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IN THE COMMON:PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
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PATRIOT COMMUNICA’ HONS:E.LC, CASE NUMBER
Plaintiff, 2007 CV 01268
JUDGE
JUDGE MICHAEL TUCKER
KETTERING TOWER PATNERS, LLC, DEFENDANT’S APPLICATION TO
VACATE THE ARBITRATION
AWARD AND MOTION TO STAY
THE CONFIRMATION OR
ENFORCEMENT OF THE
ARBITRATION AWARD
v.
Defendant.
Now comes the Defendant, Kettering Tower Partners, LLC, and requests that this
Court vacate the arbitration award issued in this matter pursuant to R.C. 2711.10 as
follows:
1. On October 6, 2005, Defendant entered into a written contract with Plaintiff, Patriot
Communications, LLC, which identified Patriot “As Rooftop Leasing Agent.”
2. A copy of this contract is attached hereto and marked "Joint Exhibit 1."
3. Article 3.2 of this contract provided in pertinent part:
“The authority conferred herein shall apply to the initial leasing of new space in
or on the roof or building or within the building, the, the negotiation of a new
Icase with an existing tenant and the exercise of any option to renew or extend an
existing lease with any such existing tenant, or existing building lease otherwise
renewed or extended.”
4. Article 3.6 of this contract provides:
Rooftop Broker represents and warrants that it and its salespersons are fully
qualified and licensed, to the extent required by law, to lease real estate and toperform all obligations assumed by Rooftop Broker hereunder. Rooftop Broker
agrees to comply with all laws now or hereafter in effect with respect to the same.
5. Article 4 of this contract provided for the arbitration of any disputes arising under the
contract.
6. Pursuant to the arbitration provision, the controversy was submitted to arbitration on
December 14, 2006, award in writing was subsequently made by the arbitrator on
February 7, 2007.
7. A copy of the arbitrator’s award is attached hereto and marked "Exhibit 2."
8. The Arbitrator’s Award made the following pertinent findings:
“At no time has Patriot ever applied or obtained a real estate broker’s license for
performing these services. (Resp. Post-Brf., 3).”
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“Because Patriot has fulfilled its obligations under the Leasing Agreement, it is
entitled to collect a leasing commission that is “equal to ten percent (10%) of
gross rentals for the applicable term.” (Leasing Agreement, Schedule B). Pursuant
to the Rooftop Agreement, the arbitrator finds that Patriot’s commission shall be
calculated using the initial term of 240 months and a gross rental sum of
$1,858,150.00 for a total commission of $185,815.00.”
9. No other orders, notices, or extensions for the time to arbitrate have been made in this
matter.
10. Plaintiff, Patriot Communications, LLC, filed an Application To Confirm the
Arbitration Award on February 11, 2007, but did not serve counsel of record for the
Defendant until February 22, 2007.
- Counsel for the Defendant first became aware of Plaintiff's application on February
21, 2007.12. Defendant, Kettering Tower Partners, LLC, submits this application on the following
grounds:
A. The arbitrator’s award violates a well defined and long-standing public policy by
reference to the R.C. 4735.21 which states:
“No right of action shall accrue to any person, partnership, association, or
corporation for the collection of compensation for the performance of the
acts mentioned in section 4735.01 of the Revised Code, without alleging
and proving that such person, partnership, association, or corporation was
licensed as a real estate broker or foreign real estate dealer.”
No right of action exists to obtain fees in violation of this statutory prohibition.
B. The arbitrator’s award violates this public policy because Ohio courts have
consistently held that an unlicensed broker cannot avoid the statute's reach by
asserting equitable causes of action sounding in promissory estoppel, quantum
merit, or the like. Stanson, Inc. v. McDonald (1946), 147 Ohio St. 191; The
Innovators’ Group, Inc. v. Riverside Enterprises, Inc. 1990 Ohio App. LEXIS
398, Case No. 11725, (2 Dist. Montgomery County) decided February 5, 1990,
Landmark Commer, Realty v. Developers Diversified, 163 F.3d 389.
C. The arbitrator lacked subject matter jurisdiction to award a “leasing commission”
to a party that does not hold a real estate broker’s license.
D. Plaintiff, Patriot Communications, LLC, lacks standing to pursue an action to
collect a “leasing commission” because it does not hold a real estate broker’s
license.13. For the reasons set forth above, Defendant moves this court for a stay of all further
action or proceedings to confirm or enforce the arbitration award until such time as
this Defendant’s Application To Vacate has been heard.
WHEREFORE, Defendant demands that the arbitrator’s award be vacated and that
the matter be dismissed with prejudice and for costs. Furthermore, Defendant demands
that all further steps and action to confirm or enforce the arbitrator’s award be stayed
until such time as this court rules upon the Defendant’s Application To Vacate.
Respectfully submitted,
“takate
RALPH A.'SKILKEN, JR. (0006334)
Trial Attorney
1500 Kettering Tower
40 N. Main St.
Dayton, OH 45423-1001
Ph; (937) 223-5050
Fx: (937) 224-1402
Email: RalphSkilken@goodcounsel.com
Counsel for Defendant
CERTIFICATE OF SERVICE
The undersigned counsel certifies that a true and accurate copy of this
DEFENDANT’S APPLICATION TO VACATE THE ARBITRATION AWARD
AND MOTION TO STAY THE CONFIRMATION OR ENFORCEMENT OF
THE ARBITRATION AWARD was served on this 2 “Way of February,
2007, BY HAND DELIVERY, upon the following:
Ronald |. Raether, Jr. (0067731)
Timothy G. Pepper, Esq.
500 Courthouse Plaza S.W
10 N. Ludlow St.
Dayton, OH 45402
(937) 227-3733
— PH A. tit JR. ¢ |FROM 2+ ( FAX NO. : Bagg009 ( Oct. 89 2025 10:18PM P2
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C
LEASING AGREEMENT
BETWEEN
KETTERING TOWER PARTNERS LLC
AS OWNER
AND
PATRIOT COMMUNICATIONS, LLC
AS ROOFTOP LEASING AGENT
EXHIBIT
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THIS AGREEMENT is made this @ day of October, 2005, by and between
KETTERING TOWER PARTNERS LLC ("Owner"), and Patriot Communications, ULC,
(Rooftop Broker’),
WITNESSETH:
WHEREAS, Owner owns the property (“Properties”) covered by this Agreement, and
desires to employ Rooftop Broker to lease Rooftop and other common spaces for Wirclcss
Tenants upon same; and
WHEREAS, Owner and Rooftop Broker wish to set forth in writing the understanding
between therm with respect to the services to be performed by, and the compensation to be paid
to, Rooftop Broker and other matters with respect thereto;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, Owner and Rooftop Broker hereby agree as follows:
ARTICLE 1. PROPERTY
‘This Agreement covers the Property known as: KETTERING TOWER
{see Schedule “A” for property description) lovaled in Dayton, Ohi9.
ARTICLE 2. TERM
The term of this Agreement shall commence on the date hercof and shall continue for a period of
five (5) years, unless earlier renewed or terminated as provided in Article 6.
ARTICLE 3. BROKER'S LEASING RESPONSIB:
ad Appointment. Owner hereby appolnts Rooftop Broker leasing agent for the
Properties Rooftop and Interior Spaces for the purpose of leasing such space(s) to Wireless
Tenants, and gives to Rooftop Broker the right, subject to the terms, conditions and provisions
hereinafter set forth, to solicit for, procure and produce tenants who will lease space In the
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Property.
3.2 Authority and Duties; Negotiation an ecution of Leases. While this
Agreement remains In effect, Owner shall refer to Rooftop Broker all inquiries and offers by
prospective or existing tenants or cooperating real estate brokers for wireless and rooftop
tenants for the purpose of leasing rooftop and interior common spaces. Rooftop Broker shall
diligently investigate and develop inquiries and offers, and shall canvas, solicit and otherwise use
reasonable and best efforts and services to procure and produce qualified tenants who are to the
Rooftop Broker's knowledge financially secure and reputable and who will lease space in the
Properties.
All proposed leases with prospective new tenants are to be negotiated by Rooftop
Broker in accordance with Owner's guidelines, with such modifications as the Broker may deem
appropriate, subject to the approval of Owner provided for below. The form of lease prepared
and approved by Owner as the standard form of lease for the Properties shall be used in the
negotiation of all proposed leases for space in the Properties, with such modifications as the
Broker may deem appropriate, subject to the approval of Owner provided for below.
All proposed leases shall be submitted to Owner for approval or disapproval, and
Owner will use its best efforts to respond to Rooftop Broker in a timely manner. Rooftop Broker
shall deliver on behalf of the Owner, any lease so approved after execution thereof by the
perspective tenant and the Owner, A copy of the standard Rooftop Sub-Lease Agreement has
been attached as Schedule °C”,
The authority conferred herein shall apply to the initial leasing of new space in or on
the roof or building or within the building, the, the negotiation of a new lease with an existing
tenant and the exercise of any option to renew or extend an existing lease with any such existing
tenant, or existing bullding lease othenise renewed or extended.
35 Costs and Expenses. Except as otherwise provided in this Agreement, all costs
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and expenses incurred In connection with Rooftop Broker's leasing activities, including, but not
limited to, the salaries, wages, employee benefits and leasing commissions payable to Rooftop
Broker's salespersons and employees, and telephone, office supplies, postage and clerical
expenses, shall be bore and paid by Rooftop Broker. However, notwithstanding anything In this
Agreement to the contrary, Rooftop Broker shall not be obligated to bear the cost of any
attorneys' fees incurred or paid in connection with the preparation of the standard form of lease
for the Properties or any modifications thereto prepared for any particular tenant,
3.6 Representations Regarding Leasing. Rooftop Broker represents and warrants
that it and its salespersons are fully qualified and licensed, to the extent required by faw, to lease
real estate and to perform all obligations assumed by Rooftop Broker hereunder. Rooftop Broker
agrees to comply with all applicable laws now or hereafter in effect with respect to the same.
ARTICLE 4. DISPUTES
In the event of any dispute between Owner and Rooftop Broker relating to this Agreement, the
Properties or Owner or Rooftop Broker's performance hereunder, Owner and Rooftop Broker
agree that such dispute shall be resolved by means of binding arbitration in accordance with the
commercial arbitration rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction.
Depositions may be taken and other discovery obtained during such arbitration proceedings to the
same extent as authorized in clvil judicial proceedings In the state where the affice of Rooftop
Broker executing this Agreement Is located. The arbitrator(s) shalt be limited to awarding
“compensatory damages and shall have no authority to award punitive, exemplary or similar type
damages. The prevailing party in the arbitration proceeding shall be entitled to recover its
expenses, including the costs of the arbitration proceeding, and reasonable attomey’s fees.
ARTICLE 5. COMPENSATION
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Owner shall pay Rooftop Braker a Leasing Commission as set forth on Schedule “B” attached
hereto.
ARTICLE 6. TERMINATION AND. E
61 Termination. This Agreement shall be torminable by Owner er Rooftop Broker
within thirty (30) days prior written notice from elther party, far any reason. This agreement can
be terminated immediately for cause by owner.
This Agreement shalt automatically terminate with respect to the Property upon its
Sale or its condemnation,
62 Renewal. Upon the expiration of the term specified in Article 2, this Agreement
shall automatically renew unless the Owner or Rooftop Broxer shall give written notice of
termination to the other party. Such notice to be given no later than sixty (60) days prior to the
expiration of the initial term and any succeeding renewal term.
ARTICLE 7, NOTICES
All notices, approval, and reports provided for in this Agreement shall be in writing
and shall be given to Qwner or Rooftop Broker at the address or addresses set forth below or at
such other addresses as either may hereafter specify in writing:
To Owner: KETTERING TOWER PARTNERS LLC
Uri Mermelstein, Partner
302 Fifth Avenue, 8th Floor
New York, NY 10001
212-679-7700 Tel.
212-279-1709 Fax.
MERMELSTEI@aol.com
And
To Rooftop Broker: Scott Thomae, V.P. of Operations
Patriot Communications, LLC
602 West Market Street, Suite 11A
Germantown, Ohio 45327
(937) 238-5994 Tel.
(505) 212-6126 E-Fax
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sthomae@4rooftops.com
Any such notice or ather written communication may be mailed by US mail, Overnight Parcel, in
person, by fax, of by e-mail. Any such notice or other written communication shall be deemed to
have been given as follows: (I) when so mailed, as of the next business day after it was mailed;
and (ii) when delivered in person or by any other means, upon receipt, Either party may change
its notice address by the giving of written notice to the other party,
ARTICLE 8. MISCELLANEOUS GENERAL PROVISIONS.
BL No Assignment This Agreement and any right hereunder shall not be assignable
by the Rooftop Broker, unless otherwise agreed by the Owner. The Rooftop Broker agrees,
understands and consents that it and their successors and assigns (whether by consolidation,
merger or any other form of reorganization or by way of a transfer of afl or substantially all of its
assets) are bound by the provisions of this agreement.
8.2 Complete Aqresment; Amendments. This Agreement, including the Schedules
attached hereto and referred to herein, constitutes the entire contract between the parties; no
oral or implied representations or understandings shall vary its terms; and it may not be amended
except by an instrument in writing executed by the parties hereto,
8.3 Headings and Pronouns, All headings herein are inserted only for convenience
and ease of reference and are not to be considered in the construction or interpretation of any
provision of this Agreement.
3.4 Miscellaneous, The failure of either party to insist, in any one or more instances,
upon the performance of any of the terms, covenants of conditions of this Agreement by the
other party hereto, shall not be construed as a waiver or as a relinquishment of any tight granted
hereunder to the party failing to insist on such performance, or as a waiver of the future
performance of any such term, covenant or condition, but the obligations hereunder of both: (oct. 99 2005 19:14PM PB
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Parties hereto shalt remain unimpaired and shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
OWNER;
KETTERING TOWER PARTNERS LLC
WITNESS: \
, iri Mertnelstein
Tive:__Member. 10 fo fo om)
ROOFTOP BROKER:
PATRIOT COMMUNICATIONS LLC
WITNESS:
peel Title:__V.P> of Operations
SCHEDULE A PROPERTY LOCATION/DESCRIPTION
SCHEDULE B SCHEDULE OF LEASING COMMISSIONS
SCHEDULE A
PROPERTY LOCATION AND DESCRIPTION
40 NORTH MAIN STREET, DAYTON, OHIO 45423
With the following |FROM: * ( FAX NO. : aaggeaa (Oct. @9 22@5 10:15PM P9
. 10/07/05 FRI 09:20 FAX 2122133747
SSTUATED IN TIE COINTY OF MONTGOMERY, STATE OF CxIO RAD JN THE CTTY OF HAY'rON AND BELNG FARTS OF LOTS ROMBERED GNF
FONDRED FIVE 1105), ONE IGNORED SIX (1n6i, CRP HONDAED SEVEN (207), AND ONE HUNDRED ETGWT (109) OF TRY CONSECUTIVE
NewBEA OF LOTS ON THE REVEGED PLAT OF 23 OF DAYTON, AND NODA PARPTCILAALY DSSCALGED AS FOLLOWS:
ASCE,
LOCATED YN Ke CLUY GE DAYTON, COUNTY OF MONTGOMERY, STAE OF OHIO AND BEING PARTS OT TOT NOS. 106 AND 107 OF THE
ARVIGED ARD CONGECOTTVE WUMOGEY OF LYcS UN THE PLAT OF SAID GUPY OF DAYEON, OHIO AND BEING A TRACT OF LAND
DROCRISED AS FOLLOWS: SOGINYING AT THE KORTHWEST CORNER OF SAID LOT NO.1D7 SAID NORTAWEST CORNEA BE2NG THE
INTERSECTsON CF THE EAST LINE OF NORTH VAIN STREGE WITH TEE SOUSH L:ME OF EAST SSCOKD STALRT; TERKCE WITH THE
SOOTH LING OF Garp EART SECINS STR AND “he NORA LINE GF SATD TOT WO. 107 AND [TS EASTWARD EETENSLOS, SAIC
EXTENSION RATNG THE MORIN LINE OF SACD LOT NO. 308 AMD MAKING AN INTERIOR ANGLE WITH THR EST LOWE OF SAID LOT
NO.207 OF NINETY DEGREES FOUR MINUTES THIRCY SECOXDS (SO" 04" 30°) FOR THO AUNLREU N-NETY-SEVEH AND 60/100
(297-60) FEET TO THE MORTHERST CORMER OF SATD LOT NO.10G; THENCE SCOTHMARDLY WITH THE EAST LIME OF SATO LOT NO.
306 AND WAKTIG AN YNEERIOR ANGLE WITH THE LAST MENTTONED COURSE OF ELGHY-MINE OAGREES FIFTY -TIVE MINOVES TAIRTY
SECONDS (99° 557 30") LOR NINETY-NINE AND 40/100 (99.40) FEET) THENCE WESTWAROLY WITH TRE ZASTANAN EXTENSION OF
‘SHE SOUT LINE OF SAID LOT RO.107 AND WITH TEE SOZTN LING OF SAID LOT WO,_07 AND MAKING AN INTERIOR ANSLE WITH THE
YAST-MENTIONED COURSE DE NINTTY DERREES TOMA MINOTRS MHLRTY sefONDS [90* 04+ 30° FOR ONE HONTRED ZECHFY-ONE AND:
0/100 (162.49) FRET 79 A POLNT LOUATED ONE MUWDRED SDATEDN AND 70/100 (1.6.20) EYET PASTAARD.Y TROM THE SOOTHWEST
CORNER GF SATC LOT RO. 1077 THENCE WORTHWARCLY AND MAKING AN THTERIOR ANGLE WITS THE LAST-HENTTONED COUASR OF
ELGHYY-NIME DEGREES FIFTY-FIVE HTNITES CHIATY SECONDY (49"25" 30") TOR SIXTEEN AND 9:/100 (16.91) YEET TO A POINT
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RYTON, OHIO; THENCE WISTHAROLY ATONG THE NORYH MALL OF SACD GANK EOTLDING AND MAKING AN INVERLOR ANGLE WISH THE
TAST:YENTIGNED COURSE OF TU) HUNDRED SEVEM'Y REGARES FOUR MINUTES THTRTY SRCONDS (270° O47 JO") FOR ONS HOWDRED
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ITH THE Lada tar IONE} COCRSE OF ETGATY-NINE DEGREES FUTX-F1VE MINUTES THIRTY SECoWDs (83" 95° 20") FOR EIGHTY
THO AND 48/100 (82.45) FEET TO THE DOIN? CF BEGINNING.
FRRCEL IT:
WOATED NW TAR CTAY OF DAYTON, COUNTY CF MONTGOMERY, STATA OF GHTO AND BEING a faRT Of Lor NO. 263 OF THE REVISED
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FOLLOWS: BEGINNING AT @ EOINT IN THE SOUTH LINE: O* FACT SKCOAD STREXT. SAID FOLUT OF REGINKING BEING THe. NORTHWEST
CORNER OF SAIC 20 1097 THENCE BASTWAROLY WITH THE SOUTH LINE OF SAID ENS? STCOND STREMY AND THE NORTH LINE OF
SAID LOT AO, 108 AUD MIKING AN INTERICR ANGIE WTR THE WEST LIYE OF SATD LOT RO. 105 OF NINETY DEGREES FOE
MINUTES THTATY SECOWDS (30° 04" 30") FOK EsGiere-Owe AND €6/100 (81.66) FRRT: THENCE GOUTKAAKDLY, LEAVING ERTO
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. 30°} FOR SEVENTEEN AND 54/100 (17.54) EEET TO A FOTNT TN TE EAST LINE OF SALO LOT RO.105 AND THE WEST LINE OT
RORTd JEFFERSON STAKET, TERUCK SOUPMVARDLY WITH GALD EAST LINE AND SAID WEST LIWR AKD MAKTNG AN INTERIOR ANGLE
BIH THE LASTUMENT ONES COURSE OF EIGHTZ-NINE DESKEES FIPTY-FIVE MINUTES THIRTY SECONES (89° 55' 30") TOR FIFTY
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as 10/100 199.20) FREE TO A EOIN? TN TAD WES? LING Ov BAID LOT NO. 10h; THENCE WORTHWARDLY ATH SALD weSr bas
FXO HAKING AN INTERIOR ANGLE WITH THE LASr-raneriowEp COURSE OF EIGHTY-NiNE DEGREES FIFTY-FIVE MINUTES THIRTY
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PARCEL Iz2 -
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TIME, OF NORTH JEFFCRSON GrRakT AND THE EAST LINE OF SAID LOT NO.105 AND MAKING AN INTERIOR ANGLE WITH THE NORTH
LIME OF SALD LOT NO.20s OF EXGUTY-WENE UFGREFS PLRTY-PLVE MENOTES TRIRTY SECONDS 199° 65° 39") POR SIXTY AND
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BEGRERS FIFTV-FTWR MINUTES TAIRTY SECONDS (89° SE" 30") FOR SIMTY Aly 24/100 (60,24) FEET TO A POTNT TW THR NORTE
KANE OF SALD LOT NO.105 AXD THE SOCTH Ere OF SAID EAST SECOND STREET, TLENCE EASTKARDLY WITH SAID NORTH LINE AYU
SAID SOUTER LINE AND HANING AN INTERION ANGLE NITU THE LAST-MEWITONED COURSE CE WINETY DEGREES FOR MINUIES THIRTY
SECONDS 190" GA JO") FOR SEVERN AMD 54/109 (17-54) REET TO THE POINT OF BRGTHNTNG.
‘THe BEVASED AND CONSECUTIVE NOMBERS OF [OVS OW THE MUAY OF SAID CITY OF
2 BEGINNING AY THE SOUTIBAST CORMER OF SAID LOR KO.195,
LOCATED IM 3H CITY OF Skrron, comnry oF
ISG PARTE OF LOTS NO-305, 296, AND 10B OF
BAYTOW, OHIO AND BEING A TRACT OF LAND DESCRIBED AS FOLLONS.
BIRRE?; TWENCE WESTWARDLY WITH THE SOUTH LING OF SAID LOT HO.
‘THE SOUTH LIME OF SAID LOTS NOS. 106 AND 108 AND THE WORTH Z.INZ OF SAED ART2 LANE AND HAKING AN INTERIOR ANGLE
WITH THE EASE LINE OF SAT LOT KO.105 OP NINFEY DECREES xOUR NINTUES THIRTY SECONDS (90° f4* 30¢) FOR TWO HUNDRED
AND 40/00 (209-40) CELT TO A ECLNT LOCATED OME MUNDRED NINFTY-STX AND 20/109 (296.40) FEET ERSTWAROLY EROM THE
SOUTHWEST CORNER OF SATO LO7 RO.100; THENCE NORTHWAROLY, UARALLEL T9 THE WEST LINE OF SAID LOT ¥0.209 AND MAKING.
AN SNTEXIOR ANGLE WI2K THE LAST-MRMCTONGD COURSE OF EIGHTY-NINE DEGREZS FIFTY-ETVR MTWUTAS rHlitrY SHCOBDS (89° 95°
30") YOR MISETY-NINE AND (6/100 (99-40) EeE? VO a POLNT TH TRE NORTE LIME OF S4.D 1OT 60,100: YHENCY EASTMARDLY
WITH THE KORTH LINE OF SACD LOT NO. 100 AND [TS EASTWARD EXTRNSION AyD MAKING AN INTERIOR ANGLE WITH THE LAST-
MENTIONED COURSE OF AINETY DEGREES FOUR MEMUTES THIRTY SECONDS [90° C4* 20%} TOR ONE TONDRED ONE AND 20/100
(101.20) fS€r 70 A PORT IN Tae EAST LIME OF SAID LOT NO.106 AND THE WEST LINE OF @AYD LOT NG.1052 THENCE.
SOMCiWARDEY WITH SRXD EAST LINE avin Gare iemer Linc AND MAKING BN TERIOR RNCLE WItN THE LAST-MENTIONED COURSE OF
EXGHTY-WINE DEGRFES FTUTY-FIVE MINUTES THTRTY SECONGS (99° 55‘ JO") POR tweNTr Ase 08/100 (20.03) FEET: THENCE
EASTWARDLY, PARALLEL TO THE BORTH LIVE OF SAID LOT NG. 105 AND MAKING AN INTERIOR ANGLE WITH THE LAST=MENTIONED
COURSE OF TWO ZUNDVED SEVENTY CECREES FOUR KINUTES THIATY SECONDS (2707 04" 3071 FOR NENEYE-NINE AND 20/200
793-20) FEET 4O A FOINS £8 TME EAST LINE OF SAID LOT NO.105 ANC THE WEST LINE OF SAID KORTE JBFFERSON STRFET:
( ‘THENCE SOUTEWAROLY WITH GAD EAGT LINE AKO SALD WEST SINE AND MONTNG AN IHTERTOR ANGIR WITH THE LAST-MENTSOREDFROM: * ( FAX NO. : eaaaaaa (oct. a9 2005 10:17PM Pia
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(.
SOURS OF BIGHTY-NiNG DEGREES FEFTY-FTVE MTHUTES THIRTY secGNDI (89° 55* 30°) FOR SEVEXTY-RINE aNd 32/100 (79.921
FREE TO THE POINT OF BEGINNING.FROM: + ( FAX NO. + @a@Q2a0 (Get. 89 2005 10:17PM Pit
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SCHEDULE B La
SCHEDULE OF LEASING COMMISSIONS stays AS pe ;
New Leases and Lease Expansions ~ we ,
The Leasing Commission due and payable in the case of new, reas mando
shall be equal to ten percent (40%) of gross rentals. for the applicable term, The Leasing bn ne
Commission for any renewals shall be paid upon the renewal date whether the renewal Is /g,,
automatic, requires written notice, or amendment. 5ey,
The Leasing Commission shall be payable with regard to.a lease transacted In the Property Or
entered into during the term of the Leasing Agreement or within six (6) months after the date of
termination of the Leasing Agreement In the case where a prospect was contacted by the Broker 10+ 07-0%
prior to the date of termination or expiration and identified on a prospect schedule delivered by
the Broker to the Owner within fifteen (15) days after the date of termination or expiration.
Leasing Commissions shall be deemed earned upon execution of the lease and shall be pald to
Rooftop Broker at the execution of the lease.
Owner's obligation to pay eared but unpaid Leasing Commissions shalt survive the termination
hereof for any reason." a (
PUBLIC Works (4) CITY MANAGER'S REPORT
Date May 10, 2006
(% City Manager
FROM: __ Public Works.
Code 10000-6480-1142-54
Depariment/Division
|
~ (CHECK ONE) Fund Title —22nera
Amount $ 1.858.152.10
> Purchase Order [7 Lease Agreement Supplier/Vendor/Company/Individual:
I? Price Agreement [ Estimate of Cost Kettering Tower Partners, LLC
NAME
(- Award of Contract. . 1 Payment of Voucher Appress __°-0. BOX 71-4966
& Other Lease Agreement
Columbus, OH 43271-49668
Justification and description of purchase, contract or payment:
Rooftop Lease Agreement at Kettering Tower, 40 North Main Street
The City of Dayton has negotiated a new 20-year lease agceement (with an option for early termination at the end of the
10" year) for an equipment room (290 Sq. Ft.) located on the 30" floor and rooftop space for communication equipment at
Kettering Tower located at 40 North Main Street, Downtown Dayton, with Patriot Communications, Broker for Kettering
Tower Partners. The previous lease agreement expired February 16, 2006, withan extension granted through May 16,
2006, at the rate of $5,200 per month. This equipment room and rooftop space is for communication equipment that
" operates the City’s communication systems for Police and Fire. The City has leased this space since 1986. The City will
nt “Cettering Tower Partners $5,200 per month (includes electric utility costs) the first year with an annual 4% escalator
be
gunning Year 2. The terms of this agreement will expire May 16,2026
$92,367.24/yr. °
Year | .____$5,200.00/mo. $62,400.00/yr. Year II 1,697.27!mo.
Year 2 $5,408.00/mo. 3$64,896.00/yt. Year 12 $8,005. 16/mo. $96,061.93/yr. -
Year 3 $5,624.32/mo. $67,491 .84/yr. Year 13 $8,325.37/mo. $99,904.4 yr.
Year 4 $5,849.29/mo. $70,191.S tfyz. Year 14 $8,658.38/mo. $103,900.59/yr.
Year 5 $6,083.26/mo. $72,999, 17/yr. Year 15 $9,004.72/mo. $108,056.61 /yr.
Year 6 $6,326.60/mo. $75,919.24 /yr. Year 16 $9,364.91/mo, $112,378.87/yr.
Year 7 $6,579.66/mo. $78,955.91/yr- Year 17 $9,739,50/mo. $116,874.03/yr.
Year & $6,842. 85/mo. $82,114, 14/yr. Year 18° $10,129.08/mo. $121,548.99/yr,
Year 9 ~ $7,116.56/mo, $85,398.7 I/yr. Year 19 $10,534.25/mo. $126,410.95/yr.
Year 10 $7,401.22/mo. $88,814.66/yr. Year 20 $10,995.62/mo. $131,467.39/yr.
The attached certificate of funds in the amount of $41,600,00 covers payments May 15 through December 15, 2006.
Approved Affirmative Action Program on File [M Yes No FNA
AananaananMEMORANDUM
May 11, 2006
. TO: Law Department
City Commission Office
City Manager’s Office
Finance Department
FROM: Fred Stovall, Director
Department of Public Works
SUBJECT: Request for Signatures
€ a - ~ Piease-signthe-four (4) attached copies of the Lease Agreement forrooftop space at Kettering
_ Power, 40 N=Main Steet. This Agreement was approve ie Urty Commission at their
meeting.on_May.10,.2006, City Manager's Report #7... —--
The Agreement has been reviewe:
for your execution.
‘d by the Law Department and by Public Works and is ready
Att,
signed copies released to Finance
od ananannnna(
(
SCHEDULE C
Standard Rooftop Lease Agreement
LICENSOR: Keltering Tower Pariners, LLC
4. Licensed Premises: Licensor is owner of the tower
site more particularly described on Exhibit B-7 attached hereto
and incosparated herein by this reference, (the “Site"), and
hereby Licenses to the Licensee, for the period, al the rent, and
upon the lerms and conditions hereafter set forth herein, the
right fo use that certain space within the Site also identified on
Exhibit B-2 hereto (ihe “Licensed Premises”) for the installation
and operation of Licensee's Permitted Equipment and Permitted
Frequencies as shown on the Aitached Exhibit C. Licensor aiso
grants to Licensee a non-exclusive easement for reasonable
access thereto. Licensee agrees tc take the Licensed Premises
in strictly “AS {S" condition, and acknowledges that Licensor
shali have no responsibility for the current condition of the
Licensed Premises or any damage suffered by Licensee or any
other person due ta such condition.
2. Tenn: The initial term of this License and any renewal
arms (collectively the “Term’) Shall be as identified on Exhibit A.
_Licensee holds over with respect to the Licensed Premises
after expiration of the Term, the License term shalt revert to 2
month-to-month term, and rent shall be one hundred fifty percent
(150%) of the Rent applicable to the Licensed Premises during
the last month of the preceding term.
3. Commencement Date: This license including the
rental rate, the date of escalation, and all applicable terms
shall be effective as of February 16 2006 as marked in
Exhibit “A" Initial Term.
4. Rent and Other Charges:
(a) Licensee shall pay rent at the rate specified on Exhibit A
{the “Rent”), Rent for any fractional month at the beginning er
enc af aterm shall be prorated. Rent shall increase as specified
on Exhibit A throughout the initial and any renewal term(s)
thereof.
(b) Any security deposit required hereby will be held in a non-
interest bearing account and shall be returned lo Licensee thirty
{30) days (unless local iaw requires a shorter period of time)
following the conclusion ef the Term, provided Licensee is not
then in default, and all equipment, to the extent required, has
teen properly removed and the Licensed Premises properly
restored.
{c} Licensee shall pay promptly all charges, taxes,
essessments and fees, if any, (exclusive of income taxes and
reat property faxes) which may De imposed on or in connection
with, or otherwise contemplated by (f) this License; (ii) any
‘rmitted Equipment or facilities owned, Licensed ar used by
Jensee on the Licensed Premises or the Sile (including,
without limitation, transmitters and antennas); {iii) Licensee's use
LICENSEE: City of Dayton, Ohio
or occupation of ihe Site; or (iv) federal, state cr local
governments.
(d) If the Site is subject to a Prime Agreement (as hereafler
defined), and if Licensors payments due under such Prime
Agreement are (i) increased far any reason; and (ii) such
increase is in an amcunt greater than any rent increase set
forth herein, then the rent payable hereunder shall be
increased by a percentage equal to the percentage increase in
the payments due under the Prime Agreement.
(e) Licensee shalt pay all amounts that are due io Licensor
hereunder, inciuding rent, utilities and other charges impased
hereby, by check, wire transfer, account auto debit or ACH
credit to Licenscr’s account as identified by Licensor no iater
than the first business day of each calendar month that it is
due. If payment {including any applicable late fee) is not
received when due, Licensor may charge a lale fee equal ta
one and a half percent (174%) per month of the amount due (or
the maximum amount permitted by applicable law, whichever
is less) until paid in full. if Licensor designates that payment be
made by check, then such payment shall be delivered ta:
Kettering Tower Partners, LLC
PO Box 71-4966
Columbus, Ohio 43271-4966
{e) Or such other location as Licensor may designate in
writing from time to time.
(h) Notwithstanding anything contained above to the contrary,
Licensor reserves the right to invoice Licensee monthly, or
ethenvise more frequenily inveice Licensee, for forestry/permit
fees, air handling charges/surchasges, _utility/electric
consumption, and other expenses incurred by Licensor with
respect to Licensee's occupation of the Licensed Premises,
and otherwise due and payable pursuant to the terms of the
Single Site License.
5. Utilities: The attached Exhibit A identifies the manner
and/or mechanism for utility consumption, including the
method for payment therefore. [f not identified therein,
Licensee shall obfain elecirical power and other utilities solely
al its own expense.C 6s Representations and Acknowledgements:
(a) Licensee represents and warrants that if is legally
qualified under applicable FCC rules, regulations, and/or
guidelines to own and operate its Permitted Equipment and
Permitted Frequencies and covenants that it will: (i) operate its
Permitted Equipment and Permitted Frequencies within all
material technical parameters of, and otherwise according to,
all FCC sules, regulations, and the electrical code(s) of the
applicable city, county and/or state and, with respect to
Licensee's hiring ef tower climbers, the Occupational Safety
and Health Act (especially Section 1910.268, as amended),
and ail such personnel shall use one hundred percent (700%)
fall protection; (ii) not use (or cause another to use) any
portion of the Site or its Permitted Equipment for any illegal,
immoral or unauthorized purpose; (iii) not damage the Site, the
tower, any building, the Licensed Premises, and/or
accessories ihereto and/or any other tower Licensee's
equipment;
Preview
v iiitovooe IN THE COMMON:PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION 4 pa oe PATRIOT COMMUNICA’ HONS:E.LC, CASE NUMBER Plaintiff, 2007 CV 01268 JUDGE JUDGE MICHAEL TUCKER KETTERING TOWER PATNERS, LLC, DEFENDANT’S APPLICATION TO VACATE THE ARBITRATION AWARD AND MOTION TO STAY THE CONFIRMATION OR ENFORCEMENT OF THE ARBITRATION AWARD v. Defendant. Now comes the Defendant, Kettering Tower Partners, LLC, and requests that this Court vacate the arbitration award issued in this matter pursuant to R.C. 2711.10 as follows: 1. On October 6, 2005, Defendant entered into a written contract with Plaintiff, Patriot Communications, LLC, which identified Patriot “As Rooftop Leasing Agent.” 2. A copy of this contract is attached hereto and marked "Joint Exhibit 1." 3. Article 3.2 of this contract provided in pertinent part: “The authority conferred herein shall apply to the initial leasing of new space in or on the roof or building or within the building, the, the negotiation of a new Icase with an existing tenant and the exercise of any option to renew or extend an existing lease with any such existing tenant, or existing building lease otherwise renewed or extended.” 4. Article 3.6 of this contract provides: Rooftop Broker represents and warrants that it and its salespersons are fully qualified and licensed, to the extent required by law, to lease real estate and toperform all obligations assumed by Rooftop Broker hereunder. Rooftop Broker agrees to comply with all laws now or hereafter in effect with respect to the same. 5. Article 4 of this contract provided for the arbitration of any disputes arising under the contract. 6. Pursuant to the arbitration provision, the controversy was submitted to arbitration on December 14, 2006, award in writing was subsequently made by the arbitrator on February 7, 2007. 7. A copy of the arbitrator’s award is attached hereto and marked "Exhibit 2." 8. The Arbitrator’s Award made the following pertinent findings: “At no time has Patriot ever applied or obtained a real estate broker’s license for performing these services. (Resp. Post-Brf., 3).” x ok kk “Because Patriot has fulfilled its obligations under the Leasing Agreement, it is entitled to collect a leasing commission that is “equal to ten percent (10%) of gross rentals for the applicable term.” (Leasing Agreement, Schedule B). Pursuant to the Rooftop Agreement, the arbitrator finds that Patriot’s commission shall be calculated using the initial term of 240 months and a gross rental sum of $1,858,150.00 for a total commission of $185,815.00.” 9. No other orders, notices, or extensions for the time to arbitrate have been made in this matter. 10. Plaintiff, Patriot Communications, LLC, filed an Application To Confirm the Arbitration Award on February 11, 2007, but did not serve counsel of record for the Defendant until February 22, 2007. - Counsel for the Defendant first became aware of Plaintiff's application on February 21, 2007.12. Defendant, Kettering Tower Partners, LLC, submits this application on the following grounds: A. The arbitrator’s award violates a well defined and long-standing public policy by reference to the R.C. 4735.21 which states: “No right of action shall accrue to any person, partnership, association, or corporation for the collection of compensation for the performance of the acts mentioned in section 4735.01 of the Revised Code, without alleging and proving that such person, partnership, association, or corporation was licensed as a real estate broker or foreign real estate dealer.” No right of action exists to obtain fees in violation of this statutory prohibition. B. The arbitrator’s award violates this public policy because Ohio courts have consistently held that an unlicensed broker cannot avoid the statute's reach by asserting equitable causes of action sounding in promissory estoppel, quantum merit, or the like. Stanson, Inc. v. McDonald (1946), 147 Ohio St. 191; The Innovators’ Group, Inc. v. Riverside Enterprises, Inc. 1990 Ohio App. LEXIS 398, Case No. 11725, (2 Dist. Montgomery County) decided February 5, 1990, Landmark Commer, Realty v. Developers Diversified, 163 F.3d 389. C. The arbitrator lacked subject matter jurisdiction to award a “leasing commission” to a party that does not hold a real estate broker’s license. D. Plaintiff, Patriot Communications, LLC, lacks standing to pursue an action to collect a “leasing commission” because it does not hold a real estate broker’s license.13. For the reasons set forth above, Defendant moves this court for a stay of all further action or proceedings to confirm or enforce the arbitration award until such time as this Defendant’s Application To Vacate has been heard. WHEREFORE, Defendant demands that the arbitrator’s award be vacated and that the matter be dismissed with prejudice and for costs. Furthermore, Defendant demands that all further steps and action to confirm or enforce the arbitrator’s award be stayed until such time as this court rules upon the Defendant’s Application To Vacate. Respectfully submitted, “takate RALPH A.'SKILKEN, JR. (0006334) Trial Attorney 1500 Kettering Tower 40 N. Main St. Dayton, OH 45423-1001 Ph; (937) 223-5050 Fx: (937) 224-1402 Email: RalphSkilken@goodcounsel.com Counsel for Defendant CERTIFICATE OF SERVICE The undersigned counsel certifies that a true and accurate copy of this DEFENDANT’S APPLICATION TO VACATE THE ARBITRATION AWARD AND MOTION TO STAY THE CONFIRMATION OR ENFORCEMENT OF THE ARBITRATION AWARD was served on this 2 “Way of February, 2007, BY HAND DELIVERY, upon the following: Ronald |. Raether, Jr. (0067731) Timothy G. Pepper, Esq. 500 Courthouse Plaza S.W 10 N. Ludlow St. Dayton, OH 45402 (937) 227-3733 — PH A. tit JR. ¢ |FROM 2+ ( FAX NO. : Bagg009 ( Oct. 89 2025 10:18PM P2 10/07/05 FRI 09:18 FAX 2122133747 Woo. C LEASING AGREEMENT BETWEEN KETTERING TOWER PARTNERS LLC AS OWNER AND PATRIOT COMMUNICATIONS, LLC AS ROOFTOP LEASING AGENT EXHIBIT /C FAX NO. : Baagaaa ( Oct. @9 2025 10:11PM P3 10/07/05 FRI 09:18 FAX 2122133747 THIS AGREEMENT is made this @ day of October, 2005, by and between KETTERING TOWER PARTNERS LLC ("Owner"), and Patriot Communications, ULC, (Rooftop Broker’), WITNESSETH: WHEREAS, Owner owns the property (“Properties”) covered by this Agreement, and desires to employ Rooftop Broker to lease Rooftop and other common spaces for Wirclcss Tenants upon same; and WHEREAS, Owner and Rooftop Broker wish to set forth in writing the understanding between therm with respect to the services to be performed by, and the compensation to be paid to, Rooftop Broker and other matters with respect thereto; NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, Owner and Rooftop Broker hereby agree as follows: ARTICLE 1. PROPERTY ‘This Agreement covers the Property known as: KETTERING TOWER {see Schedule “A” for property description) lovaled in Dayton, Ohi9. ARTICLE 2. TERM The term of this Agreement shall commence on the date hercof and shall continue for a period of five (5) years, unless earlier renewed or terminated as provided in Article 6. ARTICLE 3. BROKER'S LEASING RESPONSIB: ad Appointment. Owner hereby appolnts Rooftop Broker leasing agent for the Properties Rooftop and Interior Spaces for the purpose of leasing such space(s) to Wireless Tenants, and gives to Rooftop Broker the right, subject to the terms, conditions and provisions hereinafter set forth, to solicit for, procure and produce tenants who will lease space In the doo2zFROM : 10/07/05 FRI 00:18 FAX 2122199747 ( FAX NO. : @208800 C Oct. @9 2885 10:42PM P4 Property. 3.2 Authority and Duties; Negotiation an ecution of Leases. While this Agreement remains In effect, Owner shall refer to Rooftop Broker all inquiries and offers by prospective or existing tenants or cooperating real estate brokers for wireless and rooftop tenants for the purpose of leasing rooftop and interior common spaces. Rooftop Broker shall diligently investigate and develop inquiries and offers, and shall canvas, solicit and otherwise use reasonable and best efforts and services to procure and produce qualified tenants who are to the Rooftop Broker's knowledge financially secure and reputable and who will lease space in the Properties. All proposed leases with prospective new tenants are to be negotiated by Rooftop Broker in accordance with Owner's guidelines, with such modifications as the Broker may deem appropriate, subject to the approval of Owner provided for below. The form of lease prepared and approved by Owner as the standard form of lease for the Properties shall be used in the negotiation of all proposed leases for space in the Properties, with such modifications as the Broker may deem appropriate, subject to the approval of Owner provided for below. All proposed leases shall be submitted to Owner for approval or disapproval, and Owner will use its best efforts to respond to Rooftop Broker in a timely manner. Rooftop Broker shall deliver on behalf of the Owner, any lease so approved after execution thereof by the perspective tenant and the Owner, A copy of the standard Rooftop Sub-Lease Agreement has been attached as Schedule °C”, The authority conferred herein shall apply to the initial leasing of new space in or on the roof or building or within the building, the, the negotiation of a new lease with an existing tenant and the exercise of any option to renew or extend an existing lease with any such existing tenant, or existing bullding lease othenise renewed or extended. 35 Costs and Expenses. Except as otherwise provided in this Agreement, all costs doosFROM : 10/07/05 FRI 09:19 FAX 2122193747 a ( FAX NO. : eaaaeaa (oct. a9 2005 18:42PM PS and expenses incurred In connection with Rooftop Broker's leasing activities, including, but not limited to, the salaries, wages, employee benefits and leasing commissions payable to Rooftop Broker's salespersons and employees, and telephone, office supplies, postage and clerical expenses, shall be bore and paid by Rooftop Broker. However, notwithstanding anything In this Agreement to the contrary, Rooftop Broker shall not be obligated to bear the cost of any attorneys' fees incurred or paid in connection with the preparation of the standard form of lease for the Properties or any modifications thereto prepared for any particular tenant, 3.6 Representations Regarding Leasing. Rooftop Broker represents and warrants that it and its salespersons are fully qualified and licensed, to the extent required by faw, to lease real estate and to perform all obligations assumed by Rooftop Broker hereunder. Rooftop Broker agrees to comply with all applicable laws now or hereafter in effect with respect to the same. ARTICLE 4. DISPUTES In the event of any dispute between Owner and Rooftop Broker relating to this Agreement, the Properties or Owner or Rooftop Broker's performance hereunder, Owner and Rooftop Broker agree that such dispute shall be resolved by means of binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. Depositions may be taken and other discovery obtained during such arbitration proceedings to the same extent as authorized in clvil judicial proceedings In the state where the affice of Rooftop Broker executing this Agreement Is located. The arbitrator(s) shalt be limited to awarding “compensatory damages and shall have no authority to award punitive, exemplary or similar type damages. The prevailing party in the arbitration proceeding shall be entitled to recover its expenses, including the costs of the arbitration proceeding, and reasonable attomey’s fees. ARTICLE 5. COMPENSATION Goo4FROM : 10/07/05 FRI 09:19 FAX 2122133747 C ( FAX NO. : @280808 ( Oct. 89 2885 18:13PM Pé Owner shall pay Rooftop Braker a Leasing Commission as set forth on Schedule “B” attached hereto. ARTICLE 6. TERMINATION AND. E 61 Termination. This Agreement shall be torminable by Owner er Rooftop Broker within thirty (30) days prior written notice from elther party, far any reason. This agreement can be terminated immediately for cause by owner. This Agreement shalt automatically terminate with respect to the Property upon its Sale or its condemnation, 62 Renewal. Upon the expiration of the term specified in Article 2, this Agreement shall automatically renew unless the Owner or Rooftop Broxer shall give written notice of termination to the other party. Such notice to be given no later than sixty (60) days prior to the expiration of the initial term and any succeeding renewal term. ARTICLE 7, NOTICES All notices, approval, and reports provided for in this Agreement shall be in writing and shall be given to Qwner or Rooftop Broker at the address or addresses set forth below or at such other addresses as either may hereafter specify in writing: To Owner: KETTERING TOWER PARTNERS LLC Uri Mermelstein, Partner 302 Fifth Avenue, 8th Floor New York, NY 10001 212-679-7700 Tel. 212-279-1709 Fax. MERMELSTEI@aol.com And To Rooftop Broker: Scott Thomae, V.P. of Operations Patriot Communications, LLC 602 West Market Street, Suite 11A Germantown, Ohio 45327 (937) 238-5994 Tel. (505) 212-6126 E-Fax Boos( FAX NO. + a2ga820 (Oct. 99 2005 18:14PM P? 10/07/05 FRI 09:19 PAX 2122133747 Moe sthomae@4rooftops.com Any such notice or ather written communication may be mailed by US mail, Overnight Parcel, in person, by fax, of by e-mail. Any such notice or other written communication shall be deemed to have been given as follows: (I) when so mailed, as of the next business day after it was mailed; and (ii) when delivered in person or by any other means, upon receipt, Either party may change its notice address by the giving of written notice to the other party, ARTICLE 8. MISCELLANEOUS GENERAL PROVISIONS. BL No Assignment This Agreement and any right hereunder shall not be assignable by the Rooftop Broker, unless otherwise agreed by the Owner. The Rooftop Broker agrees, understands and consents that it and their successors and assigns (whether by consolidation, merger or any other form of reorganization or by way of a transfer of afl or substantially all of its assets) are bound by the provisions of this agreement. 8.2 Complete Aqresment; Amendments. This Agreement, including the Schedules attached hereto and referred to herein, constitutes the entire contract between the parties; no oral or implied representations or understandings shall vary its terms; and it may not be amended except by an instrument in writing executed by the parties hereto, 8.3 Headings and Pronouns, All headings herein are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision of this Agreement. 3.4 Miscellaneous, The failure of either party to insist, in any one or more instances, upon the performance of any of the terms, covenants of conditions of this Agreement by the other party hereto, shall not be construed as a waiver or as a relinquishment of any tight granted hereunder to the party failing to insist on such performance, or as a waiver of the future performance of any such term, covenant or condition, but the obligations hereunder of both: (oct. 99 2005 19:14PM PB FROM: + ( FAX NO. : @2ag000 10/07/05 FRI 09:20 FAX 2122133747 igoo7 Parties hereto shalt remain unimpaired and shall continue in full force and effect. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written. OWNER; KETTERING TOWER PARTNERS LLC WITNESS: \ , iri Mertnelstein Tive:__Member. 10 fo fo om) ROOFTOP BROKER: PATRIOT COMMUNICATIONS LLC WITNESS: peel Title:__V.P> of Operations SCHEDULE A PROPERTY LOCATION/DESCRIPTION SCHEDULE B SCHEDULE OF LEASING COMMISSIONS SCHEDULE A PROPERTY LOCATION AND DESCRIPTION 40 NORTH MAIN STREET, DAYTON, OHIO 45423 With the following |FROM: * ( FAX NO. : aaggeaa (Oct. @9 22@5 10:15PM P9 . 10/07/05 FRI 09:20 FAX 2122133747 SSTUATED IN TIE COINTY OF MONTGOMERY, STATE OF CxIO RAD JN THE CTTY OF HAY'rON AND BELNG FARTS OF LOTS ROMBERED GNF FONDRED FIVE 1105), ONE IGNORED SIX (1n6i, CRP HONDAED SEVEN (207), AND ONE HUNDRED ETGWT (109) OF TRY CONSECUTIVE NewBEA OF LOTS ON THE REVEGED PLAT OF 23 OF DAYTON, AND NODA PARPTCILAALY DSSCALGED AS FOLLOWS: ASCE, LOCATED YN Ke CLUY GE DAYTON, COUNTY OF MONTGOMERY, STAE OF OHIO AND BEING PARTS OT TOT NOS. 106 AND 107 OF THE ARVIGED ARD CONGECOTTVE WUMOGEY OF LYcS UN THE PLAT OF SAID GUPY OF DAYEON, OHIO AND BEING A TRACT OF LAND DROCRISED AS FOLLOWS: SOGINYING AT THE KORTHWEST CORNER OF SAID LOT NO.1D7 SAID NORTAWEST CORNEA BE2NG THE INTERSECTsON CF THE EAST LINE OF NORTH VAIN STREGE WITH TEE SOUSH L:ME OF EAST SSCOKD STALRT; TERKCE WITH THE SOOTH LING OF Garp EART SECINS STR AND “he NORA LINE GF SATD TOT WO. 107 AND [TS EASTWARD EETENSLOS, SAIC EXTENSION RATNG THE MORIN LINE OF SACD LOT NO. 308 AMD MAKING AN INTERIOR ANGLE WITH THR EST LOWE OF SAID LOT NO.207 OF NINETY DEGREES FOUR MINUTES THIRCY SECOXDS (SO" 04" 30°) FOR THO AUNLREU N-NETY-SEVEH AND 60/100 (297-60) FEET TO THE MORTHERST CORMER OF SATD LOT NO.10G; THENCE SCOTHMARDLY WITH THE EAST LIME OF SATO LOT NO. 306 AND WAKTIG AN YNEERIOR ANGLE WITH THE LAST MENTTONED COURSE OF ELGHY-MINE OAGREES FIFTY -TIVE MINOVES TAIRTY SECONDS (99° 557 30") LOR NINETY-NINE AND 40/100 (99.40) FEET) THENCE WESTWAROLY WITH TRE ZASTANAN EXTENSION OF ‘SHE SOUT LINE OF SAID LOT RO.107 AND WITH TEE SOZTN LING OF SAID LOT WO,_07 AND MAKING AN INTERIOR ANSLE WITH THE YAST-MENTIONED COURSE DE NINTTY DERREES TOMA MINOTRS MHLRTY sefONDS [90* 04+ 30° FOR ONE HONTRED ZECHFY-ONE AND: 0/100 (162.49) FRET 79 A POLNT LOUATED ONE MUWDRED SDATEDN AND 70/100 (1.6.20) EYET PASTAARD.Y TROM THE SOOTHWEST CORNER GF SATC LOT RO. 1077 THENCE WORTHWARCLY AND MAKING AN THTERIOR ANGLE WITS THE LAST-HENTTONED COUASR OF ELGHYY-NIME DEGREES FIFTY-FIVE HTNITES CHIATY SECONDY (49"25" 30") TOR SIXTEEN AND 9:/100 (16.91) YEET TO A POINT DDN TRE EASTWNRD EXTEUS:ON OF THE NORTH WALL CF THE EXISTING WU GOING OSiONGING TO THE TOXRD NATIONAL BANK OF RYTON, OHIO; THENCE WISTHAROLY ATONG THE NORYH MALL OF SACD GANK EOTLDING AND MAKING AN INVERLOR ANGLE WISH THE TAST:YENTIGNED COURSE OF TU) HUNDRED SEVEM'Y REGARES FOUR MINUTES THTRTY SRCONDS (270° O47 JO") FOR ONS HOWDRED GINTERN AND 70/100 (116.20) FECT TO A POINT TW TH WHAT ine Or SAID Lor mo.207, SAID WEST LIFE BEIUG THE LAST BINE OF NORTH MAIN STAZET: THENCE NORTHwAKOLY WITH SATO WEST LINE JND SAID FAST UIME AND WAXING BK INTERIOA RUGLE ITH THE Lada tar IONE} COCRSE OF ETGATY-NINE DEGREES FUTX-F1VE MINUTES THIRTY SECoWDs (83" 95° 20") FOR EIGHTY THO AND 48/100 (82.45) FEET TO THE DOIN? CF BEGINNING. FRRCEL IT: WOATED NW TAR CTAY OF DAYTON, COUNTY CF MONTGOMERY, STATA OF GHTO AND BEING a faRT Of Lor NO. 263 OF THE REVISED [AKO CONSECUTIVE NIMEERS OF TOTS OW THE PLA! CE SAID CITY OF DATTOX, OIO AND BRING % TRACT OF LAND DESCRIARD AS FOLLOWS: BEGINNING AT @ EOINT IN THE SOUTH LINE: O* FACT SKCOAD STREXT. SAID FOLUT OF REGINKING BEING THe. NORTHWEST CORNER OF SAIC 20 1097 THENCE BASTWAROLY WITH THE SOUTH LINE OF SAID ENS? STCOND STREMY AND THE NORTH LINE OF SAID LOT AO, 108 AUD MIKING AN INTERICR ANGIE WTR THE WEST LIYE OF SATD LOT RO. 105 OF NINETY DEGREES FOE MINUTES THTATY SECOWDS (30° 04" 30") FOK EsGiere-Owe AND €6/100 (81.66) FRRT: THENCE GOUTKAAKDLY, LEAVING ERTO mo SOUPH LINE AND SAID RORT LINE END MAKING AN INTERIOR ANGLE wink THE LASE-MENT-ONED COURSE OF EIGHTY-NTNE DEGRIRS FIETY-FIVE MIRUYES THIRTY SECONDS (99° §5' 30") FOR SIXTY AND 22/100 (69.24! FFET: THENCE EASSWARDLY AND MEKING AN INTERTOA AUCLA WITH THE LAST-BESTIONED QOCREE OF THO FINDAGN SAVY LEGREES POOR MINCTES THIRTY SECONDS (270° 04° . 30°} FOR SEVENTEEN AND 54/100 (17.54) EEET TO A FOTNT TN TE EAST LINE OF SALO LOT RO.105 AND THE WEST LINE OT RORTd JEFFERSON STAKET, TERUCK SOUPMVARDLY WITH GALD EAST LINE AND SAID WEST LIWR AKD MAKTNG AN INTERIOR ANGLE BIH THE LASTUMENT ONES COURSE OF EIGHTZ-NINE DESKEES FIPTY-FIVE MINUTES THIRTY SECONES (89° 55' 30") TOR FIFTY NINE AND 24/100 (59.241 FERT; THENCE WESTWANDLY, LEAVING SAID VEST LOW AUD SAID EAS? LINE AND GAN INTERICR ANGLE WITH THE CART-NEUTLONED COURSE OF NINETY BEGREES FOUR HAMTTES THIRTY SECOUDS [90° G4" 34") FOR NINETE-HINF as 10/100 199.20) FREE TO A EOIN? TN TAD WES? LING Ov BAID LOT NO. 10h; THENCE WORTHWARDLY ATH SALD weSr bas FXO HAKING AN INTERIOR ANGLE WITH THE LASr-raneriowEp COURSE OF EIGHTY-NiNE DEGREES FIFTY-FIVE MINUTES THIRTY SECONDS {89° 55° 30%) FOR ONE HCNUASD NIMSTEEN AND 48/200 (219.48) FRAT TO THE COLT OF MEGENRTNG. PARCEL Iz2 - MONIGOMERT, STAT OF OWID AND BEING A PART OF LOT NO. LOo OF iit TEVISZD AND CONSECUTIVE MIRDERT OF i0TS GN THE SLA? OF SAID CITY GF DAYTON, ORZO ANE ERTNG A TRACT OF LAND DESCRIBED FS FOLLOWS: BEGTINGNG AP HE NORTHEAST COMMER OF SATD LOF NO.'G5, GATD NORTHEASY CORNER BEING THE INTERSECTION OF THR SOUTH LINE OF EAST SECOND STREZ™ WITH THE WEST LINE OF NORTH JEFFERSON STREET: THINCE SQUTHWNROLY WITH THE WESS TIME, OF NORTH JEFFCRSON GrRakT AND THE EAST LINE OF SAID LOT NO.105 AND MAKING AN INTERIOR ANGLE WITH THE NORTH LIME OF SALD LOT NO.20s OF EXGUTY-WENE UFGREFS PLRTY-PLVE MENOTES TRIRTY SECONDS 199° 65° 39") POR SIXTY AND 24/100 (60.24) FEET; THENCR WASTWARDLY, LEAVING SAID WEST ZINE AND SAID EAST £.10G AND HAKLAG AN ASYERTOR ANGLE WIPH TRF JAST-VENTIONED COUREE GF WUMETY CCGREES roy MINYORS THZKrY SECONTS (90° Q4* 3d") FOR SCUENTEAY AKo SA/10O (17.54) FEED; THENCE NCRTKWAROLY IND MAING AN INTERTOR ANGLE WITH THE LASS-MENTTONRD COURSE OF E1GETY-NINE BEGRERS FIFTV-FTWR MINUTES TAIRTY SECONDS (89° SE" 30") FOR SIMTY Aly 24/100 (60,24) FEET TO A POTNT TW THR NORTE KANE OF SALD LOT NO.105 AXD THE SOCTH Ere OF SAID EAST SECOND STREET, TLENCE EASTKARDLY WITH SAID NORTH LINE AYU SAID SOUTER LINE AND HANING AN INTERION ANGLE NITU THE LAST-MEWITONED COURSE CE WINETY DEGREES FOR MINUIES THIRTY SECONDS 190" GA JO") FOR SEVERN AMD 54/109 (17-54) REET TO THE POINT OF BRGTHNTNG. ‘THe BEVASED AND CONSECUTIVE NOMBERS OF [OVS OW THE MUAY OF SAID CITY OF 2 BEGINNING AY THE SOUTIBAST CORMER OF SAID LOR KO.195, LOCATED IM 3H CITY OF Skrron, comnry oF ISG PARTE OF LOTS NO-305, 296, AND 10B OF BAYTOW, OHIO AND BEING A TRACT OF LAND DESCRIBED AS FOLLONS. BIRRE?; TWENCE WESTWARDLY WITH THE SOUTH LING OF SAID LOT HO. ‘THE SOUTH LIME OF SAID LOTS NOS. 106 AND 108 AND THE WORTH Z.INZ OF SAED ART2 LANE AND HAKING AN INTERIOR ANGLE WITH THE EASE LINE OF SAT LOT KO.105 OP NINFEY DECREES xOUR NINTUES THIRTY SECONDS (90° f4* 30¢) FOR TWO HUNDRED AND 40/00 (209-40) CELT TO A ECLNT LOCATED OME MUNDRED NINFTY-STX AND 20/109 (296.40) FEET ERSTWAROLY EROM THE SOUTHWEST CORNER OF SATO LO7 RO.100; THENCE NORTHWAROLY, UARALLEL T9 THE WEST LINE OF SAID LOT ¥0.209 AND MAKING. AN SNTEXIOR ANGLE WI2K THE LAST-MRMCTONGD COURSE OF EIGHTY-NINE DEGREZS FIFTY-ETVR MTWUTAS rHlitrY SHCOBDS (89° 95° 30") YOR MISETY-NINE AND (6/100 (99-40) EeE? VO a POLNT TH TRE NORTE LIME OF S4.D 1OT 60,100: YHENCY EASTMARDLY WITH THE KORTH LINE OF SACD LOT NO. 100 AND [TS EASTWARD EXTRNSION AyD MAKING AN INTERIOR ANGLE WITH THE LAST- MENTIONED COURSE OF AINETY DEGREES FOUR MEMUTES THIRTY SECONDS [90° C4* 20%} TOR ONE TONDRED ONE AND 20/100 (101.20) fS€r 70 A PORT IN Tae EAST LIME OF SAID LOT NO.106 AND THE WEST LINE OF @AYD LOT NG.1052 THENCE. SOMCiWARDEY WITH SRXD EAST LINE avin Gare iemer Linc AND MAKING BN TERIOR RNCLE WItN THE LAST-MENTIONED COURSE OF EXGHTY-WINE DEGRFES FTUTY-FIVE MINUTES THTRTY SECONGS (99° 55‘ JO") POR tweNTr Ase 08/100 (20.03) FEET: THENCE EASTWARDLY, PARALLEL TO THE BORTH LIVE OF SAID LOT NG. 105 AND MAKING AN INTERIOR ANGLE WITH THE LAST=MENTIONED COURSE OF TWO ZUNDVED SEVENTY CECREES FOUR KINUTES THIATY SECONDS (2707 04" 3071 FOR NENEYE-NINE AND 20/200 793-20) FEET 4O A FOINS £8 TME EAST LINE OF SAID LOT NO.105 ANC THE WEST LINE OF SAID KORTE JBFFERSON STRFET: ( ‘THENCE SOUTEWAROLY WITH GAD EAGT LINE AKO SALD WEST SINE AND MONTNG AN IHTERTOR ANGIR WITH THE LAST-MENTSOREDFROM: * ( FAX NO. : eaaaaaa (oct. a9 2005 10:17PM Pia 10/07/05 FRI 09:21 FAX 2122133747 food (. SOURS OF BIGHTY-NiNG DEGREES FEFTY-FTVE MTHUTES THIRTY secGNDI (89° 55* 30°) FOR SEVEXTY-RINE aNd 32/100 (79.921 FREE TO THE POINT OF BEGINNING.FROM: + ( FAX NO. + @a@Q2a0 (Get. 89 2005 10:17PM Pit 10/07/05 FRI 11:31 FAX 2122133747 @oo1 a SCHEDULE B La SCHEDULE OF LEASING COMMISSIONS stays AS pe ; New Leases and Lease Expansions ~ we , The Leasing Commission due and payable in the case of new, reas mando shall be equal to ten percent (40%) of gross rentals. for the applicable term, The Leasing bn ne Commission for any renewals shall be paid upon the renewal date whether the renewal Is /g,, automatic, requires written notice, or amendment. 5ey, The Leasing Commission shall be payable with regard to.a lease transacted In the Property Or entered into during the term of the Leasing Agreement or within six (6) months after the date of termination of the Leasing Agreement In the case where a prospect was contacted by the Broker 10+ 07-0% prior to the date of termination or expiration and identified on a prospect schedule delivered by the Broker to the Owner within fifteen (15) days after the date of termination or expiration. Leasing Commissions shall be deemed earned upon execution of the lease and shall be pald to Rooftop Broker at the execution of the lease. Owner's obligation to pay eared but unpaid Leasing Commissions shalt survive the termination hereof for any reason." a ( PUBLIC Works (4) CITY MANAGER'S REPORT Date May 10, 2006 (% City Manager FROM: __ Public Works. Code 10000-6480-1142-54 Depariment/Division | ~ (CHECK ONE) Fund Title —22nera Amount $ 1.858.152.10 > Purchase Order [7 Lease Agreement Supplier/Vendor/Company/Individual: I? Price Agreement [ Estimate of Cost Kettering Tower Partners, LLC NAME (- Award of Contract. . 1 Payment of Voucher Appress __°-0. BOX 71-4966 & Other Lease Agreement Columbus, OH 43271-49668 Justification and description of purchase, contract or payment: Rooftop Lease Agreement at Kettering Tower, 40 North Main Street The City of Dayton has negotiated a new 20-year lease agceement (with an option for early termination at the end of the 10" year) for an equipment room (290 Sq. Ft.) located on the 30" floor and rooftop space for communication equipment at Kettering Tower located at 40 North Main Street, Downtown Dayton, with Patriot Communications, Broker for Kettering Tower Partners. The previous lease agreement expired February 16, 2006, withan extension granted through May 16, 2006, at the rate of $5,200 per month. This equipment room and rooftop space is for communication equipment that " operates the City’s communication systems for Police and Fire. The City has leased this space since 1986. The City will nt “Cettering Tower Partners $5,200 per month (includes electric utility costs) the first year with an annual 4% escalator be gunning Year 2. The terms of this agreement will expire May 16,2026 $92,367.24/yr. ° Year | .____$5,200.00/mo. $62,400.00/yr. Year II 1,697.27!mo. Year 2 $5,408.00/mo. 3$64,896.00/yt. Year 12 $8,005. 16/mo. $96,061.93/yr. - Year 3 $5,624.32/mo. $67,491 .84/yr. Year 13 $8,325.37/mo. $99,904.4 yr. Year 4 $5,849.29/mo. $70,191.S tfyz. Year 14 $8,658.38/mo. $103,900.59/yr. Year 5 $6,083.26/mo. $72,999, 17/yr. Year 15 $9,004.72/mo. $108,056.61 /yr. Year 6 $6,326.60/mo. $75,919.24 /yr. Year 16 $9,364.91/mo, $112,378.87/yr. Year 7 $6,579.66/mo. $78,955.91/yr- Year 17 $9,739,50/mo. $116,874.03/yr. Year & $6,842. 85/mo. $82,114, 14/yr. Year 18° $10,129.08/mo. $121,548.99/yr, Year 9 ~ $7,116.56/mo, $85,398.7 I/yr. Year 19 $10,534.25/mo. $126,410.95/yr. Year 10 $7,401.22/mo. $88,814.66/yr. Year 20 $10,995.62/mo. $131,467.39/yr. The attached certificate of funds in the amount of $41,600,00 covers payments May 15 through December 15, 2006. Approved Affirmative Action Program on File [M Yes No FNA AananaananMEMORANDUM May 11, 2006 . TO: Law Department City Commission Office City Manager’s Office Finance Department FROM: Fred Stovall, Director Department of Public Works SUBJECT: Request for Signatures € a - ~ Piease-signthe-four (4) attached copies of the Lease Agreement forrooftop space at Kettering _ Power, 40 N=Main Steet. This Agreement was approve ie Urty Commission at their meeting.on_May.10,.2006, City Manager's Report #7... —-- The Agreement has been reviewe: for your execution. ‘d by the Law Department and by Public Works and is ready Att, signed copies released to Finance od ananannnna( ( SCHEDULE C Standard Rooftop Lease Agreement LICENSOR: Keltering Tower Pariners, LLC 4. Licensed Premises: Licensor is owner of the tower site more particularly described on Exhibit B-7 attached hereto and incosparated herein by this reference, (the “Site"), and hereby Licenses to the Licensee, for the period, al the rent, and upon the lerms and conditions hereafter set forth herein, the right fo use that certain space within the Site also identified on Exhibit B-2 hereto (ihe “Licensed Premises”) for the installation and operation of Licensee's Permitted Equipment and Permitted Frequencies as shown on the Aitached Exhibit C. Licensor aiso grants to Licensee a non-exclusive easement for reasonable access thereto. Licensee agrees tc take the Licensed Premises in strictly “AS {S" condition, and acknowledges that Licensor shali have no responsibility for the current condition of the Licensed Premises or any damage suffered by Licensee or any other person due ta such condition. 2. Tenn: The initial term of this License and any renewal arms (collectively the “Term’) Shall be as identified on Exhibit A. _Licensee holds over with respect to the Licensed Premises after expiration of the Term, the License term shalt revert to 2 month-to-month term, and rent shall be one hundred fifty percent (150%) of the Rent applicable to the Licensed Premises during the last month of the preceding term. 3. Commencement Date: This license including the rental rate, the date of escalation, and all applicable terms shall be effective as of February 16 2006 as marked in Exhibit “A" Initial Term. 4. Rent and Other Charges: (a) Licensee shall pay rent at the rate specified on Exhibit A {the “Rent”), Rent for any fractional month at the beginning er enc af aterm shall be prorated. Rent shall increase as specified on Exhibit A throughout the initial and any renewal term(s) thereof. (b) Any security deposit required hereby will be held in a non- interest bearing account and shall be returned lo Licensee thirty {30) days (unless local iaw requires a shorter period of time) following the conclusion ef the Term, provided Licensee is not then in default, and all equipment, to the extent required, has teen properly removed and the Licensed Premises properly restored. {c} Licensee shall pay promptly all charges, taxes, essessments and fees, if any, (exclusive of income taxes and reat property faxes) which may De imposed on or in connection with, or otherwise contemplated by (f) this License; (ii) any ‘rmitted Equipment or facilities owned, Licensed ar used by Jensee on the Licensed Premises or the Sile (including, without limitation, transmitters and antennas); {iii) Licensee's use LICENSEE: City of Dayton, Ohio or occupation of ihe Site; or (iv) federal, state cr local governments. (d) If the Site is subject to a Prime Agreement (as hereafler defined), and if Licensors payments due under such Prime Agreement are (i) increased far any reason; and (ii) such increase is in an amcunt greater than any rent increase set forth herein, then the rent payable hereunder shall be increased by a percentage equal to the percentage increase in the payments due under the Prime Agreement. (e) Licensee shalt pay all amounts that are due io Licensor hereunder, inciuding rent, utilities and other charges impased hereby, by check, wire transfer, account auto debit or ACH credit to Licenscr’s account as identified by Licensor no iater than the first business day of each calendar month that it is due. If payment {including any applicable late fee) is not received when due, Licensor may charge a lale fee equal ta one and a half percent (174%) per month of the amount due (or the maximum amount permitted by applicable law, whichever is less) until paid in full. if Licensor designates that payment be made by check, then such payment shall be delivered ta: Kettering Tower Partners, LLC PO Box 71-4966 Columbus, Ohio 43271-4966 {e) Or such other location as Licensor may designate in writing from time to time. (h) Notwithstanding anything contained above to the contrary, Licensor reserves the right to invoice Licensee monthly, or ethenvise more frequenily inveice Licensee, for forestry/permit fees, air handling charges/surchasges, _utility/electric consumption, and other expenses incurred by Licensor with respect to Licensee's occupation of the Licensed Premises, and otherwise due and payable pursuant to the terms of the Single Site License. 5. Utilities: The attached Exhibit A identifies the manner and/or mechanism for utility consumption, including the method for payment therefore. [f not identified therein, Licensee shall obfain elecirical power and other utilities solely al its own expense.C 6s Representations and Acknowledgements: (a) Licensee represents and warrants that if is legally qualified under applicable FCC rules, regulations, and/or guidelines to own and operate its Permitted Equipment and Permitted Frequencies and covenants that it will: (i) operate its Permitted Equipment and Permitted Frequencies within all material technical parameters of, and otherwise according to, all FCC sules, regulations, and the electrical code(s) of the applicable city, county and/or state and, with respect to Licensee's hiring ef tower climbers, the Occupational Safety and Health Act (especially Section 1910.268, as amended), and ail such personnel shall use one hundred percent (700%) fall protection; (ii) not use (or cause another to use) any portion of the Site or its Permitted Equipment for any illegal, immoral or unauthorized purpose; (iii) not damage the Site, the tower, any building, the Licensed Premises, and/or accessories ihereto and/or any other tower Licensee's equipment;