HomeMy WebLinkAboutNo. 2369 approving a counter offer from and a contract of purchase and sale with Key S.B. LLC and other related matters. RESOLUTION N0.2369
A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION
APPROVING A COUNTEROFFER FROM AND A CONTRACT OF PURCHASE AND
SALE WITH KEY S.B., L.L.C. AND OTHER RELATED MATTERS
WHEREAS, the South Bend Redevelopment Commission ("Commission") is the
governing body of the City of South Bend Department of Redevelopment established under the
Redevelopment of Cities and Towns Act of 1953, as amended, being Indiana Code ~ 36-7-14-1
et seq. (the "Act"); and
WHEREAS, redevelopment and the stimulation of economic development are of benefit
to the health and welfare of the people of Indiana and the citizens of the City of South Bend,
Indiana (the "City"), are public uses and purposes for which public money may be spent and are
a public utility and benefit; and
WHEREAS, the Commission has the power and duty to investigate, study, and develop
areas within the corporate boundaries of the South Bend Redevelopment District (the "District")
. that the Commission has detern~ined to be blighted, stagnant or deteriorating in order to
encourage economic development and redevelopment; and
WHEREAS, the property located at 202-204 S. Michigan Street and more particularly
described at Exhibit A of the Purchase Agreement (as defined below) (the "Site") is located
within the corporate boundaries of the City, the South Bend Redevelopment District (the
"District"), and the South Bend Central District Development Area (the "Area"), which Area has
been previously determined by the Commission to be an area needing redevelopment in
accordance with the Act; and
WHEREAS, evidence presented to the Commission suggests that green space in the Area
is a needed amenity in the Area and necessary to facilitate the redevelopment of the Area; and
WHEREAS, Key S.B., L.L.C. (the "Developer") has proposed performing significant
renovations and investment to the building located at 202 S. Michigan Street in the City,
commonly known as the KeyBank Tower, in order to retain several first class tenants in the Area
and to encourage further investment and development in the Area (the "Project"); and
WHEREAS, the Developer has submitted evidence that the Project will retain
approximately seventy-nine (79) permanent jobs and create approximately fourteen (14) new
jobs with an approximate payroll, including benefits, of $5,406,000.00 per year, in addition to
the jobs related to the Project's construction; and
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WHEREAS, in order to induce the Developer to secure long-term leases with first class
• tenants, the Commission has entered into a Memorandum of Understanding (the "Agreement")
with the Developer, which provides that the Commission will encourage the preservation of
green space in the Area by purchasing the Site and constructing certain improvements thereon to
increase the use and visibility of the space; and
WHEREAS, the Agreement further provides that the Commission's purchase of the Site
be subject to a lease agreement between the Developer and the Commission providing that the
Developer shall be responsible for the operation, maintenance and management of the Site and
shall bear responsibility for all expenses, taxes and assessments assessed against the Site; and
WHEREAS, the Site is in the Area, and all necessary actions have been taken to purchase
the Site in accordance with the Act; and
WHEREAS, the Commission has adopted a resolution approving the offering price of
$156,000.00, constituting the "as is" value of the Site and authorized the issuance of an offer to
the Developer for that amount; and
WHEREAS, the Developer has rejected that offer as it is inconsistent with the
Agreement, which requires that the Commission purchase the Site for $200,000.00; and
WHEREAS, the Developer desires to make improvements to the Site, at a total
approximate cost of $200,000.00 to $240,000.00 to improve the green space used by the public
• and as an amenity for the tenants of its building; and
WHEREAS, the Commission, under the Agreement, is further obligated to improve the
Site, by investing approximately $200,000.00 in the Site, for a total investment in the Site of
$400,000.00; and
WHEREAS, the Developer has provided a counteroffer to the Commission proposing to
(i) release the Commission of its additional investment obligation of $200,000.00, (ii) delay the
purchase of the Site until the completion of the Developer's improvements, which are schedule
to commence shortly, and (iii) set the purchase price for the Site at $400,000.00; and
WHEREAS, evidence has been presenting suggesting that accepting the Developer's
counteroffer, although above the appraisal value for the Site, will result in (i) no additional
public funds being expended for the Project than those contemplated in the Agreement, and (ii)
additional time and cost savings to the Commission related to the improvement of the Area's
green space; and
WHEREAS, as contemplated in the Agreement, the purchase of the Site will be subject to
a lease of the Site to Developer, obligating the Developer to continue to bear the ongoing
responsibility and burden to operate and maintain the Site and thus providing additional
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consideration to the Commission; and
• WHEREAS, there as been presented a Purchase Agreement consistent with the
Agreement, which provides that the Developer will undertake certain obligations and
responsibilities for the Site pursuant to a lease agreement with the Developer, all as more
particularly described in said Purchase Agreement attached hereto as Appendix I (the "Purchase
Agreement"); and
WHEREAS, in light of the direct and indirect benefits of the Project and the terms of the
Agreement and the Purchase Agreement, the Commission desires to accept the Developer's offer
subject to the terms of Purchase Agreement whereby the Developer undertakes certain
obligations with respect to the Site; and
WHEREAS, the Commission further desires to approve the Purchase Agreement and the
documents contained or contemplated therein, including but not limited to a Lease Agreement,
the Limited Warranty Deed, and any other certificates and agreements attached thereto or
contemplated therein (collectively, the "Development Documents"), and to authorize the
President of the Commission (the "President") or the Vice-President of the Commission (the
"Vice-President") to execute, and the Vice-President or Secretary of the Commission (the
"Secretary") to attest, the Development Documents, with such changes as such executing and
attesting officers may approve upon the advice of legal counsel;
THE COMMISSION NOW FINDS THAT:
1. The redevelopment of the Area, and particularly the Project, as proposed by the
Developer (i) would not be accomplished through the ordinary operations of
private enterprise; (ii) will promote a substantial likelihood of creating or
retaining opportunities for gainfill employment and create additional business
opportunities in the Area; (iii) will serve a public purpose as it will benefit the
public health, safety, morals, and welfare of the City and the District and increase
their economic well-being and that of the State of Indiana (the "State"); and (iv)
will protect and increase property values in the City, the District and the State.
2. The Project will create or retain approximately 79 permanent jobs with an
approximate payroll, including benefits, of $5,406,000.00 per year, which will
significantly improve the opportunities for gainful employment in the District and
the City.
3. The preservation of green space in the Area will increase the likelihood of
sustaining and creating further economic development and redevelopment of the
Area.
4. Without the Commission's involvement as contemplated by the Development
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Documents, the Area in its existing state would not support the Project and the
• Site would not be preserved as an adequate plaza for the Area, and accordingly,
the Site would otherwise not be likely to be put its highest and best use.
5. The Commission's purchase of the Site and involvement in the Project as
described in this resolution and the Development Documents will best serve the
interests of the City and its citizens, and the purchase price for the Site set forth in
the Development Documents constitutes fair and adequate consideration for the
Site, in light of the public benefits of the Project.
6. The Development Documents, the Project, and the assistance thereof as set forth
in the Development Documents comply with applicable federal, state and local
laws under which the Project has been undertaken and is being assisted and the
Development Documents and the actions contemplated therein are authorized.
NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND
REDEVELOPMENT COMMISSION AS FOLLOWS:
1. The Project, as proposed by the Developer and as contemplated in the
Development Documents, is hereby approved.
2. The Commission hereby approves the Development Documents in the form
attached hereto as Appendix I, including the Contract of Purchase and Sale, the Lease, the
Limited Warranty Deed, and any other certificates or agreements attached thereto or
contemplated therein.
3. The Commission hereby authorizes the President or the Vice-President to execute,
and the Vice-President or Secretary to attest, the Development Documents with such changes
either in form or in substance as such executing and attesting officers may approve upon the
advice of legal counsel with such approval to be conclusively evidenced by such execution and
attestation.
4. The staff is hereby authorized to administer the Development Documents, and the
President, Vice-President, the Secretary, and the Director of Economic Development of the
Department of Redevelopment are each authorized to execute any administrative certificates or
documents related to the administration of the Development Documents on behalf of the
Commission.
5. The purchase of the Site from the Developer and purchase price for the Site as set
forth in this Resolution, and subject to the terms, conditions and restrictions of, the Development
Documents are hereby approved.
6. This Resolution shall be in full force and effect after its adoption.
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• ADOPTED at a meeting of the South Bend Redevelopment Commission held on August
17, 2007 at 1308 County-City Building, 227 West Jefferson Boulevard, South Bend, Indiana
46601.
CITY OF SOUTH BEND,
DEPARTMENT OF REDEVELOPMENT
sl,,,~,r~„ ~e
Marcia I. Jones, President
Printed Nnme mtd Title
South Bend Redevelopment Commission
ATTEST:
gnatar
Gregory S. Downes, Secretary
Printed Nmne and 7~de
South Bend Redevelopment Commission
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APPENDIX I
Form of Purchase Agreement
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CONTRACT OF PURCHASE AND SALE
This CONTRACT OF PURCHASE AND SALE (hereinafter "Agreement"), dated this
17th day of August, 2007, between KEY S.B., L.L.C., a Michigan limited liability company (the
"Company") and the SOUTH BEND REDEVELOPMENT COMMISSION (the
"Commission"), the governing body of the Department of Redevelopment of the City of South
Bend, Indiana, existing and operating under the provisions of Indiana Code § 36-7-14, as
amended (the "Act") with its principal office located at 227 W. Jefferson Boulevard, Suite 1200,
South Bend, Indiana 46601;
WITNESSETH:
I. In accordance with the Act and all other applicable law, the Commission desires
to acquire, and the Company desires to sell, the property commonly known as the above ground
portion of the plaza portion of 202 South Michigan Street, South Bend, Indiana, and more
particularly described at Exhibit A (the "Property").
• 2. On March 16, 2007, the Commission and Company entered into a Memorandum
of Understanding (the "MOU") which is attached and incorporated hereto as Appendix I. Under
the MOU, the parties agreed that the Property would be improved with additional improvements
to increase the quality of green space in the downtown area. In lieu of the Commission's
obligations under the MOU, the Company has commenced approximately $200,000 to $240,000
of improvements to the Property, which are scheduled to be completed prior to closing and
which increase the value of the Property. The improvements are as more particularly described
at Appendix II (the "Improvements").
3. The Company hereby represents and warrants that it is the owner of the Property
and it is not aware of any easements or encumbrances other than those of record. The purchase
price shall be Four Hundred Thousand 00/100 Dollars ($400,000.00) (the "Sale Proceeds'. At
Closing, the Company shall convey the Property to the Commission by a limited warranty deed
in the form set forth at Exhibit B subject to the following:
(a) applicable zoning or use laws and regulations;
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of the Commission, to substantiate such additional investment for designing and constructing the
Improvements. The Company represents and covenants that the Improvements will be
constructed in good workman-like manner and with materials which are consistent with the
representations set forth in the Construction Plans. The Improvements shall not be deemed to be
completed until the Company certifies that all Improvements have been completed and that it is
aware of no claims or circumstances that are likely to result in a mechanics lien being assessed
against the Property.
5. The Commission hereby represents and warrants to the Company that as of the
date hereof and on the date of Closing:
(a) The Commission has the full power and authority to execute, deliver and
perform Company's obligations under this Agreement and shall effectuate
the Closing in accordance with the applicable Indiana Laws.
(b) This Agreement and all agreements, instruments and documents herein
provided to be executed by the Commission are and as of the Closing will
• be duly authorized, executed and delivered by Commission.
(c) The individuals signing this Agreement and all other documents executed
or to be executed pursuant hereto on behalf of Commission are and shall
be duly authorized to sign the same .on Commission's behalf and to bind
Commission thereto.
(d) The Commission has received and reviewed (i) copies of the supporting
title documents related to the Commission's title commitment from the
Title Company dated September 27, 2006 and described at Commitment
No. 5789s06 (the "Title Commitment"); and (ii) those matters set forth in
Paragraph 3.
6. At Closing, the Company shall provide a title policy in the amount of $400,000.00
from Pinnacle Title Company (the "Title Company") insuring the transfer of the Property, free
and clear of all liens, mortgages and encumbrances, other than (i) those Permitted Exceptions set
forth at Section 2(c) of Schedule B of the Title Commitment and (ii) the Special Exceptions
specifically set forth in Paragraph 3 hereof. The Company shall be responsible for all reasonable
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(b) the Company has not received any notice, and does not have actual
knowledge or information about, any existing or threatened condemnation
or other legal action of any kind affecting the Property other than from the
Commission.
(c) the Company has not received any notice of, and does not have any actual
knowledge of, any actual or contemplated special assessments against the
Property, or reassessments for general real estate tax purposes affecting
the Property.
(d) the Company owns fee simple insurable title to the Property, subject only
to exceptions stated in Paragraph 3 above. From the present date to the
date of Closing, Company shall assure that any occupants of the Property
conduct business on the Property in the manner in which it heretofore has
been conducted, in compliance with all federal, state, and local
environmental laws and regulations, and further that during such period
the neither Company nor any occupant shall create on the Property any
easements or other encumbrances, except as herein specifically authorized,
which would prevent Company from conveying title to Commission
subject only to such exceptions as herein permitted. The Company shall
further refrain from entering into or extending any lease of the Property,
unless the Company first obtains the written consent of the Commission.
In the event that a lease, easement or encumbrance exists with respect to
the Property which survives the Closing and does not appear on the Title
Commitment, Commission shall have the option to terminate, or be
deemed the successor in interest to, any such easement, lease or
encumbrance, and the Company hereby agrees to indemnify and defend
the Commission for any alleged claims or damages resulting from the
Commission's actions with respect to such easements, leases or
encumbrances.
(e) Except for any items to be assumed by the Commission or to be prorated
as set forth in this Agreement, the Company shall be solely liable for the
payment of all expenses, liabilities, obligations, and claims arising out of
Company's ownership and use of the Property prior to Closing Date.
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be assigned by the Company without the written consent of the Commission, which consent may
be withheld for any reason.
12. The parties hereby acknowledge that the Commission and Baker & Daniels, LLP
(the "Law Firm"), a current tenant of the Company, have entered into a letter agreement (the
"Letter Agreement") providing that sixty (60) parking spaces shall be made available in the
Commission's Wayne Street Garage for monthly rental by the employees or principals of the
Law Firm by December 1, 2007 or such later time when the Law Firm commences its relocation
into the building commonly known as the KeyBank Property, which is owned by the Company
and immediately adjacent to east of the Property. The Letter Agreement further provides that
beginning in 2008 the Commission will further identify an estimated four (4) additional parking
spaces per year through the calendar year 2011 based upon the Law Firm's projected growth.
Per the terms of the Letter Agreement, the Commission's commitment is intended to be
coterminous with the fifteen (15) year term of the lease between the Company and the Law Firm.
To the extent that the Commission materially breaches the terms of the Letter Agreement and the
Law Firm seeks recover damages from either the Company or the Commission as a result of such
breach, the Commission hereby agrees to indemnify, protect, defend, and hold harmless the
• Company from and against any and all damages suffered or incurred by the Company as a sole
result of the Commission's breach of the Letter Agreement.
13. The Commission and Company each represent that no real estate commissions are
due and owing to any party with respect to this transaction. Both parties hereby agree to
indemnify and save harmless the other from and against any and all claims or liability for real
estate commissions arising out of this transaction attributable to the indemnifying party.
14. The Company represents that it currently holds the Property for productive use in
its trade or business or for investment and that it may elect to conduct alike-kind exchange
through the purchasing of another property from another person in accordance with the
provisions set forth at 26 USC § 1031 and the applicable Treasury Regulations to obtain a tax
benefit. The Commission hereby agrees to accommodate such an exchange, to the extent
practically reasonable, including the execution of certificates necessary to effectuate or evidence
such an exchange. Notwithstanding any other provision to the contrary, it is the sole
responsibility of the Company to insure that the exchange occurs in a manner that qualifies the
Company for a tax benefit, whether pursuant to 26 USC § 1031 or otherwise. The finality or
completeness of the transaction described herein is not contingent upon the Company's
successful receipt of a tax benefit for such exchange.
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21. This Agreement shall not be effective or binding until fully executed by the
parties hereto.
22. The obligations of Paragraphs 10, 12, and 13, any rules of construction or
provisions related to jurisdiction, venue and notice set forth in this Agreement shall survive
closing.
23. If any provision of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the provisions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or invalidated.
24. Each party shall execute and deliver to the other all such other further instruments
and documents as may be reasonably necessary to accomplish the actions contemplated by this
Agreement and to provide and secure to the other party the full and complete enjoyment of its
rights and privileges hereunder.
• 25. This Agreement was negotiated by the parties at arm's length and each of the
parties hereto has reviewed the agreement after the opportunity to consult with independent
counsel. Neither party shall maintain that the language in the Agreement shall be construed
against any signatory hereto.
26. Words of any gender used in this Agreement shall be held and construed to
include any other gender, and words in the singular number shall be held to include the plural,
and vice versa, unless the context requires otherwise.
27. The undersigned persons executing and delivering this Agreement on behalf of
each of the parties respectively represent and certify that they are the duly authorized officers of
each and have been fully empowered to execute and deliver this Agreement and that all
necessary corporate action has been taken and done. This Agreement may be executed in
duplicate or through counterparts.
(remainder of page intentionally left blank)
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STATE OF INDIANA )
SS:
ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public for and in said County and State this 1 7th
day of August 2007, personally appeared Marcia I . Jones and
Gregory Downes ~ known to be to be the President and Secretary
respectively, of the South Bend Redevelopment Commission, the governing body of the City of
South Bend, Department of Redevelopment and acknowledged execution of the foregoing
Contract of Sale and Purchase on behalf of said Commission and Department.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
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seal.
(SEAL) ~.~.;~<~ 't
otary Public
Cheryl K. Phipps
Resident of the County, Indiana ~ State of Indiana Notary Fabric
Resident of St. Jo~sph County
My commission expires: ~~- 1R/2015
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EXHIBIT A
Leal Description of the Property
Part of Lots 57 and 58, Original Plat of South Bend, St. Joseph County, Indiana,
described as follows:
Beginning at the Northwest corner of Lot 58; thence North
89°38'45" East on the North line of said Lot 58, a distance of
122.99 feet; thence South 00°30'31" East parallel to the East line
of said Lot 58, a distance of 85.00 feet; thence North 89°38'45"
East pazallel to the North line of said Lit 58, a distance of 42.10
feet to the West line of a 14 foot alley; thence South
00°30'31"East on the West line of said alley, a distance of 14.00
feet; thence South 89°37'35" West parallel to the South line of Lot
57, a distance of 65.74 feet; thence North 00°31'55" West parallel
to the West line of said Lots 57 and 58, a distance of 6.695 feet;
thence North 89°38'45" East parallel to the North line of said Lot
58, a distance of 4.32 feet; thence North 00°31'55" West parallel
to the West line of Lots 57 and 58, a distance of 47.35 feet; thence
South 89°38'45" West parallel to the North line of said Lot 58, a
distance of 36.10 feet; thence North 00°31'55" West parallel to the
West line of said Lots 57 and 58, a distance of 6.98 feet; thence
South 89°38'45" West parallel to the North line of said Lot 58, a
distance of 2.00 feet; thence North 46°01'59" West, a distance of
21.735 feet; thence South 45°19'29" West, a distance of 21.735
feet; thence South 89°38'45" West parallel to the North line of said
Lot 58, a distance of 2.00 feet; thence South 00°31'55" East
parallel to the West line of said Lots 57 and 58, a distance of 6.98
feet; thence South 89°38'45" West parallel to the North line of said
Lot 58, a distance of 32.43 feet to the West line of said Lot 58;
thence North 00°31'55" West on the West line of said Lot 58, a
distance of 44.98 feet to the point of beginning.
Common Address: 202-204 S. Michigan Street, South Bend, Indiana 46601
Tax Id. No. 18-3003-0043
(This legal description is subject to final approval by the Title Company.)
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MAIL DEED TO
City of South Bend, Indiana
Dept. of Redevelopment
227 W. Jefferson Blvd, Ste 1200
South Bend, Indiana 46601
LIMITED WARRANTY DEED
THIS INDENTURE WITNESSETH, THAT Key S.B., L.L.C., a Michigan limited liability
company of Kalamazoo County, in the State of Michigan,
CONVEY(S) AND WARRANT(S) TO THE CITY OF SOUTH BEND, STATE OF INDIANA
for the use and benefit of its department of redevelopment, located at 227 W. Jefferson
Boulevard, South Bend, Indiana 46601, for and in consideration of one dollar ($1.00) and other
good and valuable consideration, the receipt whereof is hereby acknowledged, the following
described real estate in St. Joseph County, Indiana, to-wit:
Exhibit A attached hereto and incorporated herein by reference
SUBJECT ONLY to the permitted encumbrances set for in Exhibit B attached hereto and
incorporated herein by.reference. Other than the foregoing, Grantor hereby conveys the above-
described real estate free and clear of all leases, licenses, or other interests, both legal and
equitable, and all encumbrances of any kind or character.
Grantor(s) herein agree(s) to pay all real estate taxes and assessments levied or assessed against
the above-designated real estate prior to the date of this deed.
This document shall constitute a conveyance of the above-described real estate in fee simple and
not merely for right-of-way purposes, and no reversionary rights whatsoever are intended to
remain in the Grantor.
Grantor certifies under oath that no Indiana Gross Income Tax is due or payable in respect to the
transfer made by this deed.
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EXHIBIT A
Leal Description of the Property
Part of Lots 57 and 58, Original Plat of South Bend, St. Joseph County, Indiana,
described as follows:
Beginning at the Northwest corner of Lot 58; thence North
89°38'45" East on the North line of said Lot 58, a distance of
122.99 feet; thence South 00°30'31" East parallel to the East line
of said Lot 58, a distance of 85.00 feet; thence North 89°38'45"
East parallel to the North line of said Lit 58, a distance of 42.10
feet to the West line of a 14 foot alley; thence South
00°30'31"East on the West line of said alley, a distance of 14.00
feet; thence South 89°37'35" West parallel to the South line of Lot
57, a distance of 65.74 feet; thence North 00°31'55" West parallel
to the West line of said Lots 57 and 58, a distance of 6.695 feet;
thence North 89°38'45" East parallel to the North line of said Lot
58, a distance of 4.32 feet; thence North 00°31'55" West parallel
to the West line of Lots 57 and 58, a distance of 47.35 feet; thence
South 89°38'45" West parallel to the North line of said Lot 58, a
distance of 36.10 feet; thence North 00°31'55" West parallel to the
West line of said Lots 57 and 58, a distance of 6.98 feet; thence
South 89°38'45" West parallel to the North line of said Lot 58, a
distance of 2.00 feet; thence North 46°01'59" West, a distance of
21.735 feet; thence South 45° 19'29" West, a distance of 21.735
feet; thence South 89°38'45" West parallel to the North line of said
Lot 58, a distance of 2.00 feet; thence South 00°31'55" East
parallel to the West line of said Lots 57 and 58, a distance of 6.98
feet; thence South 89°38'45" West parallel to the North line of said
Lot 58, a distance of 32.43 feet to the West line of said Lot 58;
thence North 00°31'55" West on the West line of said Lot 58, a
distance of 44.98 feet to the point of beginning.
Common Address: 202-204 S. Michigan Street, South Bend, Indiana 46601
Tax Id. No. 18-3003-0043
(This legal description is subject to final approval by the Title Company.)
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EXHIBIT C
Lease Agreement between Company and Commission
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TABLE OF CONTENTS
1. Premises, Term and Warranty ............................................. ................................................... l
2. Annual Rental Payments ....................................................... ...................................................2
3. Additional Rental Payments ................................................. ...................................................2
4. Abatement of Rent ................................................................. ...................................................2
5. Alteration and Repairs .......................................................... ...................................................3
6. Insurance ................................................................................ ................................................... ~
7. General Covenants ................................................................ ...................................................4
• 8. Option to Purchase ................................................................ ................................................... 6
9. Option to Renew .................................................................... ................................................... 7
10. Utility Service ....................................................................... ...................................................7
11. Transfer to Lessee ................................................................ ...................................................7
12. Defaults ................................................................................. ................................................... 7
13. Notices .................................................................................. .................................................... 8
14. Successors or Assigns ......................................................... .................................................... 8
15. Construction of Covenants ................................................ ....................................................8
16. Waiver of Jury Trial ........................................................... ....................................................8
17. Attorneys' Fees .................................................................... ....................................................8
18. Recording ............................................................................ .................................................... 8
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LEASE
SOUTH BEND REDEVELOPMENT COMMISSION
TO
KEY S.B., L.L.C.
L~
THIS CONTRACT OF LEASE, made and entered into as of this 17th day of August, 2007 (the
"Lease"), by and between the SOUTH BEND REDEVELOPMENT COMMISSION (the
"Commission"), the governing body of the Department of Redevelopment of the City of South
Bend, Indiana, existing and operating under the provisions of Indiana Code § 36-7-14, as
amended (hereinafter with its successors and assigns as provided by this Lease called "Lessor")
and KEY S.B., L.L.C., a Michigan limited liability company (hereinafter with its successors and
assigns as provided by this Lease called "Lessee"), with its principal office located at 750 Trade
Centre Way, Suite 100, 1200 City-County Building, Portage, Michigan 49002.
WITNESSETH:
In consideration of the mutual covenants herein contained, it is agreed that:
1. Premises, Term and Warranty. The Lessor does hereby lease, demise
and let to Lessee the real estate in the City of South Bend, Indiana, more particularly described in
Exhibit A attached hereto and made a part hereof and the improvements thereon (the "Real
Estate") to which the Lessee shall undertake, at its sole cost and expense, certain renovations and
Improvement, in accordance with and as defined in the Contract of Purchase and Sale dated
August 17, 2007 between the Lessor and the Lessee (the "Contract"). (The Improvements shall
herein be referred to as the "Plaza Improvements" or the "Project.")
TO HAVE AND TO HOLD the same with all rights, privileges, easements and
appurtenances thereunto belonging, unto Lessee, for a term of twenty-five (25) years, beginning
on the date the Lessor obtains fee simple ownership (excepting only the restriction set forth in
Paragraph 3 of the Contract and other restrictions of record) of the Real Estate and the Project
(the "Commencement Date"), and ending on the day prior to such beginning date twenty-five
(25) years thereafter and for a term of twenty-five (25) years. However, the term of this Lease
shall terminate upon the exercise of the option to purchase by Lessee and payment of the option
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partially or totally destroyed, whether by fire or any other casualty, so as to render the same
unfit, in whole or part, for use and occupancy by the Lessee, it shall then be the obligation of the
Lessor to restore and rebuild the Project as promptly as may be done, unavoidable strikes and
other causes beyond the control of the Lessor excepted; provided, however, that the Lessor shall
not be obligated to expend on such restoration or rebuilding more than the amount of the
proceeds received by the Lessor from the insurance provided for in Paragraph 6 hereof.
The rent payable hereunder for the Project shall be abated for the period during
which the Project or any part thereof is unfit for occupancy and such abatement shall be in
proportion to the percentage of area of the Project which is unfit for occupancy.
5. Alteration, Repairs, and Easement Maintenance. (a) The Lessee
assumes responsibility for repairs and alterations to the Project caused by its use. No alterations
shall be made by Lessee without first obtaining the written consent of Lessor, except for minor,
immaterial changes provided such immaterial changes do not alter Lessee's use. The Lessee
agrees to indemnify and defend the Lessor against any demand, claims, or action seeking to file,
enforce or foreclose a lien against the Property, whether such lien is related to the construction,
• use or maintenance of the Project prior to the Commencement Date or during the term of this
Lease. Subject to Paragraph 1 1, at the end of the term, Lessee shall deliver the leased property to
Lessor in as good condition as at the beginning of the term, reasonable wear and tear only
excepted.
(b) The Lessee and Lessor further covenant to abide by the restrictions of, and
to assume responsibility for, any and all obligations under the Reciprocal License, Easement and
Maintenance Agreement by and between Society National Bank, Indiana and One Plaza Place
Associates dated January 11, 1994 and recorded January 14, 1994 as Instrument No. 9402004 in
the Office of the Recorder of St. Joseph County, Indiana (the "Easement Agreement"), including
but not limited to all obligations, if any, that the Lessor has as owner of the Real Estate and the
Project.
6. Insurance. Lessee, at its own expense, will, during the full term of the
Lease, keep the Project insured against physical loss or damage, however caused, with such
exceptions as are ordinarily required by insurers of facilities of a similar type, with good and
responsible insurance companies, subject to the approval of Lessor. Such insurance shall be in
an amount at least equal to the greater of (i) the option to purchase price or (ii) one hundred
percent (100%) of the full replacement cost of the Project as certified by a registered architect,
L`
-3-
r1
U
(b) The Lessee shall have the right, for the Lease Term, to use and maintain
the premises in a manner that allows the general public to use the premises for pedestrian access
and for other customary uses related to plaza courtyards provided that the Lessee shall have a
right to restrict the use of the premises in the event that the Lessee determines, in its sole opinion,
that the uses occurring the premises are adversely affecting its use of the Premises or are in
violation of the Easement Agreement or any other restriction of record.
(c) Lessee shall use commercially reasonable efforts to maintain the premises
in accordance with all applicable law and ordinances, including all zoning or use laws and
regulations and the following;
(i) the restrictions set forth in the Limited Warranty Deed from
KeyBank National Association ("KeyBank") to Key S.B., L.L.C.
dated December 28, 2000 and recorded on January 15, 2001 in the
St. Joseph County Recorder's Office as Instrument No. 0101980;
• (ii) the restrictions set forth in the Reciprocal License, Easement and
Maintenance Agreement between Society National Bank, Indiana,
and One Plaza Associates dated January 11, 1994 and recorded on
January 14, 1994 in the St. Joseph County Recorder's Office as
Instrument No. 9402004 (the "1994 Plaza Easement");
(iii) the terms of the Deed from the Department of Financial
Institutions of the State of Indiana to William F. Sheehan dated
April 30, 1940 and recorded in the St. Joseph County Recorder's
Office in Deed Book 820, Page 589 and as Instrument No. 80170;
and
(iv) The Easement set forth in the Warranty Deed dated February 28,
1878 from David K. Wall and Eliza T. Wall to The Studebaker
Brothers Manufacturing Company recorded March 5, 1878 in the
Office of the Recorder of St. Joseph County, Indiana in Deed
Record 59, Page 297.
In the event that either (i) the Lessor affirmatively acts, solely and independent
•
-5-
•
If the Lessee exercises its option to purchase, it shall pay to the Lessor the
Purchase Price. Nothing herein contained shall be construed to provide that Lessee shall be
under any obligation to purchase the demised premises, or under any obligation in respect to any
creditors, members or security holders of Lessor other than as provided for in Paragraph 7.
9. Oation to Renew. Lessor hereby grants to Lessee the right and option to
renew this Lease for a one (1) year term upon the same or like conditions as herein contained, at
the end of initial term and any renewed term, and Lessee shall exercise this option by written
notice to Lessor given upon any date prior to the expiration of this Lease.
10. Utility Service. The Lessee agrees to pay or cause to be paid all charges
for sewer, gas, water, electricity, lights, heat or power, telephone or other utility services used,
rendered or supplied upon or in connection with the leased premises throughout the term of this
Lease, and to indemnify Lessor and save it harmless against any liability or damages on such
account. The Lessee shall also procure any and all necessary permits, licenses or other
authorizations required for the lawful and proper installation and maintenance upon the leased
premises of wires, pipes, conduits, tubes and other equipment and appliances for use in
• supplying any such service to and upon the leased premises.
11. Transfer to Lessee. In the event Lessee does not exercise its option to
purchase under Paragraph 8 or option to renew under Paragraph 9, and upon full discharge and
performance by the Lessee of its obligations under this Lease, the demised premises shall
become the absolute property of the Lessee, and Lessor shall execute the proper instruments
conveying title to the premises to Lessee.
12. Defaults. If the Lessee shall default in the payment of any rentals or other
sums payable to the Lessor hereunder, or in the observance of any other covenant, agreement or
condition hereof, which cure by Lessee shall not have been commenced within thirty (30) days
after written notice to correct the same, then, in any or either of such events, the Lessor may
proceed to protect and enforce its rights by suit or suits in equity or at law in any court of
competent jurisdiction, whether for specific performance of any covenant or agreement
contained herein, or for the enforcement of any other appropriate legal or equitable remedy, or
the Lessor, at its option, without further notice, may terminate the estate and interest of the
Lessee hereunder, and it shall be lawful for the Lessor forthwith to resume possession of the
demised premises and the Lessee covenants to surrender the same forthwith upon demand.
•
-7-
•
under this Lease are likely to be complex and they desires to streamline and minimize the cost of
resolving disputes. In any legal proceeding, each party irrevocably waives the right to trial by
jury in any action, counterclaim, dispute or proceeding based upon, or related to the subject
matter of this Lease based upon, or related to the subject matter of this Agreement. This waiver
applies to all claims against all parties to such actions and proceedings. This waiver is
knowingly, intentionally, and voluntarily made by both parties.
17. Attorneys' Fees. In the event of litigation, mediation or arbitration
between the parties regarding an alleged breach of this Lease, neither party shall be entitled to
any award of attorneys' fees.
18. Recording. A Memorandum of Lease may be recorded in the Office of
the St. Joseph County Recorder subsequent to its execution in such form as reasonable approved
between the parties.
19. Governing Law. This Lease shall be interpreted and enforced according
to the laws of the State of Indiana.
20. No Third-Party Beneficiaries. Nothing in this Lease, express or implied,
is intended or shall be construed to confer upon any person, firm, or corporation other than the
parties hereto and their respective successors or assigns, any remedy or claim under or by reason
of this Lease or any term, covenant, or condition hereof, as third-party beneficiaries or otherwise,
and all of the terms, covenants, and conditions hereof shall be for the sole and exclusive benefit
of the parties herein.
21. Entirety of Agreement. This Lease embodies the entire agreement
between the parties and cannot be varied except by the written agreement of the parties. No
representation, promise, or inducement not included in this Lease shall be binding upon the
parties hereto. The obligations in this Lease shall not be effective until the Commencement
Date.
22. Arm's Length Transaction. This Lease was negotiated by the parties at
arm's length and each of the parties hereto has reviewed the Lease after the opportunity to
consult with independent counsel. Neither party shall maintain that the language in the Lease
shall be construed against any signatory hereto.
-9-
•
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed for and on their behalf as of the day and year first hereinabove written.
LESSOR
By:
• ATTEST:
Secretary
By:
SOUTH BEND REDEVELOPMENT
COMMISSION, for and on behalf of the City of
South Bend, Indiana, Department of
Redevelopment
President
LESSEE
KEY S.B., L.L.C.
Roger E. Hinman, Member
•
•
(SEAL)
STATE OF INDIANA )
SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for_ the State of Indiana,
personally appeared and ,personally known to
me as the and respectively, of the South Bend
Redevelopment Commission, the governing body of the City of South Bend, Indiana,
Department of Redevelopment, and acknowledged the execution of the foregoing Lease for and
on behalf of said City.
Notary Public
•
Printed
My Commission Expires:
Witness my hand and notarial seal this day of , 2007.
County, Resident
This instrument was prepared by Shawn E. Peterson, Attorney.
"I affirm, under the penalties of perjury, that I have taken reasonable care to redact each Social Security number in
this document, unless required by law." Shawn E. Peterson
•
•
EXHIBIT B
Leal Description for KeyBank Property
All that certain part, place or parcel of land, situate, lying and being in the City of South Bend,
County of St. Joseph, and State of Indiana, bounded and described as follows:
Lots 47 and 48 of the Original Plat of the Town, now City of South Bend, County
of St. Joseph, State of Indiana.
Also, a lot c. parcel of land parts of lots numbered fifty-seven (57) and fifty-eight
(58) as shown on the Original Plat to the Town, now City of South Bend, which
part is bounded by a line running as follows, wit:
Beginning at the Northeast corner of said lot fifty-eight (58); thence South along
the East line of lots fifty-seven (57) and fifty-eight (58) a distance of (83.05) feet
thence West parallel to the fourth line of Jefferson Boulevard (42.36) feet; thence
North (85.05) feet to a point on the South line of Jefferson Boulevard (42.14) feet
West of the Northeast corner of said lot 57; thence East (42.16) feet along said
South line of Jefferson Boulevard to place of beginning, together with an
easement of right-of--way in conjunction with adjoining owners over a private
alley described as follows, wit:
Beginning at the Southeast corner of the above described tract; thence running
Southerly along a public alley (24) feet; thence Easterly parallel with Jefferson
Boulevard (72) feet; thence Northerly parallel with a public alley (11) feet; thence
Easterly and again parallel with Jefferson Boulevard (72) feet to place of
beginning.
Also, beginning at the Northwest corner of Lot 47 of the Original Plat to the
Town, now City of South Bend, Indiana; running thence South along the West
lines of lots 47 and 48 a distance of (85.05) feet; thence West (14) feet parallel to
the South line of Jefferson Boulevard; thence North (85.05) feet along the East
line of lots 57 and 58 to the South Line of said Jefferson Boulevard; thence East
(14) feet to place of beginning.
•
•
EXHIBIT C
OPTIONAL PURCHASE PRICE
Date Amount
December 1, 2007 $ 400,000
December 1, 2008 $ 384,000
December 1, 2009 $ 368,000
December 1, 2010 $ 352,000
December 1, 2011 $ 336,000
December 1, 2012 $ 320,000
December 1, 2013 $ 304,000
December 1, 2014 $ 288,000
December 1, 2015 $ 272,000
December 1, 2016 $ 256,000
December 1, 2017 $ 240,000
December 1, 2018 $ 224,000
December 1, 2019 $ 208,000
December 1, 2020 $ 192,000
December 1, 2021 $ 176,000
December 1, 2022 $ 160,000
December 1, 2023 $ 144,000
December 1, 2024 $ 128,000
December 1, 2025. $ 112,000
December 1, 2026 $ 96,000
December 1, 2027 $ 80,000
December 1, 2028 $ 64,000
December 1, 2029 $ 48,000
December 1, 2030 $ 32,000
December 1, 2031 $ 16,000
Lease Expiration
Date* $ 1
*Calculated in accordance with the terms of the Lease and a date not earlier than
December 1, 2031 and not later than December 1, 2032.
U
IN WITNESS WHEREOF, the undersigned have caused this Addendum to be
executed for and on their behalf on the day and year first hereinabove written.
By:
ATTEST:
Secretary
By:
LESSOR
SOUTH BEND REDEVELOPMENT
COMMISSION, for and on behalf of the City of
South Bend, Indiana, Department of
Redevelopment
President
LESSEE
KEY S.B., L.L.C.
Roger E. Hinman, Member
•
(SEAL)
STATE OF INDIANA )
SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for the State of Indiana,
personally appeared and ,personally known to
me as the and respectively, of the South Bend
Redevelopment Commission, the governing body of the City of South Bend, Indiana,
Department of Redevelopment, and acknowledged the execution of the foregoing Addendum to
Lease for and on behalf of said City.
Notary Public
•
Printed
My Commission Expires:
Witness my hand and notarial seal this day of , 2007.
County, Resident
This instrument was prepared by Shawn E. Peterson, Attorney.
"I affirm, under the penalties of perjury, that [have taken reasonable care to redact each Social Security number in
this document, unless required by law." Shawn E. Peterson
L
DUPLICATE
~.
ORIGINAL
NIEMORANDUNI OF UNDERSTANDING
By and Between
THE SOUTEI BEND REDEVELOPMENT COMMISSION
And
KEY S.B., L.L.C.
Key Bank Renovation Project
(So~ith Bend Central Development Area)
THIS MEMORANDUM OF UNDERSTANDING, dated as of the ~ ~ ~~ day
of Ni-4R c~ 2007, is made and entered into between the SOUTH BEND
REDEVELOPMENT COMMISSION, having its offices at 1200 County-City Building.
227 West Jefferson, South Bend, Indiana 46601 (`'Commission") and KEY S.B., L.L.C.,
a limited liability corporation organized under the laws of the State of iVlichigan
• (`-Developer"), and having its offices at 7~0 Trade Center Way, Ste. 100, Kalamazoo,
Michigan 49002.
RECITALS
WHEREAS, pursuant the authority granted by Indiana Code § 36-7-14, the
Commission has the power and duty to investigate, study, and develop areas within the
corporate boundaries of the City of South Bend that the Commission has determined to
be in need of redevelopment; and
WHEREAS, the Commission has adopted its Resolution No. 737, as amended
from time-to-time, designating the South Bend Central Development Area
(`Development Area") as an area in need of redevelopment in accordance with Indiana
Code ~ 36-7-14; and
WHEREAS, Developer intends to undertake certain actions to rehabilitate and
improve the property and improvements that are located at 202 South Michigan Street
("Tower Property") within the Development Area; and
WHEREAS, Developer proposes to renovate the Tower Property to a Class A
high-occupancy oftice building ("Project"); and
WHEREAS, Commission and Developer hereby agree that the Project as
proposed in this Memorandum of Understanding is in the parties' mutual best interests
• B. The Commission agrees to undertake those actions necessary to improve
the Plaza Property and the immediately surrounding public right-of-way in order to
upgrade or replace existing landscaping, lighting and other public improvements in order
to enhance and facilitate the Project ("Public Improvements"). In constructing the Public
Improvements, the Commission agrees to expend a sum not to exceed $200,000.00. The
use of the funds identified for construction of [he Public Improvements is restricted to
those uses permitted by Indiana Code § 36-7-14-39. The Commission intends to utilize
the City's Board of Public Works as the Commission's agent and to work in conjunction
with the Developer to ensure that the Public Improvements complement and are
consistent with the overall design for the Project. Commission's combined total
investment in the Project for purchase of the Plaza Property and construction of the
Public Improvements shall not exceed the sum of Four Hundred Thousand and 00/100
Dollars.
C. [n consideration of Developer's commitment to maintain and manage the
Plaza Property as well as Developer's commitment to retain the Plaza Property open for
use by the general public, the Commission agrees to lease the Plaza Property to
Developer for a period of twenty-five (2~) years for the sum of One and 00/100 Dollar
($1.00) per year. Commission agrees that public use of Plaza Property shall be consistent
with and shall not interfere with Developer or its tenant's use and quiet enjoyment of the
Tower Property. As further condition of the lease, Developer shall be granted the right to
purchase the Plaza Property at the end of the lease term for the sum of One and OU/l00
Dollar (51.00).
D. Providing Developer fulfills its commitments as set forth in this h(OU and
any subsequent Development Agreement. Commission agrees that Developer, at its
option may transfer any portion of the Tower Property and assign its rights under this
MOU and the Development Agreement t~ a third party in order to permit Developer to
engage a third party developer to construct and own the building. grounds, and ancillary
facilities located at 202 South Michigan. In the event of such a transfer or assignment,
the transferee or assignee shall have the same rights and obligations as Developer under
this MOU and any subsequent Development Agreement.
E. In order to facilitate the Project and to induce the law offices of Baker &
Daniels, L.L_P to relocate to the Tower Property as one of Developer's key tenants, the
Commission agrees to provide 60 parking spaces within the Wayne Street Parking
Garage by December, 2007 provided, however, that Developer provides the Commission
with evidence of a lease agreement with Baker & Daniels. L.L.P. The Commission
further agrees to identify an estimated four (4) additional parking spaces per year through
calendar year 2011 based upon the law firm's projected growth. The Commission's
commitment to provide parking is intended to be coterminous with the Fifteen (1~) year
term of the lease between the Developer and Baker & Daniels, L.L.P.
F. The Commission understands and acknowledges that Developer may seek
to secure the appropriate tax abatement designation from the Commission and Common
• Council. The Commission agrees to endorse and support Developer's request for tax
H:\WPData~ProjcctslSBCDA\Kty Bank Project~~~tOU - kzyBankProject_V2_070i13 doc
• $700,000 per person and $~.0 Million per occurrence and (ii) for
property damage in a sum not of less than $200,000.00; and
=I. Developer shall grant to the Commission, or its designee, an
easement on and across the Plaza Property provided for use and
access by the general public; and
~. Developer shall have the right to purchase the Plaza Property at the
end of the lease term for the sum of One and 00/100 Dollar
($1.00).
E. In consideration of the Commission's agreement to provide 60 parking
spaces within the Wayne Street Parking Garage by December, 2007, or as otherwise
agreed, as parking for one of Developer's key tenants, Developer agrees to provide the
Commission with evidence of a lease agreement with Baker & Daniels. L.L.P. Developer
acknowledges and agrees that the Commission's commitment to identify an estimated
four (4) additional parking spaces per year through calendar year 201 I based upon the
law firm's projected growth. Developer acknowledges and agrees that the Commission's
commitment to provide parking is intended to be coterminous with the fifteen (l~) year
term of the lease between the Developer and Baker & Daniels. L.L.P.
F. Developer acknowledges the Commission's commitment ro endorse and
• support Developer's request for tax abatement in an amount and duration established and
governed by Indiana law and City ordinance. Developer understands that the granting
and/or app,wal of tax abatement requests referenced herein are under the exclusive
authority of the Commission and the South Bend Common Council and require
independent approval by same with such action taken at a public meeting in accordance
with Indiana law.
IV. MISCELLANEOUS.
A. Commission and Developer agree to work together to develop a plan for
site development and construction on the Plaza Property that is acceptable to both parties
and is consistent with the City's design guidelines for the South Bend Central
Development Area. This will include planning for the required access agreements
r.~cessary to accomplish the Project.
B. This transaction shall not proceed beyond execution of this non-binding
MOU in the event that: (i) the Commission and Developer determine that the Project as
described herein is not feasible; or (ii) Developer does not enter into a separate lease
agreement with Baker & Daniels, L.L.P. for a period of not less than fifteen (15) years; or
(iii) as otherwise mutually agreed by the parties. The parties understand and agree that
time is of the essence in this transaction and that this non-binding MOU shall serve as the
• basis for a definitive Development Agreement, the negotiation of which is intended to .
commence upon the execution of this MOU. The parties agree to take all reasonable
5
H:.WPData\Projects\SBCDA\Key Bank Project\MOU - KeyBankProject_V2_070313.doc
•
•
IN WITNESS WHEREOF, the Parties hereby execute this Memorandum of
Understanding on the date first written above.
CITY OF SOUTH BEND,
DEPARTMENT OF
REDEVELOPMENT
KEY S.B., L.L.C.
rgnature
Marcia I. Jones President
nrtte _ ame a rt e
South Bend Redevelopment Commission
ATTEST:
i
ran ,e -
Gre~or S. Downes Secretar~_
ante ame a it e
South Bend Redevelopment Commission
CITY' OF SOUTH BEND, INDIANA
rgrwture
Stephen J. Luecke. Mavor
~ ,~
~ ---
~ i
ign ure '"
Roger E Hinman Member
7
FI:\W"PData\Projects\SBCDA~Key Bank Pruject\bIOU - kcyBankProject_V2_070313.doc
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