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HomeMy WebLinkAbout6A1 MOU (91).6) _s \ �% 2�; Department of :cis.\1 �� 2 ''\itwcE� -=,? a% Community Investment �•. !8651 Memorandum September 11, 2014 TO: Redevelopment Commission FROM: David Relos, Economic Resource(),/. SUBJECT: Memorandum of Understanding — Swing Batter Swing LLC This Memorandum of Understanding (MOU) is for a professional batting cage facility next to the Cove. The facility will be owned and operated by Swing Batter Swing LLC, the owner of the South Bend Silverhawks, be open year round and available for public use when not being used for training by the team. The MOU is between the Board of Park Commissioners (Parks), Board of Public Works (BPW), Swing Batter Swing (SBS), and the Redevelopment Commission (RDC). Parks currently owns the parcel where the facility will be constructed, and to accommodate breaking ground the first part of October, will transfer it to the BPW. Concurrently with construction, this parcel and surrounding property will be subdivided. This block has a mix of ownership between Parks and the RDC, with multiple zoning classifications. In the near future staff will bring a professional services agreement to consolidate the many parcels and zonings making up the block, which is a development impediment that to date has not been addressed. Once this parcel is added to the RDC's acquisition list, BPW will transfer it to the RDC, where it will then go through the disposition process and ultimately transferred to SBS. The property not needed for the facility will then be transferred back to Parks. The MOU outlines each party's responsibilities to carry out the construction and ownership of this facility, which will be privately funded, approximately 11,000 square feet, contain six indoor tunnels and two regulation pitching mounds, an observation deck, and estimated to cost $1,000,000. The facility will enhance the Cove, team, and larger region, being a unique destination point that will draw more people to the downtown area. Staff requests approval of this MOU, to allow for the ownership and construction of this professional grade batting facility. 227 W. JEFFERSON BLVD. SOUTH BEND, IN 46601 I P: 574-235-9371 I FAX: 574 235-9021 I SOUTHBENDIN.GOV MEMORANDUM OF UNDERSTANDING THIS MEMORANDUM OF UNDERSTANDING (the "Agreement") is made effective as of the 3rd day of September, 2014, by and among Swing-Batter-Swing, LLC (the "Company"); the Board of Park Commissioners (the "Park Board") of the Park District of the City of South Bend, Indiana (the "Park Department"); the South Bend Redevelopment Commission (the "Commission"), governing body of the South Bend Department of Redevelopment; and the Board of Public Works of the City of South Bend, Indiana (the `Board of Works") (the Company, Park Board, the Commission, and the Board of Works being sometimes collectively referred to herein as the "Parties"). RECITALS WHEREAS, the Park Board is authorized under I.C. 36-10-4 to administer, improve, lease and sell park property for the City of South Bend; and WHEREAS,the City, acting by and through the Park Board, is the owner of certain real property and improvements more commonly known and operated as Four Winds Field at Stanley Coveleski Regional Stadium(the "Stadium ")in the City of South Bend, Indiana(the"City); and WHEREAS, pursuant to I.C. 36-9-6-1 et. seq., the Board of Works has the duty and authority to have custody, control, use, and to dispose of all real and personal property owned by the City of South Bend, Indiana; and WHEREAS, the Commission exists and operates under the provisions of Indiana Code 36-7-14(the"Act"); and WHEREAS, the Company presently owns and operates a professional minor league baseball team in South Bend, Indiana, currently known as the "South Bend Silver Hawks" (the "Team "), a Class A Minor League Franchise in the Midwest League of Professional Baseball Clubs, Inc., a member league of the National Association of Professional Baseball Leagues, Inc.; and WHEREAS,the Team plays its homes games at the Stadium ,pursuant to a Stadium Use, Management and Operations Agreement dated as of December 13, 2011, between the Company, as assignee of South Bend Professional Baseball Club LLC, and the Park Board, as the same has been amended; and WHEREAS, in conjunction with its home games, the Company has been utilizing certain parking lots owned by the Park Board and located adjacent to the Stadium with the permission and approval of the Park Board; and WHEREAS, the Company has proposed to construct at its own cost a professional grade batting cage facility consisting of a minimum of six (6) batting cages with equipment areas, US.54748561.02 restrooms, and an observation area (the "Project") adjacent to the Stadium which Project will have an estimated total facility cost of $ and have a total square footage of approximately square feet; and WHEREAS, the Project will serve to improve the operations of the Team and will, subject to the priority access of the Team, be open to the public at reasonable hours for commercially reasonable fees; and WHEREAS, the Company desires to complete the Project in advance of the 2015 baseball season which will require the initiation of construction of the Project on or about October 1, 2014 ; and WHEREAS, the Company desires to locate the Project on property located adjacent to the stadium as depicted at Exhibit A attached hereto and made a part hereof which property is presently owned by the Park Department (the "Project Parcel"); and WHEREAS, the Commission has previously adopted a development plan(the"Plan") for the redevelopment area in which the Project would be located and the Commission believes that completion of the Project as described herein is in the best interests of the City and its residents and complies with the public purposes and provisions of the Act and advances the development of such redevelopment area consistent with the Plan; and WHEREAS, the Project Parcel is currently part of a larger parcel of property depicted at Exhibit B attached hereto and made a part hereof which is also owned by Park Board (the "Park Parcel"); and WHEREAS, Company desires to acquire the Project Parcel for the purpose of locating the Project on such property; and WHEREAS, the Park Board, the Commission and the Board of Works desire to facilitate and provide for the completion of the Project on the Project Parcel by the Company and to formalize their agreement as to use of the properties being utilized for parking by the Company subject to the terms and conditions contained herein; and WHEREAS, the Parties each understand and agree that certain actions contemplated by this Agreement are required to be undertaken by persons, agencies or entities that are not party to this Agreement and that any action by such third parties shall require independent approval by the respective person, agency, entity or governing body thereof; and WHEREAS, the Parties hereto have determined to enter into this Agreement in order to formalize their understanding of each Party's related rights and obligations described herein; NOW,THEREFORE, in consideration of the mutual promises and obligations set forth in this Agreement, the adequacy of which consideration is hereby acknowledged, the Parties agree as follows: -2 - US.54748561.02 1) General. (a) The representations, covenants, and recitations set forth in the foregoing recitals are material to this Agreement and are hereby incorporated into and made part of this Agreement as though they were fully set forth in this Section. (b) The Parties agree, subject to the further proceedings required by law, to take such actions, including the execution and delivery of such documents, instruments, petitions and certifications (and in case of the Park Board, the Commission and the Board of Public Works, the consideration of the adoption of such resolutions), as may be necessary or appropriate, from time to time, to carry out the terms, provisions, and intent of this Agreement and to aid and assist each other in carrying out said terms, provisions, and intent. 2) Project Completion. The Company agrees that it will undertake the Project, and that the Project will result in a private investment of approximately $ The Project shall be constructed consistent with the elevation drawings at Exhibit B attached hereto and made a part hereof. The Company desires to begin construction on or about October 1, 2014, to provide for completion in time for the Project to be available for use by the Team at or prior to the start of the 2015 baseball season. The Company shall cause the Project to be completed in compliance will all zoning and land use laws and ordinances in all material respects. Upon completion of the Project,the Company expects to make the Project available for public use at commercially reasonable rates, subject to the priority access of the Team. 3) Property Transfers. In order to provide for the completion of the Project by the Company as set forth in.Section 2 hereof, the Park Board, the Board of Works and the Commission agree to undertake the following transfers: (a) Subject to all of the terms, covenants and conditions of this Agreement, including without limitation the reconveyance obligation set forth herein, the Park Board and the Board of Works agree to adopt substantially identical resolutions pursuant to Indiana Code 36-1-11-8 for the purpose of agreeing to the Park Board conveying its interest in the Park Parcel to the Board of Works, acting for and on behalf of the City. Such transfer shall be completed as soon as reasonably possible following the approval and execution of this Agreement. (b) The Redevelopment Commission agrees to undertake such actions as may be necessary to amend the Plan to add the Project Parcel to the property acquisition list set forth in the Plan which actions are subject to approval by the Area Plan Commission and the South Bend Common Council. (c) Once the Commission has completed the actions necessary to amend the Plan to add the Project Parcel to the acquisition list in the Plan, the Commission and the Board of Works agree to adopt substantially identical resolutions pursuant to Indiana Code 36-1-11-8 for the purpose of agreeing to the Board of Works, acting for and on behalf of the City, conveying its interest in the Project Parcel to the Commission. -3 - US.54748561.02 (d) The Commission agrees that it will offer the Project Parcel for disposition pursuant to Section 22 of the Act and provide in the Offering Sheet required by such Section 22 (the "Offering Sheet") that the Project Parcel must be used for a project similar to the Project and must be used in connection with the operation of the Team. (e) Subject to the completion of the disposition process required by Section 22 of the Act set forth in subparagraph(d) above and following completion of the necessary subdivision approvals to establish the Project Parcel as a legally subdivided lot, the Company agrees to acquire the Project Parcel for nominal consideration. (f) Upon completion of the subdivision process to establish the Project Parcel as legally subdivided lot, the Board of Works and the Park Board agree to adopt substantially identical resolutions pursuant to Indiana Code 36-1-11-8 for the purpose of agreeing to the Board of Works, acting for and on behalf of the City, conveying its interest in the Park Parcel, but excluding the Project Parcel,to the Park Board. (g) The Parties agree to enter those written agreements necessary to ensure the use and access to various parcels of real property for parking related to the use and operation of the Stadium by the Company. 4) Access to the Project Parcel for Construction. The Park Board, the Board of Works and the Commission agree that, for the Company to complete the Project so that the Project is available to the Team at the start of its 2015 season, the Company must have access to the Project Parcel on or before October 1, 2014. In order to provide the Company with sufficient access to the Project Parcel, the Board of Works agrees to grant the Developer a license prior to such date (i) over the Project Parcel to permit construction of the Project and (ii) over the Park Parcel to provide access as necessary to the Project Parcel to permit construction on the Project Parcel. The grant of such licenses by the Board of Works to the Company shall be set forth in a license agreement substantially in the form set forth at Exhibit D attached hereto and made a part hereof(or in such other form as mutually agreed). 5) Cooperation. The Board of Works and the Commission agree to assist the Company in its efforts to expedite the Project through all required subdivision, zoning, variance, design, health, safety, construction, and other necessary permits, consents and/or approvals to complete the Project. Each of the Park Board and the Board of Works, as the case may be, agrees to file, as owner of the Project Parcel, such applications for subdivision and variances as may be necessary to effect the property transfers contemplated herein and to provide for the timely completion of the Project. Notwithstanding the foregoing, none of the Park Board, the Commission or the Board of Works shall be required to expend any public funds with respect to any of the foregoing. Each of the Board of Works,the Commission and the Park Board agrees to coordinate all public announcements and press releases relating to the Project with the Company. 6) Parking Easement Upon Project Completion. The Company and the Park Board agree that each will have rights to access property for parking purposes as provided in a Parking Agreement among the Parties, excluding that portion of the Project Parcel occupied by the Project. Each agree, that prior to the completion of the Project, each will enter into a Parking -4- US.54748561.02 Agreement to give the Company rights to use parking facilities for operation of the Project upon completion and to give the Park Board access for parking purposes any parking spaces which may be located on the Project Parcel. 7) Right of First Refusal. In the event the Company determines to sell or otherwise dispose of the Project to a person who is not or will not be an owner of the Team as a result of such sale or disposition, or following which sale or disposition, the Team will not have priority access to the Project, the Company shall provide written notice to the Commission and the Park Board as required herein of such pending sale or disposition. The Commission or the Park Board shall have a right to purchase the Project at a purchase price equal to not less than the price to be paid by such third party as evidenced by a certification to such price by such third party and the Company or the fair market value of the Project as determined by the average of three appraisers (one (1) to be appointed by the Commission, one (1) to be appointed by the Company and one (1) to be appointed by the other two (2) appraisers). Such right of first refusal shall expire sixty (60) days from the date that each of the Commission and the Park Board is first notified in writing of such pending sale or disposition, during which time, the Company shall take no action to such sale or disposition. Following the expiration of the 60 day period, the Company may proceed with the sale or disposition of the Project. 8) Tax Abatement. Upon request of the Company, and at the earliest opportunity permissible and upon timely receipt of the appropriate documentation, the Commission agrees to recommend approval of and support the designation of the Project Parcel as an Economic Revitalization Area (under Indiana Code 6-1.1-12.1-1 et seq.) for purposes of real property tax abatement for the Project. 9) Authority. Each of the Park Board, the Board of Works, and the Commission represents and warrants that each has taken or will take (subject to the Company's performance of its obligations and agreements hereunder) such action(s) as may be required and necessary to enable each of such bodies to execute this Agreement and to carry out fully and perform the terms, covenants, duties and obligations on its part to be kept and performed hereunder. 10) General Provisions. (a) No Joint Venture or Partnership. Nothing contained in this Agreement shall be construed as creating either a joint venture or partnership relationship between the any of the Park Board, the Board of Works or the Commission or any affiliate thereof and the Company or any affiliate thereof. (b) Time of Essence. Time is of the essence of this Agreement. The Parties shall make every reasonable effort to expedite the subject matters hereof(subject to any time limitations described herein) and acknowledge that the successful performance of this Agreement requires their continued cooperation. (c) Breach. Before any failure of any party to this Agreement to perform its obligations under this Agreement shall be deemed to be a breach of this Agreement, the party claiming such failure shall notify, in writing as provided herein, the - 5 - US.5474856].02 party alleged to have failed to perform such obligation and shall demand performance. No breach of this Agreement may be found to have occurred if performance has commenced to the reasonable satisfaction of the complaining party within thirty(30) days of the receipt of such notice. If after said notice, the breaching party fails to cure the breach, the non-breaching party may seek any remedy available at law or equity. Notwithstanding the foregoing, the Parties each understand and agree that certain actions contemplated by this Agreement are required to be undertaken by persons, agencies or entities that are not party to this Agreement, and that any failure or refusal to act by such third parties shall not be deemed to be a breach of this Agreement by any party. (d) Amendment. This Agreement may be amended only by written instrument signed by all of the Parties hereto. (e) No Other Agreement. This Agreement supersedes all prior agreements, negotiations, and discussions relative to the subject matter thereof and is a full integration of the agreement of the Parties. (f) Severability. If any provision, covenant, agreement, or portion of this Agreement or its application to any person, entity or property, is held invalid, such invalidity shall not affect the application or validity of any other provisions, covenants, agreements or portions of this Agreement and, to that end, any provisions, covenants, agreements or portions of this Agreement are declared to be severable. (g) Indiana Law. This Agreement shall be construed in accordance with the laws of the State of Indiana. (h) Notices. When written notice is required or permitted by this Agreement, it shall be sufficiently given, in the absence of a specific provisions to the contrary, if sent by overnight delivery, United States first-class mail, or hand delivery, in each case to the party to be in receipt thereof, at the addresses below: PARK BOARD Board of Park Commissioners South Bend Park Department 321 East Walter Street South Bend, IN 46614 Attention: President with a copy to: Corporation Counsel's Office 227 W. Jefferson Blvd, Suite 1200 S South Bend, IN 46601 Attention: Cristal Brisco - 6 - US.54748561.42 • REDEVELOPMENT COMMISSION South Bend Redevelopment Commission 227 W. Jefferson Boulevard Suite 1400 S South Bend, IN 46601 Attention: President with a copy to: Corporation Counsel's Office 227 W. Jefferson Blvd, Suite 1200 S South Bend, IN 46601 Attention: Cristal Brisco BOARD OF PUBLIC WORKS South Bend Board of Public Works 227 W. Jefferson Boulevard Suite 1316 South Bend, IN 46601 Attention: President with a copy to: Corporation Counsel's Office 227 W. Jefferson Blvd, Suite 1200 S South Bend, IN 46601 Attention: Cristal Brisco COMPANY Swing Batter Swing, LLC Attn: with a copy to: Faegre Baker Daniels LLP 202 South Michigan Street Suite 1400 South Bend, IN 46601 (i) Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same agreement. * * * * * * - 7 - US.54748561.02 IN WITNESS THEREOF, the Parties have duly executed this Agreement pursuant to all requisite authorizations as of the date first above written. SWING-BATTER-SWING, LLC CITY OF SOUTH BEND BOARD OF PARK COMMISSIONERS Signatu ' , Pert Goodrich, President Afivi?128Ew 071-,^-v Printed Name and Title ATTEST;- Li;AL QÔJI4 William Carleton, Secretary CITY OF SOUTH BEND CITY OF SOUTH BEND REDEVELOPMENT COMMISSION BOARD OF PUBLIC WORKS ettr /SIX- Signature G y A. Gilot, President Printed Name and Title Patrick Henthorn, Member ATTEST: Brian Pawlowski, Member Signature C111111,01 _ Printed Name and Title `� 9 , M- ber • 1114 Kathryn Roo e'ber ATTEST: i•da M. Martin, -rk (Signature Page to Memorandum of Understanding dated September 3, 2014 Related to Batting Cage Facility) - 8 - US.54748561.02 II II