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^ � �% 2 Department of
Community Investment
1865
Memorandum
December 22, 2014
TO: Redevelopment Commission
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FROM: David Relos, Economic Resources
SUBJECT: ti
Assum on of License Agreement from BPW
Assumption g
Cove Parcel 18-3014-051501
On September 11, 2014, an MOU between the Board of Park Commissioners (Parks);
x Board of Public Works (BPW); Swing Batter Swing (SBS), owner of the South Bend Cubs
minor league baseball team, and the Redevelopment Commission (RDC) was approved.
This MOU outlines each party's responsibilities to carry out the construction and
ownership of a privately funded, approximately 17,700 square feet batting cage facility,
containing six indoor tunnels, two regulation pitching mounds, an observation deck, and
having an estimated construction cost of$1,000,000. This facility will enhance the Cove,
team, and larger region by being a unique destination point that will draw more people to
the downtown area.
On December 11, the Commission approved Resolution No. 3258, accepting the transfer
of this parcel from BPW.
On September 4, 2014, BPW and SBS entered in to a License Agreement ("Agreement"),
allowing SBS to begin construction on the site.
This Assumption of License Agreement transfers the Agreement from BPW to RDC, since
upon recording of the deed from BPW to RDC, ownership of the parcel will be in the name
`s of RDC.
Staff requests approval the Assumption of License Agreement.
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227 W. JEFFERSON BLVD. SOUTH BEND, IN 46601 P: 574-235-9371 FAX: 574-235-9021 SOUTHBENDIN.GOV
ASSIGNMENT OF LICENSE AGREEMENT,ASSUMPTION OF LICENSE
AGREEMENT,AND CONSENT TO ASSIGNMENT OF LICENSE AGREEMENT
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ASSIGNMENT OF LICENSE AGREEMENT
The City of South Bend, Indiana, by and through its Board of Public Works (the
"Board"), does hereby assign, set over and convey to the South Bend Redevelopment
Commission, the governing body of the Department of Redevelopment for the City of South
Bend, Indiana, all of its right title and interest in and under that certain License Agreement dated
September 4, 2014, by and between the Board and Swing-Batter-Swing, LLC, an Indiana limited
liability company.
Dated this day of , 2014.
CITY OF SOUTH BEND, INDIANA
BOARD OF PUBLIC WORKS
Gary Gilot, President
Kathryn Roos, Member
David Relos, Member
Patrick Henthorn, Member
Brian Pawlowski, Member
ATTEST:
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Linda Martin, Clerk
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ASSUMPTION OF LICENSE AGREEMENT
The South Bend Redevelopment Commission, the governing body of the Department of
Redevelopment for the City of South Bend, Indiana, does hereby accept the foregoing
Assignment of License Agreement and agrees to assume and be bound by the obligations of the
Board of Public Works of the City of South Bend, Indiana (the "Board"), as set forth in the
License Agreement dated September 4, 2014, by and between the Board and Swing-Batter-
Swing, LLC, an Indiana limited liability company.
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Dated this day of , 2014.
CITY OF SOUTH BEND,
DEPARTMENT OF REDEVELOPMENT
Signature
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Printed Name and Title
South Bend Redevelopment Commission
ATTEST:
Signature
Printed Name and Title
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) CONSENT TO ASSIGNMENT OF LICENSE AGREEMENT
) Swing-Batter-Swing, t£C, a Idiaa Smite liability compa\ (h "Company"), a
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party m the License Agreement dated September 42014by and between the Board oPublic
] Works, ote City o South BedIdiaa (h "Board"), hrbycneGadarestte
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Bend, Indiana.
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SWING-BATTER-SWING, LLC
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LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "Agreement") is entered into this 4 1 day of
September,2014,by and between Swing-Batter-Swing,LLC,an Indiana limited liability company
(the "Company") and the City of South Bend, Indiana, acting by and through its Board of Public
Works (the 'Board of Public Works") (the Company and the Board of Public Works sometimes
being referred to individually as a "Party" or collectively as "Parties") under the following
1 circumstances:
WHEREAS, the Company entered in a Memorandum of Understanding, dated as of the
3rd day of September, 2014 (the "MOU"), with the Board of Public Works, the South Bend
1 Redevelopment Commission (the "Commission") and the City of South Bend Board of Parks
Commissioners(the "Park Board");
WHEREAS, pursuant to the MOU, the Company has determined to build the Project (as
such term is defined in the MOU)at its expense and desires to have the Project complete and ready
for use prior to the 2015 baseball season; and
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WHEREAS, the Park Board, the Board of Works and the Commission have agreed in the
MOU to take certain actions that would permit the Company to access the property on which the
Project will be constructed which is described and depicted at Exhibit A attached hereto and made
a part hereof for the purpose of permitting the Company to initiate construction of the Project on
or about October 1, 2014, which is in advance of when the actions necessary to dispose of the
property will have been completed;
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WHEREAS,the Park Board,the Board of Works and the Commission also have agreed in
the MOU to take certain actions with respect to the Park Parcel which is described and depicted at
Exhibit B attached hereto and made a part to provide access to the Company over and through the
Park Parcel to the Company for the purpose of constructing the Project on the Project Parcel; and
WHEREAS, in consideration of the terms and conditions set forth herein,the City, acting
by and through the Board of Public Works has agreed to grant to Company(i) a license over the
Project Parcel to the Company for the purpose of permitting the Company to engage in
construction activities related to the construction of the Project and (ii) a license over the Park
Parcel to the Company for the purpose of providing access to the Project Parcel if necessary;
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NOW THEREFORE, for good and valuable consideration, the receipt and sufficient of
which is hereby acknowledged,the Board of Works and the Company agree as follows:
1. The City, acting by and through the Board of Public Works, does hereby grant and
convey to the Company an ongoing license and right of entry over, across, under and in (i) the E
Project Parcel for the purpose of preparing the site for construction and constructing the Project
and(ii)the Park Parcel to the extent required for the purpose of providing access to the Company
to the Project Parcel for construction of the Project on the Project Parcel ((i) and (ii) being
collectively defined as the"Right of Entry"). The City agrees to cooperate with the Company to
the extent commercially reasonable to allow the Company to utilize the Project Parcel and the Park
Parcel for the purposes set forth herein. The Company's Right of Entry shall terminate on the date
FAShare\Legal\Wpdata\Cheryl G\Department_ParksAndRecreaction\Coveleski Stadium\Batting Cage Facility\License Agreement- s
Parking_FINAL_140903.docx
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when the Company receives fee simple title to the Project Parcel pursuant to the MOU. The
failure of City to provide the Right of Entry or the failure of City to provide such cooperation shall
constitute a default of this Agreement.
2. The Company agrees to indemnify and hold City, its employees, agents, and
contractors harmless from and against all cost, loss, caim, liability, damage or expense(including
reasonable attorneys' fees, disbursements and court costs) arising out of any a) loss of life or
personal injury or property loss or damage whatsoever which results from the undertakings of its
agents, contractors or subcontractors in performing any work upon the Project Parcel or as a result
of its access of the Park Parcel prior to the termination of this Agreement. The indemnity provided
herein shall not apply in the event that injury or loss is caused by the negligent or intentional
conduct of City, its employees, agents and contractors.
3. The Company, upon execution of this Agreement and prior to exercising its Right
of Entry, shall provide to City a certificate or certificates of insurance specifying worker's
compensation and employer's liability insurance in satisfaction of Indiana state requirements and
commercial general liability insurance with a dollar limitation of coverage not less than a
combined single limit of $1,000,000.00 per any one occurrence and Five Million Dollars
($5,000,000)for injury to or death of all persons in that occurrence for all loss,damage,cost and expense
arising out of bodily injury liability and property damage liability relating to the Company's Right
of Entry and discharge of its agreements and responsibilities upon the Project Parcel or the Park
Parcel pursuant to the terms of this Agreement. Such insurance shall remain in force until
termination of Company's Right of Entry and shall name City as an additional insured.
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4. All disputes and matters in question between the Parties with respect to any
provision of this Agreement shall be decided and settled by mutual agreement of the Parties
1 concerned or by any court of competent jurisdiction. If any Party refuses to comply with, or at
any time violates or attempts to violate, any term, covenant or agreement contained in this
Agreement, any other Party hereto may, by injunctive action, in addition to any other right at law
or in equity, compel the defaulting Party to comply with, or refrain from violating, such term,
covenant or agreement, and may, by injunctive action, compel specific performance of the
obligations of the defaulting Party. In the event of any such litigation, the non-defaulting
prevailing Party, as determined by the court, shall pay the fees and expenses, including attorneys'
fees and court costs, of the prevailing Party.
5. This Agreement shall be construed in accordance with and governed by laws of the
1 State of Indiana. Any suit, action or proceeding arising out of, or with respect to, this Agreement
or any judgment entered by any court in respect thereof shall be brought exclusively in the St.
Joseph County, Indiana Circuit or Superior Court and the Parties hereto accept the exclusive
jurisdiction of those courts for the purpose of any suit,action or proceeding. This Agreement shall
not be assignable by any Party without the prior written consent of the other Parties. This
Agreement contains the entire agreement among the Parties with regard to the subject matter hereof
except as otherwise set forth in the MOU. Time is of the essence in discharging the responsibilities
and obligations of the Parties hereunder and this Agreement may only be amended or modified by
the prior written consent of all the Parties hereto.
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\) IN WITNESS WHEREOF, the parties have e e Ge this License Agreement e Ac!!v as
o the day and date first written above.
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) SWING-BATTER-SWING, £tC,
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CITY O£ SOUTH SEND INDIANA acting by
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Gary A. GIQ!
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Brian Pawlowski
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} EXHIBIT "A"
LEGAL DESCRIPTION OF PROJECT PARCEL
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Legal description of tax parcel 018-3014-051501 Sheet 1 of 1
A portion of the Southeast Quarter of Section 11 and a portion of the Southwest Quarter of Section 12,
Township 37 North, Range 2 East, City of South Bend, St. Joseph County, Indiana, and part of Samuel
Martin's Addition to South Bend as recorded in the Office of the Recorder in Plat Book 3,Page 28 and part
of Vail's Addition to South Bend as recorded in the Office of the Recorder in Plat Book 1, Page 30 being
more particularly described as follows:
Beginning at the Southeast corner of Lot 16 in Block 10 of said Vail's Addition; thence North 01°01'29"
West 131.34 feet along the east line of Lots 16, 15 and 14 to the northeast corner of parcel as described in
Deed Record 8603067 as recorded in the Office of the Recorder, St. Joseph County,Indiana;thence South
89°07'40"West 117.75 feet along the north line of said parcel to the east boundary of Taylor Street;thence
North 00°47'54" West 571.08 feet along said east boundary to a point being the middle of a vacated alley
1 north of Lot 13 in Block 7 of said Vail's Addition; thence North 89°17'40" East 218.12 feet along the
centerline of said vacated alley to a point on an apparent right-of-way of a cul-de-sac of Williams Street;
thence South 00°44'37" East 116.19 feet along said apparent right-of-way; thence continuing along said
apparent right-of-way North 89°39'18" East 94.44 feet to the east line of Williams Street; thence North
01'12'58"West 10.39 feet to the northwest corner of Lot 15 in Block 8 of said Vail's Addition;thence North
89'16'22"East 129.54 feet to the northwest corner of Lot 7 in Block 8 of said Vail's Addition;thence South
76°41'50" East 306.60 feet to a point 24.75 feet north of the southeast corner of Lot 31; thence South
01'01'05"East 24.75 feet along the east line of said Lot 31 to the southeast corner of said Lot and the north
boundary of Monroe Street;thence South 01'00'35"East 82.50 feet to the south boundary of Monroe Street;
thence continuing South 01'00'35"East 88.30 feet along the west boundary of Samuel Martin's Addition to a
projected line that is 22 feet south of and parallel with the north line of Lot 68 of said Samuel Martin's
Addition; thence North 89°12'11" East 178.57 feet along said projected line to the west boundary of
Lafayette Blvd;thence South 00°56'52"East 323.05 feet along said west boundary to the north boundary of
South Street; thence South 89°03'58"West 358.24 feet along said north boundary to its intersection with a
parcel line as described in Deed Record 9714626 as recorded in the Office of the Recorder, St. Joseph
County, Indiana; thence along the said deed record parcel lines the following five courses: thence North
45°00'00"East 192.20 feet;thence North 00°00'00"West 310.00 feet;thence North 45°00'00"West 120.00
feet; thence North 89°51'44" West 362.00 feet; thence South 45°00'00" West 177.00 feet; thence South
01°00'21"East 413.52 feet to the north boundary of South Street; thence South 89 003'58"West 14.00 feet
along said north boundary to the point of the beginning and containing an area of 4.84 acres, more or less.
Prepared for: City of South Bend
By: Mikel Currier,PS
Firm: Jones Petrie Rafinski
Date: November 26,2014
Job Number: 2014-5157
HA2014 ProJ ects\2014-5157 Coveleski Park Re laASURVe alsTe al Exhibit A of 018-3014-051501doc
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