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Ordinance 048-14RECORD OF ORDINANCES Dayton Legal Blank, Inc. Form No. 30043 48 -14 Ordinance No. Passed . 20 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE WITH BYERS REALTY LLC FOR THE PROPERTY FORMERLY OWNED BY BYERS AND SOLD TO THE CITY VIA ORDINANCE NO. 11 -14, CONSISTING OF 10.0 ACRES, MORE OR LESS, FEE SIMPLE INTEREST LOCATED EAST OF VILLAGE PARKWAY AND SOUTH OF TULLER ROAD, AND DECLARING AN EMERGENCY. WHEREAS, pursuant to Ordinance 11 -14 passed March 10, 2014, City Council authorized the execution of an assignment of a real property purchase and sale agreement with Commercial Site Acquisition, Inc (" Casto') wherein Casto agreed to purchase from Byers Realty LLC, ("Byers'l and Byers agreed to sell to Casto 10.00 acres, more or less, of real property identified as parcel number 273 - 009088 and with a commonly known address of 6801 Village Parkway, Dublin, Oh 43017 (the "Parcel'); and WHEREAS, Dublin's adopted Community Plan includes the Bridge Street District Special Area Plan, which sets forth the long -term vision and recommendations for development and /or redevelopment of real property within an area of the municipality identified in the Bridge Street District; and WHEREAS, the Parcel is located within the boundaries of the Bridge Street District; and WHEREAS, the Bridge Street District recommends that John Shields Parkway (the Project) should be constructed through the Parcel and other real property in order to provide an east -west public street through the northeast area of the Bridge Street District; and WHEREAS, Byers now desires to lease back the Parcel from the City until the City determines it is in the best interest of the City to construct the Project or the expiration of thirteen (13) months, whichever occurs first. NOW T)IEREFORE, BE IT ORDAINED by the Council, of the City of Dublin, State of Ohio, _jj__ of the elected members concurring that: Section 1. The City Manager is hereby authorized to execute all necessary lease documentation, including but not limited to, a lease agreement to the Parcel in substantially the same form as the one attached hereto as Exhibit "A," with changes not inconsistent with this Ordinance, not substantially adverse to the City and which shall be approved by the City Manager and Finance Director as depicted in the attached Exhibit "A." The approval of changes thereto by those officials, and their character as not being substantially adverse to the City, shall be evidenced conclusively by their execution thereof. Section 2. The City shall be compensated for the aforementioned property interests in the amount Fifteen Thousand Dollars ($15,000) per month plus Byers agrees to pay all taxes and business expenses associated with the Parcel during the term of the lease. Section 3. This Ordinance is declared to be an emergency necessary for the immediate preservation of the public peace, health, safety, or welfare, and for the further reason that the City, pursuant to the assignment, was required to close on the Parcel by June 2, 2014 and Byers still remains in possession of the Parcel. The ordinance shall therefore take effect immediately upon passage. Passed this - ilqn day of 2014. J aayor Officer ATTEST: Clerk of Council Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43017 -1090 City of Dublin Phone: 614 - 410 -4400 • Fax: 614- 410 -4490 Memo To: Members of Dublin City Council From: Marsha I. Grigsby, City Manager` N� Date: June 5, 2014 Initiated By: Terry Foegler, Director of Strategic Initiatives /Special Projects Philip K. Hartmann, Assistant Law Director Re: Ordinance 48 -14 — Real Estate Lease of Byers Property Background On March 10, 2014, via Ordinance No. 11 -14, City Council authorized the execution of an assignment of a real property purchase and sale agreement with Commercial Site Acquisition, Inc (" Casto') wherein Casto agreed to purchase from Byers Realty LLC, ("Byers' and Byers agreed to sell to Casto 10.00 acres, more or less, of real property identified as parcel number 273 - 009088 and with a commonly known address of 6801 Village Parkway, Dublin, Oh 43017 (the (Parcel'J. The City's Community Plan and Thoroughfare Plan recommend that John Shields Parkway be constructed through the Parcel to provide an east -west public street through the northeast area of the Bridge Street District. John Shields Parkway will eventually replace Tuller Road's full service intersection with Riverside Drive. The closing on the City purchase of the Property occurred on June 2, 2014. Ordinance 48 -14 authorizes the City Manager to enter into a triple net lease with Byers, agreeing with Byers to lease back the Parcel to Byers until the City determines it is in the best interest of the City to construct the Project or the expiration of thirteen (13) months, whichever occurs first. The City has negotiated all of the terms and conditions of the lease and finds them to be acceptable. The Agreement provides Byers will pay monthly rent of Fifteen Thousand Dollars ($15,000), any and all real estate taxes and any and all expenses attributed to the business (i.e. a triple net lease) up to thirteen (13) months. This lease does not affect the implementation of the City's Community and Thoroughfare Plans for the Bridge Street District, and can be terminated early by the City if it is determined by the City that the property is needed for the extension of John Shields Parkway or other public purposes. The lease will provide a modest short-term financial return on this investment during a period when the site is not yet needed for the planned public purpose. This ordinance will allow the City Manager to execute all necessary lease documentation to formally acquire the aforementioned property interests. Recommendation Staff recommends approval of Ordinance No. 48 -14 as the lease of the Parcel allows the City to offset public infrastructure costs of the Bridge Street District. The recommended emergency action is necessary because the purchase agreement required the City and Byers to close on the purchase on June 2, 2014 and the closing has now occurred. Byers remains in possession of the property, contingent upon the approval of this Lease. Exhibit A LEASE AGREEMENT THIS LEASE AGREEMENT ( " Lease ") is made and entered into on this day of ' 2014, (the "Commencement Date ") by and between the City of Dublin, Ohio, an Ohio municipal corporation ( "Landlord ") and Byers Realty LLC, an Ohio limited liability company ( "Tenant "). The Landlord and the Tenant may hereinafter be referred to individually as a "Party ", or collectively as the "Parties. ". BACKGROUND INFORMATION WHEREAS, Landlord is the owner of that certain parcel of land commonly known as Franklin County Auditor's Tax Parcel ID #273 - 009088 with a commonly known address of 6801 Village Parkway, Dublin, Ohio 43017 (the "Parcel ") (Exhibit "A "); WHEREAS, the Landlord acquired title to the Parcel via an assignment of a Real Property and Sale Agreement from Commercial Site Acquisitions, Inc. an Ohio Corporation who was originally in contract with Tenant for the purchase of the Parcel (the "Agreement"); and WHEREAS, Dublin's adopted Community Plan includes the Bridge Street District Special Area Plan which sets forth the long -term vision and recommendations for development and/or redevelopment of real property within an area of the municipality identified in the Bridge Street District; and WHEREAS, the Property is located within the boundaries of the Bridge Street District; and WHEREAS, the Bridge Street District recommends that John Shields Parkway ( the Project) should be constructed through the Parcel and other real property in order to provide an east -west public street through the northeast area of the Bridge Street District; and WHEREAS, Tenant desires to lease back the Parcel from the Landlord together with all of the buildings and accessories (the "Premises ") pursuant to this Lease. AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Landlord and the Tenant covenant, agree and obligate themselves to the foregoing Background Information and as follows: 1. PREMISES Landlord, in consideration of the rent to be paid and the covenants to be performed by Tenant, does hereby lease unto Tenant, and Tenant hereby leases from Landlord, the Premises, subject to existing easements, covenants, conditions and restrictions of record. 2. INITIAL TERM The term of this Lease (the "Term ") shall commence on the execution date of this Lease and shall expire on December 31, 2014, both dates inclusive. -1- 3. TERMINATION OF LEASE PRIOR TO EXPIRATION OF THE TERM. (a) Tenant may terminate this Lease at any time during the initial term or option term upon thirty (30) days written notice to Landlord. (b) Landlord may terminate this Lease at any time after ninety (90), upon thirty (30) days written notice to Tenant. The exercise of a termination under this provision shall cause this Lease to terminate upon the expiration of the thirty (30) day period with neither Party having any obligation thereafter, except as otherwise stated herein. 4. CONDITION OF PREMISES Tenant is in possession of and has inspected the Premises, including any buildings and accessories, prior to the execution of this Lease, and acknowledges that it is relying on its own investigation of the Premises and not any statement, representation, or warranty by Landlord or any of Landlord's representatives as to the condition of the Premises, and accepts the Premises in its "as is, where is" condition. Neither Landlord nor its employees, officers, managers, members, representatives, agents, attorneys, accountants, consultants, successors or assigns, makes any representations, warranties or guaranties, express or implied, oral or written, past, present or future, with respect to the physical condition or any other aspect of the Building and/or the Premises. 5. OPTION TERM Subject to the mutual approval of the Parties and the Tenant's current full compliance with all of the terms, provisions, and conditions on its part to be performed under this Lease, Tenant may by request in writing to the Landlord at least thirty (30) days prior to the expiration of the Initial Term of this Lease extend such term for an additional period of no more than six (6) months upon the same covenants and agreements as are herein set forth. 6. BASE RENT Tenant shall pay to Landlord during the Term of this Lease base rent ( "Base Rent ") at the rate of Ninety Thousand and 00 /100 Dollars ($105,000.00) per the initial term of the lease, due and payable in monthly installments of Fifteen Thousand and 00 /100 Dollars ($15,000.00) in advance on the first day of each calendar month without prior demand, and without abatement, deduction or set off; provided however that if Landlord or Tenant elects to terminate this Lease pursuant to Section 3 hereof, Tenant's obligation to pay rent shall terminate as of the effective date of termination. Base Rent for any period of less than a full calendar month will equal 1 /30th of the monthly Base Rent for each day of such period. Base Rent is payable to Landlord at the address in Section 25 herein, without any prior demand therefor and without any deductions or setoffs whatsoever. 7. If any installment of Base Rent or any other "Rent" is not received by Landlord within five (5) days of the date due, Tenant shall pay to Landlord an additional sum of five percent (5 %) of the amount due as a late charge. The Parties agree that this late charge represents a fair and reasonable estimate of the costs that Landlord shall incur by reason of the late payment by Tenant. Acceptance of any late charge shall not constitute a waiver of Tenant's default with respect to the overdue amount, nor prevent Landlord from exercising any of the other rights and remedies available to Landlord. -2- 8. ADDITIONAL RENT: NET LEASE In addition to the Base Rent, Tenant also covenants to pay and discharge during the Term, when the same will become due, any and all other amounts, liabilities and obligations which Tenant assumes or agrees to pay or discharge pursuant to this Lease, together with every fine, penalty, interest and cost which may be added for non - payment or late payment thereof (collectively, "Additional Rent "), and in the event of any failure on the part of Tenant to pay or discharge any of the same, Landlord will have all rights, powers and remedies provided herein or by law or equity or otherwise in the case of non - payment of the Base Rent. Base Rent and Additional Rent are collectively referred to in this Lease as "Rent ". This is a "net lease ". The Parties intend that the Base Rent to be received by Landlord hereunder shall, except as otherwise expressly provided herein, be free of any expense in connection with the use, ownership, care, maintenance, operation or repair of the Premises. If Tenant defaults in making any payment required to be made by Tenant when due, or shall default in performing any covenant, term or condition of this Lease which involves the expenditure of money by Tenant, then Landlord may at its option, but shall not be obligated to, make such payment or expend such sums on behalf of Tenant as may be necessary to perform and fulfill such covenant, term or condition, and any and all sums so expended by Landlord, with interest thereon at a rate defined in Ohio Revised Code Section 5703.47 (the "Default Rate ") from the date of such expenditure, shall be repaid by Tenant to Landlord on demand, but no such payment or expenditure by Landlord shall be deemed a waiver of such default by Landlord. All such amounts expended by Landlord will constitute Additional Rent. TAXES AND ASSESSMENTS. Tenant shall promptly pay all taxes and assessments which may be levied, assessed, or otherwise imposed by any federal, state, county or local government authority upon the Premises or any part thereof or upon the owner or user thereof, or upon any personal property attached to the Premises or used in connection with the business conducted thereon, or upon the owner, user or operator thereof, and which relate to the period covered by the Term of this Lease. If any assessments are levied, assessed or otherwise imposed upon the Premises or any part thereof relating to the period covered by the Term of this Lease, Landlord may elect to pay such assessments in installments and the Tenant shall pay any installments relating to the Term of this Lease. Tenant shall only be responsible for the portion of an assessment for the period of the lease. For example, assuming a five (5) year assessment, Tenant will pay 1 /60th per month the Tenant is a Lessee in the Parcel. Landlord may either elect (i) to have the bills for all taxes and assessments sent by the taxing authorities directly to Tenant, in which event the amount of each such bill shall be due and payable by when due to such taxing authority and Tenant shall pay the amount of such bills directly to the taxing authority or (ii) to send to Tenant the bills for taxes and assessments after Landlord receives the same, in which event the amount of each such bill shall be due and payable by Landlord prior to the due date and Tenant will reimburse the amount of such bills to Landlord within 20 days after Tenant receives same from Landlord. Upon payment of each tax bill, Tenant shall provide Landlord with evidence of payment in the form of a paid receipt or cancelled check. -3- 9. UTILITIES Tenant shall arrange to have all utilities serving the Premises put into Tenant's name and shall promptly pay all charges accruing during the Term of this Lease for telephone, water, electricity, gas, sanitary sewer, stormwater maintenance and all other utilities and services. If at any time during the Term Tenant is unable to conduct its business in the Premises or any portion thereof because of the interruption of such utilities to the Building, then Base Rent, and any other charges due from Tenant hereunder will abate until such utilities are fully restored. 10. MAINTENANCE Tenant shall, at its expense, maintain the Premises and all buildings and improvements and appurtenances thereto, both interior and exterior, including but not limited to, all electrical, mechanical, plumbing, heating, ventilating and air conditioning systems, equipment and fixtures, the driveways and parking areas, in as good order and condition as at the commencement of this Lease, ordinary wear and tear and casualty excepted; and Tenant shall make any and all repairs, substitutions and improvements, ordinary or extraordinary, foreseen or unforeseen, and structural or otherwise, necessary for such purpose and to keep all such items in good working order, all at Tenant's expense. Tenant shall keep the Premises clean and free of rubbish and trash at all times and shall store all trash and garbage in leak -proof containers and arrange for the regular pickup of such trash and garbage at Tenant's expense. Tenant shall not burn or bury any trash or garbage of any kind on or about the Premises. Tenant shall keep the Premises in a neat and presentable condition at all times, shall keep the grass regularly mowed and hedges and trees trimmed, and will keep the sidewalks, walkways, stairways and driveways clean and free of ice and snow at all times. 11. INSURANCE. Tenant shall obtain and keep in full force at the sole cost and expense of Tenant policies of insurance to: a. Keep the Premises insured against loss or damage by fire and all risks of direct physical loss except the normal exclusions contained in an "all risks" policy for not less than one hundred percent (100 %) of the replacement cost thereof (including foundation and excavation), evidenced by "replacement cost" and "agreed amount" endorsements in the policy; b. Maintain commercial general liability insurance covering the legal liability of Tenant against claims for bodily injury, death and/or property damage arising out of the use, maintenance and/or operation of the Premises and all areas appurtenant thereto and/or the conduct of Tenant's business, and also Tenant's contractual liability in such amounts as Landlord may require, but in no event less than $2,000,000 for personal injury or death to one person, $2,000,000 for personal injury or death in one accident and $1,000,000 for property damage; C. Satisfy all applicable requirements under Ohio worker's compensation law; d. All such insurance shall name Landlord as a named insured; shall contain a loss payable clause which provides that all losses to the Premises will be adjusted with and payable to Landlord; in the case of liability coverage will provide that it is primary -4- insurance as it relates to any other insurance carried by Landlord with respect to the Premises; shall contain endorsements that no act or negligence of the insured or any occupant, and no occupancy or use of the Premises for purposes more hazardous than permitted by the terms of the policy, nor any breach of any warranty, declaration or condition by the insured, will affect the validity or enforceability of such insurance as against Landlord; shall contain the agreement of the insurer waiving all rights of set -off, counterclaim or deductions against Landlord, shall be in full force and effect on the date of this Lease with proof of premiums paid for the current policy year. Tenant shall furnish Landlord with a copy of the policy of all required policies of insurance. e. If Tenant has a blanket "all risk" insurance policy covering the Premises as well as its own personal property and trade fixtures, in the event of a casualty loss Tenant shall have the right to adjust all losses to its personal property and trade fixtures and to be paid any insurance proceeds relating to loss or damage to such personal property and trade fixtures provided, however, that Landlord shall have the sole right to adjust all losses to the Building and related improvements and fixtures and any amount paid to Tenant for loss to its personal property and trade fixtures shall not reduce the amount that would otherwise be paid to Landlord for the loss to the Building and related improvements and fixtures. f. Tenant further covenants (a) not to terminate or materially change any policy of insurance without giving Landlord thirty (30) days prior written notice of such termination or change, and (b) at least thirty (30) days prior to the expiration date of a policy, to deliver to Landlord a binder and/or renewal policy in form satisfactory to Landlord, and to promptly furnish Landlord all receipts of paid premiums. g. In case Tenant will at any time fail, neglect or refuse to insure the Premises and buildings and improvements thereon and to keep the same insured as hereinabove provided, then Landlord may at its election, procure or renew such insurance, and any amounts paid therefor by Landlord together with interest thereon at the Default Rate will be included together with any other Base Rent, if any, due on the first day of the next calendar month after any such payment. h. Landlord and Tenant agree that all policies of insurance to be kept and maintained in force by the respective Parties hereto, must, unless prohibited by law or other regulation having the effect of law, contain provisions in which the rights of subrogation against the Landlord and Tenant are waived by the insurance company or carriers insuring the Premises. Landlord expressly waives any right of recovery against Tenant for damage to or loss of the Premises or improvements thereon, which loss or damage may arise by fire or any other peril covered by any policy of insurance required to be maintained pursuant to this Lease which contains or is required to contain waiver of subrogation rights against Tenant pursuant to this Section, and shall make no claim for recovery against Tenant therefor. Tenant expressly waives any right of recovery against Landlord for damage to or loss of the Premises, and fixtures, improvements, or other property located therein, which damage or loss may arise by fire or any other peril covered by any policy of insurance maintained or required to be maintained pursuant to this Lease which contains or is required to contain a -5- waiver of subrogation right against Landlord as set forth in this Section and shall make no claim for recovery against Landlord therefor. 12. DAMAGE TO PREMISES. If the Premises or any part thereof are damaged or destroyed by fire or other casualty, but are not made "substantially untenantable ", then Landlord or Tenant shall have the right to terminate this Lease by giving the other written notice of termination within twenty (20) days of such casualty. The Lease will terminate upon other party's receipt or refusal of such notice (the "Termination Date." Proceeds available under the insurance policies to be maintained by Tenant as a result of any damage or destruction to the Premises shall be made available to Tenant to the extent necessary to repair and restore the Premises. All other insurance proceeds, which shall include all proceeds payable thereunder if this Lease is terminated, shall be paid to Landlord. Landlord shall have the right to negotiate and settle all claims with the insurance companies arising as a result of any damage or destruction to the Premises, and Tenant shall not accept any settlements from the insurance companies without Landlord's prior consent. 13. CONDEMNATION In the event of a taking of the whole of the Premises as the result of the exercise of any power of eminent domain or condemnation or any voluntary transfer by agreement entered into in order to avoid the requirements of court procedure under threat of such a taking, by any other entity other than the Landlord, this Lease shall terminate automatically as of the date when Tenant is required to surrender possession of the Premises. Prior to Tenant's surrender of possession, Tenant shall continue to pay Base Rent and other charges due under this Lease to the person, corporation or government unit having title to the property at the time when such payments are due, or to Landlord, according to the terms of the taking. In the event of a taking of less than the whole of the Premises as a result of the exercise of any power of eminent domain or condemnation, or any voluntary transfer by agreement entered into in order to avoid the requirements of court procedure under threat of such taking, by any other entity other than the Landlord, the Base Rent under this Lease shall be reduced in proportion to the value of the property taken for the period subsequent to the effective date of such taking or transfer, or if as a result of the taking the part of the Premises remaining is insufficient in Landlord's reasonable judgment to enable Tenant to reasonably conduct its business thereon, Tenant shall have the option to terminate this Lease as of the effective date of such taking or transfer by written notice to Landlord. In the event of any occurrence falling within the scope of this Section, the entire amount of any award or awards, including, but not limited to, any award for consequential damages, shall belong solely to Landlord, and Tenant hereby assigns to Landlord all of Tenant's right to any portion thereof, except any award made solely to compensate Tenant for Tenant's costs of moving to a different location and not based on the value of the unexpired term of this Lease or the diminution of the value of the Premises or the buildings and improvements remaining; provided, however, that Landlord shall remit to Tenant the portion of any award properly attributable to the unamortized cost (depreciated on a straight line basis computed monthly using the useful lives shown on Tenant's books of account at the time of taking of the property) of any I M8 trade fixtures and leasehold improvements constructed or placed on the Premises by Tenant in compliance with the requirements of this Lease. 14. Use of Premises; Compliance with Laws Tenant shall continually use the Premises for the active uses just prior to the sale of the Parcel to the Landlord and for no other use or purpose without the prior written consent of Landlord. Tenant shall not commit or suffer any waste on the Premises nor use the Premises for any unlawful purpose. Tenant shall at its sole expense comply with all laws, regulations, ordinances, policies and orders of any federal, state or local governmental body relating to the Premises, or the ownership, use, occupation or operation of the Premises, including but not limited to (i) those relating to the correction, prevention and abatement of nuisances in, upon or about the Premises and (ii) "Environmental Laws" (as defined below). Without limiting the generality of the preceding paragraph, Tenant will not use, store, transport to or from or dispose of any "Hazardous Substances" (as defined below) on the Premises, except that Tenant may store and use on the Premise quantities of Hazardous Substances to the extent such storage and use is necessary for and incident to Tenant's permitted business and is in compliance with Environmental Laws (and Tenant obtains and maintains any necessary permits or licenses). Tenant and its officers, employees, agents, invitees and licensees will not cause or allow any spill, disposal or other "release" (as defined in Environmental Laws) of any Hazardous Substances on or under the Premises. Tenant shall promptly furnish copies to Landlord of any of the following: (a) "notices of violation" received from any federal, state or local agency or authority regarding the environmental condition of the Premises, (b) administrative enforcement orders received from any such agency or authority regarding the environmental condition of the Premises, (c) any reports made by Tenant to any such agency or authority regarding any "release" or the presence of any Hazardous Materials on the Premises, (d) any permit allowing the storage, use, disposal, discharge or transportation of any Hazardous Materials in, on, or from the Premises and (e) any other correspondence from any such agency or authority indicating that there may have or has occurred a violation of any Environmental Law on the Premises. 15. INDEMNIFICATION Subject in all respects to Section 11(h) hereof, Tenant shall indemnify, defend, protect and hold Landlord and its employees and officers harmless from and against any and all liabilities, claims, demands, damages, costs (including attorneys' fees), expenses, fees, fines, penalties, suits, proceedings, actions and causes of action of any nature whatsoever arising or growing out of or in any way connected with the use, occupancy, management or control of the Premises or any part thereof by Tenant, its officers, employees, invitees, agents, contractors or any other party using, occupying or entering the Premises by or through Tenant, or resulting from any breach, violation or non - performance of any covenant, condition or agreement herein contained on the part of Tenant to be kept or performed, or resulting from any negligent or intentional act or omission of Tenant, its officers, employees or agents. 16. ENVIRONMENTAL MATTERS Tenant shall fully and promptly pay, perform, discharge, defend, indemnify and hold harmless Landlord, its officers, employees, agents, from and against any and all claims, orders, demands, causes of action, proceedings, judgments, suits, -7- liabilities, penalties, forfeitures, damages, losses, costs and expenses (including, without limitation, technical consultant fees, court costs, expenses paid to third parties and reasonable attorneys fees) arising out of or as a result of (i) the spill, disposal or other "release" (as defined in Environmental Laws) of any Hazardous Materials on, under or from the Premises during the term by Tenant, any employee, agent, contractor or invitee of Tenant or any other party under Tenant's control or (ii) the violation of any Environmental Laws by Tenant, its officers, employees, representatives, agents, invitees, employees, agents, successors and assigns or any party under Tenant's control. As used in this Lease, the term "Hazardous Substances" means all chemicals, substances and/or materials listed under or otherwise governed or regulated by any Environmental Laws including, but not limited to, hazardous or toxic substances, wastes or products, petroleum products or any constituents thereof. As used in this Lease, the term "Environmental Laws" means any local, state or federal law, regulation, ordinance, order or policy pertaining to regulation of the environment or health and safety, or contamination or cleanup of the environment. The provisions of this Section will survive the expiration or prior termination of this Lease. 17. ASSIGNMENT AND SUBLETTING Tenant shall not assign, pledge, mortgage or otherwise encumber this Lease, nor sublet the Premises or any part thereof other than to an affiliate of Tenant to conduct the business permitted hereby. 18. REMEDIES ON DEFAULT In the event that (a) the Base Rent or other charges required by this Lease are not paid within ten (10) days after the date due; (b) Tenant fails to comply with any term, provision, condition or covenant of this Lease (other than the payment of Base Rent or other charges), and Tenant shall not cure such default within fifteen (15) days after notice to Tenant of such failure to comply unless cure cannot reasonably be effected within fifteen (15) days, in which event Tenant shall not be in default if it commences cure with such fifteen (15) day period and thereafter diligently prosecutes the same to completion; (c) the Premises shall be deserted or vacated; (d) any petition is filed by or against Tenant under any section or chapter of any bankruptcy act; (e) Tenant shall become insolvent or make a transfer in fraud of creditors; (f) Tenant shall make an assignment for the benefit of creditors; (g) a receiver of trustee is appointed for a substantial part of the assets of Tenant and within thirty (30) days thereafter Tenant fails to secure a discharge thereof or (h) this leasehold interest of Tenant is levied upon under execution, then, in any such events, Landlord shall have the option to do any of the following in addition to and not in limitation of any remedy permitted by law or by this Lease: (a) Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord, but if Tenant fails to do so, Landlord may, without further notice, enter upon the Premises and expel or remove Tenant and Tenant's effects, by force and without court proceedings, and without being liable to prosecution or any claim for damages therefor; and Tenant agrees to indemnify Landlord for all loss and damage which Landlord may suffer by reason of such Lease termination, whether through inability to relet the Premises or through decrease in rent or otherwise. 5:3 (b) Without terminating this Lease, enter upon the Premises as the agent of Tenant, without being liable to prosecution or any claim for damages thereon, and relet the Premises as the agent of Tenant, and receive the rent therefor and Tenant shall pay Landlord any deficiency that may arise by reason of such reletting, together with Landlord's expenses incurred in such reletting, on demand at any time and from time to time. (c) Refrain from terminating this Lease but terminate Tenant's right of possession until such default is cured, either by legal action or by force and without court proceedings, and in such case Landlord may enforce against Tenant the provisions of this Lease for the unexpired Term hereof. (d) Declare all Base Rent and other payments for the entire unexpired Term of this Lease at once due and payable, and if not paid forthwith upon Lessor's demand, then to resort to legal process for collection of all accelerated payments due under this Lease. (e) Recover, in addition to any other damages set forth in this Lease or permitted at law or equity, all of Landlord's expenses incurred with respect to Tenant's default, including without limitation reasonable attorney's fees, commissions, and costs of repair, renovation or alteration of the Premises. (f) Take any other actions or remedies permitted by law. 19. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT Tenant shall bear the sole responsibility for compliance with: (a) the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 (including any amendments thereto from time to time, the "Act "), (b) the Department of Justice regulations at 28 C.F.R. Part 36, or any other regulations implementing the Act, as the same may be amended from time to time and (c) any similar federal, state or local laws, codes or regulations in effect from time to time imposing accessibility standards and any governmental orders pursuant thereto (all of the foregoing collectively, "Accessibility Requirements "). Tenant shall indemnify, defend and hold Landlord harmless from and against any and all liabilities, claims, costs or expenses arising out of or relating to the failure of the Premises to comply with Accessibility Requirements. 20. PERSONAL PROPERTY ON PREMISES; RISK OF DAMAGE Tenant agrees that all personal property of every kind or description, including machinery, equipment, inventory and trade fixtures, which may at any time be in the Premises shall be at Tenant's sole risk, or at the risk of those claiming by, through or under Tenant, and Landlord shall not be liable for, and shall be held harmless by Tenant against, all claims, losses, liability, and expenses for any damage to said property or for any loss suffered by the business or property of Tenant arising from bursting, overflowing or leaking of water or sewer pipes or condensate lines from the heating or plumbing fixtures or equipment, or from the electric wiring or from gas, fumes or odors or caused in any manner. Tenant upon termination of this Lease shall deliver to Landlord possession of the Premises free of all occupants or otherwise as required pursuant to this Lease and the Agreement. 21. INSPECTION AND ENTRY BY LANDLORD Upon prior notice to Tenant (except in emergency circumstances where such notice is impractical), Landlord, or its agents or in contractors, shall have the right to enter upon the Premises at any reasonable time (upon 24 hours oral notice, except in emergency circumstances where advance notice is impractical or not possible) for the purpose of conducting test relating to the public Road improvement. Such entry shall minimize any interfere with the Tenant use and enjoyment of the Premises. 22. LIENS If (i) because of any act or omission of Tenant or anyone claiming by, through or under Tenant, (ii) by reason of or arising out of the use or occupancy of the Premises by Tenant or any subtenant or licensee of Tenant; or (iii) by reason of any construction, alteration, repair or restoration of any part of the Premises by Tenant or any subtenant or licensee of Tenant, any mechanics' or other lien, encumbrance, judgment lien or order for the payment of money or the performance of any act or thing, shall be filed against the Premises or against Landlord (whether or not such lien or order is valid or enforceable as such), Tenant shall, at Tenant's own cost and expense, cause the same to be cancelled and discharged of record within thirty (30) days after the date that Tenant is notified of the lien by Landlord or otherwise acquires notice of the existence of the lien, whichever is first, or provide a satisfactory bond or title insurance insuring over any such lien or encumbrance in lieu thereof, and Tenant shall also defend, indemnify and save harmless Landlord from and against any and all costs, expenses, claims, losses or damages, including reasonable counsel fees charged by counsel of Landlord's choice, arising out of the filing of any such mechanics' or other lien, encumbrance, judgment lien or order. Prior to commencing any work on the Premises, Tenant shall file a Notice of Commencement in accordance with Ohio law stating that the work to be commenced on the Premises has been contracted for by Tenant as the holder of the leasehold interest in the Premises. 23. CONDITION OF PREMISES INITIALLY AND UPON SURRENDER Tenant acknowledges that the Premises are being leased on an "as is" basis, that Landlord is not required to make any alterations or improvements to the Premises and that Tenant is relying solely upon its own investigations with regard to the condition of the Premises. Upon the expiration or termination of this Lease, Tenant shall quit and surrender the Premises to Landlord in good working order and in a condition equivalent to the condition of the Premises at the commencement of the Term, as improved during the Term (ordinary wear and tear subsequent to completion of the most recent regular repairs, maintenance and replacements required hereunder excepted). Tenant shall surrender the Premises without notice from Landlord, all such notice being waived. 24. NOTICES All notices and other communications required to be given or which may be given in connection with this Lease shall be in writing and shall be sent by (a) certified or registered mail, return receipt requested, postage prepaid, (b) national prepaid overnight delivery service, charges prepaid, or (c) personal delivery with receipt acknowledged in writing, directed to the applicable party at its address set forth below. Any notice so sent by certified or registered mail shall be deemed given on the date of receipt or refusal as indicated on the return receipt. All other notices shall be deemed given when actually received or refused by the party to whom the same is directed. A notice may be given either by a party or by such party's attorney. Either party may change its address for notices by giving written notice to the other party in accordance with this Section. -10- If to Landlord: Marsha I. Grigsby City Manager City of Dublin 5200 Emerald Parkway Dublin, Ohio 43017 with copy to: Philip K. Hartmann, Esq. Frost Brown Todd LLC One Columbus, 10 West Broad Street Columbus, Ohio 43215 If to Tenant: Byers Realty LLC Attn: George Byers, III 555 West Broad Street Columbus, Ohio 43215 with copy to: Brent D. Rosenthal, Esq. Carlile Patchen & Murphy LLP 366 East Broad Street Columbus, Ohio 43215 25. BROKERAGE Landlord and Tenant each warrant to the other that they have dealt with no broker who would be entitled to a commission by reason of the execution of this Lease. Landlord and Tenant will indemnify, defend and hold each other harmless from and against all claims, liabilities, costs and expenses (including attorneys fees) arising out of any claim by any broker with whom the indemnifying party has dealt or negotiated. 26. MEMORANDUM The Parties shall not record this Lease but upon request of either party, they will execute and cause to be recorded a Memorandum of this Lease. The requesting party will pay for the preparation and recording thereof. 27. SUBORDINATION This Lease and any changes or amendments hereto or any renewal or extensions hereof are subject and subordinate to all underlying leases and mortgages which may now or hereafter affect the Premises or the Building. This clause shall be self - operative and no further instrument or subordination need be required by any mortgagee. In confirmation of such subordination, Tenant shall, if requested by Landlord, execute promptly an instrument having that effect, or any similar instrument, including estoppel certificates, so requested by Landlord. 28. HOLDING OVER If Tenant remains in possession after expiration of the Term hereof, without Landlord's acquiescence and written agreement of the Parties, Tenant shall be a month -to -month tenant subject to all the terms and conditions of this Lease except as to rental. Rental during the term of any month -to -month tenancy shall be at the rate of the monthly rate in effect during the last month of the prescribed Term of this Lease. -11- 29. QUIET ENJOYMENT Landlord covenants and warrants that Tenant, upon paying the Base Rent and observing and performing all the terms, covenants and conditions on its part to be observed and performed, shall peaceably and quietly occupy and enjoy the Premises, free from all interference or disturbance from Landlord or any person or entity claiming to act under authority of or right from Landlord, subject to the terms and conditions of this Lease. 30. LIABILITY OF LANDLORD If Landlord shall fail to perform any covenant, term or condition of this Lease upon Landlord's part to be performed and, as a consequence of such default, Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of such judgment and levied thereon against the right, title and interest of Landlord in the Building, and Landlord shall not have any personal liability hereunder. 31. APPLICABLE LAW, VENUE This Lease is governed by and will be construed in accordance with the laws of the State of Ohio (regardless of the laws that might be applicable under principles of conflicts of law) as to all matters, including, but not limited to, matters of validity, construction, effect, and performance. The Parties consent to the exclusive jurisdiction of the courts of the State of Ohio in Franklin County, and the United States District Court for the Southern District of Ohio, and waive any contention that any such court is an improper venue for enforcement of this Lease. 32. BINDING EFFECT All the terms, conditions and covenants of this Lease shall inure to the benefit of and be binding upon the respective heirs, legal representatives, successors and assigns of the Parties hereto. 33. ENTIRE AGREEMENT This Lease contains the entire agreement of the Parties with respect to the leasing of the Premises, and no representations or agreements, oral or written, not embodied herein or incorporated herein by reference shall be of any force or effect. 34. CAPTIONS Paragraph captions are used for convenience only, and shall not limit or amplify or otherwise constitute a part of the provisions of this Lease. 35. INVALIDITY If any provision of this Lease, or any covenant, obligation or agreement contained herein is determined by a court to be invalid or unenforceable, that determination shall not affect any other provision, covenant, obligation or agreement, each of which shall be construed and enforced as if the invalid or unenforceable portion were not contained herein. That invalidity or unenforceability shall not affect any valid and enforceable application thereof, and each such provision, covenant, obligation or agreement shall be deemed to be effective, operative, made, entered into or taken in the manner and to the full extent permitted by law. 36. WAIVER Any waiver of a right or default under this Lease must be in writing. Any waiver of a particular default will constitute a waiver of such default only and not of any other default by the nonwaiving party. Any waiver of a specific right or remedy under this Lease will constitute a waiver of such right or remedy only and not of any other right or remedy of the waiving party. -12- 37. HEADINGS The subject headings of the various sections of this Lease are included for purposes of convenience only and will not affect the construction or interpretation of any of its provisions. 38. DAY FOR PERFORMANCE Wherever herein there is a day or time period established for performance and such day or the expiration of such time period is a Saturday, Sunday or legal holiday, then such time for performance shall be automatically extended to the next business day. 39. RECITALS The Parties acknowledge and agree that the facts and circumstances as described in the Recitals hereto are an integral part of this Lease and as such are incorporated herein by reference. 40. COUNTERPARTS This Lease may be executed in one or more counterparts all of which will be considered one and the same lease, binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart. {Signatures on the next page} -13- IN WITNESS WHEREOF, the Parties hereto have caused this Lease to be executed as of the date first set forth above. Approved as to form: Stephen J. Smith, Law Director LANDLORD: City of Dublin, Ohio, an Ohio municipal corporation L Marsha Grigsby, City Manager TENANT: Byers Realty LLC, an Ohio limited liability company By: Its: Print Name: {Acknowledgements on the next page} -14- STATE OF OHIO : ss COUNTY OF FRANKLIN : The foregoing instrument was acknowledged before me this day of , 2014, by Marsha Grigsby, the City Manager of the City of Dublin, Ohio, an Ohio municipal corporation, for and on behalf of said municipal corporation. Notary Public STATE OF OHIO : ss COUNTY OF FRANKLIN : The foregoing instrument was acknowledged before me this _ day of , 2014, by , the of the Byers Realty, LLC, an Ohio limited liability company, for and on behalf of said company.. Notary Public -15-