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HomeMy WebLinkAbout6A (2)PARKING EASEMENT AGREEMENT This PARKING EASEMENT AGREEMENT (the "Agreement "), executed as of the day of , 2012, by and between the City of South Bend, Indiana, acting by and through its Redevelopment Commission ( "Redevelopment "), the City of South Bend, Indiana, acting by and through its Board of Public Works ( "Public Works ") and the City of South Bend, Indiana, acting by and through its Park Board ( "Parks ") (collectively, the "City ") and the South Bend Silver Hawks (the "Silver Hawks "). WHEREAS, the City is the owner of several surface parking lots (The "Parking Lots ") around and in the vicinity of Coveleski Stadium (the "Stadium "), located within the City of South Bend, Indiana, and more particularly described in Exhibit A and depicted in the "Coveleski Stadium Parking Map" attached hereto and incorporated herein; and WHEREAS, the Stadium has been recently renovated by the City, making the Stadium a more Family Friendly facility; and WHEREAS, the Silver Hawks are now under new management and are embarking upon a vigorous marketing campaign to increase attendance at Silver Hawks games being played in the Stadium; and WHEREAS, the Silver Hawks anticipate needing additional parking for its employees and fans incidental to this increased attendance; and WHEREAS, the City is willing to facilitate the Silver Hawks' need for additional parking and the use of the Real Estate under certain terms and conditions. NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Silver Hawks agree as follows: ARTTCT.R T Easement, Signage and Maintenance 1.1 Commencing on April 1, 2012, the City grants to the Silver Hawks easements over and upon each of the Parking Lots (the "Parking Lot Easements ") (as described in Exhibit A and depicted in the "Coveleski Stadium Parking Map "), for the purpose of parking, for a period of one (1) year (the "Easement Term "). The grant of each of the Parking Lot Easements is subject to the terms and conditions stated in Exhibit A. At the end of the Easement Term, the City and the Silver Hawks shall: (a) renew the Parking Easement Agreement for an additional term of one (1) year (the "Extended Easement Term "); or (b) identify alternate parking for the Silver Hawks' use during the Extended Easement Term in the event that the Parking Lot Easements are no longer an appropriate use, in the City's sole determination. The intent of the granting of the Extended Easement Term is to ensure that the Silver Hawks has parking available for its use commensurate with its investment in the community and its commitment to remain within the central business district of the City of South Bend. However, nothing in this Parking Easement Agreement or any other agreements between the Parties shall be interpreted as to require the City to rebuild or rehabilitate the Parking Lots during or after the original Easement Term other than as specifically provided herein. The City will clean and remove debris from the Parking Lots and will re- stripe the hard surface lots. 1.2 The consideration for the City's grant of the Parking Lot Easements for the Easement Term, and for any Extended Easement Term thereafter, shall be One and 00 /100 Dollar ($1.00) per year per each letter identified lot. 1.3 The Silver Hawks, in its sole discretion, shall provide and install all necessary signage indicating the availability and cost of the Parking Lots. 1.4 The Parking Lot Easements are granted to the Silver Hawks, as is, with no representations on the part of the City, or any of its agencies, boards or commissions, as to the suitability of use of the Parking Lots. The City shall not in any way be liable or responsible to the Silver Hawks for any loss, damage or expense which the Silver Hawks may sustain or incur as a result of the use of the Parking Lots during the term of this Agreement or any extension hereof. 1.5 The Silver Hawks shall use the Parking Lots for parking, as provide for herein, and may charge for such parking at the option of the Silver Hawks. All parking fees charged shall remain the property of the Silver Hawks. ARTICLE II Additional Uses The City and the Silver Hawks acknowledge and agree that they will each cooperate in connection with proposed special uses of the Parking Lots, including specifically, fireworks display clear areas. The City shall provide written notice to the Silver Hawks at least ten (10) days in advance of any proposed special use and the Silver Hawks shall use reasonable, good faith efforts in accommodating such proposals for special use. ARTICLE III Damage or Destruction, Termination 3.1 In the event of damage to, or destruction of, any of the Parking Lots, by any insured cause to an extent City has determined in its reasonable discretion can be repaired within thirty (30) days after the date of the cause of said damage, City will promptly cause the damage to be repaired and will diligently pursue the completion of such repair. In such event, this Agreement will continue in full force and effect. -2- 3.2 If any of the Parking Lots is damaged to an extent the City has determined in its reasonable discretion can not be repaired within Thirty (30) days after the date of the cause, then (1) the City may cancel this Agreement, as it relates to the damaged lot, as of the date of the cause of the damage by providing written notice to the Silver Hawks or (2) the Silver Hawks may cancel this Agreement, as it relates to the damaged lot, as of the date of the cause of the damage by giving written notice to the'City within Ten (10) days after the City's delivery of a written notice that the repairs cannot be made within Thirty (30) days. If neither the City nor the Silver Hawks so elects to cancel this Agreement, the City will diligently proceed to repair the damaged lot. If the City elects to cancel this Agreement, as provided in this Section 3.2, then the City, with direction from the City's agencies, boards and commissions shall identify alternate parking for the Silver Hawks' use throughout the remainder of the Easement Term or for the Extended Easement Term, as defined in Section I.I. The alternate parking shall be conveniently located within the proximity of the Stadium. The Silver Hawks shall pay no additional consideration for the alternate parking that is provided by the City. 3.3 If any of the Parking Lots is damaged by uninsured causes, or if the proceeds of insurance are insufficient to pay for the repair of any damage to any of the Parking Lots, the City will have the option either to elect to repair the damage or to cancel this Agreement, as it relates to the damaged lot, as of the date of the cause by written notice to the Silver Hawks not less than Ten (10) days after the date of the cause. If the City elects to cancel this Agreement, as provided in this Section 3.3, then the City, with direction from the City's agencies, boards and commissions shall identify alternate parking for the Silver Hawks' use throughout the remainder of the Easement Term or for the Extended Easement Term, as defined in Section 1.1. The alternate parking shall be conveniently located within the proximity of the Stadium. The Silver Hawks shall pay no additional consideration for the alternate parking that is provided by the City. 3.4 If any damage to any of the Parking Lots is the result of the willful conduct, misconduct, negligence or failure to act on the part of the Silver Hawks, its agents, contractors, employees, or the willful conduct of the Silver Hawks' invitees, the Silver Hawks will have no right to terminate this Agreement on account of any damage to any of the Parking Lots, except as set forth in this Agreement, and the City reserves the right to cancel this Agreement in its entirety. 3.5 For purposes of computing any period of a number of days hereunder for notices or performance (but not for accrual of interest), Saturdays, Sundays and holidays shall be excluded. 3.6 Should the Silver Hawks relocate its home field from the Stadium, then the City shall be relieved of its obligation to provide parking to the Silver Hawks and this Agreement shall terminate. 52 3.7 The City reserves the right to terminate this Agreement in its entirety, or as to any one or more of the Parking Lots, by providing written notice to the Silver Hawks Thirty (30) days in advance of the effective date of such termination. ARTICLE IV Representations and Covenants The City and the Silver Hawks represent, warrant and covenant with each other that: (a) each has all requisite power and authority to enter into this Agreement and to comply with and fulfill the terms and conditions of this Agreement; (b) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby has been duly authorized by all necessary action; and (c) this Agreement constitutes a legal, valid and binding obligation, enforceable in accordance with its terms and conditions. ARTICLE V Defaults and Remedies 5.1 Selection of Remedies. If any party fails to perform or observe any term or condition of this Agreement on its part to be performed or observed, and such failure continues: (a) with respect to the payment of money, for a period of fifteen (15) days after receipt by the failing party of a written notice indicating that such amount is past due, or (b) with respect to non - monetary defaults, for a period of sixty (60) days after receipt by the failing party of a written notice specifying the nature of the failure (a "Default "); then the non - failing party(ies) hereto shall be entitled to: (i) terminate this Agreement; (ii) obtain the remedy of specific performance or injunction to enforce such term or condition; (iii) bring an action against the party failing to perform or observe the term or condition of this Agreement on its part to be performed or observed to recover its actual damages; and (iv) perform the failed term or condition (entering upon any part of the Parking Lots for such purpose as applicable and necessary), without such performance being construed as a waiver of any term or condition of this Agreement. 5.2 Suspension of Remedies. Notwithstanding Section 5. 1, above, if the failure of a party as described above is of such a nature that it cannot be corrected within the applicable cure period despite diligent effort, then the other parties hereto shall not be entitled to exercise their respective remedies under this Article so long as the breaching party commences to cure the breach within the applicable cure period and diligently pursues such cure to completion. ARTICLE VI Assignment and Conveyance The City shall have the right to convey, transfer and assign any or all of its respective rights, title and /or interest in and to the Parking Lots as applicable; provided, that such conveyance, transfer or assignment shall be subject to the terms and conditions of this I" Agreement, the transferee shall assume the City's obligations hereunder and any document conveying, transferring or assigning such interest shall expressly specify the same. ARTICLE VII Notice Any notice required or permitted to be given by either party to this Agreement shall be in writing, and shall be deemed to have been given: (a) when delivered in person to the other party; (b) when sent by facsimile, with electronic confirmation of receipt; or (c) one day after being sent by national overnight delivery service, with confirmation of receipt, addressed as follows: City: City of South Bend Office of the Mayor 227 W. Jefferson Blvd. 1400 County -City Building Attention: Mike Schmuhl Fax No.: 574- 235 -9892 With a copy to: City of South Bend City Attorney's Office 227 W. Jefferson Blvd. 1400 County -City Building South Bend, IN 46601 Attention: Aladean DeRose, Esq. Fax No.: 574- 235 -9892 Silver Hawks: South Bend Silver Hawks, MiLB Affiliate of the AZ Diamondbacks With a copy to: 525 West Monroe Street Chicago, IL 60661 U.S.A. Attn: Andrew T. Berlin Fax No.: 312- 258 -7002 Attention: Fax No.: Any party may change its address for purposes of this Article by giving the other party written notice of the new address in the manner set forth above. -5- ARTICLE VIII Other Provisions 8.1 Governing Law. This Agreement shall be governed by, and construed in accordance with the laws of the State of Indiana and venue for any action shall be in St. Joseph County. 8.2 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. 8.3 Modification. This Agreement may not be changed or modified, except by an agreement in writing signed by the party sought to be charged with such modification. 8.4 Third Parties. Nothing herein expressed or implied: (a) is intended to give to; or (b) shall be construed to confer upon; any person other than the parties hereto, and their permitted successors or assigns, any rights or remedies under or by reason of this Agreement. 8.5 Entire Agreement. This agreement, together with the other agreements referenced herein, constitutes the entire agreement among the parties hereto, and supersedes all prior discussions, letters of intent, outlines of terms, agreements, writings and representations among the parties hereto with respect to the transaction contemplated herein. 8.6. Further Assurances. The Parties agree that they will each take any action and execute and deliver any document reasonably required to carry out the intents and purposes of this Agreement. Without limitation, this shall include the furnishing or any exhibit called for to be attached hereto or included herewith, and the failure to attach any such exhibit to this Agreement at the date of execution shall not void this Agreement. 8.7 Approval by Public Agencies. The Parties understand and acknowledge that certain actions contemplated by this Agreement may be undertaken by the South Bend Redevelopment Commission, the South Board of Public Works, and/or the South Bend Board of Park Commissioners and/or various other persons, agencies or entities that are not party to this Agreement. Such actions are required to be undertaken in accordance with applicable state, federal and local laws. Accordingly, the Parties hereby acknowledge that any such action referenced in this Agreement under the authority of such third parties shall require independent approval by the respective person(s), entity(ies) or governing body(ies) thereof. 8.8 Corporate Authority. The undersigned persons executing and delivering this Agreement on behalf of the Silver Hawks represent and certify that they are the duly authorized representatives of the Silver Hawks and have been fully empowered to executed and deliver this Agreement and that all necessary corporate action has been taken and done. [Signatures on the Following Pages] M IN WITNESS WHEREOF, the undersigned have executed this Agreement this day of , 2012. CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT Signature Printed ame and Title South Bend Redevelopment Commission ATTEST: Signature Printed Name and Title South Bend Redevelopment Commission IN WITNESS WHEREOF, the undersigned have executed this Agreement this day of , 2012. BOARD OF PARK COMMISSIONERS OF THE PARK DISTRICT OF THE CITY OF SOUTH BEND By: Robert Henry Its: President By: Bob Goodrich By: Garrett Mullins By: Amy Hill -2- IN WITNESS WHEREOF, the undersigned have executed this Agreement this day of )2012. ATTEST: Linda Martin, Clerk CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS Gary Gilot, President Kathryn Roos Don Inks -3- IN WITNESS WHEREOF, the undersigned have executed this Agreement this day of , 2012. SOUTH BEND SILVER HAWKS, MiLB IM Printed Name: C Printed: Title: Title: -4- Exhibit A LOTS A & B: A is leased by Parks and B is owned by Parks. City will work to support variance through Area Board of Zoning Appeals with appropriate setbacks for a 6 -foot fence. LOT C: Owned by Parks. Continues with current usage. LOT D: Owned by Dudley Ventures. This lot is not part of this Parking Easement Agreement. The Silver Hawks and Dudley Ventures may enter into a separate agreement for this lot. LOTS E & F: E and the south half of F are owned by Public Works and the north half of F is owned by Redevelopment Commission. After some internal discussion, the City has decided to retain the lots for future mixed -use development. Site remediation, preparation and paving would be a significant cost to the City, especially with the potential for future development, but parking on the grass section of the lot is fine. LOT G: Owned by Redevelopment Commission. Continues with current usage. LOT H: Owned by Redevelopment Commission and leased to Ambulatory Care Solutions (ACS) for its VA Clinic. Parking will be restricted due to construction. A new parking lot will be in place by April 25, 2012 for the opening of the clinic on May 1. This Parking Easement Agreement covers a shared use of this parking lot for VA patients and use by the Silver Hawks. The City and the Silver Hawks will enter into a supplemental agreement with ACS setting forth times and areas of shared use. Additional overflow parking availability: There is an additional, Redevelopment Commission -owned parking lot on Western Ave. between William and Taylor streets. The City would allow parking on this site as part of the agreement. It is a grass lot. There are probably 60 -70 spaces here. There is an additional Redevelopment Commission parking lot on the southeast comer of Western and Main that would be available for use. It is due south of the Public Library and approximately a 1.5 blocks walk to the centerfield entrance at Lafayette and Western. -5-