Calexico City Council
November 15, 2023

AGENDA
ITEM
11 OF
AGENDA
CALEXICO California ITEM

WHERE CALIFORNIA AND MEXICO MEET

CITY COUNCIL

AGENDA STAFF REPORT
DATE: November 15, 2023
TO: Mayor and City Council
APPROVED BY: Eeperanza Colo Marn, Cly Manager Qualit
PREPARED BY: Esperanza Colio Warren, City Manager, Carlos Campos and Gail A. Karish, City Attorney's Office
SUBJECT: Authorize City Manager to Sign Two Agreements with Vertical Bridge Development, LLC: (1) Option and Lease Agreement for the Installation of Combined Athletic Field Light/Cell Tower at Southwest Corner of Rancho Elegante Park/Carmen Estrada Soccer Field (Andrade and Camino del Rio), Calexico, California and (2) Mutual Agreement to Terminate Federal Court Litigation.
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Recommendation:

Authorize City Manager to Sign two agreements with Vertical Bridge Development, LLC: (1) Option and Lease Agreement for the Installation of Combined Athletic Field Light/Cell Tower at Southwest Corner of Rancho Elegante Park/Carmen Estrada Soccer Field (Andrade and Camino del Rio), Calexico, California and (2) Mutual Agreement to Terminate Federal Court Litigation.

Background:

Since 2019, Vertical Bridge has been looking for a suitable location to construct a cell tower to improve coverage for T-Mobile and other carriers within the southeast area of the City of Calexico. In 2021, Vertical Bridge's application to place a cell tower on a residential property on East 3d Street was denied by the City, and Vertical Bridge sued the City in federal court to try to overturn the denial. In 2023, the City was successful in having that complaint dismissed but Vertical Bridge then appealed the judge's decision to the Ninth Circuit.

The Ninth Circuit encourages parties to try to resolve litigation through mediation. Through this process, the City staff and Vertical Bridge have negotiated two agreements, an Option and Lease Agreement that would allow Vertical Bridge to install a combined Athletic Field Light/Cell Tower at the southwest corner of Rancho Elegante Park/Carmen Estrada Soccer Field (Andrade and Camino del Rio), and a Mutual Agreement to terminate the pending federal court litigation.

Rancho Elegante Park/Carmen Estrada Soccer Field is a City-owned property which is zoned as Open Space. Public utilities including cell towers are a permitted use of this property. Vertical Bridge will comply with all City requirements for permits, will maintain the Field Light/Cell Tower facility and pay for the cost of operating it. No planning commission hearing will be required. The Director will review and issue required permits after lease approval, completion of due diligence and application submittal.

The City will obtain public benefits including:
• Revenues as landlord under the Lease:
• $5,000 payable on signing for option period (period for Vertical Bridge to complete its environmental due diligence and confirm viability of the site). • $1650 per month base rent (with one cell company on tower) once tower construction starts. Base rent increases 2.25% each year. • 25% of monthly revenues obtained by Vertical Bridge for 2nd and more cell companies added to tower. Tower can accommodate three providers. • The term of the lease is up to 35 years.
• Improvements to the Rancho Elegante Park/Carmen Estrada Soccer Field. • Field light design will improve lighting at the park. • City will receive $35,000 lump sum contribution to general fund, payable with first rent payment to contribute to making other improvements to City amenities at the park.
• Improved cell phone coverage and 911 emergency service in the area. • Tall tower will allow more carriers.
• It would also likely reduce the demand for future towers in the area. • Avoid more litigation costs
• Vertical Bridge appeal case will be dismissed with prejudice 4 months after the Lease is signed or the date Vertical Bridge exercises its option in the Lease, whichever is earlier.

Discussion and Analysis:

The agreements provide an opportunity for the City to obtain significant public benefits outlined above and save costs by terminating the litigation. This is preferable to the alternative which would be to continue to litigate the appeal.

Fiscal Impact:

If the agreements are approved and the facility is constructed, the City will obtain rental revenues and other financial benefits outlined in the Option and Lease Agreement. The City will also avoid the litigation defense costs of the Ninth Circuit appeal.

Coordinated With:

City Manager's Office.

City Attorney's Office.

Public Works Department.

Office of the City Clerk
2 Attachments):

1. Option and Lease Agreement between the City of Calexico and Vertical Bridge Development, LLC.

2. Mutual Agreement between the City of Calexico and Vertical Bridge Development, LLC.

3. Photosims

4. Site Sketch
Landlord: Tenant:

City of Calexico Vertical Bridge Development, LLC
608 Heber Avenue 750 Park of Commerce Drive, Suite 200
Calexico, CA 92231 Boca Raton, Florida 33487
Site #: US-CA-5156
Site Name: Calexico

OPTION AND LEASE AGREEMENT
THIS OPTION AND LEASE AGREEMENT (this "Agreement") is made this day of →, 20 _(the "Effective Date") by and between City of Calexico, a municipal corporation ("Landlord"), whose address is 608 Heber Avenue, Calexico, CA 92231, and Vertical Bridge Development, LLC, a Delaware limited liability company ("Tenant"), whose address is 750 Park of Commerce Drive, Suite 200, Boca Raton, Florida 33487.

WHEREAS, Landlord owns certain real property located in the County of Imperial, in the State or Commonwealth of California, that is more particularly described and/or depicted in Exhibit 1 attached hereto (the "Property"); and,
WHEREAS, Tenant desires to lease from Landlord a certain portion of the Property measuring approximately 40'x 40' or equivalent approximately 1,600 square feet) and to obtain easements for landscape buffer, utilities and access (collectively, the "Premises"), which Premises is more particularly described and/or depicted in Exhibit 2 attached hereto, for the placement of Communications Facilities (defined below).

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree:

1. OPTION TO LEASE.

As of the Effective Date, Landlord grants to Tenant the exclusive option to lease the Premises (the "Option") during the Option Period (defined below). At any time during the Option Period and Term (defined below), Tenant and its agents, engineers, surveyors and other representatives will have the right to enter upon the Property to inspect, examine, conduct soil borings, drainage testing, material sampling, and other geological or engineering tests or studies of the Property (collectively, the "Tests"), to apply for and obtain licenses, permits, approvals, or other relief required of or deemed necessary or appropriate at Tenant's sole discretion for its use of the Premises including, without limitation, construction permits and any other permits and approvals deemed necessary by Tenant (collectively, the "Government Approvals"), initiate the ordering and/or scheduling of necessary utilities, obtain a title report with respect to the Property, and otherwise to do those things on or off the Property that, in the opinion of Tenant, are necessary in Tenant's sole discretion to determine the physical condition of the Property, the environmental history of the Property, and the feasibility or suitability of the Property for Tenant's permitted use under this Agreement, all at Tenant's expense. Tenant shall be authorized to apply for the Government Approvals on behalf of Landlord and Landlord agrees to reasonably cooperate with such applications. Tenant will not be liable to Landlord or any third party on account of any pre-existing defect or condition on or with respect to the Property, whether or not such defect or condition is disclosed by Tenant's Tests. Tenant will restore the Property to its condition as it existed prior to conducting any Tests, reasonable wear and tear and casualty not caused by Tenant excepted. In addition, Tenant shall indemnify, defend and hold Landlord harmless from and against any and all injury, loss, damage or claims arising directly out of Tenant's Tests.

The parties acknowledge and agree that (i) the Property is zoned Open Space; (ii) the Communication VB Site ID: US-CA-5156
VB Site Name: Calexico
Facilities proposed to be constructed by Tenant are "public utilities"; (iii) public utilities are a "permitted use" in Open Space; and (iv) permitted uses in Open Space do not require discretionary review by the Planning Commission but are subject to review by the Director for adherence to the performance standards in Calexico Zoning Code Section 17.09.530(b).
(b) In consideration of Landlord granting Tenant the Option, Tenant agrees to pay Landlord the sum of Five Thousand Dollars ($5,000.00) within thirty (30) days after the full execution of this Agreement. The Option Period will be for an initial term of one (1) year from the Effective Date (the "Initial Option Period") and may be renewed by Tenant for one (1) additional year (the "Renewal Option Period") upon written notification to Landlord prior to the expiration date of the Initial Option Period.

Unless utilized independently, the Initial Option Period and any Renewal Option Period shall be referred to collectively as the "Option Period."
Tenant may exercise the Option at any time during the Option Period by delivery of written notice to Landlord (the "Notice of Exercise of Option"). The Notice of Exercise of Option shall set forth the commencement date which shall be the date that construction on the Property is expected to commence (the "Commencement Date") of the Initial Term (defined below). If Tenant does not provide a Notice of Exercise of Option during the Option Period, this Agreement will terminate, and the parties will have no further liability to each other.
(d) During the Option Period or the Term, Landlord shall not take any action to change the zoning status or land use of the Property which would diminish, impair, or adversely affect the use of the Premises by Tenant for its permitted uses hereunder.

2. TERM.
(a) Effective as of the Commencement Date, Landlord leases the Premises to Tenant subject to the terms and conditions of this Agreement for an initial term of five (5) years (the "Initial Term"). (b) Tenant shall have the option to extend the Initial Term for six (6) successive terms of five (5) years each (each a "Renewal Term"). Each Renewal Term shall commence automatically, unless Tenant delivers notice to Landlord, not less than one hundred eighty (180) days prior to the end of the then- current Initial Term or Renewal Term, as applicable, of Tenant's intent not to renew. For purposes of this Agreement, "Term" shall mean the Initial Term and any applicable Renewal Term(s).

3. RENT.

Beginning on the first (15) day of the month after the Commencement Date ("Rent Commencement Date"), Tenant shall pay to Landlord a monthly rent payment of One Thousand Six Hundred and Fifty Dollars ($1,650.00) ("Rent") at the address set forth in Section 29 below on or before the fifth (5th) day of each calendar month in advance. The initial payment of Rent will be forwarded by Tenant to Landlord, along with the amount in Section 3(f) below, within thirty (30) days after the Rent Commencement Date.

The Rent shall increase by 2.25% annually on each anniversary of the Rent Commencement Date.

Starting with the second (2nd) subtenant or licensee, and each additional subtenant or licensee thereafter, Tenant agrees to pay Landlord twenty-five percent (25%) of the second (2nd) and each subsequent additional subtenant or licensee's monthly sublease or license fee ("Sublease Fee") as additional Rent (each a "Revenue Share Fee"), subject to the following terms and conditions. The 2 VB Site ID: US-CA-5156
VB Site Name: Calexico
applicable Revenue Share Fee shall commence on the first day of the month following the date that the second (2nd) subtenant or licensee (and each additional subtenant or licensee thereafter) commences rental payments to Tenant under its respective sublease and shall be due and payable in the same manner as addressed in Section 3(a) above. The Revenue Share Fee shall only be due and payable in the event there are two (2) or more subtenants or licensees. If at any time subsequent to the addition of a second (2nd) subtenant or licensee the number of subtenants and licensees is reduced to one (1) subtenant or licensee, then no Revenue Share Fee shall be due and payable. Notwithstanding anything to the contrary contained herein, the Revenue Share Fee shall only be due and payable by Tenant to Landlord hereunder during the term of such subtenant or licensee's sublease agreement and for so long as such subtenant or licensee is actually paying to Tenant the requisite rental set forth therein. For purposes of this Agreement, the term "subtenant or licensee" shall mean Verizon, AT&T, Dish, and T-Mobile and such similar national wireless provider or any other person or entity that Tenant allows to occupy the Premises under this Agreement.

If, at any time, Tenant fails to make timely payment upon written notice and expiration of applicable cure period, interest shall accrue on the past due amount at the rate of ten percent (10%) per panet ration o month or the maximum allowable by law, whichever is less, until the Rent and Revenue Share Fee and any all accumulated interest is paid in full. This right to collect interest is in addition to all rights of Landlord to terminate this Lease for non-payment pursuant to Section 20 of this Agreement. (f Tenant agrees to pay a non-refundable one-time payment of Thirty-Five Thousand Dollars ($35,000.00) to Landlord to contribute to the cost of Landlord's improvements to the Property, unrelated to the Communications Facilities, payable at the same time as the initial payment of Rent in Section 3(a).

TAXES. Landlord hereby provides notice pursuant to California Revenue and Taxation Code Section 107.6, and Tenant acknowledges that this Agreement may create a possessory interest and Tenant may be subject to property taxes levied on such interest, as described in California Revenue and Taxation Code Section 107. Tenant shall pay any personal property taxes assessed on, or any portion of such taxes attributable to, the Premises and the Communications Facilities located on the Premises. Landlord shall pay when due all real property taxes and all other fees and assessments attributable to the Property. Tenant shall pay as additional rent any increase in real property taxes levied against the Property, which are directly attributable to Tenant's use of the Premises (but not, however, taxes attributable to periods prior to the Commencement Date such as roll-back or greenbelt assessments) if Landlord furnishes proof of such increase to Tenant (such increase, the "Landlord Tax Reimbursement"). In the event that Landlord fails to pay when due any taxes affecting the Property, Tenant shall have the right, but not the obligation, to pay such taxes and any applicable interest, penalties or similar charges, and deduct the full amount of the taxes and such charges paid by Tenant on Landlord's behalf from future installments of Rent. Notwithstanding the foregoing, Tenant shall not have the obligation to pay any tax, assessment, or charge that Tenant is disputing in good faith in appropriate proceedings prior to a final determination that such tax is properly assessed, provided that no lien attaches to the Property. In addition, Tenant shall not have the obligation to pay or reimburse Landlord for the Landlord Tax Reimbursement if Landlord has not provided proof of such amount and demand therefor within one (1) year of the date such amount is due and payable by Landlord.

USE. The Premises are being leased by Tenant for the purpose of Tenant, and/or its subtenants and licensees, as applicable, erecting, installing, operating, maintaining, repairing and replacing a radio or communications tower (designed as a stealth field light), transmitting and receiving equipment, antennas, dishes, satellite dishes, mounting structures, equipment shelters and buildings, solar energy conversion and electrical power generation system, fencing and other supporting structures and related equipment, signs and personal property (collectively, the "Communications Facilities"), and to alter, supplement and/or modify same, subject to the terms of this Agreement. Landlord's prior written consent is required to the initial design of the Communications Facilities, which shall be described and depicted in Exhibit 2A added hereto once approved by Landlord, and to any material modifications to the height or design of the structure, 3 VB Site ID: US-CA-5156
VB Site Name: Calexico
which shall be described and depicted in an updated Exhibit 2A added hereto as an amendment once the material modifications are approved by Landlord such consent not to be unreasonably withheld conditioned or delayed. Tenant shall be permitted to replace any equipment and antennas approved in Exhibit 2A or within the Tenant's ground space with equipment and antennas that are of a "like kind" or substantially similar in nature without Landlord's prior consent. Tenant may, subject to the foregoing, make any improvements, alterations or modifications to the Premises as are deemed appropriate by Tenant for the permitted use herein. Tenant shall have the right to clear the Premises of any trees, vegetation, or undergrowth which interferes with the use of the Premises for the intended purposes by Tenant and/or its subtenants and licensees, as applicable. Tenant shall have the exclusive right to install and operate the Communications Facilities upon the Premises (excluding the access and utilities easements in which Tenant's rights are non-exclusive per Section 6 below). Tenant, at Tenant's cost and expense shall keep and maintain, or cause to be kept and maintained, the Communications Facilities, the Premises, the easement areas, and any required landscaping in a state of good appearance and repair, reasonable wear and tear excepted. Except for use, but not storage, of ordinary paints, solvents and similar substances commonly used in small quantities and necessary for maintenance of Tenant's Communications Facilities or as otherwise specifically permitted under the terms of this Agreement, Tenant shall not use, create, generate, store, deposit, dispose of or allow any Hazardous Substances on, under, about or within the Property and Premises in violation of any federal, state, or local law, rule, regulation, order, decree or other legal requirement. Batteries for emergency power and fuel for temporary generators during power outages may only be used or stored on-site with the prior written approval of Landlord. The term "Hazardous Substances" means: (a) any substance, products, waste, or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to any federal or state statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any statutory or common law theory based on negligence, trespass, intentional tort, nuisance or strict liability or under any reported decisions of a state or federal court, now or at any time hereinafter in effect.

In the event Hazardous Substances are discovered, Tenant shall disclose to Landlord the specific information regarding Tenant's discovery of any Hazardous Substances placed on, under, about or within the Premises or the Property by Tenant or its sublessees or contractors, and provide written documentation of its safe and legal disposal.

6. ACCESS AND UTILITIES. During the Term, Tenant, and its guests, agents,, sublessees, licensees and assigns shall have free and unfettered access to the Premises during business hours of 7 am to 5 pm (Monday through Friday, excluding holidays) and shall endeavor to provide Landlord forty-eight (48) hours' advance notice of its intent to access the Premises except: (a) in the event of an Emergency, no advance notice shall be necessary. "Emergency" shall be defined as an unexpected event that if not urgently addressed or repaired is reasonably likely to result in damage or injury to persons, the Communications Facilities, or the Property, or an unplanned and significant loss of service; and (b) in the event Tenant (to include any subtenant or licensee) desires access outside of the aforementioned business hours, then Tenant shall obtain Landlord's prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. The request for consent pursuant to (b) above shall be sent by electronic mail to: [CITY TO PROVIDE EMAIL] Landlord for itself, its successors and assigns, hereby grants and conveys unto Tenant, its customers, employees, agents, invitees, subtenants, licensees, successors and assigns a non-exclusive easement throughout the Term from the Premises to a public right of way (a) for ingress and egress to the Premises, and (b) for the construction, installation, operation, maintenance, repair and replacement of overhead and underground electric and other underground utility facilities (including fiber, backhaul, wires, cables, conduits and appurtenant equipment), with the right to reconstruct, improve, add to, enlarge, change and remove such underground utility facilities for the Communications Facilities, subject to the terms and conditions herein set forth. Landlord agrees to coordinate, cooperate and assist Tenant with obtaining the required utility easements to the Premises from a public right of way. Tenant shall use best efforts to have 4 VB Site ID: US-CA-5156
VB Site Name: Calexico
a separate meter installed for Tenant's electrical power consumption, and Tenant shall be solely responsible for payment of all utilities costs. The rights granted to Tenant herein shall also include the right to partially assign its rights hereunder to any public or private utility company or authority to facilitate the uses contemplated herein, and all other rights and privileges reasonably necessary for Tenant's safe and efficient use and enjoyment of the easements for the purposes described above. Upon Tenant's request, Landlord shall execute and deliver to Tenant requisite recordable documents evidencing the easements contemplated hereunder within fifteen (15) days of Tenant's request, and Landlord shall obtain the consent and joinder of Landlord's mortgagee to any such grant, if applicable. The easements shall be depicted in Exhibit 2.

EQUIPMENT, FIXTURES AND REMOVAL BOND. The Communications Facilities shall at all times be the personal property of Tenant and/or its subtenants and licensees, as applicable and shall not be deemed to be a part of the Premises, but shall remain the property of Tenant or its subtenants or licensees.

Within ninety (90) days after the expiration or earlier termination by Tenant of this Agreement pursuant to Section 2(b) or Section 22 (the "Removal Period"), Tenant, customers, subtenants or licensees shall remove its improvements and personal property and restore the Premises up to two (2) feet below grade to the condition which existed before the Commencement Date, reasonable wear and tear excepted, and perform all obligations under this Agreement during the Removal Period, including, without limitation, the payment of Rent at the rate in effect upon the expiration or termination of this Agreement. Within thirty 30) days after the Commencement Date, Tenant shall execute a bond in the amount of Thirty-Five Thousand Dollars ($35,000.00) to the benefit of Landlord for use for the removal of the improvements and personal property in the event Tenant fails to comply with the removal and restoration obligations described above. Prior to the commencement of each Renewal Term, the parties shall review the amount of the bond to assess whether the amount of the bond is reasonably sufficient to cover then current removal and restoration costs and if reasonably determined to be insufficient, Tenant shall obtain and maintain a bond for such higher amount reasonably determined to be sufficient. If necessary at the expiration or early termination by Tenant of this Agreement pursuant to Section 2(b) or Section 22, Tenant agrees to coordinate the removal of its Communications Facilities with Landlord so that a replacement field light may be installed by Landlord simultaneously with the removal of the light located on the Communications Facilities.

8. ASSIGNMIENT AND SUBLEASE. Tenant may transfer or assign this Agreement to Tenant's Lender (defined below), principal, affiliates, subsidiaries, subsidiaries of its principal or to any entity which acquires all of or substantially all of Tenant's assets or ownership interests by reasons of merger, acquisition or other business reorganization with notice to Landlord but without Landlord's consent (a "Permitted Assignment"). As to transfers or assignments which do not constitute a Permitted Assignment, Tenant is required to obtain Landlord's written consent prior to effecting such transfer or assignment, which consent shall not be unreasonably withheld, conditioned or delayed. Upon such assignment including a Permitted Assignment and receipt by Landlord of a written assumption of all Tenant's obligations under this Agreement executed by the assignee, and so long as Tenant is not in default under this Agreement, Tenant will be relieved and released of all obligations and liabilities hereunder. Tenant shall have the exclusive right to sublease or grant licenses without Landlord's consent to use all or part of the Premises and/or the Communications Facilities, but no such sublease or license shall relieve or release Tenant from its obligations under this Agreement. Landlord may assign this Agreement only in its entirety and only to any person or entity who or which acquires fee title to the Property, subject to Section 15. Landlord may subdivide the Property without Tenant's prior written consent provided the resulting parcels from such subdivision are required to afford Tenant the protections set forth in Section 14 hereof.

9. COVENANTS, WARRANTIES AND REPRESENTATIONS.

VB Site ID: US-CA-5156
VB Site Name: Calexico
(a) Landlord warrants and represents that it is the owner in fee simple of the Property, free and clear of all liens and encumbrances except as to those which may have been disclosed to Tenant in writing prior to the execution hereof, and that it alone has full right to lease the Premises for the Term. (b) Landlord shall pay promptly, when due, any other amounts or sums due and owing with respect to its ownership and operation of the Property, including, without limitation, judgments, taxes, liens, mortgage payments and other similar encumbrances. If Landlord fails to make any payments required under this Agreement, or breaches any other obligation or covenant under this Agreement, Tenant may (without obligation), after providing ten (10) days written notice to Landlord, make such payment or perform such obligation on behalf of Landlord and offset such payment (including any reasonable attorneys' fees incurred in connection with Tenant performing such obligation) against payments of Rent. (c) Landlord shall not do or knowingly permit anything that will interfere with or negate any approval pertaining to the Premises or cause Tenant's use of the Premises to be in nonconformance with applicable local, state, or federal laws. Landlord shall cooperate as reasonably necessary with Tenant in any effort by Tenant to obtain certificates, permits, licenses and other approvals that may be required by any governmental authorities. Landlord agrees to execute any necessary applications, consents or other documents as may be reasonably necessary for Tenant to apply for and obtain the Government Approvals required to use and maintain the Premises and the Communications Facilities. (d) To the best of Landlord's knowledge, Landlord has complied and shall comply with all laws with respect to the Property. To the best of Landlord's knowledge without investiation, no asbestos- containing thermal insulation or products containing PCB, formaldehyde, chlordane, or heptachlor or other hazardous materials have been placed on or in the Property by Landlord or, to the knowledge of Landlord without investigation, by any prior owner or user of the Property. To the best of Landlord's knowledge without investigation, there has been no release of or contamination by hazardous materials on the Property by Landlord, or to the knowledge of Landlord without investigation, any prior owner or user of the Property (e) Landlord warrants and represents that there are no outstanding options or rights of first refusal to purchase the Property or any portion thereof or interest therein, or any equity or interest in Landlord if Landlord is an entity; and there are no parties (other than Landlord) in possession of the Property except as to those that may have been disclosed to Tenant in writing prior to the execution hereof.

Tenant acknowledges that Landlord has made no representation, express or implied, to Tenant or any person associated with Tenant regarding whether or not laborers employed relative to the construction of the improvements to be constructed pursuant to this Agreement must be paid the prevailing per diem wage rate for their labor classification, as determined by the State of California, pursuant to Labor Code Section 1720, et seq. ("Prevailing Wage Laws"). Tenant agrees with Landlord that Tenant shall assume any and all responsibility and be solely responsible for determining whether or not laborers employed relative to the construction undertaken pursuant to this Agreement must be paid the prevailing per diem wage rate pursuant to the Prevailing Wage Laws or other applicable law.

10. HOLD OVER TENANCY. Should Tenant or any assignee, sublessee or licensee of Tenant hold over the Premises or any part thereof after the expiration of this Agreement, such holdover shall constitute and be construed as a tenancy from month-to-month only upon the same terms and conditions, except that the Rent and Revenue Share Fee shall be one hundred fifty percent (150%) of the amount that was in effect at the expiration of the Term and Landlord shall have the right to require Tenant to vacate the Property at any time upon thirty (30) days written notice.

INDEMNITIES. To extent permitted by law, each party agrees to indemnify, defend and hold harmless the other party, its parent company or other affiliates, successors, assigns, councilmembers, officers, directors, shareholders, managers, members, agents and employees (collectively, "Indemnified 6 VB Site ID: US-CA-5156
VB Site Name: Calexico
Persons") from and against all claims, actions, judgments, damages, liabilities, losses, expenses and costs (including, without limitation, reasonable attorneys' fees and court costs) (collectively, "Losses") caused by or arising out of (a) such party's breach of any of its obligations, covenants, representations or warranties contained herein, or (b) such party's acts or omissions with regard to this Agreement; provided, however, in no event shall a party indemnify the other party for any such Losses to the extent arising from the gross negligence or willful misconduct of the party seeking indemnification. However, in the event of an Indemnified Person's contributory negligence or other fault, the Indemnified Person shall not be indemnified hereunder to the extent that the Indemnified Person's negligence or other fault caused such Losses. Tenant will indemnify Landlord from and against any mechanic's liens or liens of contractors and subcontractors engaged by or through Tenant.

12. WAIVERS/NO WARRANTY.
(a) Landlord hereby waives any and all lien rights it may have, statutory or otherwise, in and to the Communications Facilities or any portion thereof, regardless of whether or not such is deemed real or personal property under applicable laws. Landlord will not assert any claim whatsoever against Tenant for loss of anticipatory profits or any other indirect, special, incidental or consequential damages incurred by Landlord as a result of the construction, maintenance, operation or use of the Premises by Tenant. (b) EACH PARTY HERETO WAIVES ANY AND ALL CLAIMS AGAINST THE OTHER

FOR ANY LOSS, COST, DAMAGE, EXPENSE, INJURY OR OTHER LIABILITY WHICH IS IN THE

NATURE OF INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES

WHICH ARE SUFFERED OR INCURRED AS THE RESULT OF, ARISE OUT OF, OR ARE IN ANY

WAY CONNECTED TO THE PERFORMANCE OF THE OBLIGATIONS UNDER THIS AGREEMENT.

TENANT'S RIGHT TO USE THE PREMISES AND THE PROPERTY IS STRICTLY ON AN "AS IS" BASIS WITH ALL FAULTS. LANDLORD MAKES NO REPRESENTATION OR

WARRANTY OF ANY KIND AS TO THE PRESENT OR FUTURE CONDITION OF OR

SUITABILITY OF THE PROPERTY OR THE PREMISES FOR TENANT'S USE AND DISCLAIMS

ANY AND ALL WARRANTIES EXPRESS OR IMPLIED WITH RESPECT TO THE PHYSICAL,

STRUCTURAL, OR ENVIRONMENTAL CONDITION OF THE PROPERTY, AND PREMISES AND THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TENANT IS SOLELY

RESPONSIBLE FOR INVESTIGATION AND DETERMINATION OF THE CONDITION AND

SUITABILITY OF THE PROPERTY AND PREMISES FOR TENANT'S INTENDED USE

13. INSURANCE. Tenant shall insure against property damage and bodily injury arising by reason of occurrences on or about the Premises in the amount of not less than $5,000,000. The insurance coverage provided for herein may be maintained pursuant to master policies of insurance covering other communications facilities of Tenant and its corporate affiliates. All insurance policies required to be maintained by Tenant hereunder shall be with responsible insurance companies, authorized to do business in the State or Commonwealth where the Premises are located if required by law, and shall provide for cancellation only upon ten (10) days' prior written notice to Landlord. Tenant shall evidence such insurance coverage by delivering to Landlord, if requested, a copy of a certificate of insurance of such policies issued by the insurance companies underwriting such risks.

14. INTERFERENCE. During the Option Period and the Term, Landlord, its successors and assigns, will not grant any ground lease, license, or easement with respect to the Property (outside of the Premises) : (a) for any of the uses contemplated in Section 5 herein; or (b) if such lease, license, or easement would detrimentally impact the Communications Facilities or Tenant's economic opportunities at the Premises, or the use thereof. Landlord and Tenant intend by this Agreement for Tenant (and persons deriving rights by, through, or under Tenant) to be the sole parties to market, use, or sublease any portion of the Property for VB Site ID: US-CA-5156
VB Site Name: Calexico
Communications Facilities during the Option Period and the Term. Landlord agrees that this restriction on the use of the Property is commercially reasonable, not an undue burden on Landlord, not injurious to the public interest, and shall be specifically enforceable by Tenant (and persons deriving rights by, through or under Tenant) in a court of competent jurisdiction. The foregoing restriction shall run with the land and be binding on the successors and assigns of Landlord. The foregoing restriction shall not apply to any communications equipment owned by Landlord for Landlord's own use. The parties further agree that the current use of the Property by Landlord as retention basins and athletic field and all uses directly related shall not be considered an unreasonable interference with the Tenant's use contemplated herein.

RIGHT OF FIRST REFUSAL. In the event Landlord determines to sell, transfer, license or otherwise convey any interest, whether fee simple interest, easement interest, leasehold, or otherwise, and whether direct or indirect by way of transfer of ownership interests in Landlord if Landlord is an entity, which interest underlies or affects any or all of the Premises (the "ROF Property") to any third party that is a Third Party Competitor (as defined below), Landlord shall offer Tenant a right of first refusal to purchase the Premises (or such larger portion of the Property that encompasses the Premises, if applicable). For purposes herein, a "Third Party Competitor" is any person or entity directly or indirectly engaged in the business of owning, acquiring, operating, managing, investing in or leasing communications infrastructure or any person or entity directly or indirectly engaged in the business of owning, acquiring, or investing in real property leases or easements underlying communications infrastructure. In such event, Landlord shall send a written notice to Tenant in accordance with Section 29 below that shall contain an offer to Tenant of a right of first refusal to purchase the ROF Property, together with a copy of any offer to purchase, or any executed purchase agreement or letter of intent (each, an "Offer"), which copy shall include, at a minimum, the purchase price or acquisition price, proposed closing date, and financing terms (collectively, the "Minimum Terms"). Within thirty (30) days of receipt of such Offer, Tenant shall provide written notice to Landlord of Tenant's election to purchase the ROFR Property on the same Minimum Terms, provided: (a) the closing date shall be no sooner than sixty (60) days after Tenant's purchase election notice; and (b) given Landlord's direct relationship and access to Tenant, Tenant shall not be responsible for payment of any broker fees associated with an exercise of Tenant's rights to acquire the ROFR Propert. In such event, Landlord agrees to sell the ROFR Property to Tenant subject to Tenant's payment of the purchase price. If Tenant provides written notice that it does not elect to exercise its right of first refusal to purchase the ROFR Property, or if Tenant does not provide notice of its election within the thirty (30) day period, Tenant shall be deemed to have waived such right of first refusal only with respect to the specific Offer presented (and any subsequent Offers shall again be subject to Tenant's continuing right of first refusal hereunder), and Landlord shall be permitted to consummate the sale of the ROFR Property in accordance with the strict terms of the Offer ("Permitted Sale"). If Landlord does not consummate the Permitted Sale within one (1) year of the date of Tenant's waiver of its right of first refusal, including if the Minimum Terms are modified between Landlord and the Third Party Competitor, Landlord shall be required to reissue a New Offer to Tenant.

SECURITY. The parties recognize and agree that Tenant shall have the right to safeguard and protect its improvements located upon or within the Premises. Consequently, Tenant may elect, at its expense, to construct such enclosures and/or fences as Tenant reasonably determines to be necessary to secure the Communications Facilities, subject to Landlord's written approval as part of the initial design of the Communications Facilities. Tenant may also undertake any other appropriate means to restrict access to the Communications Facilities including, without limitation, if applicable, installing security systems, locks and posting signs for security purposes and as may otherwise be required by law.

17. FORCE MAJEURE. The time for performance by Landlord or Tenant of any term, provision, or covenant of this Agreement shall be deemed extended by time lost due to delays resulting from acts of God, strikes, civil riots, floods, pandemics, material or labor restrictions by governmental authority, government shutdowns, quarantines, and/or other disease control measures and any other cause not within the control of Landlord or Tenant, as the case may be.

VB Site ID: US-CA-5156
VB Site Name: Calexico

18. CONDEMNATION; CASUALTY.

In the event Landlord receives any notice of any condemnation proceedings, or other proceedings in the nature of eminent domain related to the Property or the Premises, it will forthwith send a copy of such notice to Tenant. If all or any part of the Premises is taken by eminent domain, Tenant may, upon written notice to Landlord, elect to terminate this Agreement, whereupon neither party shall have any further liability or obligation hereunder. Notwithstanding any provision of this Agreement to the contrary, in the event of condemnation of all or any part of the Premises, Landlord and Tenant shall be entitled to separate awards with respect to the Premises, in the amount determined by the court conducting such condemnation proceedings based upon Landlord's and Tenant's respective interests in the Premises. If a separate condemnation award is not determined by such court, Landlord shall permit Tenant to participate in the allocation and distribution of the award. In no event shall the condemnation award to Landlord exceed the unimproved value of the Premises, without taking into account the improvements located thereon.

In case of damage to the Premises or the Communications Facilities by fire or other casualty which adversely impacts Tenant's ability to continue to use the access and utility easements which are part of the Premises, Landlord shall, at its expense, cause any such damage to the access and utility easements which are part of the Premises (excluding the Communications Facilities) to be repaired to a condition as nearly as practicable to that existing prior to the damage, with reasonable speed and diligence, subject to delays which may arise by reason of adjustment of loss under insurance policies, governmental regulations, and for delays beyond the control of Landlord, including a force majeure. Landlord shall coordinate with Tenant as to the completion of Landlord's work to restore the Property so as not to adversely impact Tenant's use of the Premises and the Communications Facilities. Landlord shall not be liable for any inconvenience or annoyance to Tenant, or injury to Tenant's business or for any consequential damages resulting in any way from such damage or the repair thereof, except to the extent and for the time that the Communications Facilities or the Premises are thereby rendered unusable for Tenant's intended purpose the Rent shall proportionately abate. In the event the damage shall be so extensive that Tenant shall decide, in its sole discretion, not to repair or rebuild the Communications Facilities, or if the casualty shall not be of a type insured against under standard fire policies with extended type coverage, or if the holder of any mortgage, deed of trust or similar security interest covering the Communications Facilities shall not permit the application of adequate insurance proceeds for repair or restoration, this Agreement shall, at the sole option of Tenant, exercisable by written notice to Landlord, be terminated as of the date of such casualty, and the obligation to pay Rent (taking into account any abatement as aforesaid shall cease as of the termination date and Tenant shall thereupon promptly vacate the Premises.

19. DEFAULT. The failure of Tenant or Landlord to perform any of the covenants of this Agreement shall constitute a default. The non-defaulting party shall give the other written notice of such default, and the defaulting party shall cure such default within thirty (30) days after receipt of such notice. In the event any such default cannot reasonably be cured within such thirty (30) day period, if the defaulting party shall proceed promptly after the receipt of such notice to cure such default, and shall pursue curing such default with due diligence, the time for curing shall be extended for such period of time as may be necessary to complete such curing, however, in no event shall this extension of time be in excess of sixty (60) days, unless agreed upon by the non-defaulting party.

20. REMEDIES. Should the defaulting party fail to cure a default under this Agreement, the other party shall have all remedies available either at law or in equity, and the right to terminate this Agreement.

In the event Landlord elects to terminate this Agreement due to a default by Tenant (which remains uncured by Lender beyond the period in Section 25(c)) and provided Tenant has not removed its Communications Facilities in accordance with Section 7, and any subtenant or licensee of Tenant installed at the Premises attorns to Landlord, Landlord shall continue to honor all sublease and license commitments made by Tenant through the expiration of the term of any such commitment and shall be entitled to collect and retain the 9 VB Site ID: US-CA-5156
VB Site Name: Calexico
rents or license fees associated with such subleases or license commitments, it being intended hereby that each such commitment shall survive the early termination of this Agreement. In the event Landlord elects to terminate this Agreement due to a default by Tenant (which remains uncured by Lender beyond the period in Section 25(c)), Tenant will provide to Landlord copies of all subleases or licenses (except that master lease agreements such as Verizon, AT&T, Dish, and T-Mobile or other broadband carriers may be redacted to conceal confidential information, trade secrets or information subject to a non-disclosure agreement so long as the terms of the such agreement applicable to the subleasing or licensing of space at the Premises, including amounts payable, are not redacted) for any subtenant or licensee that is then located on, and operating, at the Premises. Further, upon termination by Landlord due to a default by Tenant (which remains uncured by Lender) and Landlord's election to continue to honor all sublease and license commitments described above, ownership of the Tenant's Communications Facilities shall transfer to Landlord in their as is condition without any warranties and without the need for any further actions or documentation from either party.

ATTORNEYS' FEES. If there is any legal proceeding between Landlord and Tenant arising from or based on this Agreement, the unsuccessful party to such action or proceeding shall pay to the prevailing party all costs and expenses, including, without limitation, reasonable attorneys fees and disbursements, incurred by such prevailing party in such action or proceeding and in any appeal in connection therewith.

If such prevailing party recovers a judgment in any such action, proceeding or appeal, such costs, expenses and attorneys' fees and disbursements shall be included in and as a part of such judgment.

22. ADDITIONAL TERMINATION RIGHT. If at any time during the Term, Tenant determines, in Tenant's sole and absolute discretion, with or without cause, that the Premises is no longer suitable or desirable for Tenant's intended use and/or purposes, Tenant shall have the right to terminate this Agreement upon one hundred and eighty days (180) days prior written notice to Landlord.

23. PRIOR AGREEMENTS. The parties hereby covenant, recognize and agree that the terms and provisions of this Agreement shall constitute the sole embodiment of the arrangement between the parties with regard to the Premises, and that all other written or unwritten agreements, contracts, or leases by and between the parties with regard to the Premises are hereby terminated, superseded and replaced by the terms hereof.

SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT. In the event the Property is encumbered by a mortgage or deed of trust or other security instrument of any kind (a "Landlord Mortgage*), Landlord, within fifteen (15) days following Tenant's request or immediately prior to the creation of any encumbrance created after the date this Agreement is fully executed, will obtain from the holder of each such Landlord Mortgage a fully-executed subordination, non-disturbance and attornment agreement (an "SNDA") in recordable form, which shall be prepared or approved by Tenant. The holder of every such Landlord Mortgage shall, in the SNDA, agree that in the event of a foreclosure, or conveyance in lieu of foreclosure of Landlord's interest in the Premises, such Landlord Mortgage holder shall recognize and confirm the validity and existence of this Agreement, not disturb the tenancy of Tenant (and its customers, subtenants, and licensees) and Tenant (and its customers, subtenants, and licensees) shall have the right to continue its use and occupancy of the Premises in accordance with the provisions of this Agreement, provided Tenant is not in default of this Agreement beyond applicable notice and cure periods.

25. LENDER'S RIGHTS.
(a) For the period required in paragraph (c) to allow Lender the opportunity to cure or correct any default, Landlord agrees to recognize the subleases and licenses of all subtenants and licensees and will permit each of them to remain in occupancy of its premises notwithstanding any default hereunder by Tenant so long as each such respective subtenant or licensee is not in default under the lease/license covering its premises. Landlord agrees to execute such documents as any such subtenant and/or licensee might reasonably require, including customary subordination, non-disturbance and attornment agreements 10 VB Site ID: US-CA-5156
VB Site Name: Calexico
and/or Landlord recognition agreements, to further memorialize the foregoing, and further agrees to use Landlord's best efforts to also cause its lenders to similarly acknowledge, in writing, subtenant's and licensee's right to continue to occupy its premises as provided above.

Landlord consents to the granting by Tenant of a lien and security interest in Tenant's interest in this Agreement and/or leasehold estate of the Premises and all of Tenant's personal property and fixtures attached to the real property described herein, and furthermore consents to the exercise by Lender of its rights of foreclosure with respect to its lien and security interest. Landlord agrees to recognize Lender as Tenant hereunder upon any such exercise by Lender of its rights of foreclosure. (c) Landlord hereby agrees to give Lender written notice of any breach or default of Tenant of the terms of this Agreement within fifteen (15) days after the occurrence thereof at the address set forth in Section 29. Landlord further agrees that no default under this Agreement by Tenant shall be deemed to have occurred unless such notice to Lender is also given and that, in the event of any such breach or default under the terms of this Agreement, Lender shall have the right, to the same extent, for the same period and with the same effect, as Tenant, plus an additional sixty (60) days after any applicable grace period to cure or correct any such default.
(d) Landlord acknowledges that nothing contained herein shall be deemed or construed to obligate Lender to take any action hereunder, or to perform or discharge any obligation, duty or liability of Tenant under this Agreement. Lender shall not become liable under the provisions of this Agreement or any lease executed pursuant to Section 26 hereof unless and until such time as it becomes, and then only for as long as it remains, the owner of the leasehold estate created hereby or thereby.

Tenant shall have the right from time to time to mortgage or otherwise encumber Tenant's interest in this Agreement and/or leasehold estate in the Premises; provided, however, in no event shall there be more than one such mortgage or encumbrance outstanding at any one time. If Tenant shall so mortgage (each a "Tenant Mortgage") Tenant's interest in this Agreement and/or leasehold interest in the Premises to Lender, Tenant or Lender shall give Landlord prompt notice of such Tenant Mortgage and furnish Landlord with a complete and correct copy of such Tenant Mortgage, certified as such by Tenant or Lender, together with the name and address of Lender if it is different from the information set forth in Section 29 hereof. The term "Lender" as used in this Agreement shall mean the lender identified in Section 29 hereof and its successors, assigns, designees or nominees. (f) This Agreement shall not be amended or modified without the consent of Lender. In the event that Lender shall become the owner of such leasehold estate, Lender shall not be bound by any modification or amendment of this Agreement made subsequent to the date of a Tenant Mortgage unless Lender shall have consented to such modification or amendment at the time it was made.

26. LENDER'S RIGHT TO NEW LEASE.
(a) In the event this Agreement is rejected or disaffirmed pursuant to any bankruptcy, insolvency or other law affecting creditor's rights, Landlord shall give prompt notice thereof to Lender at the address set forth in Section 29 or as may be provided to Landlord by Tenant following the Commencement Date. Thereafter, Landlord, upon written request of Lender delivered to Landlord within thirty (30) days after receipt of such notice from Landlord, and within thirty (30) days after the receipt of such request, shall promptly execute and deliver a new lease of the Premises on the same terms as the Agreement for the remainder of the Term upon all the covenants, conditions, limitations and agreements contained herein (including, without limitation, options to extend the Term) except for such provisions which must be modified to reflect such termination, rejection or disaffirmance and the passage of time, provided that Lender (i) shall pay to Landlord, simultaneously with the delivery of such new lease, all 11 VB Site ID: US-CA-5156
VB Site Name: Calexico
unpaid rent due under this Agreement up to and including the date of the commencement of the term of such new lease and all reasonable expenses, including, without limitation, reasonable attorneys' fees and disbursements and court costs, incurred by Landlord in connection with the default by Tenant, the termination of this Agreement and the preparation of the new lease, and (ii) shall cure all defaults existing under this Agreement which are susceptible to being cured by Lender promptly and with due diligence after the delivery of such new lease. Notwithstanding anything to the contrary contained herein, provided Lender shall have otherwise complied with the provisions of this Section, Lender shall have no obligation to cure any defaults which are not susceptible to being cured by Lender (for example, the bankruptcy of Tenant).

For so long as Lender shall have the right to enter into a new lease with Landlord pursuant to this Section, Landlord shall not enter into a new lease of the Premises with any person or entity other than Lender, without the prior written consent of Lender.

27. ADDITIONAL PROVISIONS.

The parties hereto agree that (i) Tenant is in possession of the Premises notwithstanding the fact that Tenant has subleased or licensed, or may in the future sublease or license, certain of the improvements thereon or portions of the Premises to third parties, and (i) the requirements of Section 365(h) of Title 11 of the United States Code (the Bankruptcy Code) with respect to Tenant's possession of the leasehold under this Agreement are satisfied. Accordingly, the right of Tenant to remain in possession of the leasehold under this Agreement shall continue notwithstanding any rejection of this Agreement in any bankruptcy proceeding involving Landlord, or any other actions by any party in such a proceeding.

This provision, while included in this Agreement, has been separately negotiated and shall constitute a separate contract between the parties as well as a part of this Agreement. The provisions of this Section are for the benefit of Tenant and its assigns, including, without limitation, Lender. The parties hereto also agree that Lender is a party in interest and shall have the right to appear as a party in any proceeding brought under any bankruptcy law or under any other law which may affect this Agreement.

The provisions of Section 25 and Section 26 hereof shall survive the termination, rejection or disaffirmance of this Agreement and shall continue in full force and effect thereafter to the same extent as if such Sections were a separate and independent contract made by Landlord, Tenant and Lender and, from the effective date of such termination, rejection or disaffirmance of this Agreement to the date of execution and delivery of such new lease, Lender may use and enjoy the leasehold estate created by this Agreement without hindrance by Landlord. The aforesaid agreement of Landlord to enter into a new lease with Lender shall be deemed a separate agreement between Landlord and Lender, separate and apart from this Agreement as well as a part of this Agreement, and shall be unaffected by the rejection of this Agreement in any bankruptcy proceeding by any party.
(c) Except as provided in Section 3(c) or in the event of Tenant's default and failure to cure (which remains uncured by Lender beyond the period in Section 25(c)). Landlord shall have no right, and expressly waives any right arising under applicable law, in and to the rentals or other fees payable to Tenant, if any, under any sublease or license of the Premises by Tenant, which rentals or fees may be assigned by Tenant to Lender.
(d) If a Tenant Mortgage is in effect, this Agreement shall not be modified or amended by the parties hereto, or terminated or surrendered by Tenant, nor shall Landlord accept any such termination or surrender of this Agreement by Tenant, without the prior written consent of Lender. (e) The provisions of Section 25 and Section 26 hereof are for the benefit of Lender and may be relied upon and shall be enforceable by Lender as if Lender were a party to this Agreement. 12 VB Site ID: US-CA-5156
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(f) Landlord shall, within ten (10) days of the request of Tenant or any Lender or prospective Lender, provide an estoppel certificate as to any matters reasonably requested by Tenant or Lender.

The right to extend or renew this Agreement and any right of first refusal to purchase the Premises may be exercisable by the holder of a Tenant Mortgage and, before the expiration of any periods to exercise such a right, Landlord must provide to Lender at least thirty (30) days prior written notice before the expiration of the right to so extend or renew in order to extinguish Lender's right to so extend, renew or purchase.
(h) Under no circumstances shall the fee estate of Landlord and the leasehold estate created hereby merge, even though owned by the same party, without the written consent of the holder of a Tenant Mortgage.

QUIET ENJOYMENT. So long as Tenant is not in default under this Agreement beyond the applicable notice and cure period, Landlord covenants and agrees that Tenant shall peaceably and quietly hold and enjoy the Premises throughout the Term, without any hindrance, molestation or ejection by Landlord, its successors or assigns or by those claiming by, through or under them.

NOTICES. All notices, requests, claims, demands, and other communications hereunder shall be in writing and may be hand delivered (provided the deliverer provides proof of delivery) or sent by nationally established overnight courier that provides proof of delivery, or certified or registered mail (postage prepaid, return receipt requested). Notice shall be deemed received on the date of delivery as demonstrated by the receipt of delivery. Notices shall be delivered to a party at the party's respective address below, or to such other address that a party below may provide from time to time:

If to Landlord: If to Tenant: If to Lender:

City of Calexico Vertical Bridge Development, LLC Toronto Dominion (Texas) LLC 608 Heber Avenue 750 Park of Commerce Drive, Suite 200 31 West 52nd Street Calexico, CA 92231 Boca Raton, Florida 33487 New York, NY 10019 Attn: Admin Agent
With copy to: City Ref: US-CA-5156 Fax No. 416-982-5535 Attorney Attn: VP Asset Management
With a copy to: General Counsel

30. MISCELLANEOUS.
(a) Each party hereto warrants and represents that it has the necessary power and authority to enter into and perform its respective obligations under this Agreement.

If any term of this Agreement is found to be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. (c) All attached exhibits are hereby incorporated by this reference as if fully set forth herein.

Failure of a party to insist on strict performance of any of the conditions or provisions of this Agreement, or failure to exercise any of a party's rights hereunder, shall not waive such rights. (e) This Agreement shall be governed by and construed in accordance with the laws of the State or Commonwealth in which the Premises are located. 13 VB Site ID: US-CA-5156
VB Site Name: Calexico
This Agreement constitutes the entire agreement and understanding of the parties and supersedes all offers, negotiations, other leases and/or agreements with regard to the Premises. There are no representations or understandings of any kind not set forth herein. Any amendment to this Agreement must be in writing and executed by both parties.
(g) This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns.

A short-form Memorandum of Option to Lease (and a short-form Memorandum of Lease in the event Tenant exercises its option to lease the Premises) may be recorded at Landlord's or Tenant's option in the form as depicted in Exhibit 3 and Exhibit 4, respectively, attached hereto. In addition, Tenant's subtenants and licensees shall have the right to record a memorandum of its sublease or license with Tenant.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date (date last signed by a party hereto).

WITNESSES: LANDLORD:

City of Calexico,
a municipal corporation
Name: By:

Name:_
Title:

Name: Date:_

CALIFORNIA ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document
State of California
County of
On _, 20 before me,
(insert name and title of the officer) personally appeared (name of signatory), who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)
15 VB Site ID: US-CA-5156
VB Site Name: Calexico
(Tenant signature page to Option and Lease Agreement)
WITNESSES: TENANT:

Vertical Bridge Development, LLC
a Delaware limited liability company
Name: By:

Name:_
Title:

Name:_ Date:

STATE OF FLORIDA

COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this _ 20. → by - _ (name of signatory),
(title of signatory) of Vertical Bridge Development, LLC, a Delaware limited liability company, on behalf of the company. He/she is personally known to me.

Notary Public
Print Name:

My Commission Expires:
16 VB Site ID: US-CA-5156
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EXHIBIT 1
Legal Description of the Property (Parent Parcel)
(may be updated by Tenant upon receipt of final legal description from title) An interest in land, said interest being over a portion of the following described parent parcet:

Lots 1 and 2, Block 4, Hughes Subdivision of Block 2, of Eastside Addition to Calexico, in the City of Calexico, County of Imperial, State of Calfornia, acoording to Map No. 133 on fle in the Office of the County Recorder of Imperial County.

Said land is also known as Lots 1 and 2, Block 2-A, Eastside Addition to the City of Calexico, in the City of Calexioo, County of Imperial, State of Calforia, according to map recorded in Book 7, Page 17 of Official Maps, in the Office of the County Recorder of Imperial County.

AND BEING a portion of the same property conveyed to Andreas Sarkis Yanik from U.S. Customs and Border Protection by U.S. Customs and Border Protection Deed dated September 27, 2018 and recorded October 29, 2018 in Instrument No. 2018019805.

Tax Parcel No. 058-551-001-000, 058-551-002-000 & 058-551-003-000 17 VB Site ID: US-CA-5156
VB Site Name: Calexico
EXHIBIT 2
Premises and Easements
(INSERT SITE SKETCH)
(below may be replaced with a final survey and legal description of the Premises and easements) 18 VB Site ID: US-CA-5156
VB Site Name: Calexico
Exhibit 2A
Approved initial Communications Facilities
[TO BE INSERTED]
19 VB Site ID: US-CA-5156
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EXHIBIT 3
Memorandum of Option to Lease
(Attached)
20 VB Site ID: US-CA-5156
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(Above 3" Space for Recorder's Use Only)
Upon Recording Return to:

Vertical Bridge Development, LLC
750 Park of Commerce Drive, Suite 200
Boca Raton, Florida 33487
Attn: Daniel Marinberg
Site Name: Calexico
Site Number: US-CA-5156
Commitment #:

MEMORANDUM OF OPTION TO LEASE
This Memorandum of Option to Lease ("Memorandum") evidences an Option and Lease Agreement (the "Agreement") between City of Calexico, a municipal corporation ("Landlord"), whose address is 608 Heber Avenue, Calexico, CA 92231, and Vertical Bridge Development, LLC, a Delaware limited liability company, whose mailing address is 750 Park of Commerce Drive, Suite 200, Boca Raton, Florida 33487 ("Tenant"), dated _ 20 _(the "Effective Date"), for a portion (the "Premises") of the real property (the "Property") described in Exhibit A attached hereto.

Pursuant to the Agreement, Landlord has granted Tenant an exclusive option to lease the Premises (the "Option"). The Option commenced as of the Effective Date and shall continue in effect for a period of one (1) year from the Effective Date, with a one (1) year Renewal Option.

Landlord ratifies, restates and confirms the Agreement and, upon exercise of the Option, shall lease to Tenant the Premises, subject to the terms and conditions of the Agreement. The Agreement provides for the lease by Landlord to Tenant of the Premises for an initial term of five (5) years with six (6) renewal option(s) of an additional five (5) years each, and further provides:

1. Landlord may assign the Agreement only in its entirety and only to a purchaser of the fee interest of the Property;
Under certain circumstances, Tenant has a right of first refusal to acquire the Premises or the Property from Landlord;
Under certain circumstances, Landlord may not subdivide the Property without Tenant's prior written consent; and
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The Agreement restricts Landlord's ability to utilize, or allow the utilization of the Property for the construction, operation and/or maintenance of the Communications Facilities (as defined in the Agreement).

This Memorandum is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms, conditions or provisions of the Agreement. In the event of a conflict between the provisions of this Memorandum and the provisions of the Agreement, the provisions of the Agreement shall control. The Agreement shall be binding upon and inure to the benefit of Landlord and Tenant and shall inure to the benefit of their respective heirs, successors, and assigns, subject to the provisions of the Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this MEMORANDUM OF OPTION TO LEASE effective as of the date last signed by a party hereto.

WITNESSES: LANDLORD:

City of Calexico
a municipal corporation
Name:_ By:

Name:

Title:

Name:_ Date:

CALIFORNIA ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document
State of California
County of
On → 20. before me, _
(insert name and title of the officer personally appeared (name of signatory), who proved to me on the basis of satisfactory evidence to be the person(s) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)
23 VB Site ID: US-CA-5156
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(Tenant's Signature Page to Memorandum of Option to Lease) WITNESSES: TENANT:

Vertical Bridge Development, LLC
a Delaware limited liability company
Name: By:

Name:

Title:_
Name: Date:_

STATE OF FLORIDA

COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this _ (name of signatory),
(title of signatory) of Vertical Bridge Development, LLC, a Delaware limited liability company, on behalf of the company. He/she is personally known to me.

Notary Public
Print Name:

My Commission Expires:
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EXHIBIT A
(TO MEMORANDUM OF OPTION TO LEASE)
The Property
(may be updated by Tenant upon receipt of final legal description from title) An interest in land, said interest being over a portion of the following described parent parcet Lots 1 and 2, Block 4, Hughes Subdivision of Block 2, of Eastside Addition to Calexico, in the City of Calexico, County of Imperial, State of Calfornia, according to Map No. 133 on file in the Office of the County Recorder of Imperial County Said land is also known as Lots 1 and 2, Block 2-A, Eastside Addition to the City of Calexico, in the City of Calexico, County of Imperial, State of Califormia, according to map recorded in Book 7, Page 17 of Official Maps, in the Office of the County Recorder of Imperial County:

AND BEING a portion of the same property conveyed to Andreas Sarkis Yank from U.S. Customs and Border Protection by U.S. Customs and Border Protection Deed dated September 27, 2018 and recorded October 29, 2018 in Instrument No. 2018019805.

Tax Parcel No. 058-551-001-000, 058-551-002-000 8 058-551-003-000 Access and utilities serving the Premises (as defined in the Agreement) includes all easements of record as well as that portion of the Property designated by Landlord and Tenant for Tenant (and Tenant's guests, agents, customers, subtenants, licensees and assigns) ingress, egress, and utility purposes to and from a public right-of-way.
25 VB Site ID: US-CA-5156
VB Site Name: Calexico
EXHIBIT 4
Memorandum of Lease
(Attached)
26 VB Site ID: US-CA-5156
VB Site Name: Calexico
(Above 3" Space for Recorder's Use Only)
Upon Recording Return to:

Vertical Bridge Development, LLC
750 Park of Commerce Drive, Suite 200
Boca Raton, Florida 33487
Attn: Daniel Marinberg
Site Name: Calexico
Site Number: US-CA-5156
Commitment #:

MEMORANDUM OF LEASE
This Memorandum of Lease (this "Memorandum") evidences a Lease Agreement (the "Lease") between City of Calexico, municipal corporation ("Landlord"), whose address is 608 Heber Avenue, Calexico, CA 92231, and Vertical Bridge Development, LLC, a Delaware limited liability company, whose mailing address is 750 Park of Commerce Drive, Suite 200, Boca Raton, Florida 33487 ("Tenant"), dated the day of , 20 (the "Effective Date"), for a portion (the "Premises") of the real property (the "Property") described in Exhibit A attached hereto.

Landlord hereby ratifies, restates and confirms the Lease and leases to Tenant the Premises, subject to the terms and conditions of the Lease. The Commencement Date of the . The Lease provides for the lease by Landlord to Tenant of the Premises for an initial term of five (5) years with six (6) renewal options) of an additional five (5) years each, and further provides:

Landlord will attorn to any mortgagee of Tenant, subordinate any Landlord's lien to the Lease and to liens of Tenant's mortgagees, and not disturb the tenancy of Tenant;

2. The Lease restricts Landlord's ability to utilize, or allow the utilization of the Property for the construction, operation and/or maintenance of Communications Facilities (as defined in the Lease); Tenant (and persons deriving rights by, through, or under Tenant) are the sole parties to market, use, or sublease any portion of the Property for Communications Facilities during the term of the Lease (such restriction shall run with the land and be binding on the successors and assigns of Landlord); 27 VB Site ID: US-CA-5156
VB Site Name: Calexico
The Premises (excluding the non-exclusive easements) may be used exclusively by Tenant for all legal purposes allowed by the Lease, including, without limitation, erecting, installing, operating and maintaining Communications Facilities;

5. Tenant is entitled to sublease and/or license the Premises, including any Communications Facilities located thereon;

6. Under certain circumstances, Tenant has a right of first refusal to acquire the Premises from Landlord;

7. Landlord may assign the Lease only in its entirety and only to a purchaser of the fee interest of the Property; and

8. Under certain circumstances, Landlord may not subdivide the Property without Tenant's prior written consent.

This Memorandum is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms, conditions or provisions of the Lease. In the event of a conflict etween the provisions of this Memorandum and the provisions of the Lease, the provisions of the Lease shall control. The Lease shall be binding upon and inure to the benefit of Landlord and Tenant and shall inure to the benefit of their respective heirs, successors, and assigns, subject to the provisions of the Lease. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK, SIGNATURES

BEGIN ON NEXT PAGE
28 VB Site ID: US-CA-5156
VB Site Name: Calexico
IN WITNESS WHEREOF, the parties hereto have executed this MEMORANDUM OF LEASE as of the date last signed by a party hereto.

WITNESSES: LANDLORD:

City of Calexico
a municipal corporation
Name: By:

Name:

Title:

Name: Date:

CALIFORNIA ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document
State of California
County of
On → 20 before me,
(insert name and title of the officer personally appeared (name of signatory), who proved to me on the basis of satisfactory evidence to be he person(s) whose names) is/are subscribed to the within instrument and acknowledged to me hat he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)
VB Site ID: US-CA-5156
VB Site Name: Calexico
(Tenant's Signature Page to Memorandum of Lease)
WITNESSES: TENANT:

Vertical Bridge Development, LLC
a Delaware limited liability company
Name: By:_
Name:_
Title:

Name: Date:

STATE OF FLORIDA

COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this , 20 , by _ (name of signatory),
(title of signatory) of Vertical Bridge Development, LLC, a Delaware limited liability company, on behalf of the company. He/she is personally known to me.

Notary Public
Print Name:

My Commission Expires:_
30 VB Site ID: US-CA-5156
VB Site Name: Calexico

EXHIBIT A
(TO MEMORANDUM OF LEASE)
The Property
(may be updated by Tenant upon receipt of final legal description from title) An interest in land, said interest being over a portion of the following described parent parcet:

Lots 1 and 2, Block 4, Hughes Subdivision of Block 2, of Eastside Addition to Calexico, in the City of Calexico, County of Imperial, State of Calfornia, according to Map No. 133 on fle in the Office of the County Recorder of Imperial County.

Said land is also known as Lots 1 and 2, Block 2-A, Eastside Addition to the City of Calexico, in the City of Calexios, County of Imperial, State of Califomia, according to map recorded in Book 7, Page 17 of Official Maps, in the Office of the County Recorder of Imperial County.

AND BEING a portion of the same property conveyed to Andreas Sarkis Yanik from U.S. Customs and Border Protection by U.S. Customs and Border Protection Deed dated September 27, 2018 and recorded October 29, 2018 in Instrument No. 2018019805.

Tax Parcel No. 058-551-001-000, 058-551-002-000 8 058-551-003-000 Access and utilities serving the Premises (as defined in the Lease) includes all easements of record as well as that portion of the Property designated by Landlord and Tenant for Tenant (and Tenant's guests, agents, customers, subtenants, licensees and assigns) ingress, egress, and utility purposes to and from a public right- Said interest being over land more particularly described by the following description:

Insert metes and bounds description of area
31 VB Site ID: US-CA-5156
VB Site Name: Calexico

MUTUAL AGREEMENT
This Mutual Agreement (Agreement") is made and entered into as of the date of the last signature to this Agreement (hereinafter the "Effective Date"), by and between, on the one hand, Vertical Bridge Development, LLC ("Vertical Bridge") and, on the other hand, The City of Calexico, California and the Calexico City Council (collectively, the "City") (collectively, the "Parties" or individually, a "Party").

RECITALS
WHEREAS, Vertical Bridge filed a lawsuit against the City related to the City's denial of an application to place a communications tower at 903 E. 3rd Street; said lawsuit is captioned Vertical Bridge Development vs. Calexico City Council, et al., Federal District Court for Southern District of California, Case No. 3:21-cv-02097 (the "District Court Proceeding"); WHEREAS, the District Court dismissed the District Court Proceeding, whereupon Vertical Bridge filed an appeal with the Ninth Circuit Court of Appeals; said appeal is captioned Vertical Bridge Development vs. Calexico City Council, et al., No. 23-55243 (the "Appeal"; the District Court Proceeding and the Appeal, collectively, the "Lawsuit"); WHEREAS, following the filing of the Appeal and subject to Circuit Rule 33-1, the Parties negotiated an Option and Lease Agreement related to placement by Vertical Bridge of a new communications tower and related equipment that will also serve as a new field light ("Tower and Equipment") on the City catchment basin/athletic field located on Andrade Avenue (the "Property") and the provision of other benefits for the City (the "Lease"), which is attached hereto as Exhibit 1.

WHEREAS, the Parties desire to resolve finally and in good faith their disputes regarding the Lawsuit, in accordance with the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, it is agreed to by the Parties as follows:

TERMS OF AGREEMENT
This Agreement embodies the entire terms and conditions of the Agreement described herein, and it is the complete agreement among the Parties hereto.

2. The Parties shall execute the Lease within seven (7) days of the Effective Date.

3. The City represents and warrants that the Property is zoned Open Space; (ii) the Tower and Equipment proposed to be constructed by Vertical Bridge are "public utilities"; (iii) public utilities are a "permitted use" in Open Space; (iv) permitted uses in Open Space do not require discretionary review by the Planning Commission but are subject to review by the Director for adherence to the performance standards in Calexico Zoning Code Section 17.09.530(b) ("Performance Standards Review"); and (v) all requisite approvals for the Lease and this Agreement have been given. The City further represents and agrees that its approval of the Lease and this Agreement is in compliance with all applicable rules, ordinances, laws, and statutes.

The Parties acknowledge that, in addition to Performance Standards Review, a building a permit and certificate of occupancy may be needed before Vertical Bridge can construct and operate the Tower and Equipment ("Additional Permits"). The Parties shall address and handle the Performance Standards Review and the Additional Permits in the normal course of business and nothing in this Agreement or the Parties' past dealings shall affect said Performance Standards Review or Additional Permits. Upon receipt of complete applications for Performance Standards Review and Additional Permits, including the payment of required processing fees, the City will promptly process same.
2 S. Vertical Bridge shall dismiss the Lawsuit with prejudice upon the earlier to occur of: (a) the date four (4) months after the Effective Date of the Lease; or (b) the date Vertical Bridge exercises its option in the Lease.

6. In the event of a challenge to the City's approval of the Lease or this Agreement (an "Appeal"), the City shall use its best efforts to contest the Appeal and resolve it as expeditiously as possible.

7. The Parties shall take all further and necessary steps to effectuate the terms and intent of this Agreement without limitation.

Neither the execution of this Agreement nor the taking of any action pursuant to the provisions hereof shall be used or claimed by any Party in any proceeding whatsoever to constitute an admission of liability or fault against another Party, except an action to enforce this Agreement.

This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective officers, agents, employees, insurers, attorneys, heirs, administrators, representatives, executors, parent companies, subsidiaries, affiliates, successors and assigns.

10. The Parties represent and acknowledge that, in executing this Agreement, they do not rely and have not relied on any representation or statement made by any of the Parties or by any of the Parties' agents, representatives, or attorneys, with regard to the subject matter, basis, or effect of this Agreement or otherwise, other than those specifically stated in this written Agreement. This Agreement constitutes the entire agreement between the Parties, there are no other understandings or agreements, written or oral, between them on this subject matter, and this Agreement may not be modified in any manner except by written agreement signed by all of the Parties hereto.
3 11. Each Party represents and warrants to the others that it and its signatory to this Agreement are duly authorized to execute and deliver this Agreement and to perform the obligations hereunder, and this Agreement is a legal, valid and binding obligation of each Party, enforceable against such Party in accordance with its terms.

12. This Agreement is made and entered into in the State of California, and the laws of the State of California shall govern its validity and interpretation and the performance by the Parties hereto of their respective duties and obligations hereunder.

13. The provisions of this Agreement are severable, and if any of its provisions are declared void in whole or in part, the decision so holding shall not be construed as impairing any other provisions unless such remaining provisions, standing alone, cannot fairly be regarded as reflecting the Parties' original mutual understanding as to the complete resolution of all matters described

14. If any Party contests the validity of this Agreement, and the Agreement is held valid, the contesting Party shall be liable for and pay the other Parties' legal fees and expenses.

Further, if any Party breaches any of the provisions of this Agreement, then the non-breaching Party or Parties shall have the rights, in addition to all of the rights and remedies available, to recover all costs and expenses (including without limitation legal fees and court costs) incurred in enforcing the provisions of this Agreement.

15. Each of the Parties hereto agrees to pay its or their own attorneys' fees and any other costs or expenses associated with this Agreement and the matters giving rise to this Agreement.

16. The drafting and negotiation of this Agreement has been undertaken by all Parties hereto and their respective counsel. For all purposes, this Agreement shall be deemed to have 4 been drafted collectively by all of the Parties with no presumption in favor of one Party over another in the event of any ambiguity.

17. All notices, requests, claims, demands, and other communications hereunder shall be in writing and may be hand delivered (provided the deliverer provides proof of delivery) or sent by nationally established overnight courier that provides proof of delivery, or certified o registered mail (postage prepaid, return receipt requested). Notice shall be deemed received on the date of delivery as demonstrated by the receipt of delivery. Notices shall be delivered to a party at the party's respective address below, or to such other address that a party below may provide from time to time:

If to City: If to Vertical Bridge:

City of Calexico Vertical Bridge Development, LLC
608 Heber Avenue 750 Park of Commerce Drive, Suite 200
Calexico, CA 92231 Boca Raton, Florida 33487
With copy to: City Attorney Ref: US-CA-5156
Attn: VP Asset Management
With a copy to: General Counsel

18. This Agreement may be executed in multiple counterparts, each of which shall be fully effective as an original, but which together shall constitute only one instrument, and the Parties agree to perform any further acts and execute any documents that may be reasonably necessary to carry out the provisions of this Agreement. [signature pages follow]
5 In witness whereof, the Parties have executed this Agreement, effective the day and year of the last signature below, having read and fully understood the provisions hereof.

VERTICAL BRIDGE DEVELOPMENT, LLC
By:

Title:

Printed Name:

Date:

CITY OF CALEXICO, CALIFORNIA
By: _
Title:

Printed Name:

Date:

CALEXICO CITY COUNCIL
By:

Title:

Printed Name:

Date:
6 EXHIBIT 1
Lease
7 US-CA-5156 - 90-FT Light Pole Tower
Photo Simulations

NORTH ELEVATION - EXISTING

NORTH ELEVATION - PROPOSED
MES3
PARCEL ID: 058-761-001
US-CA-5156 Tower Candidate Location: 32.668446, -115.482353 (Coordinates to be verified by Registered Land Surveyor) E 5th St E 5th St
E 5th St E 5th St E 5th St
Housing Authority
of calexico
Beach Ave Herbert Ct
Existing IID Transformer (1224500)
Andrade ave
Carmen Estrada
Soccer Field
Milpitas Dr
Fourth St Fourth St Fourth St
10'x15' Anchor Tenant Lease Area
90-ft Musco Light Pole Tower See Note 1)
85-ft Anchor Tenant RAD CL
Beach Ave 75-ft Future Tenant RAD CL 40'x40' Vertical Bridge Lease Area 65-ft Future Tenant RAD CL (See Note 1)
55-ft Stadium Light Height Andrade Ave
Existing Telco/Fiber Pedestal
Camino Del Rio Camino Del Rio
Camino Del Rio 12'x32' Unpaved Access Camino Del Rio
and Utility Easement
Beach Ave
NOTE

1. The proposed lease area is located in an existing basin with potential flooding issues.

Flood mitigation measures will be taken as part of this scope which may include installing equipment on elevated platforms and/or re-grading and compacting soil to increase the base elevation of the site.

MET3
TRESS