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Drafted by: Angela I.

Carmon, City Attorney


NORTH CAROLINA )
FORSYTH COUNTY ) DECLARATION OF RESTRICTIVE
COVENANTS AND CONDITIONS
This Declaration of Restrictive Covenants and Conditions (Declaration) is made and
entered into this ____day of _____ 2013 (the Effective Date), by and between the City of
Winston-Salem, a municipal corporation (Grantor) and Wake Forest University, a North
Carolina non-profit corporation (Grantee).
Purpose:
WHEREAS, the Grantor is the owner of that certain real property more particularly described
in Exhibit A attached hereto and incorporated herein by this reference, including, without
limitation, the coliseum building, parking areas and other improvements located thereon
(hereinafter Property), such real property being identified on the Forsyth Tax Maps as PIN
#___________, ________ and ______, and being situated in Winston-Salem, Forsyth County,
North Carolina; and
WHEREAS, the Property is a portion of the real property that was conveyed to the Grantor by
trustees deed dated November 28, 1969, recorded in Book 995, Page 32, Forsyth County
Registry (the Trustees Deed); and
WHEREAS, the Trustees Deed conveyed the Property to Grantor subject to certain restrictive
covenants and conditions which, in part, require Grantor to maintain the building and grounds
in a good state of repair and to provide and operate the Property, and other real property
described in the deed as part of Tract I, for sports, recreation, entertainment or cultural
purposes (the Deed Restrictions of 1969); and
WHEREAS, Grantee desires to purchase the Property; and
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WHEREAS, Grantor has agreed to convey the Property to Grantee subject to (1) restrictions
substantially similar to the Deed Restrictions of 1969, and (2) certain additional covenants,
conditions, restrictions and agreements; and
WHEREAS, Grantor has obtained a release and termination of (i) the Deed Restrictions of
1969 with respect to the Property from all parties having a future interest in the Property as a
result of the Deed Restrictions of 1969, and (ii) all right, title and interest of such parties in
the Property as a result of the Deed Restrictions of 1969; and
WHEREAS, Grantee has agreed to accept title to the Property subject to the covenants,
conditions, restrictions and agreements provided herein;
NOW THEREFORE, in consideration of the conveyance of the Property and other good and
valuable consideration, Grantor and Grantee hereby agree that, the Property shall be subject to,
and used in accordance with, the following covenants, conditions and restrictions.
Section: A. Term
1. The covenants, conditions, restrictions and agreements provided in Section B (with the
exception of Section B.5.), Section E.1, Section E.2 and Section D shall commence upon the
Effective Date and shall terminate automatically on December 31, 2034. This period of time
may be referred to herein as the Base Term.
2. The covenants, conditions, restrictions and agreements provided in Section C and
Section B.5. (the Memorial Term Sections) shall commence upon the Effective Date and
shall terminate on the earlier of the following dates:
at such time there is no Coliseum or New Coliseum operated on the Property or a.
on an Alternative Site (and no Major Project to construct, reconstruct, renovate
or restore the Coliseum or the New Coliseum is in progress); or
at such time, as the Grantee has elected to dedicate or otherwise convey to the b.
CityGrantor a portion of the real property described on Exhibit A attached
hereto sufficient for a park or similar facility to memorialize war veterans and
Lawrence Joel, but not exceeding one (1) acre in area (the Memorial Tract),
it being agreed that (i) the Memorial Tract shall be situated in a location
approved by the Grantor and the Grantee (it being agreed that [x] during the
Base Term, the Grantor may grant, withhold or condition such approval in its
discretion, and [y] after the Base Term, Grantors approval shall not be
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unreasonably withheld, conditioned or delayed), and in any event the Memorial


Tract shall be adjacent to the Fairgrounds Parcel, or any other real property
adjacent to the Property that is owned by the Grantor, (ii) upon dedication or
conveyance of the Memorial Tract, the Memorial Term shall terminate, (iii)
Grantor shall execute and record any document necessary to confirm that the
Memorial Tract is not subject to this Declaration, and (iv) no provision of this
subsection A.2(b) shall obligate the Grantee to convey or dedicate the Memorial
Tract to the CityGrantor; or
The Grantor has agreed in writing to end the Memorial Term, in the event that c.
Grantor and Grantee have agreed on an alternative way to memorialize
Lawrence Joel and war veterans. In the event of a termination pursuant to the
previous sentence, Grantor shall on request from Grantee, confirm such
termination in an instrument in recordable form, which Grantee may cause to be
recorded in the Forsyth County Registry.
This period of time may be referred to in this Declaration as the Memorial Term. The
Memorial Term Sections shall be restated in any subsequent declaration that is recorded in
accordance with Section A.4. during the Memorial Term.
3. The covenants, conditions restrictions and agreements provided in: (a) Section E.3 and
Section E.4 shall commence upon the Effective Date and shall terminate automatically on the
date on which the Coliseum is demolished (the Coliseum Term), and (b) Section E.5 shall
commence upon the Effective Date and shall terminate automatically on the earlier of: (i) the
date on which the Grantor has ceased to hold the DCF on the Fairgrounds Parcel for five (5)
successive calendar years, or (ii) such time as no Coliseum or New Coliseum is operated on
the real property described on Exhibit A attached hereto (and no Major Project to construct,
reconstruct, renovate or restore the Coliseum or the New Coliseum is in progress on such real
property) (the DCF Promotion Term).
4. Except as provided above in this Section A, the provisions of this Declaration shall
automatically terminate at the end of the later of the Base Term, the Memorial Term, the
Coliseum Term and the DCF Promotion Term and at such time, the Declaration shall be of no
further force and effect (the Expiration Date). Although it is the intent of the parties that
termination of any terms or provisions of this Declaration pursuant to the terms hereof shall be
automatic and self-executing, it is agreed that following any termination of provisions of this
Declaration that terminate prior to the Expiration Date, at the request of any party (and at the
expense of the requesting party), all parties shall execute an amendment to this Declaration
confirming which provisions have terminated and which remain in effect pursuant to the terms
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of this Declaration, in form reasonably acceptable to the parties, and the party requesting the
same shall cause the same to be recorded in the Forsyth County Registry.
Section: B. Public Purpose Covenants:
1. Grantee shall in good faith provide for the operation of the coliseum building on the
Property as of the Effective Date, as the same may be repaired, renovated, restored or
remodeled from time to time (the Coliseum) and any New Coliseum (defined herein) that
is constructed during the Base Term, as an assembly-type facility for sports, recreation,
entertainment or cultural purposes, which overall benefits the public (the Public Purposes),
and Grantee shall invest or expend funds necessary to fulfill such purposes; provided,
however, that Grantee shall not be limited to the forms of sports, recreation, entertainment or
cultural activities now or previously operated on the Property.
2. Qualifying Events. Each calendar year, the Grantee shall schedule at the Coliseum or
New Coliseum at least two (2) (i) non-basketball main arena ticketed events, (ii) that are
consistent with the Public Purposes, (iii) that are advertised and open to the general public,
(iv) that are expected by the Grantee to have an economic return sufficient to cover all of the
Grantees costsincluding without limitation, an appropriate portion of the Grantees
overhead and depreciationassociated with presenting such an event at the Property, which
costs Grantee will make a good faith effort to maintain at a reasonable and affordable level,
and (v) that do not conflict with the schedules of the Grantees events or any other events at
the Property (collectively, a Qualifying Event). If in one calendar year, in spite of
exercising reasonable efforts to market and promote the Property for Qualifying Events, the
Grantee is asked by Grantor to host fewer than two (2) Qualifying Events, the Grantee shall be
conclusively deemed to have complied with its obligations under this Section B.2. It is
recognized that the Grantees events and the scheduling of any other events at the Property
may change over time. The parties agree that any Grantee events or other events scheduled
(or not scheduled) at the Property in any one calendar year shall not limit the Grantees ability
to schedule such events at the Property in any subsequent calendar years.
3. Grantor Events. The Grantee shall allow the Grantor to use the Property for the
Grantors events up to two (2) times per calendar year during the Base Term, on the terms and
conditions provided in this Section B.3.
The Grantor must notify the Grantee each calendar year at least six (6) months a.
in advance of the desired date(s) for any such Grantor Event (the Grantor
Advance Scheduling Notice). Upon receiving a Grantor Advance Scheduling
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Notice, the Grantee shall work cooperatively with the Grantor in scheduling and
hosting the Grantor Event on an agreed date (the Grantor Scheduled Date).
If the Grantee receives a request to host or present another event on the Grantor b.
Scheduled Date and the Grantee notifies the Grantor no less than ninety (90)
days prior to the Grantor Scheduled Date that the Grantee desires to reschedule
the Grantor Event (a Rescheduling Request), then the Grantor and the
Grantee shall work in good faith to reschedule the Grantor Event on a mutually
agreeable date.
The Grantee shall not be liable for any inability to schedule or host a Grantor c.
Event at the Property if the Grantor does not send the Grantor Advance
Scheduling Notice to the Grantee as and when required by this Section B.3
(time being of the essence of the Grantor Advance Scheduling Notice). If the
Grantor does not timely send a Grantor Advance Scheduling Notice to the
Grantee, the Grantee shall nonetheless be conclusively deemed to have
complied with its obligations under this Section B.3 with respect to such
Grantor Event, even if such Grantor Event is not hosted at the Property.
No Grantor Advance Scheduling Notice may be sent more than twelve (12) d.
months in advance of the earliest date specified in the Grantor Advance
Scheduling Notice.
For any Grantor Event, the Grantor shall be responsible for payment of amounts e.
sufficient to cover all of the Grantees costs in hosting such Grantor Events,
including without limitation, an appropriate portion of the Grantees overhead
and depreciation associated with presenting such Grantor Event at the Property,
it being agreed that Grantee shall make a good faith effort to maintain said
costs at a reasonable level.
No Grantor Event shall interfere with the schedules of events already scheduled f.
at the Property, and the Grantee reserves the right to send a Rescheduling
Request pursuant to Subsection B.3(b) above.
If in any calendar year, the Grantor does not request use of the Property for at g.
least two (2) Grantor Events, the Grantee shall nonetheless be conclusively
deemed to have complied with its obligations under this Section B.3 for that
calendar year. A Grantor Event shall not count as a Qualifying Event.
4. Repeat Community Events. The Grantee shall, subject to the conditions and limitations
provided in this Section B.4, host at the Property during each calendar year during the Base
Term the following six (6) events (collectively, the Repeat Community Events, and each, a
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Repeat Community Event): (i) commencement ceremonies for Forsyth Technical


Community College, or a successor institution with similar educational mission (with
additional ceremonies or overflow from ceremonies on the Property hosted in buildings on the
Fairgrounds Parcel (defined in Section E.5 below) as needed to handle the size and number
of ceremonies); (ii) commencement ceremonies for Winston-Salem State University, or a
successor institution with similar educational mission (with additional ceremonies or overflow
from ceremonies on the Property hosted in buildings on the Fairgrounds Parcel as needed to
handle the size and number of ceremonies) (WSSU Commencement); (iii) graduation
ceremonies for Winston-Salem/Forsyth County High Schools (with additional ceremonies or
overflow from ceremonies on the Property hosted in buildings on the Fairgrounds Parcel as
needed to handle the size and number of ceremonies) (High School Graduations); (iv) the
Frank Spencer High School Basketball Tournament, or a successor local high school
basketball tournament; (v) the annual holiday concert of the Piedmont Wind Symphony, or a
successor civic wind symphony group; and (vi) the Christmas concert of the Winston-Salem
Symphony, or a successor civic symphony group. The Repeat Community Events (A)
described in clauses (i) through (iii) of the preceding sentence may be referred to herein
collectively as the Graduation Events and each individually as a Graduation Event, and
(B) described in clauses (iv) through (vi) of the preceding sentence may be referred to herein
as the Winter Events and each individually as a Winter Event. The applicable non-profit
or governmental entities presenting any Repeat Community Event may be referred to herein as
an Event Sponsor.
An Event Sponsor for a Winter Event must notify the Grantee each calendar year at a.
least six (6) months in advance of the desired date(s) for its Winter Event (the
Advance Scheduling Notice). Upon receiving an Advance Scheduling Notice, the
Grantee shall work cooperatively with such Event Sponsor in scheduling and hosting
the applicable Winter Event on an agreed date (the Event Scheduled Date).
Each Graduation Event shall be entitled to reserved dates each calendar year (the b.
Reservation Dates), set according to the particular day of the week and the
particular week of the applicable calendar month in which the commencement
ceremonies associated with each Graduation Event were held in the year in which the
Effective Date occurred. As an example but not by way of limitation, if
commencement ceremonies were held on Sunday, May 12, 2013, then the Reservation
Dates in subsequent years would be the second Sunday of May and the two preceding
days. It is agreed that each Graduation Event shall have a total of three (3) days for
set-up, rehearsal, ceremonies and clean-up, but that the Reservation Dates shall be set
according to the preceding provisions of this Section B.4(b) according to the date on
which the commencement ceremonies were held in the year in which the Effective
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Date occurred, understanding that the Reservation Dates also shall include the two days
preceding such date, for purposes of set-up and rehearsal.
If the Grantee receives a request to host or present another event on the Event c.
Scheduled Date for a Winter Event and the Grantee notifies the Event Sponsor no less
than ninety (90) days prior to the Event Scheduled Date that the Grantee desires to
reschedule the Winter Event (an Event Rescheduling Request), then the Event
Sponsor and the Grantee shall work in good faith to reschedule the Winter Event on a
mutually agreeable date. Grantee and the applicable Event Sponsor for a Graduation
Event shall be bound to the Reservation Dates for such Graduation Event, unless
Grantee and the applicable Event Sponsor mutually agree to reschedule the applicable
Graduation Event in any given calendar year. Up to the date that is ninety (90) days
prior to the Reservation Dates or the Event Scheduled Date, as the case may be, an
Event Sponsor may request in writing to Grantee a change in the scheduling of its
Repeat Community Event, and Grantee will exercise good faith efforts to accommodate
the request. Notwithstanding any provision of this DeclarationSection B to the
contrary, Grantees graduation and commencement ceremonies and related events, and
preparations and rehearsals in connection therewith, have scheduling priority over all
other events except for WSSU Commencement and High School Graduations on their
respective Reservation Dates for the then-current year.
The Grantee shall not be liable for any inability to schedule or host a Winter Event if d.
the Event Sponsor does not send the Advance Scheduling Notice to the Grantee as and
when required by this Section B.4 (time being of the essence of the Advance
Scheduling Notice). If the Event Sponsor does not timely send an Advance Scheduling
Notice to the Grantee, the Grantee shall nonetheless be conclusively deemed to have
complied with its obligations under this Section B.4 with respect to such Winter Event
for that calendar year, even if such Winter Event is not hosted at the Property.
No Advance Scheduling Notice may be sent for a Winter Event more than twelve (12) e.
months in advance of the earliest date specified in the Advance Scheduling Notice. No
Winter Event shall interfere with the schedules of events already scheduled at the
Property, and the Grantee reserves the right to send an Event Rescheduling Request
pursuant to Subsection B.4(c) above.
If any Event Sponsor does not schedule, or schedules but does not present, any Repeat f.
Community Event at the Property for five (5) successive calendar years, then in each
such case, this Declaration shall be automatically amended to delete such Repeat
Community Event from the listing above in this Section B.4 and the Grantee shall have
no obligation whatsoever to host such Event Sponsors Repeat Community Event. No
action by any party shall be necessary to accomplish the amendment described in the
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preceding sentence, it being the intention of the parties that the foregoing sentence
shall be self-executing.
A Repeat Community Event shall not count as a Qualifying Event or Grantor Event. g.
The Grantees arrangements with an Event Sponsor shall be on substantially the same h.
prevailing contract terms and conditions as are contained in the contract between the
City of Winston-Salem and the applicable Event Sponsor executed or performed in the
twelve-month period preceding the date of this Declaration (the Reference Period),
including, without limitation, the following terms:
i. All fees and any other pricing in a contract for a Repeat Community
Event shall be subject to a maximum increase based on the percentage by which
the Consumer Price Index for All Urban Consumers (CPI-U); South Region;
All Items, not seasonally adjusted, 1982-1984=100 reference base (or any
replacement of the foregoing as the standard reference base for CPI-U) (CPI)
for the month of January during the Reference Period has increased as compared
to the CPI for the month of January of the calendar year in which the Repeat
Community Event is to be held. It is agreed by the parties that if the CPI for
January of the calendar year in which the Repeat Community Event is to be held
has not been published at the time that the Grantee and the Event Sponsor desire
to finalize their agreement for such years Repeat Community Event, then the
most recently published monthly CPI shall be compared against the CPI for the
month of January during the Reference Period. The Grantor has previously
delivered to the Grantee complete copies of the contracts between the Grantor
and each Event Sponsor with respect to the Repeat Community Events during the
Reference Period.
ii. Each Repeat Community Event shall include on-site parking
provided by the Grantee (a) free of charge for the Winston-Salem Symphony
Christmas concert and each Graduation Event, and (b) for all other Repeat
Community Events, at rates, if any, as established by Grantee from time to time,
provided parking rates shall not exceed those charged during the Reference
Period, subject to CPI increase as described in subsection B.4(h)(i) above. If
parking is provided free of charge for a Repeat Community Event, Grantee shall
have no obligation to provide parking staffing unless such service is paid for in
the Event Sponsors rental fee.
iii. The Grantee agrees to provide requested on-site event staffing for
each Repeat Community Event to each Event Sponsor on substantially the same
terms offered by Grantor to such Event Sponsor during the Reference Period
(subject to the aforesaid CPI adjustment), consistent with the overall goal of
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recovering the Grantees costs incurred in hosting the Repeat Community Event
but without expectation of profit. For each Repeat Community Event, the Grantee
will make a good faith effort to maintain its costs at a reasonable and affordable
level for each Event Sponsor.
iv. The Event Sponsor may provide appropriate promotional signage
to be displayed on the Coliseums or New Coliseums electronic marquee (or, in
the event the Coliseums or New Coliseums marquee is replaced, then on any
replacement marquee located on the Property), which language the Grantee
reserves the right to modify if such language is inappropriate in Grantees
discretion or could potentially violate or abridge any Applicable Laws or
grandfathering status for the Property or signage on the Property.
5. Remembrance Events. The Grantee shall allow the Grantor or a non-profit entity or a
governmental entity that is designated by Grantor to Grantee in writing (Designee) to host a
Memorial Day ceremony and a Veterans Day ceremony (each, a Remembrance Event) at
the Property on the terms described in this Section B.5. As used in this Section only, Grantor
and any Designee shall be referred to collectively as Grantor. Any Designee must be
identified in a written notice from Grantor to Grantee given at least two (2) weeks in advance
of the applicable Remembrance Event. A Remembrance Event shall:
be hosted in the Lawrence Joel Veterans Memorial Lobby (as defined below) a.
or another area designated by the Grantee within the Property that is
comparable in size, accessibility and visibility, or in any other mutually agreed
upon location;
be held on the date of the federally-designated holiday associated with the b.
Remembrance Event, or on such other date as is agreed to by the Grantee and
the Grantor;
be conducted with minimal on-site event staffing by the Grantee within the area c.
of the Coliseum where the event is to be located, as determined by the Grantee;
be hosted free of charge; and d.
have parking provided free of charge, but the Grantee will have no obligation to e.
staff parking areas for any Remembrance Event.
6. Damage and Destruction. In the event of substantial damage to or destruction of the
Coliseum at the Property, Grantee shall undertake to build one (1) new assembly-type building
for the purpose of fulfilling its obligations with respect to the Public Purposes (a New
Coliseum), which New Coliseum may be located anywhere on the Property or on an
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Alternative Site (as defined in Section GH below), as determined by Grantee in its sole
discretion. During the Base Term, Grantee shall maintain a policy of insurance against fire
and other hazards or casualties insuring the Coliseum, the New Coliseum in an amount equal
to one-hundred percent (100%) of the replacement cost. During the course of any alterations
Grantee (or its contractor) shall carry replacement cost builders insurance. A duplicate
original of the policy of physical damage insurance, all renewals thereof, and any subpolicies
or certificates and endorsements issued thereunder shall be provided on request to the Grantor,
which requests shall be made no more frequently than annually. Grantee shall have no
obligation to maintain, repair, replace, construct or operate the Coliseum or the New Coliseum
on the Property or on an Alternative Site after the expiration of the Base Term, and any such
maintenance, repair, replacement, construction or operation of the Coliseum or the New
Coliseum after the Base Term shall not be interpreted or construed as an extension of the Base
Term.
7. Condemnation. In the event so much of the Property is taken in the exercise of
eminent domain, or a transfer in lieu of such a taking, that (a) if the Coliseum is then located
on the Property, operation of the Coliseum is made infeasible as determined by Grantee in its
sole discretion, or (b) if the New Coliseum is then located on the Property, operation of the
New Coliseum is made infeasible as determined by Grantee in its sole discretion, or (c) if the
Coliseum or the New Coliseum is then, or must as a result of the taking be, demolished and
construction of the New Coliseum on the Property is inadvisable for any reason as determined
by Grantee in its sole discretion, then in any such event, the parties agree that performance of
this Declaration shall be rendered impossible, and Grantee automatically shall be released from
and relieved of its obligations under this Declaration and the Property automatically shall be
released from this Declaration. In the event of any impossibility pursuant to the previous
sentence, upon the request of either party, the parties shall execute appropriate documentation
in recordable form to confirm the termination of this Declaration and shall cause the same to
be recorded in the Forsyth County Registry.
8. Compliance with Public Purposes.
a. Without intending to limit the manner or number of ways in which Grantee
may comply with its obligations with respect to Public Purposes under this
Declaration, the parties agree that if Grantee performs its obligations under
Section B.2, Section B.3, Section B.4 and Section B.5 above (or if any
conditions have occurred under which compliance is conclusively deemed under
such Sections, or is excused under Subsection B.8(b) below, or if any non-
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compliance has been cured for purposes of Section F below) in any calendar
year, then Grantee will have discharged its obligations under the Declaration for
such calendar year with respect to the Public Purposes.
b. During any Major Project, Grantee will keep Grantor advised as to the status
and progress of the Major Project and the estimated timeframe for restoration of
hosting of the events contemplated by Section B.2, Section B.3, Section B.4
and Section B.5. Notwithstanding any provision of this DeclarationSection B to
the contrary, if, in the sole discretion of Grantee, the Coliseum or the New
Coliseum is not capable of hosting certain events while the Grantee is
undertaking a Major Project (as defined in Section GH below) on the
Property, then (i) Grantee shall be excused from any failure or inability to
perform its obligations under Section B.2, and Section B.3 above, and (ii) no
Breach Notice can be given until the earlier of completion of the Major Project,
or Grantees determination in its reasonable discretion that the Coliseum or
New Coliseum, as the case may be, is capable of hosting the events
contemplated by Section B.2 and Section B.3 above. With respect to Grantees
obligations set forth in Section B.4 and Section B.5, Grantee shall endeavor to
schedule any Major Project so as to allow Repeat Community Events and
Remembrance Events to be held at the Property even if the Major Project is
ongoing, but if Grantee determines in its reasonable discretion that a Repeat
Community Event or Remembrance Event should not be held at the Property
during a Major Project, and if Grantee endeavors to find an alternate location
for the applicable Repeat Community Event (and Grantor agrees to fairly
consider in good faith Grantees request to Grantor to make any of its event
facilities available for such purpose on the same terms as Grantee would have
otherwise been obligated to provide for such Repeat Community Event, as long
as there are no conflicting events scheduled at the applicable Grantor facilities),
then (i) Grantee shall be excused from any failure or inability to perform its
obligations under Section B.4 or Section B.5, as applicable, and (ii) no Breach
Notice can be given to Grantee relating to such failure or inability.
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9. Issues with Certain Events. If any complaint is received by Grantee regarding a


particular Repeat Community Event or Remembrance Event, and if Grantee has not resolved
such complaint within a reasonable time, two representatives of Grantee and two
representatives of Grantor shall together evalauateevaluate such complaint and provide an
advisory opinion to Grantee regarding possible resolutions to such complaint, consistent with
Grantees obligations under this Declaration.
Section: C. Memorials to Lawrence Joel and Veterans
1. During the Memorial Term, Grantee shall retain at the Coliseum, New Coliseum and
Alternative Site the Lawrence Joel name in a Meaningful Manner, which term means that:
The Lawrence Joel Veterans Memorial plaque and portrait, which are on the a.
Effective Date mounted in a room that functions as the main lobby of the
Coliseum, shall be displayed in that same room or in another location within
the Coliseum, and New Coliseum that is comparable in size, accessibility and
visibility; and
Grantee will make information about Lawrence Joel and his contributions to the b.
Winston-Salem community available on any website for the Coliseum or New
Coliseum that is owned, operated, controlled or sponsored by Grantee.
The room that functions as the main lobby of the Coliseum on the Effective c.
Date shall be designated The Lawrence Joel Veterans Memorial Lobby and a
plaque or other signage or clearly visible inscription displaying that name shall
be displayed in that room; and
The two areas immediately outside of the entry and exit doors for the space to d.
be designated The Lawrence Joel Veterans Memorial Lobby on which the
Veterans Monuments (defined herein) are located shall be designated The
Lawrence Joel Veterans Memorial Plaza and a plaque or other signage or
clearly visible inscription displaying that name shall be displayed in such area.
With respect to Section C. 1(c) and Section C.1(d) above, if Grantee is otherwise obligated by
the terms of this Declaration to construct the New Coliseum, Grantee shall: (i) designate in the
New Coliseum at the Property or Alternative Site, an area comparable in size and visibility to
the Coliseum, as The Lawrence Joel Memorial Lobby and display a plaque or other signage
visibly depicting the such name, and (ii) designate in the New Coliseum at the Property or
Alternative Site an area comparable in size and visibility to the Coliseum, as The Lawrence
Joel Veterans Memorial Plaza. The memorials to Lawrence Joel and the Veterans must be
retained during the Memorial Term at the Coliseum and the New Coliseum on the Property
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and Alternative Site. If the Grantee and Grantor agree upon additional means of
memorializing Lawrence Joel and war veterans at the Property during the Memorial Term, it is
agreed that the expense of any additional memorials or monuments shall be paid for by the
Grantor.
2. Veterans Monuments. During the Memorial Term, Grantee shall retain and maintain,
at the Grantees sole expense, the veterans monuments, monument areas and landscaping,
including the locator sign substantially as they exist on the Effective Date (collectively,
Veterans Monuments), on the Property or the Alternative Site in accordance with the
Veterans Program Guidelines attached hereto as Exhibit D. In the event of substantial
damage to or destruction of the Coliseum at the Property, if Grantee is otherwise obligated by
the terms of this Declaration to repair or restore the Coliseum or to construct the New
Coliseum, and in such event, if it is necessary in connection with such repair, restoration or
construction, Grantee shall cause the Veterans Monuments to be relocated to a location on the
Property that is approved by both the Grantee and the Grantor, such Grantor approval not to
be unreasonably withheld, conditioned or delayed. During the Memorial Term, Grantee shall
allow Remembrance Events detailed in Section B.5. to occur at the Alternative Site if the
Veterans Monuments are located there.
Grantor may at any time cause the Veterans Monuments to be removed to a different location
if desired by Grantor, provided that (i) any damage done to the Property or an Alternative Site
as the result of such removal shall be repaired by Grantor or Grantee (at Grantees election),
and at Grantors expense, (ii) Grantor shall provide 180 days notice to Grantee of Grantors
desire to remove the Veterans Monuments, (iii) Grantor shall actually remove the Veterans
Monuments within 180 days of said notice, and (iv) upon such removal by Grantor, Grantees
obligations under this Section C.2 shall terminate. Following expiration of the Memorial
Term if the Veterans Monuments are still located on the Property or Alternative Site, as
applicableand unless Grantee and Grantor have previously reached an alternative agreement
regarding the relocation or disposition of the Veterans MonumentsGrantee may provide
notice to Grantor to remove the Veterans Monuments, and for a period of 180 days after such
notice, Grantor shall be entitled to enter upon the Property or the Alternative Site, as the case
may be, and remove the Veterans Monuments, it being agreed that any damage done to the
Property or an Alternative Site as the result of such removal shall be repaired by Grantor or
Grantee (at Grantees election), and at Grantors expense. If for any purpose under this
Section C.2, Grantor is allowed a period of 180 days to remove the Veterans Monuments and
Grantor does not cause the Veterans Monuments to be removed within such period, then
Grantor shall have automatically waived any right, title, interest or claim in or to the Veterans
Monuments.
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If any Veterans Monuments are damaged or destroyed, the Grantor shall be responsible for
the cost of repairing, replacing and/or restoring the Veterans Monuments that have been so
damaged or destroyed, unless such damage or destruction is caused by the negligent or
intentional act or omission of Grantee, its employees, officers, or agents(in which case, the
Grantee shall bear the cost of repairing, replacing and/or restoring the Veterans Monuments).
If the Grantee undertakes a Major Project at the Property or Alternative Site that either
enlarges or reduces the footprint of the Coliseum or New Coliseum, or if the Grantee elects to
demolish the Coliseum and build the New Coliseum, the Grantee in either event shall cause
the Veterans Monuments to be relocated to a location on the Property or Alternative Site that
is approved by both the Grantee and the Grantor, such Grantor approval not to be
unreasonably withheld, conditioned or delayed. In the event of any relocation of the Veterans
Monuments on the Property or Alternative Site, the Remembrance Events shall be held in
proximity to the new location of the Veterans Monuments. The public shall have free access
(including parking at no charge) to the Veterans Monuments, as the same may be relocated
on the Property or Alternative Site, except during a paid or restricted parking event occurring
at the Property or Alternative Site or an event occurring on the Fairgrounds Parcel that is
entitled to have paid or restricted parking on the Property. Grantee shall be entitled to
relocate the Veterans Monuments to another location on the Property that is approved by both
the Grantee and the Grantor, such Grantor approval not to be unreasonably withheld,
conditioned or delayed.
3. Veterans Wall. As long as the Coliseum remains on the Property, the granite
veterans memorial wall, which, as of the Effective Date, is mounted in a room that functions
as the main lobby of the Coliseum, shall be displayed in that same room or in another location
within the Coliseum that is comparable in size, accessibility and visibility. If the New
Coliseum is built on the Property or Alternative Site, Grantee shall install a veterans
memorial substantially similar in scope to the veterans wall at the Coliseum on the Effective
Date, in an area that is comparable in size, accessibility and visibility to the room in which the
veterans memorial wall is displayed in the Coliseum as of the Effective Date.
4. Retention of Names on Certain Signage. To the extent permitted by Applicable Laws,
during the Memorial Term, Grantee shall cause (a) the marquee sign (and any replacement
thereof) on University Parkway and (b) the rectangular stone faade located on the Effective
Date over the Coliseums box office, to include as an element of such signage a display of the
names Lawrence Joel and Veterans Memorial in a manner that is appropriately visible,
and in the case of the marquee sign, such display also shall be visible to drivers on University
Parkway. Grantee may, in Grantees discretion, elect to use any such signage to indicate that
the Lawrence Joel Veterans Memorial Plaza is located on the Property.
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45. Changes in Design or Display. After a public input session soliciting input from
veterans, descendants of Lawrence Joel and the public regarding the proposed change in
design and display, Grantor and Grantee may agree to change the design or display of any of
the memorials described above in Section C.1, Section C.2 and Section C.3 (collectively, the
Memorials). In such event, the Grantee and Grantor may enter into a mutually acceptable
agreement concerning the change in design or display of the Memorials (or any of them), and
the applicable Memorials as so changed shall be displayed on the Property or Alternative Site,
as applicable.
56. Access Restriction During a Major Project. Notwithstanding any provision of this
DeclarationSection C to the contrary, if, in the reasonable discretion of Grantee, access to any
of the Memorials should be restricted during all or a portion of the applicable Major Project,
then (i) Grantee shall notify Grantor of the need for restricted access and which of the
Memorials will be affected (the Access Restriction Notice), (ii) Grantee shall keep Grantor
advised as to the status and progress of the Major Project and the estimated timeframe for
completion thereof, (iii) Grantee shall be excused from any failure or inability to perform its
obligations under Section C.1, Section C.2 or Section C.3 above (as applicable, depending on
the scope of the Access Restriction Notice), and (iv) no Breach Notice can be given with
respect to those obligations that are within the scope of the Access Restriction Notice until the
earlier of completion of the Major Project, or Grantees determination in its reasonable
discretion that access can be restored to the Memorials subject to the Access Restriction
Notice provided completion of the Major Project has not been unreasonably delayed.
Section: D. Maintenance of Property and Reserved Rights
1. During the Base Term, Grantee shall maintain, at all times, the Property, including, but
not limited to, the Coliseum or the New Coliseum, as the case may be, parking lots,
accessways, sidewalks, traffic islands, and related landscaping, in a good state of repair and in
compliance with all Applicable Laws. During any Major Project that materially affects
Grantees ability to perform its obligations under this Section D.1, Grantee will keep Grantor
advised as to the status and progress of the Major Project and the estimated timeframe for
resumption of Grantees ability to perform its obligations under this Section D.1, and until the
earlier of the date that Grantee has notified Grantor that it can resume its obligations under
this Section D.1, or the date of completion of the Major Project, Grantee shall be excused
from any failure or inability to perform its obligations under this Section D.1, and no Breach
Notice can be given with respect to such obligations provided completion of the Major Project
has not been unreasonably delayed.
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2. During the Base Term, Grantee shall invest a minimum of Ten Million Dollars
($10,000,000.00) in the Property (the Investment Obligation), which may be expended by
Grantee, without limitation, in repairs and maintenance, deferred maintenance, or capital
improvements to the Property. Grantee presently anticipates that the Investment Obligation
may be directed toward any one or more of the following projects:
Building Automation System
Heating, Ventilation and Air Conditioning System
Electrical Generator System
Fire Alarm System
Restroom Fixtures
Food Service
Miscellaneous Mechanical, Electrical and Plumbing
Security System
Audio, Cabling and Control Room
Roof cleaning and repairs
It is agreed that in the event the New Coliseum is constructed before the Investment
Obligation has been satisfied, then any amounts spent by Grantee in constructing the New
Coliseum shall count against the Investment Obligation. While Grantee is not and shall not be
obligated to complete all of the projects listed in this Section D.2.; Grantee is obligated to
satisfy its Investment Obligation before the end of the Base Term. At least twelve (12) months
before the end of the Base Term, Grantee shall deliver to Grantor evidence of Grantees
compliance with the Investment Obligation, which shall consist of invoices, contracts, or
purchase orders and proof of payment of the same. If Grantee has not satisfied its Investment
Obligation by December 31, 2034, Grantee shall pay to Grantor, within one-hundred and
twenty (120) days following the expiration of the Base Term, the difference between the
Investment Obligation and the actual amount expended by Grantee during the Base Term
toward the Investment Obligation.
3. Notwithstanding any provision of this Declaration to the contrary, Grantee has, and
shall have, the right from time to time to have minor or temporary disruptions of the normal
access and traffic patterns on the Coliseum Property, as long as reasonable access, ingress and
egress is provided to the Memorials and to the Coliseum.
16

4. Except as provided above in Section C with respect to the Memorials, no provision of


this Declaration shall limit or impair Grantees rights to alter or redesign parking lots,
accessways, sidewalks, traffic islands, and related landscaping, or any other improvements to
the Coliseum Property from time to time provided reasonable access, ingress and egress to the
Memorials and the Coliseum is afforded.
Section: E. Operational Covenants for the Coliseum
1. Premium Seating. The Grantee shall retain and maintain at the Coliseum or New
Coliseum, at no cost to the Grantor, a permanent box suite or comparable premium (non-
private) seating for the Grantors representatives (CWS Premium Seating) for the Grantors
marketing and promotional activities, on the following terms and conditions:
The Grantee shall not be obligated to provide tickets, beverages or food for any a.
persons using the CWS Premium Seating, such provisions to be made by the
Grantor or any other persons or entities other than the Grantee; and
If the Grantor declines a permanent box suite or comparable premium (non- b.
private) seating, or if the Grantee eliminates box suites or premium seating in
the Coliseums seating structure, then the Grantee shall supply the Grantor with
eighteen (18) adjacent seats in an area of the Coliseum or New Coliseum that
provides a substantially similar lower- or upper-level panoramic view of the
Coliseum or New Coliseum floor.
The Parking Agreement (defined in Section E.7 below) may make provisions for
parking passes that may be used in connection with CWS Premium Seating.
2. Winston-Salem Name. During basketball games at the Coliseum, the Grantee shall
display the Winston-Salem name on the basketball floor in the Coliseum. Except as
provided in the preceding sentence, the Grantor has no rights with respect to the naming or
renaming of the Property, the Coliseum or any other improvements constructed or
reconstructed on the Property from time to time, nor with respect to any sponsorships or
events at the Property, the Coliseum or any other improvements constructed or reconstructed
on the Property from time to time. The immediately preceding sentence shall not be construed
as a waiver of Grantors municipal regulatory authority over signs in general.
It is understood and agreed that if the National Collegiate Athletic Association, or any
successor regulatory body with respect to collegiate athletics, or the Atlantic Coast
Conference, or any other collegiate athletic conference of which Grantee may be a member
from time to time (collectively, the Athletics Regulators) adopt rules or regulations
regarding content displayed on basketball floors, which prohibit Grantees compliance with the
terms of this Section E.2 or limit the Grantees ability to comply with the terms of this
17

Section E.2, then Grantee shall, to the extent allowed by the Athletics Regulators, display the
Winston-Salem name on floor-level electronic sidelines signage, but if that display is also
prohibited or limited by Athletics Regulators, Grantees obligations under this Section E.2
shall be excused for as long as such rules and regulations of the Athletics Regulators remain
in effect.
3. Tourism Related Events and Occupancy Tax Fund. Grantee shall fairly consider in
good faith request(s) to schedule at the Coliseum or New Coliseum tourism and other
community outreach events, which may include, without limitation, events such as religious
conventions, Amateur Athletic Union (AAU) sports, North Carolina High School Athletic
Association (NCHSAA) events, State of North Carolina State games and college basketball
tournaments (collectively the Tourism Events, and each a Tourism Event). Grantee
shall be entitled to charge normal usage rates for the Coliseum or New Coliseum, as
applicable, for any Tourism Event.
The Grantor shall maintain an annual appropriation of $75,000 from the Winston-
Salem/Forsyth County Occupancy Tax Fund, or an equivalent or replacement fund (OTF) to
support Tourism Events at the Property that are chosen by the Grantor for reasons that may
include promoting tourism or community outreach, and which may include, without limitation,
subsidizing the Grantees costs of presenting the Tourism Event. The OTF shall not be used to
subsidize or defray the costs of Repeat Community Events, Qualifying Events, Grantor Events
or Remembrance Events. OTF support may include, but shall not be limited to, defrayal or
subsidization of an event promoters cost of holding such event at the Property. There shall be
no annual appropriation from the Grantors General Fund to support Property operations.
Should the OTF terminate or otherwise cease to exist, the Grantors obligation to maintain the
annual appropriation for the purpose of providing support for the aforementioned events shall
terminate.
4. Boulevard. Except (i) during events at the Property or on other real property owned by
Grantee, for which all or a portion of the Property is subject to restricted or paid parking,
(ii) during events on the Fairgrounds Parcel for which Grantee has agreed to have paid or
restricted parking on the Property, and (iii) as otherwise provided in this Declaration, the
Grantee shall keep open for public access the driveway known as Commander Norman Miller
Boulevard, as the same may be renamed from time to time, as shown on the Site Plan
attached hereto as Exhibit C.
5. Dixie Classic Fair Promotion. Subject to compliance with applicable laws, regulations
and ordinances, whether federal, state or local (collectively, Applicable Laws), the Grantee,
on request from Grantor, shall allow the Grantor to promote the Dixie Classic Fair, or a
successor county fair/exposition event on the real property described on Exhibit B attached
18

hereto and incorporated herein by this reference (the Fairgrounds Parcel) that is an
equivalent exposition-type fair serving northwestern North Carolina to be held during the year
in which the promotional request is made (collectively, the DCF) on the Coliseums or New
Coliseums electronic marquee (or, in the event the Coliseums or New Coliseums marquee is
replaced, then on any replacement marquee located on the Property), free of charge, for a
period of not less than two (2) weeks prior to and during the scheduled DCF, in the regular
rotation of sign content for such electronic marquee (it being understood that each sign in the
rotation must be displayed for a minimum of two (2) minutes at a time). For as long as the
parking canopy with electronic message board located on the Property on the Effective Date
(the Parking Canopy) is located on the Property, subject to compliance with Applicable
Laws, the Grantee shall allow the Grantor to promote the DCF, free of charge, for a period of
not less than two (2) weeks prior to and during the scheduled DCF, in the regular rotation of
sign content for the Parking Canopys electronic message board (it being understood that each
sign in the rotation must be displayed for a minimum of two (2) minutes at a time). It is
agreed that if the Parking Canopy is destroyed or substantially damaged in a casualty, or if the
Parking Canopy is dismantled because of a Major Project, then Grantee shall have no
obligation to rebuild or restore the Parking Canopy and Grantees obligations in the preceding
sentence shall be released and of no further force or effect. If Applicable Laws change the
interval at which electronic signs can change their message, or if any grandfathering
condition or legal non-conforming status for certain signs on the Property allowing such signs
to change at a more or less frequent interval than is allowed by Applicable Laws is lost or
revoked, then the sign change intervals specified in this Section E.5 shall change as necessary
to comply with Applicable Laws. The Grantee shall be entitled to regulate the content of any
such promotional signage; notwithstanding the foregoing, such signage shall specify the name
of the DCF event and the dates and times on which the event shall be presented.
6. Taxes. The Grantee shall list the Property and any business personal property owned
by Grantee and used on the Property with appropriate tax authorities as required by law and,
to the extent Grantees use of the Property or its business personal property shall be
determined to not be exempt from taxes, the Grantee shall pay any such taxes billed on such
real and personal property before the same become overdue. The foregoing sentence shall not
limit, impair or waive the right of the Grantee to seek exemptions from taxation based on the
use of its real or personal property, nor shall it limit the right of the Grantee to appeal the
valuation of such real or personal property or the amount of any taxes assessed on such real or
personal property.
7. Parking. The agreements of the Grantor and the Grantee with respect to parking for
the DCF on the Property is provided in that certain Parking Agreement dated as of
____________, 201__, which, together with any amendments, modifications, restatements
and/or assignments of the same which may occur from time to time (collectively, the
19

Parking Agreement), are incorporated into this Declaration by reference. The Property will
be subject to use for parking for the DCF, until the date on which the Grantor has ceased to
hold the DCF on the Fairgrounds Parcel for five (5) successive calendar years, in accordance
with the Parking Agreement.
8. Major Projects Affecting Certain Operational Covenants. Notwithstanding any
provision of this DeclarationSection E to the contrary, if, in the reasonable discretion of
Grantee, a Major Project will materially affect Grantees ability to perform its obligations
under Section E.1, Section E.3 or Section E.4, then (i) Grantee shall notify Grantor of the
Major Project and of which of Grantees obligations under Section E.1, Section E.3 or Section
E.4 (or all of them) will be materially affected thereby, (ii) Grantee shall keep Grantor advised
as to the status and progress of the Major Project and the estimated timeframe for completion
thereof, (iii) Grantee shall be excused from any failure or inability to perform its obligations
under Section E.1, Section E.3 or Section E.4 above (as applicable, depending on the scope of
Grantees notice), and (iv) no Breach Notice can be given with respect to those obligations
that are within the scope of the Grantees notice until the earlier of completion of the Major
Project, or Grantees determination in its reasonable discretion that it can resume performance
of its obligations in Section E.1, Section E.3 and Section E.4. provided completion of the
Major Project has not been unreasonably delayed.
Section: F. Enforcement
1. If Grantee shall fail to comply with any obligation provided in Section B, Section C,
Section D, or Section E above, then Grantor may provide to Grantee written notification of the
same detailing the nature of the breach or failure to comply (a Breach Notice).
Repeat Community Event. Upon receipt from the Grantor of a Breach Notice a.
regarding any provision of Section B.4. (a B.4. Breach Notice) for the first
time, Grantee shall elect to, (i) within a period of thirty (30) days from the date
of receipt of such first B.4. Breach Notice, cure the failure or breach, or
(ii) within ninety (90) days from the date of receipt of such first B.4. Breach
Notice, pay the Event Sponsor as liquidated damages in satisfaction of the harm
suffered by the Event Sponsor and the Grantor, caused by the condition giving
rise to the first B.4. Breach Notice, ten thousand dollars ($10,000.00). For all
purposes under this Subsection F.1(a), if Grantee has elected to cure a failure or
breach during any applicable Cure Period provided (as the same may be
extended), then any monetary payment owed in the event that the breach is not
cured shall not become due and payable unless and until Grantee fails to cure
the breach within such Cure Period (as the same may be extended).
20

Upon receipt from Grantor of the second B.4. Breach Notice (and regardless of
whether the Repeat Community Event or Event Sponsor necessitating such
second B.4. Breach Notice is the same as the one associated with the first B.4.
Breach Notice), Grantee shall elect to, (i) within a period of thirty (30) days
from the date of receipt of such second B.4. Breach Notice, cure the failure or
breach, or (ii) within ninety (90) days from the date of receipt of such second
B.4. Breach Notice, pay the Event Sponsor as liquidated damages in satisfaction
of the harm suffered by the Event Sponsor and the Grantor, caused by the
condition giving rise to such second B.4. Breach Notice, twenty-five thousand
dollars ($25,000.00).
Upon receipt from Grantor of the third B.4. Breach Notice (and regardless of
whether the Repeat Community Event or Event Sponsor necessitating the third
B.4. Breach Notice is the same as the one(s) associated with the first or second
B.4. Breach Notice), Grantee shall elect to, (i) within a period of thirty (30)
days from the date of receipt of such third B.4. Breach Notice, cure the failure
or breach, or (ii) within ninety (90) days from the date of receipt of such third
B.4. Breach Notice, pay the Event Sponsor as liquidated damages in satisfaction
of the harm suffered by the Event Sponsor and the Grantor, caused by the
condition giving rise to such third B.4. Breach Notice, one hundred thousand
dollars ($100,000.00).
Upon delivery to Grantee of a fourth B.4. Breach Notice (and regardless of
whether the Repeat Community Event or Event Sponsor necessitating such
fourth B.4. Breach Notice is the same as the one(s) associated with the first,
second or third B.4. Breach Notice), (x) in the event no New Coliseum has
been completed and no Major Project estimated to cost at least ten million
dollars ($10,000,000) is in progress, Grantee shall be obligated, within one
hundred eighty (180) days of receipt of the fourth B.4. Breach Notice to pay to
the Grantor as liquidated damages in satisfaction of the harm suffered, the
difference between the purchase price ($8 million) and fair market value of the
Coliseum ($33,100,000) on the Effective Date which amount shall be reduced
by $1.2 million per year following the Effective Date (excluding any year in
which Grantee received a B.4. Breach Notice), and if such payment is not
timely made by Grantee, Grantor may at its option exercise its power of
termination or right of re-entry with respect to the Property, reserved in Grantor
from the fee simple on condition subsequent conveyed by Grantor to Grantee;
provided, however, that if Grantor has not enforced its power of termination or
right of re-entry with respect to the Property for a period of five (5) years after
the date of the fourth B.4 Breach Notice, then Grantors power of termination
21

or right of re-entry for purposes of this Section F.1(a) automatically shall be


waived for purposes of a Section B.4. breach and of no further force or effect,
but (y) in the event the New Coliseum has been completed or a Major Project
estimated to cost at least ten million dollars ($10,000,000) is in progress, then
for the fourth and each subsequent B.4. Breach Notice, Grantee shall, within
ninety (90) days from the date of receipt of such fourth or subsequent B.4.
Breach Notice, pay the Event Sponsor as liquidated damages in satisfaction of
the harm suffered by the Event Sponsor and the Grantor, caused by the
condition giving rise to such applicable B.4. Breach Notice, one hundred fifty
thousand dollars ($150,000.00).
Remembrance Event. Upon receipt from the Grantor of a Breach Notice b.
regarding any provision of Section B.5. (a B.5. Breach Notice) for the first
time, Grantee shall elect to, (i) within a period of sixty (60) days from the date
of receipt of such first B.5. Breach Notice, cure the failure or breach, or
(ii) within ninety (90) days from the date of receipt of such first B.5. Breach
Notice, pay the Grantor as liquidated damages in satisfaction of the harm
suffered by the Grantor, caused by the condition giving rise to the first B.5.
Breach Notice, ten thousand dollars ($10,000.00). For all purposes under this
Subsection F.1(b), if Grantee has elected to cure a failure or breach during any
applicable Cure Period provided (as the same may be extended), then any
monetary payment owed in the event that the breach is not cured shall not
become due and payable unless and until Grantee fails to cure the breach within
such Cure Period (as the same may be extended).
Upon receipt from Grantor of the second B.5. Breach Notice (and regardless of
whether the Remembrance Event necessitating such second B.5 Breach Notice
is the same as the one associated with the first B.5 Breach Notice), Grantee
shall elect to, (I) within a period of sixty (60) days from the date of receipt of
such second B.5. Breach Notice, cure the failure or breach, or (II) within ninety
(90) days from the date of receipt of such second B.5. Breach Notice, pay the
Grantor as liquidated damages in satisfaction of the harm suffered by the
Grantor, caused by the condition giving rise to such second B.5. Breach Notice,
twenty-five thousand dollars ($25,000.00).
Upon receipt from Grantor of the third B.5 Breach Notice (and regardless of
whether the Remembrance Event necessitating such third B.5. Breach Notice is
the same as the one(s) associated with the first or second B.5. Breach Notice),
Grantee shall elect to, (1) within a period of sixty (60) days from the date of
receipt of such third B.5. Breach Notice, cure the failure or breach, or
22

(2) within ninety (90) days from the date of receipt of such third B.5. Breach
Notice, pay the Grantor as liquidated damages in satisfaction of the harm
suffered by the Grantor, caused by the condition giving rise to such third B.5.
Breach Notice, one hundred thousand dollars ($100,000.00).
Upon delivery to Grantee of the fourth B.5. Breach Notice (and regardless of
whether the Remembrance Event necessitating such fourth B.5. Breach Notice
is the same as the one(s) associated with the first, second or third B.5. Breach
Notice), (x) in the event no New Coliseum has been completed and no Major
Project estimated to cost at least ten million dollars ($10,000,000) is in
progress, Grantee shall be obligated, within one hundred eighty (180) days of
receipt of the fourth B.5. Breach Notice to pay to the Grantor the difference
between the purchase price ($8 million) and fair market value of the Coliseum
($33,100,000) on the Effective Date which amount shall be reduced by $1.2
million per year following the Effective Date (excluding any year in which
Grantee received a B.5. Breach Notice), and if such payment is not timely made
by Grantee, Grantor may at its option exercise its power of termination or right
of re-entry with respect to the Property, reserved in Grantor from the fee simple
on condition subsequent conveyed by Grantor to Grantee; provided, however,
that if Grantor has not enforced its power of termination or right of re-entry
with respect to the Property for a period of five (5) years after the date of the
fourth B.5. Breach Notice, then Grantors power of termination or right of re-
entry for purposes of this Section F.1(b) automatically shall be waived for
purposes of a Section B.5. breach (as applicable) and of no further force or
effect, but (y) in the event the New Coliseum has been completed or a Major
Project estimated to cost at least ten million dollars ($10,000,000) is in
progress, then for the fourth and each subsequent B.5. Breach Notice, Grantee
shall, within ninety (90) days from the date of receipt of such fourth or
subsequent B.5. Breach Notice, pay the Event Sponsor as liquidated damages in
satisfaction of the harm suffered by the Event Sponsor and the Grantor, caused
by the condition giving rise to such applicable B.5. Breach Notice, one hundred
fifty thousand dollars ($150,000.00).
Qualifying Event and Grantor Event. Upon receipt from the Grantor of a c.
Breach Notice regarding any provision of Section B.2. or Section B.3 (a B2/B3
Breach Notice) for the first time, Grantee shall elect to, (i) within a period of
one hundred eighty (180) days from the date of receipt of such first B2/B3
Breach Notice, cure the failure or breach, or (ii) within one hundred eighty
(180) days from the date of receipt of such first B2/B3 Breach Notice, pay the
Grantor as liquidated damages in satisfaction of the harm suffered by the
23

Grantor, caused by the condition giving rise to the first B2/B3 Breach Notice,
five thousand dollars ($5,000.00). For all purposes under this Subsection
F.1(c), if Grantee has elected to cure a failure or breach during any applicable
Cure Period provided (as the same may be extended), then any monetary
payment owed in the event that the breach is not cured shall not become due
and payable unless and until Grantee fails to cure the breach within such Cure
Period (as the same may be extended).
Upon receipt from Grantor of the second B2/B3 Breach Notice (and regardless
of whether the failure to comply necessitating such second B2/B3 Breach
Notice is the same as the one associated with the first B2/B3 Breach Notice),
Grantee shall, (I) within a period of one hundred eighty (180) days from the
date of receipt of such second B2/B3 Breach Notice, cure the failure or breach,
or (II) within one hundred eighty (180) days from the date of receipt of such
second B2/B3 Breach Notice, pay the Grantor as liquidated damages in
satisfaction of the harm suffered by the Grantor, caused by the condition giving
rise to such second B2/B3 Breach Notice, ten thousand dollars ($10,000.00).
Upon receipt from Grantor of the third B2/B3 Breach Notice (and regardless of
whether the failure to comply necessitating such third B2/B3 Breach Notice is
the same as the one(s) associated with the first or second B2/B3 Breach
Notice), Grantee shall, (1) within a period of one hundred eighty (180) days
from the date of receipt of such third B2/B3 Breach Notice, cure the failure or
breach, or (2) within one hundred eighty (180) days from the date of receipt of
such third B2/B3 Breach Notice, pay the Grantor as liquidated damages in
satisfaction of the harm suffered by the Grantor, caused by the condition giving
rise to such third B2/B3 Breach Notice, twenty-five hundred thousand dollars
($25,000.00).
Upon delivery to Grantee of a fourth B2/B3 Breach Notice (and regardless of
whether the failure to comply necessitating such fourth B2/B3 Breach Notice is
the same as the one(s) associated with the first, second or third B2/B3 Breach
Notice), (x) in the event no New Coliseum has been completed and no Major
Project estimated to cost at least ten million dollars ($10,000,000) is in
progress, Grantee shall be obligated, within one hundred eighty (180) days of
receipt of the fourth B2/B3 Breach Notice to pay to the Grantor one hundred
thousand dollars ($100,000.00), and if such payment is not timely made by
Grantee, Grantor may at its option exercise its power of termination or right of
re-entry with respect to the Property, reserved in Grantor from the fee simple on
condition subsequent conveyed by Grantor to Grantee; provided, however, that
24

if Grantor has not enforced its power of termination or right of re-entry with
respect to the Property for a period of five (5) years after the date of the fourth
B2/B3 Breach Notice, then Grantors power of termination or right of re-entry
for purposes of this Section F.1(c) automatically shall be waived for purposes
of a Section B.2. or Section B.3. (as applicable) breach and of no further force
or effect, but (y) in the event the New Coliseum has been completed or a Major
Project estimated to cost at least ten million dollars ($10,000,000) is in
progress, then for the fourth and each subsequent B2/B3 Breach Notice, Grantee
shall, within ninety (90) days from the date of receipt of such fourth or
subsequent B2/B3 Breach Notice, pay the Event Sponsor as liquidated damages
in satisfaction of the harm suffered by the Event Sponsor and the Grantor,
caused by the condition giving rise to such applicable B2/B3 Breach Notice,
one hundred fifty thousand dollars ($150,000.00).
Upon the waiver, lapse, or expiration of Grantors powers of termination or d.
rights of re-entry provided above in Section F.1(a), Section F.1(b), and Section
F.1(c), or upon the lapse or expiration of the obligations under this Declaration,
the breach of which could trigger Grantors powers of termination or rights of
re-entry provided in each such Section, then Grantee automatically shall be
vested with a fee simple absolute interest in the Property. Although it is the
intent of the parties that the vesting in Grantee of a fee simple absolute interest
in the Property pursuant to the terms of the preceding sentence shall be
automatic and self-executing, it is agreed that following such vesting, at the
request of any party (and at the expense of the requesting party), all parties
shall execute a recordable notice confirming such vesting, in form reasonably
acceptable to the parties, and the party requesting the same shall cause the same
to be recorded in the Forsyth County Registry.
Lawrence Joel and Veterans. With respect to any failure to comply with or e.
breach of any provision of Section C, Grantee shall have a period of one
hundred eighty (180) days from receipt of Grantors Breach Notice within
which to cure such breach. If Grantee shall fail to cure a breach of Section C
after giving of the Breach Notice and expiration of the Cure Period, then the
CityGrantor shall have the right to enter upon the Coliseum Property and have
reasonable access thereto for purposes of completing, or causing to be
completed, the cure of the condition(s) that were the subject of the Breach
Notice, and the Grantee shall reimburse all expenses incurred by the Grantor in
connection with such cure within thirty (30) days of Grantors notice to Grantee
that the cure has been completed, together with invoices for Grantors expenses.
23

Maintenance of Property. With respect to any failure to comply with or breach f.


of any provision of Section D.1, Grantee shall have a period of one hundred
eighty (180) days from receipt of Grantors Breach Notice within which to cure
such breach.
Winston-Salem Name, Tourism Events and Catch-all. With respect to any g.
failure to comply with or breach of any provision of Section E.1, Section E.2,
Section E.3, Section E.4 or of any other Section of this Declaration for which
another cure period is not provided in this Section F.1, Grantee shall have a
period of one hundred twenty (120) days from Grantors written notification
within which to cure such breach.
DCF Signage. With respect to any failure to comply with or breach of any h.
provision of Section E.5, Grantee shall have a period of three (3) days from
Grantors written notification within which to cure such breach, unless the
nature of the breach is such that it cannot be reasonably cured within such three
(3) day period, in which case the Grantee shall notify Grantor that such
additional time is needed, at any time prior to the expiration of the three (3) day
period, and upon giving of such notice, Grantee shall be entitled to as much
additional time as may be reasonably required by Grantee in the exercise of due
diligence in endeavoring to cure such breach, provided that Grantee is diligently
pursuing a cure of such breach. Notwithstanding the foregoing provisions of
this Section F.1(h), in the event that an alleged breach of Section E.5 arises out
of the Coliseum marquee (or any replacement thereof) or out of the electronic
message board on the Parking Canopy (individually and collectively, the
Electronic Signage) being inoperable, Grantee shall be entitled to a period of
five (5) days in which to exercise reasonable efforts to restore the Electronic
Signage to an operable condition, it being agreed that if Grantee has failed to
exercise reasonable efforts during such five (5) day period, then Grantor shall
be entitled to notify Grantee of its insufficient efforts to cure the alleged breach
of Section E.5 and Grantor shall thereupon be entitled to liquidated damages of
One Thousand Dollars ($1,000) per day remaining in the period in which DCF
promotional signage was to be displayed pursuant to Section E.5. Grantor
understands and agrees that Grantees non-performance of Section E.5 shall be
excused in the event that the Electronic Signage cannot, through exercise of
reasonable efforts, be restored to an operational condition during the five (5)
day period provided above. In the event that the Electronic Signage has
incurred substantial damage or has been destroyed and has not been restored by
the period in which DCF signage was to be displayed pursuant to Section E.5,
it is agreed that (x) in the case of the electronic message board on the Parking
26

Canopy, Grantees non-performance of Section E.5 shall be excused, and (y) in


the case of the Coliseum marquee, as long as Grantee is exercising reasonable
efforts to restore such marquee, Grantees non-performance of Section E.5 shall
be excused.
Each cure period provided above in this Section F.1 and any extensions thereto shall
hereinafter be referred to as a Cure Period.
2. Should the Grantee fail to cure any breach of Section B, Section C, Section D, or
Section E above after the giving of notice by Grantor required by Section F.1 and before
expiration of the applicable Cure Period, Grantor shall have the right to exercise any rights
and remedies available to Grantor in equity or at law as the result of such uncured breach.
3. Should Grantee need time in addition to the Cure Periods provided above in this
Section F to complete a cure, Grantee shall, at least ten (10) days prior to the expiration of the
applicable Cure Period, send a notice to Grantor (a) certifying that Grantee commenced to
cure within a reasonable time of receipt of the Breach Notice and has been diligently pursuing
such cure, and (b) covenanting to diligently pursue such cure to completion, and (c) providing
reasons why an extension of time is necessary to complete such cure. Upon timely delivery of
such notice to Grantor, the Cure Period applicable to the particular Breach Notice shall be
extended for such period of time as Grantee could be reasonably expected to effect such cure.
Section G. Notices.
Whenever any notice, demand or request is required or permitted under this Declaration, such
notice, demand or request shall be in writing and shall be delivered by hand, be sent by
registered or certified mail, postage prepaid, return receipt requested, or be sent by nationally
recognized commercial courier for next business day delivery, to the addresses set forth below
for the respective signers hereof, or to such other addresses as are specified by written notice
given in accordance herewith, or shall be transmitted by facsimile to the number for each party
set forth below, or to such other facsimile number as is specified by written notice given in
accordance herewith. All notices, demands or requests delivered by hand shall be deemed
given upon the date so delivered; those given by mailing as hereinabove provided shall be
deemed given on the date of deposit with the commercial courier; those given by commercial
courier as hereinabove provided shall be deemed given on the date of deposit with the
commercial courier; and those given by facsimile shall be deemed given on the date of
facsimile transmittal. Nonetheless, the time period, if any, in which a response to any notice,
demand or request must be given shall commence to run from the date of receipt of the notice,
demand or request by the addressee thereof. Any notice, demand or request not received
because of changed address or facsimile number of which no notice was given as hereinabove
provided or because of refusal to accept delivery shall be deemed received by the party to
27

whom addressed on the date of hand delivery, on the date of facsimile transmittal, on the first
calendar day after deposit with commercial courier, or on the third calendar day following
deposit in the United States Mail, as the case may be.
If to the CityGrantor: City Manager
City of Winston-Salem
Suite 170, City Hall
101 N. Main Street
Winston-Salem, NC 27102-2511
Facsimile: (336) 748-3060
With copy to: City Attorney
City of Winston-Salem
Suite 134, City Hall
101 N. Main Street
Winston-Salem, NC 27101
Facsimile: (336) 748-3816
If to the
Grantee: Wake Forest University Dept. of Athletics
P.O. Box 7265
Winston-Salem, NC 27109
Attn: Director of Athletics
Facsimile: (336) 758-6090
with a copy to: Wake Forest University Legal Department
P.O. Box 7656
Winston-Salem, NC 27109
Attn: General Counsel
Facsimile: (336) 758-5933
Section H. Certain Definitions.
1. The term Alternative Site shall mean any other real property (i) owned by Grantee,
or any entity affiliated with Grantee, and (ii) within a one-half mile radius of the real property
described on Exhibit A attached hereto.
In the event Grantee elects to build the New Coliseum during the Base Term on an
Alternative Site, upon: (1) registration by Grantee of an instrument subjecting such Alternative
Site to the terms and conditions of this Declaration and redefining the term Property to
mean such Alternative Site, and (2) substantial completion of the construction of the New
Coliseum and the opening thereof (the Substitution Instrument), the real property
described in Exhibit A shall be automatically released from this Declaration. The parties
28

intend that in the event of Grantees registration of a Substitution Instrument, (I) Exhibit A
attached hereto shall be automatically amended to delete therefrom the description of the real
property set forth therein, and to include in its place a description of the Alternative Site, and
(II) the real property so deleted from Exhibit A shall be fully released from the effect of this
Declaration without any further action of the parties (it being their intent that the foregoing
matters would be self-executing upon registration of the Substitution Instrument), but, without
limiting the effect or generality of such intention of the parties, if requested by Grantee,
Grantor and Grantee shall execute appropriate documentation in recordable form to confirm
(a) the release of the real property described in Exhibit A from this Declaration, (b) the
submission of the Alternative Site to the terms and conditions of this Declaration, and (c) the
redefinition of the term Property to mean and refer to the Alternative Site, and shall cause
the same to be recorded in the Forsyth County Registry, and (III) this Declaration shall
otherwise remain unchanged and in full force and effect, it being agreed that the Substitution
Instrument will not operate to renew or extend any terms provided herein.
2. A Major Project consists of the planning, the conduct of any demolition, debris
removal and earth moving work, and the conduct of all construction work from
commencement through completion, of any of the following three types of projects:
undertaking a significant renovation of or a significant overhaul of a major a.
operating or infrastructure system(s) at the Coliseum or New Coliseum, or
making a significant modification (i.e., a modification that changes the b.
building footprint of the Coliseum or New Coliseum structure) to the Coliseum
or the New Coliseum, or
constructing the New Coliseum. c.
Completion of any Major Project shall be conclusively deemed to have occurred when
a certificate of occupancy or similar certificate of approval has been issued with respect to the
Major Project by the applicable governing authority having jurisdiction over construction at
the Property.
3. The term year as used in this Declaration (a) if modified by the word calendar
shall mean a period of time beginning on January 1 and ending on the following December
31, (b) if not modified by the word calendar shall mean a period of twelve months,
measured from the first day of the period referenced. For example, but not by way of
limitation, a year from the date of March 2, 2024, would begin on March 2, 2024 and
expire on March 1, 2025.
Section: I. Public Purpose Restrictions from 1969 Deed:
29

The covenants and restrictions of this Section I shall begin immediately following the
expiration of the Base Term (see Section B.1 for similar restrictions enforceable for the
duration of the Base Term) and shall not expire unless the New Coliseum, or any successor
New Coliseum, is constructed on an Alternative Site (and a Substitution Instrument is
recorded in accordance with Section H.1) at any time, and until such New Coliseum, or any
successor New Coliseum, has been demolished on the Alternative Site.
Substantially all of the Property shall be used, as set forth in the Deed Restrictions of 1969,
for sports, recreation, entertainment or cultural purposes, which overall benefits the public,
provided, however, Grantee shall not be limited to the form of sports, recreation, entertainment
or cultural activities now or previously operated on the Property.
During any Major Project, Grantee will keep Grantor advised as to the status and progress of
the Major Project and the estimated timeframe for resumption of performance of the purposes
contemplated by this Section I. If, in the sole discretion of Grantee, the Coliseum or the New
Coliseum is not capable of performing any of the purposes while the Grantee is undertaking a
Major Project on the Property, then (i) Grantee shall be excused from any failure or inability
to perform its obligations under Section I, and (ii) no Breach Notice can be given until the
earlier of completion of the Major Project, or Grantees determination in its reasonable
discretion that the Coliseum or New Coliseum, as the case may be, is capable of resuming
performance of the purposes contemplated by Section I.
Grantor shall have as its sole remedy for Grantees failure to comply with, or a breach of, any
provision of this Section I, after providing a Breach Notice to Grantee and allowing Grantee a
period of one (1) year from receipt of Grantors Breach Notice within which to cure such
failure or breach, the right to sue Grantee for specific performance of this Section I. In the
event Grantor institutes any legal action or proceeding for the enforcement of this Section I,
the prevailing party after a final adjudication shall be entitled to recover its reasonable
attorneys fees incurred in the preparation and prosecution of such action or proceeding. For
the avoidance of doubt, no reversion, right of re-entry or power of termination is reserved in
Grantor, or in any other party, for purposes of any breach of this Section I.
Section: IJ. Miscellaneous:
1. Notwithstanding any contrary provision of this Declaration, (a) it is acknowledged and
agreed that Grantee may, in its sole discretion, rename at any time and from time to time, the
Coliseum and the New Coliseum that may be built on the Property, including without
limitation, in connection with any third party agreements concerning contractual naming rights,
and (b) no term or provision of this Declaration waives or alters, or shall be deemed,
interpreted or construed to waive or alter, the application, enforceability or enforcement of any
law or regulation of general applicability which may be in effect on the Effective Date (and as
the same may be amended), or which may be enacted or promulgated after the Effective Date.
30

2. This Declaration may be modified at any time upon the written execution by the parties
hereto of a modification or amendment, provided such modification or amendment does not
diminish the letter and spirit of the public purpose covenants and associated enforcement
provisions set forth herein and that any such modification or amendment shall be promptly
recorded in the Forsyth County Registry.
3. The terms and conditions of this Declaration shall be binding upon Grantee, its
successors and assigns forever and shall inure to the benefit of the Grantor, its successors and
assigns forever. The preceding sentence shall not be interpreted to extend the terms of those
portions of this Declaration that are otherwise limited in duration by the express terms of this
Declaration.
4. Whenever possible, each provision of this Declaration will be interpreted in such a
manner as to be effective and valid under applicable law, but if any provision of this
Declaration is held by a court of competent jurisdiction to be prohibited by or invalid under
applicable law, such provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Declaration.
5. The use of headings, captions and numbers in this Declaration is solely for the
convenience of identifying and indexing the various provisions in this Declaration and shall in
no event be considered otherwise in construing or interpreting any provision in this
Declaration.
6. Either party hereto shall be excused for the period of any delay and shall not be
deemed in default with respect to the performance of any of the terms, covenants, and
conditions of this Declaration when prevented from so doing by causes beyond its reasonable
control, which shall include, but not be limited to (a) strike, lockout or other labor troubles,
(b) governmental restrictions or limitations, (c) failure or shortage of electrical power, gas,
water, fuel oil, or other utility or service, (d) riot, war, insurrection or other national or local
emergency, (e) accident, flood, fire or other casualty, (f) adverse weather condition, (g) other
act of God, or (h) any other cause similar or dissimilar to any of the foregoing and beyond the
reasonable control of such party, as the case may be. If a party claims an excused delay due
to the preceding sentence, such party shall continue to observe its obligations under this
31

Declaration to the extent reasonably possible under the circumstances, but such party shall not
be obligated to exercise extraordinary efforts or incur extraordinary expenses.
7, Regarding enforcement of the Section F provisions, the Grantor will utilize the funds
collected by Grantor pursuant to Section F for Grantor-initiated or Grantor sponsored
programs that promote, for public access and enjoyment, sports, recreation, entertainment or
cultural activities, which may include enhancements to the Lawrence Joel and veterans
memorials.
[signatures on following page]
32

IN WITNESS WHEREOF, the parties have caused this Declaration to be executed


under seal effective as of the Effective Date.
GRANTOR:
CITY OF WINSTON-SALEM
ATTEST:
_______________________ By: _______________________________(SEAL)
Secretary (SEAL) City Manager
STATE OF ________________________
COUNTY OF _______________________
(Place of Acknowledgement)
I certify that the following person personally appeared before me this day,
acknowledging to me that s/he voluntarily signed the foregoing document:
____________________________, as ________________________ (office) of ____________
________________, a ___________________________________.
Date: __________________, 201__
______________________________________
Official Signature of Notary
[AFFIX SEAL Name and Commission Expiration Date must be legible]
[signatures continue on following page]
33

GRANTEE:
ATTEST: WAKE FOREST UNIVERSITY
_______________________ By: ________________________________(SEAL)
Secretary (SEAL) ________President
STATE OF ________________________
COUNTY OF _______________________
(Place of Acknowledgement)
I certify that the following person personally appeared before me this day,
acknowledging to me that s/he voluntarily signed the foregoing document:
____________________________, as ________________________ (office) of ____________
________________, a ___________________________________.
Date: __________________, 201__
______________________________________
Official Signature of Notary
[AFFIX SEAL Name and Commission Expiration Date must be legible]
[end of signatures]
34

Exhibit A
DESCRIPTION OF COLISEUM PROPERTY
[To be attached according to Grantees survey]
33

EXHIBIT B
LEGAL DESCRIPTION OF THE FAIRGROUNDS PARCEL
[To be attached, but consisting generally of Tract I as described in the Trustees deed less and
except the Property.]
36

EXHIBIT C
SITE PLAN
[To be attached]
37

EXHIBIT D
LAWRENCE JOEL VETERANS MEMORIAL
VETERANS PROGRAM GUIDELINES
In order to be recognized by placement of a monument in the Lawrence Joel Veterans
Memorial Plaza, the proposed honoree must: (1) have been enlisted in a recognized branch of
military service and involved and died in a military conflict as indicated below; and (2) meet
the criteria set forth below.
A military conflict must be recognized by the federal government and in one of the 1.
recognized branches of military service for the United States of America. Additions to
recognized conflicts or branches of military service will be conducted in accordance with
United State Department of Defense protocols.
Recognized military conflicts currently include:
World War I (1917-1918) - Panama (1989-1990) -
World War II (1941-1945) - Operation Desert Storm (1991) -
Korean War (1950-1953) - Operation Iraqi Freedom (2003-2011) -
Vietnam War (1955-1975) - Operation Enduring Freedom (2001- -
Grenada (1983) ongoing as of 2013) -
Recognized branches of military service:
United States Army United States Coast Guard
United States Navy United States Air Force
United States Marine Corps
To be considered for placement on a memorial marker a veteran must meet two basic 2.
criteria:
The individual must have been born in Forsyth County. a.
The individual must have died in the recognized years of the conflict in question b.
while in military service of the United States of America.
Veterans may be nominated for inclusion in the Memorial Plaza and on the Veterans 3.
Memorial Directory through a written request and submission of documentation of birth in
Forsyth County (certified copy of birth certificate) and verification from the Federal
Government as to the branch of service and years of service as outlined in Item 2(b).
Requests should be made to:
38

City of Winston-Salem
Attention: City Secretarys Office
PO Box 2511
Winston-Salem, NC 27102
Upon verification of eligibility, the City will authorize engraving of the veterans name 4.
and placement of the marker within the Memorial Plaza and on the Veterans Memorial
Directory. Location of the marker is at the discretion of the City of Winston-Salem.
There is no cost to the veterans family for the marker.
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Summary Report:
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5:06:26 PM
Style Name: McLamb Redline
Original DMS:dm://RALEIGH/250564/15
Modified DMS: dm://RALEIGH/250564/19
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