In Which We Find That Legislators Can’t Read Contracts — The Sallies Contract vs. Charles Potter

Filed in Delaware by on November 30, 2016


So this deal is still dead and I think that the expectation is that if it gets revived it will be because the new Mayor will work at reviving it. No idea if it is even possible at this point, but that is where we are. In the meantime, we have Rep. Charles Potter putting out a piece of propaganda that specifically misrepresents the terms of this dead deal — I guess so that he can make himself look like a hero or something for standing up to the big bad Sallies and their desire to make Bayard Stadium into a working home field for everybody. He counts, of course, on the fact that no one will spend any time on that document and just get fired up because he says to. I did look at that contract and here is the response to the propaganda with references to the page numbers where I found this info. The items in BOLD are the ones listed on the “Highlights of the major points of the contract with Sallies” that he has posted to Facebook. My responses and references follow.

100 year lease term (unprecedented!)
It is a 50 year plus 50 year option. Still, it was worth asking Sallies and the City why they felt the lease needed to be this long and ask for adjustments if necessary.

Option to purchase
This is on page 22. There is an option to purchase *only if* the City decides to sell the facility or if they want to transfer it to another non-profit. If the City holds it for the next 50 or 100 years, there’s no option for Sallies to buy.

5 years to raise funds
They had until June 30, 2017 to raise the funds. And if they didn’t then the deal could be called off (see page 2 of the lease.) They had 5 years to finish the contemplated improvements (see end of page 1). The list of contemplated improvements starts on page 2, item 1 (h).

TENANT has sole right to terminate if funding requirement is not met
They could terminate if they did not raise the required funds by June 30, 2017. What purpose would it serve for them to be on the hook if they can’t raise the money? The City *should* take it back at that point and figure out a plan from there.

No penalty for non-performance (funding/construction)
The penalty for non-performance on funding was losing the lease June 30. Not completing identified construction improvements in 5 years would have placed Sallies in default with the city and that could have triggered termination of the agreement. (section 14, starting page 19)

Control of management and maintenance of the property
The lease specifically called for Sallies to manage and maintain the property. Most leases for a space will tell you your responsibilities for care and maintenance of said space – whether your landlord provides management and/or maintenance or you do. It seems to me that since the City hasn’t been doing such a great job in managing and maintaining this facility, why wouldn’t you let Sallies do it? But that was part of the lease terms – Sallies leases the space and in return they would provide the funds to invest in it and take over maintenance and management. A job the City hasn’t been doing well for some time now.

Control of stadium usage by pre-existing users and other parties
Pre-existing users are defined on page 5 (and it is a long list of schools and community groups), Page 8 details the terms and basically, these groups would have been able to use the facility under the same terms they have now. Changes to the user agreements required approval by City’s Parks and Rec Department. The City of Wilmington was listed as a user — which would have been an umbrella to expand community usage of the facility. But the current list of grandfathered groups is about 16 — how many groups are going to get organized activity done within their seasons? This is what management and maintenance means. And I am going to ask – why is there all of this concern *now* for this facility’s availability to other groups? Because from where I sit, this facility is close to overbooked already — we should be talking about creating one or two new stadium facilities in the city.

No governing board/mechanism for a voice for the community
There’s no governing board now and nor was there one when the Representative was on Council. Nor has there been any outcry or focus on getting this facility in better working order until Sallies stepped up. There *was* however, a commitment by Sallies that “Tenant shall endeavor to engage other community and local groups who may be interested in utilizing the leased premises and Tenant shall develop criteria that will allow such groups to have reasonable access and use to the leased premises.” (Page 15 at the bottom.) The city still had to approve usage fees and agreements.

Salesianum sets price for users of the facility
Current usage fees were grandfathered in, but Sallies could change that with the approval of the City. But let’s be really clear here — the current facility spends about $160K for maintenance and it takes in about $60K. Not sure if that includes the amounts in arrears for some groups. (see page 8) Fees are going up no matter who runs it.

Right to sublet to groups affiliated with St. Francis de Salles
This is assignment or sublet – this is largely a succession clause if Salesianum is bought, sold or goes under. The City’s deal does not change when this happens. (page 15)

Right to subdivide Baynard all the way to Brandywine Park
If they should be in a position to exercise an option to buy the property, it is up to Sallies to get an ironclad subdivision from Brandywine Park — if it is necessary. This stadium (or some portion of the property) is currently a part of Brandywine Park, which is a state park. If they need to get a subdivision from the park as part of establishing ownership, they have to get that. They don’t get rights to subdivide Baynard as part of this lease. (Page 23)

Right to mortgage the leased facility to get funding
The would have had the right to mortgage their *interest* in the stadium, not the actual stadium or other property. This is called a Leasehold Mortgage and is a relatively common way for someone with a long-term lease on a property to get a line of financing. The City is still the owner, still the landlord. The risk here is mainly to Sallies – if they are somehow in default, the mortgager can obtain Sallies’ lease and would be obligated to the terms of the lease. See Section 11, page 16.

Exclusive naming rights for the street and the stadium
They could rename Stadium Drive only. They could rename the stadium as long as the field is called Samuel Baynard Field or Baynard Field – so that a new stadium would have the name of John Doe Stadium at Baynard Field. Baynard was always going to be a part of the name and the signage. (page 23)

Ability to generate revenues (pay no tax or utilities – water, sewer, electricity)
They would have to pay taxes, except it is agreed that they are probably exempt from real estate taxes, like the City is. The City would pay utilities, which they do now. How many of us have leased an apartment or home with utilities included? (page 11)

All revenues go to Salesianum (no revenue sharing)

They can sell ads and sponsorships, but they would have still been responsible for paying the City rent and for maintaining the field and facilities. If they had the bulk of the expenses, why would there be revenue sharing? Unlike Porky Oliver’s golf course, this is not being run for profit.

Council forfeits authority in several sections “… approval is hereby authorized and no further action by City Council shall be required.”
The City controls what it needs to in order to maintain its ownership of this facility and property, to make sure there is recourse for defaults, to make sure it is insured against the actions of Sallies and its contractors. City Council would be out of the loop for approving any tennis court construction that the State may want to build there (page 9); they would be out of the loop for re-naming Stadium Drive if it happens (page 23)

General public can only use ‘track’ and ingress/egress paths to the track.
Which is the current use of the stadium now, yes?

Again, this isn’t to say that any of this couldn’t be changed or tweaked in an honest negotiation. But you also can’t take a document that exists in public and misrepresent it in order to try to convince people that your work to kill it was justified. And I should say that I could be wrong on some of the details here — but I am pretty confident that I’ve at least tried to read this document honestly.

Last night, though, we found out that Councilman Chukwuocha did not have the authority to create a Task Force to study options for improving this facility. He has to wait for the President of the City Council or for the Mayor to do that. So not only did we turn away an excellent option for improving Baynard Stadium, but Plan B isn’t an option yet, either.

And then there’s this:

Potter said he will speak with his colleagues in Dover to facilitate the task force, but he didn’t know where the money for stadium renovations could come from.

Accountability, indeed.

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"You don't make progress by standing on the sidelines, whimpering and complaining. You make progress by implementing ideas." -Shirley Chisholm

Comments (27)

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  1. Bane says:

    I will be volunteering for whoever runs against Charles Potter. Please tell me that Eugene Young lives in his district.

  2. ex-anonymous says:

    great work, cassandra.

  3. Gymrat says:

    Salesianum has been in the city since 1904 and has graduated going on 5 generations of young men. A lot of those young men are now old wealthy and community minded. Hopefully they will work with the New Mayor to put the deal back together. I also fervently hope than at least 99 of us join me in giving $600 to a qualified candidate to hold the 1st Rep seat and we can excise the putrid cancer that is there now from the body politic!!!!

  4. Tom Baker says:

    Thank you, Cassandra. Could you get these points printed by the NJ and posted on Facebook? These points could have been made in the first Nov committee meeting, (which I attended) but it was run as a kangaroo court, with no opportunity for Sallies to present its proposal or to respond point by point to the statements by members of the audience. (The Sallies rep did speak near the end of the meeting) The audience’s dislike of Sallies was evident. I cannot imagine any organization that would want to be a part of a deal that would involve the Potters or some of the city council folk. At least the new mayor now knows what he faces with his new city treasurer and 1st district city and state reps.

  5. Anon says:

    Great post.

  6. j. bryan says:

    Thanks for the fantastic rebuttal to Potter’s nonsense, Cassandra. His complaints really are fact-free demagoguery.

    It was upsetting when Chukwuocha went along with Potter to call for the task force to examine how Baynard should be funding, because it killed a really good deal that would’ve injected a huge amount of investment into a key community resource. And as I said at the time (along with plenty of other people!) everyone knew when the deal was killed that funding from other sources wouldn’t be forthcoming. The city and state weren’t jumping at the chance to fund Baynard before Sallies made their offer, so why would that change after the offer? Suddenly we’ve got a huge surplus in the budget and the stadium is going to become a priority? Of course not.

    So Chukwuocha promises to put together a task force. Only he can’t actually put together a task force. And Potter says the state should fund it. Only as soon as the Sallies deal is killed, he says “Well, the state probably won’t fund it.” And Council President-elect Shabazz is now saying that it doesn’t make sense, anyway, to put 20 million dollars into Baynard when the city could spend 20 million dollars (which it doesn’t have) split between a bunch of other parks and community centers. Well, okay, but if your desire is to have more money to spend on other parks and community centers, why not let Sallies put 20 million into Baynard and then have more money to split between those other sites?

  7. cassandra_m says:

    Tom, this post is on FB and I tagged you there so you could see it. Feel free to share it. Anyone who is reading this should feel free to share it.

    The thing about these “points” is that they materialized well after it was clear that Sallies was walking away. These points are the after the fact demagoguery meant to justify walking away. This was worth the investment of talking, understanding what was here and negotiating changes needed.

  8. cassandra_m says:

    And here is the thing about $3M put into multiple centers — it isn’t enough. I was on the Hicks Anderson Task Force — which produced a detailed report for getting the badly needed upgrades done to this facility and the preliminary number on that was about $24M. Of course, nothing was done — the City does not have this money. But Hicks cannot be made functional over a long term with just $3M. That facility is in crisis *now* and $3M is an insult. Perhaps if they could have made the Baynard deal, then we could get some attention to Hicks Anderson.

  9. AGovernor says:

    Great post Cassandra.

    I was at the first committee meeting and at that time had yet to see the agreement. I was at a loss as to why the resolution was held before it was able to be presented and discussed.

    I was able to get a copy of the agreement after that meeting and went to the most recent meeting hoping to hear about the formation of the task force and ensure certain parties were at the table. Once again I was disappointed that I carve time out of my day to make it to the meeting that essentially did nothing.

    The city owns Brandywine Park and all of the Wilmington state parks. They have a 25-year lease with the state to manage the parks. Prior to the agreement with the state the city had a 40-year lease with the county to manage the zoo and parks.

    I too found it interesting that we have not heard an outcry about not being able to use Baynard Stadium from the public prior to this deal being announced. Have you ever seen letters to the editor complaining about that? Have you seen folks come to city council and speak before city council meeting and public comment regarding not being able to use Baynard Stadium? Has the use of Baynard Stadium been discussed in recent years in the Education Youth and Family committee?

    Now that the committee could not form a task force this will become another project that does not get completed and it’s sad. The stadium will continue to deteriorate and our high schools and youth groups will have one less place to compete in athletics within the city limits

  10. Ann Monroe says:

    Cassandra, as usual, outstanding work. Great comments made by others, as well. And J. Bryan, you outlined some excellent points. Does Mr. Potter have a chip on his shoulder about something? Hopefully our new mayor will think this through and do what is best for the kids first, and then the city.

  11. Bill F says:

    Well done, Well said.

    Seems to me that this is Potter’s first shot for the Mayoral race in 2020. One that will surely backfire.

    24 year ago, I was elected to City Council. I approached the new administration, also elected in 1992, with a plan to turf the field and to upgrade the facility – with private money. I was told by the newly elected mayor that it was not his priority and something he would not support.

    Now, years later, we’re dealing with the same mess – at a number significantly greater.

  12. Frances Carunchio says:

    Cassandra, excellent reporting. You put a lot of work into this. Don;t understand why you do not run for office, but that is your decision. I cannot understand why Charles Potter and Chukwuocha were against this. Sallies is an excellent neighbor to all and has a terrific legacy. It seems to me that this was a win-win situation.

  13. AQC says:

    I really wish the city would go back to the table with Sallies. I used to love to take my kids over there to run the track, and bleachers, as a cheap (free) way for them to burn off energy. I would love to be able to do the same thing with my grandkids now without worrying about their safety while trying to keep them away from the bleachers.

  14. Rufus Y. Kneedog says:

    The fact the naming rights were listed as a concern shows just how petty this whole thing is. Private citizens are willing to fork over $20 million and only ask for a plaque with their name on it and City Council has a problem with that?
    I haven’t read anything from Purzycki on this, hope he can turn this around.

  15. Sas says:

    The Potters ( including the ” new treasurer!!) are nothing but mooches. They do absolutely NOTHING that will not ultimately have something in it for them. He got his oversized ego all bent out of shape because Sallies did not approach him and include him in on the proposal. The city residents should be screaming holy hell if the city has the kind of money Potters thinks it has to use on stadiums and fields but doesn’t have enough money to keep FIRE STATIONS OPEN. The whole bunch of them starting with Dennis Williams, vote them ALL out, they are self serving, have huge egos and do absolutely NOTHING that doesn’t include something for them. How the city of Wilmington voted Velda Potter in, after she got tossed out of Williams administration early on,is beyond my comprehension. I hope she has as many eyes scrutinizing her every move, pen swipe, computer entry, phone calls etc. as humanly possible.

  16. AGovernor says:

    The saga continues. Council has now “found” $200,000 to evaluate Eden field for upgrades. Another report to be issued with NO money to do the necessary improvement. Maynard and Eden will continue to deteriorate for years or until a someone is seriously injured and then both will be condemend leaving 2 less fields for youth athletics.

  17. cassandra_m says:

    He got his oversized ego all bent out of shape because Sallies did not approach him and include him in on the proposal.

    He was approached as early at October 13th to come to a meeting that Wilmington Parks & Rec was hosting to discuss this proposal. The meeting (including others of the State delegation as well) was on October 20 and Potter did not attend.

  18. cassandra_m says:

    The city owns Brandywine Park and all of the Wilmington state parks. They have a 25-year lease with the state to manage the parks. Prior to the agreement with the state the city had a 40-year lease with the county to manage the zoo and parks.

    I don’t think I was clear about this relationship and thanks to AGovernor for bringing this up.

    It just highlights how long we have been passing the buck on caring for these assets, right? I am sure that leasing these to the County and then to the State was about taking advantage of the efficiencies that should be present when combining care of these parks with entities that have larger capacity to do this. But the thing that we know is that these assets are not high priorities at any level — at least not the City assets — and have been allowed to deteriorate because making sure that there are the funds to keep these parks in good working condition was not important enough.

  19. Steve Q says:

    If Sallies had made “donations” to these sleazy politicians would they have remained silent and allowed the city to benefit? Potter is on the take. Me-first politicians like Potter are the bane of the poorest neighborhoods. The city is doomed with these so-called leaders. Mike P. doesn’t stand a chance as mayor because he is surrounded by so many corrupt people in city government. Wilmington is quickly becoming totally irrelevant; even Dupont knows this… and they built the city.

  20. Debbie Wat says:

    Whatever it takes, whenever this is resolved, I’m confident that following the Sallies contract would be the best solution for this stadium.

  21. Dan says:

    Cassandra, I think all in all the state does a pretty good job taking care of Brandywine park. Other than, apparently, Baynard Stadium (which I’ve never looked at up close) I find the state-maintained city parks (Brandywine, Rockford, and the greens in the middle of Bancroft Parkway) to be leaps and bounds better than any City of Wilmington-maintained parks and generally very well maintained by any standard. And that includes maintenance and upkeep of the assets, like tennis courts. Baynard Stadium may be an outlier in this regard (maybe the City is responsible for it?).

  22. Another Mike says:

    Dan, Baynard gets a different type of use than the other parks you mentioned. I’m not criticizing the people who maintain it; they do an excellent job. The field at Baynard held up remarkably well considering how much football and soccer was played on it this fall. Not everyone can get on to the field, but I was on it on a regular basis and I can tell you it is full of divots and ruts. I saw players step in them, and they were lucky all they did was slip. That’s a torn ACL and a negligence lawsuit waiting to happen.

    Grass, bleachers, bathrooms, concessions – they do as much as they can to maintain what is there, but after a while, you have to move on from bandages to surgery. The patient is old and needs some transplants.

  23. Nnamdi Chukwuocha says:

    Mrs. Marshall, like the majority of the readers of your article on Baynard stadium, I too once saw the Salies agreement as a blessing. In fact, I was one of the first co-sponsors of the legislation after my initial meeting with Salies. However, I quickly realized our city truly didn’t stand to benefit, from the supposed $20 Million gift, in fact in many ways we would be losing through the lease agreement.

    I haven’t been nor do I intend to become an online/ facebook/ blog type of politician. It is and has been my primary duty to be a well informed and principled elected official that makes credible decisions about the matters that are presented before me.

    Yet, as a councilman and chair of the committee the ordinance was presented to, I had an array of questions; not just questions, mind you but questions that weren’t being answered. “Don’t worry about that” I was told as council was being “rushed’ to vote on an ordinance without the information needed to make an honest decision.

    It is my duty and responsibility to this the city I love and the district that elected me to stand for equality and fairness. What’s fair about: “Our City” having a brand new stadium that none of the 1500 youth from our city’s organized football leagues will get to play on? What’s fair about: The state parks system that has managed and operated the stadium since 1998, and has known about the deteriorating condition of the stadium but has not made any significant investments in the stadium? Yet, at the same time our state has fostered true public private-partnerships for sports complexes throughout the state? What’s fair about: A council voting to give away a city asset when it hasn’t seen any structural assessments or cost analysis on the facility?

    As chairman of the Education, Youth and Families committee is was evident that more information was needed in order to properly vet the agreement. I asked for a public hearing, and was told it wasn’t needed. I then sought to create a task force to do the following, all of which have nothing to do with the Salies agreement:
    ● Review the 1998 contract and clarify the city’s relationship with the state parks system
    ● Review the condition of the stadium
    ● Review the barriers that prevent usage among underserved youth groups
    ● Develop recommendations for the enhancements to the facility

    This desired task force which would include representation from the city, county and state as well as existing users, youth/ community groups and other invested stakeholders. I can’t comprehend why anyone would think a task force is a bad idea, especially when even the State parks has noted the dialog it would create is needed. Furthermore, State parks, county representatives, Salies, Howard , St. E’s and the 2nd District Neighborhood Planning Council have all expressed a willingness be involved on the task force.

    As a member of one of the last classes to enter the former Wilmington School District, I am leery of what we, as a city, have given up, and what we have received in return. At that time, we were told we couldn’t afford a school district and all of our schools/community assets were divided up and given away. Wilmington was left with the four district model, which has proven to fail the city, its students, and communities. Much like the Port of Wilmington, which the city lost in the mid-1990s, Baynard Stadium also, represents another City asset at risk, with little in return and at the detriment to city residents and families.

    It is the job of City Council to thoroughly ensure that the Stadium does not become another lost asset. In fact, the suggestion to delay the vote in order to create a task force and to ensure a full public hearing represents the duty and obligations of Council. We are charged to protect the City’s best interests and as best we can predict and prevent any unforeseen and unintended consequences which would potentially negatively impact the City and its residents for generations to come.

    In sincere service
    Councilman Nnamdi O. Chukwuocha
    Wilmington City Council, 1st District
    Education, Youth and Families Chairman

  24. cassandra_m says:

    Councilman Chukwuocha, I really appreciate your jumping in here to give us your perspective here.

    What’s fair about: “Our City” having a brand new stadium that none of the 1500 youth from our city’s organized football leagues will get to play on?

    The 1500 youth from the City’s organized leagues don’t play there now, right? But the City of Wilmington is grandfathered in to play after Sallies would have taken over so there is a way to get these leagues to play here. On the flip side, there are schools and leagues who do play here in a facility that is well past its useful life and is sometimes dangerous. What happens to these kids? The lack of solution here and the lack of a plan to provide better facilities across the city specifically burdens those who are regular users of this facility — because their solution is now gone.

    What’s fair about: The state parks system that has managed and operated the stadium since 1998, and has known about the deteriorating condition of the stadium but has not made any significant investments in the stadium? Yet, at the same time our state has fostered true public private-partnerships for sports complexes throughout the state?

    I don’t know about other public-private partnerships the state has fostered. But the City still owns this facility and is still the landlord. The fact that it has been deteriorating is not news. And the better question is why the landlord (and the people representing the area this stadium is in) has not paid better attention to it. You could see this as a public-public partnership that didn’t work or did not have a big enough scope. Were they required to invest in these facilities? I doubt it, but how come no one has asked about it before now?

    What’s fair about: A council voting to give away a city asset when it hasn’t seen any structural assessments or cost analysis on the facility?

    There was enough of a structural assessment to know that some of the bleachers needed to be condemned. But how did Sallies come up with their $20M figure? Did they have any engineering help to come up with that number? What data did the state (or city) get to condemn those bleachers? Being better aware of the specific problems and the estimated costs is certainly important. But Wilmington needed the State to come up with $200,000 to replace the at risk bleachers. At the end of the day, you can get as much data as you like, but the City can’t afford it. As you well know, they couldn’t figure out how to get the $24M to fix Hicks Anderson, so where are they coming up with $20M for this?

    I appreciate that the job of the Council is to protect the City’s interests. If the Council had been doing this job, then neither Baynard Stadium or Hicks Anderson would have gotten to the shape that they are in. It was convenient for Council to de-prioritize them both as other fiscal issues took precedence. And I am not blaming you — because the facilities have been falling apart since well before you came to Council. So at this point, there will be public hearings, but still little possibility of the funds to fix it. The other thing that the Council is supposed to do is to advance the City’s interests. Which means to me that you welcome private sector investment, negotiate a deal that makes sense, and don’t expect that deal to fix all of the city’s ills. OR, you get in the business of taking some leadership for tax increases and be honest with the people who vote you in about what it costs to get them the things they want — like great parks and rec facilities.

    Thanks again for commenting and I should make the point again that the points I was responding to above came from a doc that Rep Potter posted — not Councilman Chukwoucha.

  25. mediawatch says:

    In sum, as is often the case, the Wilmington City Council got into the game late — roughly at the two-minute warning at the end of the second half, and, as is always the case, Charles Potter has tried to milk the crisis for his own personal benefit and glory.
    The one problem I have with the Salesianum proposal is that it appeared quickly and there was a rush to approval without significant vetting. I’m glad the councilman is attempting to permit such vetting, and I have little doubt that, when all is considered, the Salesianum proposal will be far more beneficial to the city and to the schools and other athletic organizations that use the stadium (or desire to use it) than any alternative that Charles Potter or anyone else can put forward.
    Bottom line: let’s hope that this plays out quickly and smoothly and, in 2-3 months, we’ve got an agreement to move ahead with Salesianum taking the lead in upgrading and maintaining this important facility. There should be no problem with taking a couple a months to make sure we’ve got it right, and if Potter persists in his grandstanding, he’d better hope the bleachers don’t rot beneath his feet.

  26. Rob Gurnee says:

    Nnamdi Chukwuocha represents the finest the city of Wilmington has to offer in public service. He has the integrity, intellect and credible ties to the community that are needed to help lead the city. Anyone who knows him realizes he is not in politics for himself. It is unfortunate that some commenters have sought to use a broad brush and paint him in the same light as Charles Potter.

    It is easy to be an armchair QB, we all do it. When faced with an inability to get answers to important questions one can either go along to get along, or stand up and demand more info. If the deal was a good deal for all parties then there is no legitimate reason it should not resurface again. Take it or leave it now proposals are never a good thing. Let’s hope folks can work together to bring about the right solution in an informed and respectful way.

  27. Kelly says:

    You know anytime there is money are the Potters are there. I would like to know what she did with the $25.000 she received for her transition team. Since she only had to hire 1 person the rest of the money when into her pocket. Now I bet after all this controversy with Baynard Statium the citizens of Wilmington wish they have voted for Darius Brown. We know for sure that he is not a CROOK.