid pricing for an Initial Diameter
water line and the Developer’s contractor’s final bid pricing for anOversized Diameter water line, including without limitation anyrelated valves and valve boxes shown on the Oversized Water MainPlans and Specifications, Developer shall submit to the Town a draw
request in a form acceptable to the Town, properly executed
(collectively the “Reimbursement Request Documents”). AllReimbursement Request Documents submitted by the Developer forpayment shall be reviewed and approved by the Engineer of Recordfor the 210 Transmission Main construction.
b. Upon completion of the 210 Water Transmission Main and finalacceptance of the 210 Water Transmission Main by the NorthCarolina Department of Environmental Quality or the Town, andnot less than thirty (30) days before the date on which Developer
desires reimbursement for one hundred present (100%) of the
balance of the Reimbursable Costs, Developer shall submit toTown the Reimbursement Request Documents related thereto.
c.The Town will promptly review the Reimbursement Request
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Documents; if the Town is unable to complete its review prior to the Developer’s requested reimbursement date, the Town will notify
Developer in writing of the delay and provide a good faith estimate of
the date on which the Town will complete its review. In no event shall reimbursements be made to Developer in less than 30 days from the Town’s receipt of the Reimbursement Request Documents.
d. Reimbursements of Reimbursable Costs shall be made by check made
out to the Developer.
B. The Town agrees to approve or reject all written change orders submitted by the Developer
within fourteen (14) business days after Developer’s submission of each written change order. Total cost of change order(s) shall not exceed five (5) percent of the total reimbursable cost of the 210 Water Transmission Main project. C. Developer shall have a licensed utility contractor construct and install the 210 Water Transmission Main and all related appurtenances in accordance with the Oversized Water Line Plans and Specifications. D. Developer shall cause the 210 Water Transmission Main to be constructed in accordance with the specifications of the Town in effect at the time of construction and installation as provided through the Town and in accordance with all then applicable State and Federal regulations. E. The 210 Water Transmission Main, any other appurtenances necessary in connection therewith, shall be installed in a good and workmanlike manner by a utility contractor hired by Developer, who is licensed by the State of North Carolina to make such installations. All installations shall be made in accordance with the Oversized Water Main Plans and Specifications (or latest revision), filed with and approved by the
County, copies of which have been so endorsed as to such approval for Developers’ use. F. Developer shall solicit bids for the construction of the 210 Water Transmission Main in
accordance with Article 8 of Chapter 142 of the North Carolina General Statutes, including
the solicitation of bids from license utility contractors for the construction of the 210 Water Transmission Main. Award of the construction shall be made to the lowest responsive and responsible bidder, unless otherwise approved by the Town. Developer must follow public bidding laws regardless of whether or not the Town or the Developer is the contracting
entity. Developer shall bid the 210 Water Transmission Main and shall follow all public
bidding laws in developing and administering such bids. Developer shall provide proof of compliance with all applicable provisions of the North Carolina General Statues regulating public contracts. Primarily, this involves complying with N.C.G.S. §143-129 "Formal Bidding Procedure" for 210 Water Transmission Main to be constructed as part of this
Agreement. The bid shall include unit prices. The Developer, or his designee, shall provide
copies of all bid proposals received, a copy of the executed contract between the Developer and the lowest, responsible bidder, and a unit price bid tabulation which is signed and sealed by a professional engineer registered in the State of North Carolina certifying the bids
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received and the award of the contract are in conformance with the aforementioned provisions. Town reserves the right to accept or reject any and all bids procured by
Developer, and Town reserves the right to terminate this Agreement prior to acceptance of
any such bids in Town’s sole and absolute discretion. In the event Town elects to terminate this Agreement, Developer may proceed with its construction and installation of the 210 Water Transmission Main in accordance with the Initial Water Main Plans and Specifications, and the parties shall have no further obligations under this Agreement except
for those obligations under this Agreement that survive termination.
G.Prior to construction of the 210 Water Transmission Main by Developer and as a conditionprecedent to any reimbursements to Developer by Town, Developer shall procure anddeliver to Town, or Developer shall require the contractor for the Projects to procure and
deliver to Town, a performance and payment bond in the sum of one hundred percent of
the construction contract amount, in the form acceptable to the Town, which secures thefaithful performance of this Agreement. The bond shall be executed by one or more suretycompanies legally authorized to do business in the State of North Carolina and shall containthe original notarized signature of an authorized officer of the surety and affixed thereto
shall be a certified and current copy of the power of attorney. The bond shall be
unconditional and remain in force during the entire term of the Agreement.
H.The installation and construction of the 210 Water Transmission Main shall besubject to the inspection and supervision of Town during construction, and the
connection thereof to Town system shall not be permanently made or maintained until
the same shall have been tested under the supervision of Town and the written approvaland final acceptance of such installation has been given by the Town. After suchapproval and final acceptance, subject infrastructure shall become the sole andexclusive property of Town, and Town shall thereafter repair and maintain the
same, except for defects in workmanship or resulting from noncompliance with the
plans and specifications. Developer warrants that the 210 Water Transmission Mainand appurtenances shall be constructed in accordance with Town Requirements and otherapplicable professional standards, and fit for the purpose for which it is constructed. Anydefects in workmanship or noncompliance with the plans and specifications for the
210 Water Transmission Main shall be the responsibility of and repaired and/or
remediated at the sole expense of Developer. Upon request by the Town, Developerwill assign any warranty rights it has under its 210 Water Transmission Main constructioncontracts to the Town.
I.Developer warrants that upon completion of the construction and installation of the 210
Water Transmission Main the same shall be free and clear of all claims or encumbrancesof any person whatsoever and will obtain lien waivers from any contractors or sub-contractors upon completion of the 210 Water Transmission Main. After completion,Developer shall offer to dedicate and convey to the Town ownership and operation of the
210 Water Transmission Main provided however, that prior to the Town’s acceptance of
said dedication and conveyance of the 210 Water Transmission Main, the Town’sEngineering Director shall inspect the 210 Water Transmission Main to ascertain that it isin proper working order, not in need of repair or modification and free from any defects inworkmanship (both labor and material). Provided further, any dedication by Developer to
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the Town shall not release Developer from any of Developer’s obligations under this Agreement or its further obligation to repair any latent defects that occur with respect to the
210 Water Transmission Main within one (1) year from the date of acceptance by the Town
(hereinafter the “Warranty Period”) in accordance with Town Requirements. . J. Developer will supply all necessary construction and engineering documents certifying the completion of the 210 Water Transmission Main. Upon completion and final
acceptance thereof by Town of the 210 Water Transmission Main, the pipeline, or any
other appurtenances used in connection therewith shall thereupon and thereafter be the entire and sole property of Town and under the sole and exclusive control of Town.
K. Developer will complete the installation and construction of the 210 Water Transmission Main within two (2) years following the issuance of the Town’s approval of the construction drawings in accordance with Town Requirements for Phase 1 and Phase 2 of the Wade Park Project.
L. Neither Developer, nor any other person, shall be entitled to any service lines installed by Developer, except upon the payment of any water service connection charges and submission of applicable documentation as required by any Town Requirements.
M. Developer shall convey all necessary easements to the Town upon all land where there are water lines and/or appurtenant items constituting a part of the 210 Water Transmission Main. N. The Town agrees to accept the 210 Water Transmission Main and easements described above no later than the completion of the 210 Water Transmission Main in accordance with Town, State, and Federal requirements. O. Easements. It is anticipated that portions of the 210 Water Transmission Main will be
located outside of dedicated public rights-of-way, and that perpetual easements and temporary construction easements will therefore need to be obtained from the owners of certain parcels of real property along State Highway 210 for installation and maintenance of the 210 Water Transmission Main for the public’s benefit. The Developer will
communicate with said property owners regarding the acquisition of said easements by
Developer. If any of said property owners refuse to convey the necessary easements on the terms proposed by the Developer, the Developer may request that the Town exercise its power of eminent domain to acquire said easements and the Town will consider each request on a case-by-case basis. If condemnation proceedings are the only option left to
obtain the necessary easements, a Board of Commissioner Agenda item from the Town
Engineer to the Town Manager must be prepared and presented to the Town Board of Commissioners for consideration. The Board of Commissioners will decide as to whether or not to initiate the condemnation process of the property in question. Condemnation shall be subject to the Board of Commissioners findings of public purpose, public necessity, and
approval of exercise of eminent domain. Upon the Board of Commissioners approval and
prior to the Town starting any condemnation action, the Developer shall deposit with the Town twice the amount of the estimated cost of the easements. The Developer will have the right to have its attorney participate in the process in conjunction with Town attorneys.
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If the Developer elects not to, it shall furnish a waiver to the Town to that effect. Upon obtaining the easements, the Town shall refund to the Developer all funds over and above
those required to obtain the easements, including but not limited to costs and reasonable
attorneys fees. If condemnation is approved by the Town Board of Commissioners, the Developer shall write a letter to the Town stating that it will be fully responsible for any and all costs related to the condemnation. The letter shall also include the estimated value of the easements, per square footage, based on independent appraisals. At the option of the
Town, the Developer may be required to deposit additional funds up to five times the
amount of the estimated easement value. The Town will retain these funds until completion of the condemnation proceedings, at which time any remaining monies will be returned to the Developer. The money on deposit with the Town will bear no interest.
6. Assignment. This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective permitted assigns, heirs, executors, administrators, legal representatives, affiliates, and successors. Neither party may assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other party and any such attempted assignment shall be void, except that either party may assign this Agreement and/or any
of its rights and/or obligations hereunder, without the other party’s consent, upon written notice to
the other party, to any party that (i) acquires all, or substantially all, of the assets of the party seeking to make the assignment and (ii) expressly assumes in writing the obligations of the assignor and agree to be bound hereby. The above terms notwithstanding, Developer may assign this Agreement to a parent, subsidiary, or affiliate of Developer without the consent of the Town
provided the assignee shall assume in writing all obligations of Developer and agree to be bound
hereby. In the event of any such assignment, Developer will notify the Town within thirty (30) days of such assignment. None of the foregoing assignments by Developer shall relieve Developer of its obligations hereunder unless the Town shall specifically release Developer upon Developer’s request, which release shall not be unreasonably withheld or delayed.
7. Indemnity and Insurance Requirements. Developer, or Developer’s contractor, shall indemnify and hold harmless Town from any and all loss, cost, damages, expense and liability (including attorney’s fees) caused by accident or other occurrence resulting in bodily injury or property damage to any person or property arising from Developer’s or Developer’s contractor’s
gross negligence or willful misconduct with respect to the installation and construction of the 210
Water Transmission Main by Developer or the contractor of Developer. Developer’s, or Developer’s contractor’s, as applicable, duty to indemnify and hold harmless shall survive the termination or expiration of this Agreement. Developer and each engineer and contractor of Developer shall maintain at their costs the following insurance coverages during the design and
construction of the 210 Water Transmission Main:
A. Worker’s compensation coverage – Limits for Coverage A – Statutory State of NC; Coverage B – Employers Liability limits shall not be less than $1,000,000.00.
B. Commercial General Liability Insurance – Bodily injury and property damage liability that
will protect the engineer or contractor from claims of bodily injury or property damages, which may arise from the operations under this Agreement. The amounts of such insurance shall not be less than $1,000,000.00 bodily injury and property damage – combined single limit per occurrence and $2,000,000.00 aggregate. This insurance shall include coverage
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for products/completed operations, personal injury liability and contractual liability.
C.Automobile Liability Insurance with limits of liability of not less than $1,000,000.00 per
occurrence for bodily injury and $1,000,000.00 per occurrence for property damage.
D.Professional Liability (errors and omissions) with minimum limits of $1,000,000.00 perclaim
Provided, however, that should an insurance policy with higher limits be required to obtain any necessary encroachments, Developer or their contractor shall maintain insurance sufficient to meet such requirements. Developer shall furnish certificates of such insurance to the Town with the provision that Town will be given thirty day's
written notice of any intent to terminate such insurance by either Developer or the
insuring company.
E.Additional Insured. Developer agrees to add Town as an Additional Insured on theCommercial General Liability, Auto Liability and any Umbrella Liability insurance used
to meet the minimum liability limits for General Liability and Auto Liability. The
Additional insured shall read “Town of Lillington is named additional insured as its interestmay appear”. The certificate Holder address should read:
Town of Lillington
Post Office Box 296
Lillington, NC 27546 Attention: Town Manager
F.General. All insurance companies must be admitted to do business in North Carolina and
be acceptable to the Town.
8.Notice.
A.Mode and Designated Recipients. All notices and other communicationsgiven under this Agreement shall be written, and made by personal delivery, Federal Express or similar overnight service, or United States mail, addressed as follows. The
parties are also requested to send a copy by email.
To the Town:
Town of Lillington Attn: Town Manger and Town Engineer PO Box 296 Lillington, NC 27546
Email: jjeffries@lillingtonnc.org scummings@lillingtonnc.org
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With a copy to: __________________________
To the Developer: Wade Park Developers, LLC
Attn: Andrew Ross, Manager PO Box 5548 Cary, NC 27512 Email: andrew.ross@floyddevelopment.com
With a copy to: Brooke L. Dalrymple, Esq. PO Box 12347 Raleigh, NC 27605
Email: bdalrymple@howardstallings.com B. Change of Address. Notice of a change of address, fax number, or person to receive notice shall be provided to the other party in writing through one of the means described above.
C. Time of Receipt. A notice or other communication is effective upon delivery to the other party if it is personally delivered or sent by fax. Notice sent by mail or Federal Express/similar overnight delivery service is effective upon the second work day after the date it was sent, as evidenced by a postmark or similar indicia, or upon
actual delivery.
9. Governmental Authority Retained. Nothing contained in this Agreement shall be deemed or construed to in any way stop, limit, or impair the Town from exercising or performing any regulatory, policing, legislative, governmental, or other powers or functions, or shall limit the
Town's discretion in the exercise of such powers and functions.
10. Relationships of the Parties. Developer and Town are independent of each other. This Agreement does not and is not intended to create in any way or manner or for any purpose
whatsoever an employee-employer relationship, principal-agent relationship, joint venture, or
partnership. Neither party is authorized to enter into agreements for or on behalf of the other; to create any obligation or responsibility, express or implied, for or on behalf of the other; to accept payment of any obligations due or owed the other; or to accept service of process for the other.
11. Town Contact. The Town will designate a contact person available to answer questions related to the matters set forth in this Agreement on behalf of the Town. The Town’s primary contact person for this Agreement is Shane Cummings; the Towns secondary contact person for this Agreement is Joseph Jefferies.
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12.Termination. This Agreement may be terminated (a) upon mutual agreement of theparties; (b) by the Town pursuant to Section 5.F of this Agreement or (c) by the non-defaulting
party upon the defaulting party failing to cure a material default hereunder within forty-five (45)
days following the non-defaulting party providing notice of such material default to the defaultingparty (the “Cure Period”). Notwithstanding the foregoing, said Cure Period shall be extended forup to an additional forty-five (45) days if (i) the defaulting party is making reasonable efforts tocure the default as promptly as practicable, (ii) a cure cannot practicably be achieved within the
initial Cure Period, and (iii) prior to the end of the initial Cure Period, the defaulting party gives
the non-defaulting party notice of the need for an extension, which notice will describe the actionsbeing taken by the defaulting party to cure the material default.
13.Remedies; Breach. The parties shall have all remedies allowed by law to enforce this
Agreement.
14.Severability. If any provision herein is deemed void or unenforceable by a court ofcompetent jurisdiction, except as provided below, such provision shall be severed from thisAgreement and the remaining provisions shall be valid, enforceable, and binding between the
parties hereto. Any judicial invalidation of any of the agreed upon cost-sharing provisions of this
agreement shall invalidate the entire agreement.
15.Modifications. No modification of this Agreement shall be valid or binding unless suchmodification is in writing, duly dated, and signed by all parties hereto.
16.Entire Agreement. This Agreement contains the entire agreement between the parties
pertaining to the subject matter of this Agreement. With respect to that subject matter, there are no
promises, agreements, conditions, inducements, warranties, or understandings, written or oral,expressed or implied, between the parties, other than as set forth or referenced in this Agreement.
17.Rules of Interpretation. Herein, the singular includes the plural, and the plural the
singular, and the word "shall" is mandatory.
18.Adequate Consideration. Both parties hereby agree and stipulate that this contract is
supported by fair and adequate consideration.
19.Worker’s Compensation Insurance. If required under State or Federal law, Developer
shall provide and maintain worker’s compensation insurance covering the work outlined herein
and provide satisfactory proof of same to Town prior to commencement of any work.
20.Drafting of Document and Reliance by Parties. In negotiation, discussion and drafting
of this contract, the parties have been advised to seek legal counsel for representation to the extentthey desire and have been given the opportunity to do so. The parties warrant, represent and agreethat they are not relying on the advice of any other party to this contract as to the legal or otherconsequences arising out of the negotiation and execution of this contract other than legal counselto the extent they have chosen to consult legal counsel. The parties warrant and agree that this
contract was not induced by fraud, coercion, compulsion or mistake. This contract shall be deemedto have been drafted by both parties and for purposes of interpretation no presumptions shall bemade to the contrary.
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21.Reading and Signing. The parties hereby further warrant that they have completely readall the terms hereof; that they are competent to sign this contract; that they fully understand theterms of this contract; and that they voluntarily accept the terms of this contract.
22.Governing Law and Consent to Jurisdiction and Venue. The parties warrant and agreethat this Agreement has been executed in the State of North Carolina and shall be subject to, andconstrued in accordance with, the laws of the State of North Carolina. Any and all actions relatingin any way to this Agreement shall be brought in the General Courts of Justice in the County of
Harnett, State of North Carolina in the Superior Court Division.
23.Savings Clause. To the extent any provision herein shall be deemed unenforceable, either
as a matter of law or any other reason, such provision shall be modified to reflect the intent of the
parties. If such a provision cannot be modified to reflect the intent of the parties, the remainder ofthe agreement shall remain in full force and effect as long as the purpose and intent of theagreement can still be carried out by the remaining enforceable terms. In the event that there areunenforceable provisions which prevent the effect, intent and purpose of the agreement from being
carried out, which cannot be modified to keep such purpose and intent, then the parties hereby
agree that they shall take whatever action necessary to effectuate the purpose of this Agreement.In the event the parties cannot come to an agreement as to the alternative methods for effecting thepurpose and intent of this agreement, the parties hereby expressly consent to binding arbitrationby a single arbitrator to be selected by the Harnett County Resident Superior Court Judge. Said
arbitrator shall, following an opportunity to be heard by each party, provide for an enforceableplan to affect the purposes and intents of this agreement, including directing the parties to draftdocuments, file actions or take any actions necessary to affect his directive. The Arbitrator’sdirective shall be enforceable by Order of the court and to the extent the parties do not follow such
directive, said parties shall be subject to the power of contempt by the court for not abiding by the
terms of this agreement. Fees for the services of the Arbitrator, if such becomes necessary, shallbe borne by equally between the parties. Despite this paragraph, if a party hereto believes it hasthe right to bring a court proceeding or file an action with the court that relates in any way to thematters in controversy addressed by this Agreement, said proceeding shall be filed in Harnett
County Superior Court and all parties hereby consent and agree to said jurisdiction and venue.
24.Dispute Resolution. Without waiving the foregoing resolution process discussed in theSavings clause paragraph above, if a party hereto believes it has the right to bring a courtproceeding or file an action with the court that relates in any way to the matters in controversy
addressed by this contract, said proceeding shall be filed and heard in Harnett County and all
parties hereby consent and agree to said exclusive jurisdiction and venue.
25.Awareness of Hazards. Developer represents that it understands the currently known
hazards to persons, property and the environment resulting from the services called for in thiscontract. Developer further represents that it will perform all services under this Agreement in asafe, efficient and lawful manner, using industry-accepted practices and methods.
26.Waiver Only for Specific Occurrence. Any waiver by either party of any provision orcondition of this Agreement shall not be construed or deemed to be a waiver of any other provisionor condition of this Agreement, nor a waiver of a subsequent breach of the same provision or
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condition.
27.Waiver of Less Than Strict Performance. Failure to require strict performance of anyof the provisions hereof shall not be considered a waiver of future right to demand strictperformance with the provisions of this Agreement.
28.No Third-Party Beneficiaries. Nothing contained in this Agreement shall create acontractual relationship with or cause of action in favor of a third party against either party.
29.Collection Costs and Reasonable Attorney Fees. In the event either party is caused toengage the services of an attorney to enforce the terms of this Agreement, the prevailing party shallbe entitled to recover the costs of such enforcement including, but not limited to, reasonable
attorney’s fees, court costs and other fees and costs reasonably incurred.
30.Headings. The subject headings of the paragraphs are included for purposes of
convenience only and shall not affect the construction or interpretation of any of its provisions.
31.Authority. The undersigned persons hereby verify that they have the actual and apparent
authority to enter this contract and that any and all action necessary to approve this contract hasbeen undertaken and approved by said entities.
IN WITNESS WHEREOF, being duly authorized, the parties hereto set their hands and execute this Agreement the parties hereto have executed this Agreement effective as of the date first written above.
[Signature pages follow]
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ATTEST: TOWN OF LILLINGTON
_____________________________ By: ______________________
Name: _____________________ Name: _________________________
Title: ______________________ Title :__________________________
ACKNOWLEDGMENT BY TOWN OF LILLINGTON
State of North Carolina County of ______________________
I, the undersigned, a Notary Public of the County and state aforesaid, do hereby certify that ______________________________ personally came before me this day and acknowledged that (s)he is the _________________ Town Clerk of the Town of Lillington, NC, and acknowledged, onbehalf of the Town, the due execution of the foregoing instrument.
Witness my hand and official stamp or seal, this the ___day of ______ 2024.
________________________ Notary Public My Commission expires:____________
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WADE PARK DEVELOPERS, LLC
By: _______________________________ Name: _____________________________ Title: ______________________________
ACKNOWLEDGMENT BY WADE PARK DEVELOPERS, LLC
State of North Carolina
County of ______________________
I, the undersigned, a Notary Public of the County and state aforesaid, do hereby certify that ______________________________ personally came before me this day and acknowledged that (s)he is the _________________ of the ______________________ and acknowledged, on behalf of
said ________________, the due execution of the foregoing instrument.
Witness my hand and official stamp or seal, this the ___day of ______ 2024. ________________________
Notary Public
My Commission expires:____________
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EXHIBIT A [Preliminary Construction Drawings for Wade Park Project]
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EXHIBIT B [Preliminary Construction Drawings for Blake Landing Project]
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EXHIBIT C [210 Water Transmission Main Diagram]