Calexico City Council
January 17, 2024

AGENDA
ITEM
15 AGENDA
CALEXICO California ITEM

WHERE CALIFORNIA AND MEXICO MEET
15 CITY COUNCIL

AGENDA STAFF REPORT
DATE: January 17, 2023
TO: Mayor and City Council
APPROVED BY: Esperanza Colio Warren, City Manager
REVIEWED BY:

PREPARED BY: Carlos Campos, City Attorney
SUBJECT: Approval of Fourth Amendment to Agreement for Purchase of Easement with SBA Towers X, LLC for the Calexico Water Tower Located at 352 East First Street, Calexico, CA
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Recommendation:

The City Council is requested to review and approve the Fourth Amendment to Agreement for Purchase of Easement with SBA Towers XI, LLC, a Delaware limited liability company, successor by assignment to SBA Towers X, LLC and authorize the City Manager or designee to execute and deliver such further documents and instruments and take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of the Council's direction and the Agreement for Purchase of Easement Summary:

The City owns the property at 352 East First Street where the City-owned water tower is situated (Water Tower). In March 2020, the City issued a Request for Proposals for the acquisition of the Water Tower site and the existing telecommunication leases and on June 3, 2020, the Council selected the highest bidder, SBA, who proposed to obtain a 55-year easement over the Water Tower and obtain assignment of all existing leases in exchange for a one-time lump sum payment to the City and the City would also receive 70% of gross rental revenue for any new tenants added to the Water Tower.

Since the initial selection of SBA, structural defects have been discovered upon the support structure of the Water Tower. Due to these structural defects, the parties negotiated and signed a Third Amendment to Agreement for Purchase of Easement, and updated Easement and Assignment Agreement with SBA to require decommissioning, removal and replacement the

existing Water Tower with a faux water tower. Under the Third Amendment to Agreement for Purchase of Easement, and updated Easement and Assignment Agreement, which was approved by Council at its September 21, 2022 meeting, SBA would complete the demolition and replacement of the Water Tower, relocate all existing tenants, and maintain and repair the replacement water tower for the easement term, in exchange for a flat fee of $1,005,000 and SBA absorbs all other costs to complete the demolition, installation of the replacement owner, and relocation of the existing tenants. The City will receive 70% of all gross rental revenue for any new tenants added to the replacement tower.

On July 28, 2023, SBA notified the City that it does not intend to move forward with the transaction as previously agreed, and SBA will not construct a replacement faux water tower due to increased construction costs. On August 24, 2023, the City Council in closed session provided direction to staff to proceed with option 1 from SBA which was: City receives lump sum payment of $717,758.26 plus 70% revenue share for any new tenants added to the tower, SBA receives a 55 year easement and removes the existing water tower and delivers it to ground for City to transport to Border Friendship Park, SBA constructs a new 130 foot self-support telecommunications tower in front of current water tower location and the wireless tenants' ground mounted equipment remains in place at current location under water tower.

On November 1, 2023, SBA representatives meet with City staff to discuss logistical difficulties encountered by SBA in planning for the decommissioning and removal of the existing tower.

SBA's construction team concluded that the existing water tank has certain structural deficiencies throughout that make removing the water tank in one piece impossible. On December 20, 2023, the City Council met in closed session to discuss SBA's new findings and the City Council provided direction to staff that the City would like to continue the transaction as approved in closed session on August 24, 2023, with the caveat that SBA may remove the water tank in component parts to be reassembled by the City at the City's cost at a later date. The City will continue to identify a new permanent home for the relocated water tank and may temporarily store the water tank until such time a new support structure and site is completed.

SBA and the City staff have prepared the attached Fourth Amendment to Agreement for Purchase of Easement to reflect the Council's direction and it is now subject to the Council's review and approval.

Background and Discussion
The Water Tower is no longer used for water storage. However, in the last couple decades, the City has entered into contracts with various wireless carriers (AT&T, Sprint, T-Mobile, Verizon) and with the Customs and Border Patrol to allow the placement of wireless antennas and equipment on the Water Tower and on the ground beneath the Water Tower. Collectively, these contracts currently generate approximately $90,000 in annual lease revenues. In 2019, the City discovered a structural defect in one of the support footings of the Water Tower and made some limited repairs.
2 In March 2020, the City released a Request for Proposals for the acquisition of this Water Tower site and the leases. The RFP was widely distributed to companies that manage and own wireless towers and leases, and on June 3, 2020, the Council in Closed Session selected the highest bidder, SBA. The City Attorney and staff subsequently negotiated an Agreement for Purchase of Easement (Initial Purchase Agreement), and an Easement and Assignment Agreement with SBA that the Council approved at its regular meeting on July 15, 2020. Under the Initial Purchase Agreement, SBA was to pay the City $1,510,000 and 70% of gross revenues for any new tenants added to the Water Tower in exchange for a 55-year easement over the Water Tower and an assignment of all lease revenues for the current tenants. Over the 55-year easement term, SBA would assume on-going site management responsibilities, while the City remained obligated to repair and maintain the Water Tower and the City.

In August 2019, the City hired Malouf Engineering Intl. Inc. to complete a limited structural analysis of the repairs and tank. The report was limited because the engineer did perform a site visit and based the report on photos of the repairs only. The City issued an RFP for Structural Engineering Services and on November 18, 2021 selected Horrocks Engineering to complete a more thorough structural engineering report assessing the Water Tower and at the City's election, to prepare plans and specifications of any repairs necessary to bring the Water Tower in compliance with all applicable codes (CBC 2019. ASCE 7-16, AWWA D-100-11, ANSI/TIA- 222-H-1).

Updated Transaction 1 (2022)
SBA reviewed the structural engineering report by Horrocks and the proposed plans and specifications for the repair and now disputes the longevity of the repair over the entire 55-year easement term. In light of SBA's conclusion that the structural integrity of the Water Tower will fail over the 55-year easement term, even if repaired, SBA and the City have agreed to allow the decommissioning of the existing Water Tower and its replacement by faux water tower.

SBA will complete all work to decommission and remove the existing Water Tower, construct a replacement faux-water tower, and relocate all existing wireless tenants onto the replacement tower. SBA will assume day-to-day site management responsibilities and all maintenance and repair obligations for the replacement tower over the 55-year easement term. SBA will convey the replacement tower to the City at the conclusion of the term.

As consideration for the updated transaction, SBA has updated its two proposals: (i) a fixed one- time payment of $1,005,000 and SBA absorbs all costs for the demolition and replacement work, and tenant relocation; or (i) an initial purchase price of $2,000,000 that will be reduced by the actual costs incurred by SBA to demolish and replacement the tower, and relocation of all tenants. SBA has estimated that the demolition and replacement costs will be approximately:
$500,000 for the replacement tower, $130,000 for the pre-construction work and temporary tenant towers, and $365,000 for constructing the new tower.

At its September 21, 2022 meeting, the Council selected option 1 a fixed one-time payment and directed staff to execute the proposed Third Amendment to the Purchase and Sale Agreement and updated Easement Agreement, which City staff completed.

Updated Transaction 2(2023)
On August 24, 2023, The City Council in closed session provided direction to staff to proceed with option 1 of 4 potential proposals from SBA which was: City receives lump sum payment of $717,758.26 plus 70% revenue share for any new tenants added to the tower, SBA receives a 55 year easement and removes the existing water tower and delivers it to ground for City to transport to Border Friendship Park or other City-owned property, SBA constructs a new 130 foot self-support telecommunications tower in front of current water tower location and the wireless tenants' ground mounted equipment remains in place at current location under water tower.

Alternatives
The City Council may wish to consider the following alternatives:

1. Provide alternative direction to staff.

Attachment(s)
A - Fourth Amendment to Agreement for Purchase of Easement 4 FOURTH AMENDMENT TO AGREEMENT FOR PURCHASE OF EASEMENT THIS FOURTH AMENDMENT TO AGREEMENT FOR PURCHASE OF EASEMENT ("Fourth Amendment"), dated as of 2024, by and between SBA TOWERS XI, LIC, a Delaware limited liability company, successor by assignment to SBA TOWERS X, LIC ("SBA"), and THE CITY OF CALEXICO, CALIFORNIA, a municipal corporation ("Site Owner"). All capitalized terms not expressly detined herein shall have the meaning ascribed to them in the Agreement (defined below).

RECITALS:

WHEREAS, on July 23, 2020, SBA and Site Owner entered into that certain Agreement for Purchase of Easement ("Original Agreement"), as amended, with the most recent amendment being that certain Third Amendment to Agreement for Purchase of Easement dated September 21, 2022 ("Third Amendment") (collectively, the "Agreement" with respect to the Property described therein; WHEREAS, pursuant to Section 22 of the Original Agreement, the parties agreed to execute, acknowledge and deliver such further instruments, and perform such additional acts, as the other party may reasonably request in order to effectuate the intent of the Agreement;
WHEREAS, to effectuate the closing of the transaction contemplated in the Agreement without further delay, and consistent with the authority in Section 22 of the Original Agreement to execute further instruments and perform additional acts to effectuate the intent of the Agreement, the parties now desire to amend the Agreement to provide for certain amendments as more particularly set forth herein.

NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Modification of Defined Terms.
(a) The definition of New Tower in Section 4 of the Third Amendment is hereby deleted in its entirety and replaced as follows:
"New Tower" - the approximately One Hundred Thirty (130) foot self-support tower to be constructed, as more particularly described, and depicted in Exhibit "G" to the Easement. (b) The definition of Inspection Period in Section 3 of the Third Amendment is hereby deleted in its entirety and replaced as follows:
"Inspection Period" - the period commencing on the Effective Date and ending on the first to occur of the following: (i) on the first Business Day following SBA's confirmation of receipt of all Construction Approvals, unless extended as provided in Sections 5.2 of the Agreement and Section 14 of the Third Amendment; or (il) June 28, 2024

2. Amendments. In accordance with Section 19 of the Original Agreement:
(a) The first paragraph of Section 6(a) of the Third Amendment is hereby deleted in its entirety and replaced as follows:
"Section 3.1 of the Original Agreement is hereby deleted in its entirety and replaced with the 1 CA24329-S
following:

The Purchase Price of the Site Owner Assets (including the consideration for entering into the Easement) to be paid to Site Owner on the Initial Closing Date is Two Hundred and Fifty Thousand and 00/100 Dollars ($250,000.00), subject to all adjustments, credits and prorations contained in this Agreement ("Initial Closing Date Payment"). The Purchase Price to be paid to Site Owner on the Final Closing Date is Four Hundred and Sixty-Seven Thousand Seven Hundred Fifty-Eight and 26/100 Dollars ($467,758.26), subject to all adjustments, credits ad prorations contained in this Agreement ("Final Closing Date Payment")."
(b) Exhibit "D-1" to the Third Amendment is hereby deleted in its entirety and Exhibit "D-2" attached to this Fourth Amendment is substituted therefor. Any reference to Exhibit "D-1" in the Third Amendment is hereby replaced with Exhibit "D-2". For the avoidance of doubt, Exhibit "D" in the Original Agreement is replaced by Exhibit "D-2" attached herein. (c) Section 9 of the Third Amendment is hereby deleted in its entirety and replaced as follows:

Removal and Relocation of Water Tank. SBA agrees to use its commercially reasonable efforts to remove the top section of the Water Tank and place it on the Property at a mutually agreed upon location. In its removal of the Water Tank, SBA shall attempt to preserve the integrity of the Water Tank wherever possible, but may cut and/or separate portions of the Water Tank to aid in its removal, provided, SBA labels each component portion of the Water Tank removed so that it may be reassembled by Site Owner upon relocation. Site Owner shall be responsible for removing it from the Property and relocating it at its sole cost and expense after receiving notification from SBA that it has been removed from the Water Tower and is ready for relocation. The parties may agree in the future that SBA assists in the relocation of the Water Tank, to which any costs related to the relocation will be deducted from the Purchase Price. SBA shall remove all other portions of the Water Tank at its sole cost and expense, including but not limited to all tower leg foundations.

3. Recitals. The parties hereby incorporate the recitals set forth above by this reference as though set forth fully herein.

4. Headings. Section headings in this Fourth Amendment are for convenience only and shall not limit or change the subject matter of this Fourth Amendment.

5. Merger. This Fourth Amendment will form part of the Agreement for all purposes and the Agreement will hereafter be read together. Except as amended hereby, the Agreement will be and remain in full force and effect and unchanged. As amended hereby, the Agreement is hereby ratified and confirmed by the parties hereto. In the event of any conflict between the terms of this Fourth Amendment and the Agreement, the terms of this Fourth Amendment will control. The parties may agree to extend the Inspection Period via electronic mail provided Site Owner's sender of said notice is the Site Owner, or someone with equal authority to bind Site Owner.

6. Counterparts. This Fourth Amendment may be executed in any number of counterparts, each of which will be an original, but all of which taken together will constitute one instrument. The parties agree that a scanned or electronically reproduced copy or image of this executed Fourth Amendment will be deemed an original and may be introduced or submitted in any action or proceeding as competent evidence of the execution, terms and existence hereof notwithstanding the failure or inability to produce or tender an original counterpart of this Fourth Amendment and without the requirement that the unavailability of such original counterpart of this Fourth Amendment first be proven. 2 CA24329-S
THIS FOURTH AMENDMENT has been executed by the parties on the date set forth below.

SITE OWNER:

THE CITY OF CALEXICO, CALIFORNIA, a municipal
corporation
By:_
Name:

Title:

Date:

SBA:

SBA TOWERS XI, LLC, a Delaware limited liability company By:
/Brendan Cavanagh
President & Chief Executive Officer
Date: 1/4/24
CA24329-S
EXHIBIT "D-2"
Easement
CA24329-S

EASEMENT AND ASSIGNMENT AGREEMENT
This EASEMENT AND ASSIGNMENT AGREEMENT ("Easement Agreement") is entered into by and between SBA TOWERS XI, LLC, a Delaware limited liability company, having an office at 8051 Congress Avenue, Boca Raton, Florida 33487 ("SBA"), and THE CITY OF CALEXICO, CALIFORNIA, a California municipal corporation whose City Hall is located at 608 Heber Avenue, Calexico, California 92231 ("Site Owner") effective as of the later of the dates that SBA and Site owner have executed this Easement reement (Lifective Date"). This Easement Agreement is attached to and is an exhibit to the Agreement for Purchase of Easement, nended ("Purchase Agreement"). Capitalized terns not defined herein are defined in Schedule " Preliminary Statement:

Site Owner is the owner of that certain parcel of land located at 352 East First Street, in the City of Calexico, State of California, which is more particularly described in Exhibit "A" to this Easement Agreement ("Property"), containing the City of Calexico Water Tower to be replaced by the New Tower. All Exhibits referenced herein shall be attached to and considered a part of this Easement Agreement In consideration of the mutual covenants contained in this Easement Agreement and other good and valuable consideration, the reccipt and sufficiency of which is hereby acknowledged, Site Owner and SBA hereby agree as follows:

1. GRANT OF EASEMENT: Site Owner grants and conveys to SBA, its Existing Customers, Future Customers, agents, successors, affiliates, and assigns:

1.1. Exclusive Communication Easement. Exclusive and unrestricted rights to use the Communication Easement described and depicted on Exhibit "B" to this Easement Agreement, for the purposes of installing, constructing, maintaining, operating, modifying, repairing and replacing improvements and equipment, which may be located on the Communication Easement from time to time, for the facilitation of: (i) constructing the New Tower; (ii) Telecommunications Purposes; and (iii) any other related activities and uses strictly necessary for SBA to comply with its obligations under the Existing Agreements ("Permitted Use"). The Communication Easement description will include, but is not necessarily limited to, the portion of the Property leased under the Existing Agreements and the ground area beneath the New Tower. Prior to execution hereof, Site Owner shall have the opportunity to review the proposed Communication Easement depicted on Exhibit "B" for its approval, which shall not be unreasonably withheld, conditioned or delayed. Subsequently, SBA may make any improvements, alterations or modifications on or to the Communication Easement in direct furtherance with the Permitted Use as are deemed appropriate by SBA, in its sole discretion, and for no other purpose. SBA shall have the exclusive and unrestricted right to lease, sublease, license, or sublicense any structure or equipment on the Communication Easement and shall also have the right to lease, sublease or license to third parties any portion of the Communication Easement, but no such lease, sublease or license shall relieve or release SBA from its obligations under this Easement Agreement. Site Owner shall not disturb SBA's right to use the Communication Easement.

SBA's exclusivity as described herein shall not preclude Site Owner from using the Property or the Communication Easement for any purpose that is not a Telecommunications Purpose or preclude Site Owner or any governmental entity acting with the permission of Site Owner from using the Property or Communication Easement for certain non-commercial, governmental use Telecommunications Purposes without the payment of rent to SBA, provided such permitted Telecommunications Purposes shall not include the provision of personal wireless services or telecommunication services for commercial purposes ("Governmental Attachment Rights"). For the avoidance of doubt, the Customs and Border Patrol Agreement shall be included within the Governmental Attachment Rights and any amendment thereof shall continue to be at no charge.

1.2. Exclusive Access Easement. Exclusive rights to the Access Easement described and depicted on Exhibit "C" ("Exelusive Access Easement"to this Easement Agreement for ingress and egress to and from the Communication Easement and First Street, with the right to construct, reconstruct, improve, add to, enlarge, and change an access route sufficient for vehicular and pedestrian ingress and egress from the Communication Easement to First Street, as necessary or commercially reasonable for BA's exercise of its Permitted Use of the Communication Easement.

1.3. Non-Exclusive Utility Easements. Non-exclusive rights to the Utility Easement described and depicted on Exhibit "C" (Utility Casement) to this Easement Agreement for the construction, installation, operation and maintenance, repair and removal of overhead and underground electric, water, gas, sewer, telephone, data transmission and other utility facilities providing service to the Communication Basement and the Systems and related activities and uses (including wires, poles, guys, cables, conduits and appurtenant equipment) with the right to construct, reconstruct, improve, add to, enlarge, change and remove such facilities, and to connect the same to utility lines located in a publicly dedicated right of way, as necessary or commercially reasonable for SBA's exercise of its Permitted Use of the Communication Easement.

2. TERM: The terms and conditions of this Easement Agreement shall bind SBA and the Site Owner throughout the Term.

3. COMPENSATION: SBA shall compensate Site Owner as follows:
1 Purchase Price. In consideration of Site Owner entering into this Easement Agreement and allowing SBA to retain One Hundred percent (100%) of the Existing Revenue during the Term, SBA agrees to pay Site Owner the Purchase Price pursuant to the Purchase Agreement. Notwithstanding SBA's right, title, and interest to the Existing Revenue pursuant to this Easement Agreement, during the Term, Site Owner is under no obligation to enforce Customers' obligations) to make rental payments or cure any default relating to the non- payment of rent pursuant to the respective Customer Agreements. SBA shall not be entitled to any offset, deduction or reimbursement of the Purchase Price due to SBA's failure to enforce Customers' obligations) to make rental payments or cure any post-closing default relating to the non-payment of rent pursuant to the respective Customer Agreements. In the event a Customer fails to make rental payments or cure any post-closing default relating to the non-payment of rent pursuant to the respective Customer Agreement for a period exceeding three (3) consecutive calendar months, SBA shall use commercially reasonable efforts to cause the Customer to cure any such default. the Existing Revenue shall be distributed in accordance with Sections 3.3 and 3.4 below.

3.3. Future Customer Revenue Sharing. Subject to Section 3.2 above, SBA shall pay Site Owner the Revenue Share, The retain rents from the Future Customer in the amount of the Base Rent and share any excess pursuant to this Section.

3.4. Revenue Share Payment. Revenue Share payments shall be made by check or EFT delivered one month in arrears (before the last day of the month following the month in which the rent payment was received by SBA). SBA shall also deliver to Site Owner a monthly report identifying all Future Customers which have, during the previous month, operated Systems on or from the Easements and the fee received from each such Future Customer during that month, including any past arrearage paid within that month, All Revenue Share payments shall be computed from the first of the month following the commencement of rental payments by a Future Customer and are contingent upon SBA's receipt of an accurate W-9 form from Site Owner following the Effective Date hereof. Removal of a System may be cause for an adjustment to the Revenue Share payments. SBA shall maintain complete accounting records on an accrual basis (provided, however, that payments to Site Owner are made on a cash basis) in accordance with generally accepted accounting principles related to the Revenue Share and Customer payments. Site Owner shall have the right, upon ten (10) business days advance written notice, to inspect, audit and copy all such records and other like materials of SBA that reasonably relate to Site Owner's Revenue Share under this Easement Agreement. All such records shall be subject to audit and inspection, for the primary purpose of assuring compliance with the terms of this Easement Agreement, by the Site Owner, its auditors or other agents.

ASSIGNMENT OF EXISTING AGREEMENTS: As of the Effective Date, Site Owner sells, transfers and assigns to SBA all of its right, title and interest in, to and under the Existing Agreements for the Term. SBA assumes only the obligations and liabilities of Site Owner under the Existing Agreements accruing on or after the Effective Date. During the Term, Site Owner grants to SBA the right to terminate or extend the term of the Existing Agreements pursuant to the terms and conditions of the Existing Agreements and to enter into, extend, or terminate any agreement with a Future Customer provided, however, SBA may not extend the term of any Customer Agreements beyond the Term of this Easement Agreement or subject Site Owner to additional liabilities or responsibilities without the prior written consent of Site Owner, which consent shall not be unreasonably withheld, conditioned or delayed. In the event any Customer Agreement is so extended beyond the Term of this Easement Agreement, on or before the expiration of the Term or any earlier termination date, SBA shall assign the Customer Agreements to Site Owner and shall surrender the Easements and the Property free and clear of any liens or encumbrances. Upon expiration of this Easement Agreement, SBA is obligated to return the Easements to Site Owner in the state it existed as of the Effective Date, wear and tear and damage from the elements excepted, and complete any repairs necessitated by such removal, reasonable wear and tear excepted, and SBA shall be responsible for performing or enforcing performance of any site restoration and repair obligations of Customers under any Customer Agreements that terminate on or before this Easement Agreement is terminated.

CONSTRUCTION OF NEW TOWER: SBA will decommission and demolish the existing Water Tower, relocate all Existing Customer Systems onto temporary cell on wheels or other temporary antenna facilities and upon completion of the New Tower, relocation of such Systems onto the New Tower, and construct the New Tower within the Communication Easement at its sole cost and expense. Site Owner acknowledges and consents to SBA, its affiliates, Existing Customers, successors, and/or assigns together with any of the employees, contractors and/or agents, the right to: (i) access the Property, Easements, and any adjacent property owned by Seller or under its control for the purpose of removing, demolishing and decommissioning the Water Tower and Water Tower Structure and constructing the New Tower; (il) access the Property and the Water Tower for the purpose of removing Existing Customers' Systems from the Water Tower; and (ili) access and utilize additional ground space within the Property, at a mutually acceptable location, for the placement of a cell on wheels or other temporary antenna facilities where Existing Customers' Systems will be placed during construction of the New Tower and until the New Tower is complete and the Existing Customers have been relocated to the New Tower. In addition, Site Owner acknowledges and consents to SBA using commercially reasonable efforts to remove the Water Tank from the Water Tower and placing it on the Property at a mutually agreed upon location for Site Owner's relocation. In its removal of the Water Tank, SBA shall attempt to preserve the integrity of the Water Tank wherever possible, but may cut and/or separate portions of the Water Tank to aid in its removal, provided, SBA labels each component portion of the Water Tank removed so that it may be reassembled by Site Owner upon relocation. Site Owner will be 2 responsible for removing and relocating the Water Tank from the Property at its sole cost and expense after receiving notification from SBA that it has been removed from the Water Tower and is ready for relocation. SBA will not responsible be for any damage to the Water Tank other than damage arising from negligence or willful misconduct.

RELOCATION AFTER NEW TOWER COMPLETION: After the New Tower is built, in the event SBA performs any repair, maintenance, replacement or other restorative work upon the New Tower which requires the temporary relocation or movement of the Systems, such temporary relocation or movement of the Systems shall be at SBA's sole cost and expense unless otherwise provided in the Existing Agreements.

7. USE OF EASEMENTS: SBA may allow the use of the Easements in accordance with the Existing Agreements and may market the Property to Future Customers for Telecommunications Purposes and installation of Systems upon the Easements, consistent with the Permitted Use. The Systems may be owned by SBA's Customers and shall not be deemed fixtures. At any time during the Term and within ninety (90) days after termination hereof, SBA or its Customers, may remove any System and other personal property from the Easements. Removal of a System or all Systems shall not cause an expiration or termination of this Easement Agreement. Site Owner bears no responsibility for, and SBA shall have no recourse against Site Owner, in the event a Customer terminates a Customer Agreement or due Operational Requirements. Site Owner shall retain and continue to faithfully perform and discharge any and all of Site Owner's obligations as lessor under the Customer Agreements specifically related to fee ownership. Notwithstanding the foregoing and in addition to any obligation of SBA herein, SBA shall assume and faithfully perform and discharge any and all obligations as assignee of a leasehold interest under the Customer Agreements for the Term including, but not limited to, the following obligations:

7.1.1. Taxes. SBA shall have the responsibility to pay any taxes, levies, assessments, and other charges imposed upon the portion of the Property containing the New Tower and Easements, including franchise and similar taxes, arising out 'of SBA's use, management, or operation of the New Tower or any subsequent Customer Agreement or sublease entered into by SBA (collectively, "Taxes"), to the extent that SBA can pass the obligation to pay the Taxes fully to the Customers installed at the time such Taxes are imposed, pursuant to the Customer Agreements. Pursuant to Section 107.6 of the California Revenue and Taxation Code, Site Owner hereby advises, and SBA recognizes and understands, that this Easement Agreement may create a possessory interest and SBA may be subject to, and responsible for, property taxes levied on such interest, as described in California Revenue and Taxation Code Section 107. SBA will co-operate with the Imperial County Assessor in providing any information necessary for the Assessor to make a property tax determination, SBA reserves the right to challenge any such assessment, and Site Owner agrees to cooperate with SBA in connection with any such challenge.

Notices. SBA shall provide Site Owner a copy of all notices that may affect Site Owners obligations and liabilities herein, which shall include, but are not limited to, notices of nonmonetary breach and notices related to casualty events, force majeure or other notices affecting Site Owner's repair and maintenance obligations herein, given to and received from Customers within five (5) business days of dispatch or receipt. Notwithstanding the foregoing, failure of SBA to provide any other such notices to Site Owner as provided herein shall not be deemed a cause for default of this Easement Agreement.

Cooperation. Site Owner agrees to cooperate fully with SBA, at all times, in abiding by all reasonable rules, regulations, requests, and requirements which SBA may prescribe for the proper operation and maintenance of the New Tower including, but not limited to, cooperating with SBA and Customers in any governmental proceeding or tax matter in which Site Owner's assistance is necessary or desirable for SBA or any facility construction, maintenance, modification, or repair.

Compliance with Applicable Laws. SBA shall comply and ensure that its contractors and representatives will comply with all applicable federal, state, and local laws, ordinances, rules and regulations, including health, safety, and environmental requirements, pertaining to its and their operations of the New Tower and Property during the Term.

7.1.5. Maintenance and Repairs. Except during construction of the New Tower, SBA shall not use the Property, Easements or New Tower for overnight storage of vehicles or equipment without the prior written consent of Site Owner. Site Owner shall maintain the Property, except for maintenance, repairs, and other work necessary to restore the Property to good condition caused by actions or operations of SBA and the Customers, damage from the elements and wear and tear excepted. SBA shall maintain the New Tower except for maintenance, repairs, or other work necessary to restore the New Tower to good condition caused by the actions or operations of Site Owner, if any. SBA shall perform or enforce performance of all applicable provisions of the Customer Agreements relating to Customers' repair, maintenance, and reimbursement responsibilities therein. Further, SBA shall be solely responsible for all costs and expenses required to performn any repairs or other work necessary to ensure the New Tower is structurally compliant for use and continuing use of the New Tower and Easements as described in this 3 Easement Agreement by the Existing Customers and Existing Customer Systems as of the date of this Easement Agreement and any new Systems after the date of this Easement Agreement. SBA shall repair any damage to the Property resulting from its operations at the Property and shall enforce any provision in an Existing Agreement requiring the Customer to repair damages to the Property caused by the Customer's operations. SBA shall require Future Customers to repair damages to the Property caused by the Customer's operations, SBA shall enforce all maintenance and repair obligations in the Customer Agreements on behalf of Site Owner. If an Existing Agreement allows the Customer to perform certain repairs and seek reimbursement from the lessor therein, SBA shall provide the reimbursement.

7.1.6. Signage and Appearance of New Tower. SBA shall maintain the physical appearance of the New Tower in accordance with the obligations herein, which shall mimic the silver and red color scheme, and "Welcome to the City of Calexico" message upon the Water Tank, and shall not attach equipment or Systems to the exterior of the New Tower, unless all other attachment options are technically infeasible, SBA shall not affix any paint or other materials to the New Tower that deviates from the silver and red color scheme, and "Welcome to the City of Calexico" message as it existed upon the Water Tank. SBA shall not place any signs, designs, advertisements, or other speech upon the Water Tank, without the express written consent of Site Owner, unless required by state or federal law. SBA shall not use the Property, Easements or Water Tower in any manner that constitutes a public nuisance; provided, however, the Permitted Use is not deemed a public nuisance.

7.1.7. Access and Utilities. SBA may, and may allow its Existing Customers, Future Customers, agents, successors, assigns and/or affiliates, access to the Easements to install, construct, maintain, operate, modify, inspect, remove, repair and replace the Systems which may be located from time to time within the Easements, and Site Owner agrees to allow such access to the Easements. Access shall be during normal working hours on normal business days, except when any Existing Agreement allows for greater access, in which case the rights of access herein shall conform to that Existing Agreement. In the case of an emergency or equipment malfunction, access will be permitted at any time, subject to reasonable security, safety and identification procedures required by the Site Owner. SBA agrees to maintain the Exclusive Access Easement. During the Term, Site Owner shall not disturb, destroy or alter the access route to the Communication Easement in effect as of the Effective Date hereof without first consulting with SBA and providing an alternative access route to the Communication Easement substantially similar to the the Exclusive Access Easement in use as of the Effective Date hereof. To the extent not otherwise addressed herein, (or to the extent any access and utility easement specifically referenced herein, including but not limited to the Easements, if applicable, cannot, does not, or will not fully accommodate the access needs of the Communication Easement during initial construction of the New Tower and/or installation and/or maintenance and repair of Customer Systems), Site Owner hereby grants and conveys unto SBA, its Existing Customers, Future Customers, agents, successors and assigns, full, complete, uninterrupted and unconditional temporary access (not to exceed seventy-two (72) consecutive hours except as otherwise permitted by Section 5 herein) to and from the Communication Easement, during normal working hours on normal business days, over and across the nearest fifteen (15) feet of any adjacent properly now or hereafter owned by Site Owner, for, without limitation, ingress and egress to and from the Communication Easement provided that SBA shall repair any damages to the Property caused by such access. This Easement Agreement, and the rights granted herein, shall be assignable by SBA to any public or private utility company to further effect this provision If it is reasonably determined by Site Owner or SBA that any utilities that currently serve the Communication Easement as of the Effective Date are not encompassed within the description of the Access and Utility Easement set forth herein, then Site Owner and SBA agree to amend the description of the Access and Utility Easement set forth herein to include the description of such areas. If it becomes necessary to relocate any of the utility lines that serve the Communication Easement, Site Owner hereby consents to the reasonable relocation for such utility lines upon the Property for no additional consideration and at no cost to Site Owner, and hereby agrees to reasonably cooperate with SBA to review and approve for accuracy a revised legal description for an Access and Utility Easement that will reflect such relocation.

8. ELECTRICAL:

8.1. Electrical Service. Existing Customers shall continue to utilize the electrical service in operation as of the Effective Date. Site Owner has advised SBA that as of the Effective Date, the Customers obtain separately metered service directly from the local utility and do not pay Site Owner for utility use and Site Owner does not provide utility service to Customers. SBA reserves the right, with Site Owner's prior approval, to require any Existing Customer to install a remote-readable sub-meter and engage the services of a third- party meter reading service, or to obtain electrical service directly from the utility. SBA may require Future Customers to obtain electrical service directly from the utility whenever possible; alternatively SBA shall require the Future Customer to sub-meter off of the Property's electrical service, install a remote-readable sub-meter, and engage a third-party meter reading service, Reimbursements paid to Site Owner for utilities shall not be included in the calculation of Revenue Share payments.

Electrical System Modifications, SBA reserves the right to make reasonable modifications to the electrical distribution system serving the Systems to accommodate the electrical requirements of the Systems. Prior to the installation or modifications 4 of the existing utilities, SBA shall submit to the Site Owner, for its approval, plans and specifications for same. Such approval shall not be unreasonably withheld, conditioned or delayed. All costs and expenses related to the installations and modifications for electrical services and meters shall be borne solely by SBA or its Customers.

9. EXCLUSIVITY:

9.1. Covenant Not to Compete. Site Owner hereby acknowledges that:

The agreements and covenants Site Owner is providing in this Section are reasonable and necessary to SA's protection of its legitimate interests in the transaction contemplated by this Easement Agreement; SBA will be irreparably damaged and its substantial investment in the transaction contemplated by his Easement Agreement materially impaired if Site Owner, acting solely in its proprietary and not governmenta apacity, were to engage in an activity competing or interfering with the business of SBA in violation of the term of this Section 9 or if Site Owner were to disclose or make unauthorized use of any confidential information concerning the business of the Site Owner or SBA; and

9.1.3. The scope and length of the term of this Section 9 and the geographical restrictions contained herein are fair and reasonable and not the result of overreaching, duress or coercion of any kind and the full, uninhibited and faithful observance of each of the agreements and covenants contained in this Section 10 will not cause Site Owner any undue hardship, financial or otherwise, and enforcement of each of the covenants contained in this Section 9 will not impair Site Owner's ability, if Site Owner so desires, to obtain work commensurate with Site Owner's abilities and on terms fully acceptable to Site Owner.

9.1.4. During the Term, Site Owner shall not enter into any agreement, directly or through a third party, granting any third party or any then-existing Customer the right to use any portion of the Property for the installation or operation of Systems, except as provided in Section 1. Further, Site Owner shall not enter into any agreement with a then-existing Customer, for installation of equipment on any adjacent property owned by Site Owner, if Site Owner has actual knowledge that such agreement will cause the Customer to terminate its then-Existing Agreement with SBA. The covenant in the foregoing sentence shall not apply if Site Owner's refusal to enter into such agreement with a then-existing Customer will cause Site Owner to violate any state or federal law. Any actions taken to contravene the intended effect of this Section shall constitute a breach of this Easement Agreement by the Site Owner.

9.2. Remedies. Site Owner and SBA acknowledge that SBA will be irreparably damaged (and damages at law would be an inadequate remedy) if this Section 9 is not specifically enforced. Therefore, in the event of a breach or threatened breach by Site Owner of the provisions of this Section 9, then SBA shall be entitled to all rights or remedies which may be available at law or in equity.

INTERFERENCE: Should the Systems operated by Existing Customers or Future Customers cause any interference to the radio, television or other electronic components of Site Owner or the residents and tenants of the Property ('Interference"), SBA will eliminate or remediate the Interference to an acceptable level, power down the System, or remove components of the offending System, to the extent permitted under the Existing Agreements. In the event the Site Owner installs electronic equipment after the installation date of any Customer's System and such Site Owner equipment causes Interference to the Systems, then the Site Owner agrees to resolve the Interference problem or remove or relocate the offending equipment. The parties recognize and agree that it is the intention of this Section 10 that Site Owner shall not become embroiled in any disputes or proceedings between SBA and Customers arising as a result of Interference caused by Future Customers Systems or modifications to Existing Customer Systems permitted by SBA, and/or expend funds as a result thereof; therefore, SBA agrees to pay all of Site Owner's costs and attorney's fees that may reasonably be incurred by Site Owner related to any Interference disputes or proceedings between SBA and Customers arising after the Effective Date to the extent the Site Owner's involvement in such disputes or proceedings is initiated or caused by Interference from Future Customers or modifications to Existing Customer Systems permitted by SBA.

QUIET ENJOYMENT: Site Owner covenants and agrees that upon SBA's observing and performing all the terms of this Easement Agreement, SBA may peacefully and quietly enjoy the Easements, subject to the terms and conditions of this Easement Agreement. Further, during the Term, Site Owner will not improve or grant any other easement, ground lease, lease, license, sale or other similar interest of or upon the Property if such improvement or interest would interfere with SBA's use of the Easements..

12. INSURANCE: SBA shall furnish a Certificate of Insurance to Site Owner, naming Site Owner as holder, to cover any damage that may arise by virtue of the construction, operation or maintenance of the New Tower, or the installation, removal, operation or maintenance of the Systems. The Certificate of Insurance delivered to the Site Owner will provide that coverage shall not be canceled or terminated without giving Site Owner notice in accordance with policy provisions. SBA shall procure insurance which shall provide for bodily injury and property damage coverage in not less than the following amounts:

Combined Single Limit:

Bodily Injury; Property Damage $1,000,000.00 (per occurrence) $2,000,000 (in general aggregate)
Excess Liability (Umbrella Form) $5,000,000.00
Site Owner hereby agrees that SBA may satisfy this requirement pursuant to master policies of insurance covering other locations of SBA. SBA further agrees to name Site Owner as an additional insured under such policies. In addition, SBA shall ensure that the Customers continue to be required to maintain at least the same insurances that they are required to maintain today under the Existing Agreements, and that any third parties granted rights by SBA to use the Easements are required to maintain similar insurances as the Existing Customers.

ENVIRONMENTAL COVENANTS AND INDEMNITY: Site Owner represents that to the best of its knowledge, without investigating thereof, that it has no knowledge of any Hazardous Substance, underground storage tanks, asbestos-containing insulation or materials or products containing CB are located on, under or about the Property, except to extent permitted by the Existing Agreements. Neither Site Owner nor SBA will introduce or use any such Hazardous Substance on, under or about the Property in violation of any applicable law or regulation. Site Owner shall defend, indemnify, protect and hold SBA harmless from and against all claims, costs, fines, judgments and liabilities, including attorney's fees and costs, caused by or arising from the presence, Release, or threatened Release of any Hazardous Substance or the acts, omissions or negligence of the Site Owner and its respective agents, contractors and employees arising prior to the Effective Date. With respect to Future Customers, SBA shall defend, indemnify, protect and hold Site Owner harmless from and against all claims, costs, fines, judgments and liabilities, including attorney's fees and costs, caused by any Future Customer bringing any Hazardous Substance onto the Property or any Release or threatened Release of any Hazardous Substance caused by any Future Customer, or the acts, omissions or negligence of any Future Customer. With respect to Existing Customers, SBA shall defend, indemnify, protect and hold Site Owner harmless from and against all claims, costs, fines, judgments and liabilities, including attorney's fees and costs, caused by any Existing Customer bringing any Hazardous Substance onto the Property, or the acts, omissions or negligence of any Existing Customer, to the extent that SBA is indemnified pursuant to the applicable Existing Agreement, as assigned. Notwithstanding the foregoing, SBA shall not amend any Existing Agreement, or replace any Existing Agreement with a new agreement for that Customer, which reduces the Customer's indemnification obligations from those in the Existing Agreement. The foregoing indemnities shall survive any termination of this Easement Agreement. Site Owner and SBA shall each provide to the other copies of any written notice, claim, government document, or complaint alleging a legal action arising from the Release or presence of Hazardous Materials or waste on, under, or at the Property that is received by that party.

14. GENERAL INDEMNITY: In addition to the environmental indemnity set forth above, Site Owner and SBA shall each indemnify, defend and hold the other harmless against any and all costs (including reasonable attorney's fees) and claims of liability or loss arising (i) due to the breach of any representation, warranty or covenant of such indemnifying party set forth herein; and (i) out of the use and/or occupancy of the Property and Easements by the indemnifying party. This indemnity shall not apply to any claims to the extent arising from the negligence or willful misconduct of the indemnified party.

COMPLIANCE: Both SBA and Site Owner shall comply with all applicable rules, regulations, laws, ordinances, statutes and requirements of all governmental authorities, as such pertain to their operations at the Property pursuant to this Easement Agreement.

16. TERMINATION: SBA shall surrender the Easements on or before the expiration of the Term or any earlier termination date, free and clear of any liens or encumbrances. Site Owner may not terminate this Easement Agreement. In the event SBA voluntarily ceases to use the Easements for a period of more than one year (for reasons other than casualty, condemnation or Act of God), the Easements shall be deemed abandoned. SBA may abandon the Easements for any reason or at any time by giving thirty (30) days' notice to Site Owner.

Upon abandonment, this Easement Agreement shall be terminated, and SBA and Site Owner shall execute and record such documents reasonably required to terminate the Easements and assign SBA's right title and interest in any then-existing Customer Agreements to Site Owner. Termination or abandonment does not entitle SBA to reimbursement of any consideration paid to Site Owner in connection with Site Owner's grant of this Easement, whether paid under this Easement or the Purchase Agreement. Upon termination of this Easement Agreement, the Easements shall be come null and void and the parties shall have no further obligations to each other, except that all provisions that by their nature are intended to survive termination, including but not limited to Sections 4, 13, 14, 16, and 20 shall survive the termination of the Easements.

ASSIGNMENT OF EASEMENT AGREEMENT; SECURED PARTIES: Provided that (i)SBA is not in default hereunder; (ii) SBA provides timely written notice of the assignment; and (iii) the assignee agrees to assume all of SBA's obligations hereunder (including those due and owing as of the effective date of assignment), SBA shall have the right to assign or transfer its interest in this Easement Agreement, in whole or part, to (a) any parent, subsidiary or Affiliate of SBA; (b) any entity with which or into which SBA is merged or consolidated; or (c) any corporation which acquires 51% or more of SBA's assets. Any assignment hereof by SBA other than pursuant to these terms and other than as collateral to a Secured Party, as described below, shall be subject to the prior written approval of Site Owner, which shall not be unreasonably withheld, conditioned or delayed, provided the proposed assignee unconditionally assumes all of SBA's obligations hereunder and provides Site Owner with a written assumption of SBA's liabilities and obligations under this Easement.

SBA may assign, mortgage or grant a lien on and/or a security interest in all of SBA's interest in and to this Easement Agreement and the Easements, and may assign this Easement Agreement and the Easements to any Secured Party or Secured Parties as collateral security for the repayment of any indebtedness to the Secured Parties, provided SBA transmits advance written notice thereof to Site Owner. Nothing contained herein shall be construed to grant a lien upon or security interest in any of Site Owner's assets. Should the Secured Parties exercise any rights of SBA under this Easement Agreement, Site Owner agrees to accept such exercise of rights by the Secured Parties as if same had been exercised by SBA, so long as Site Owner provided advance written notice of SBA's intended assignment, mortgage or grant of a lien on and/or a security interest in any or all of SA's interest in and to this Easement Agreement and the Easements to a Secured Party. This Easement Agreement may not be amended in any respect which would be reasonably likely to have a material adverse effect on the Secured Parties' interest or surrendered, terminated or cancelled, without the prior written consent of the Secured Parties. If this Easement Agreement is terminated or rejected in any bankruptcy proceeding Site Owner will enter into a new casement agreement with the Secured Party upon the same terms of this Easement Agreement, provided the Secured Party reimburses the Site Owner for its reasonable costs, including attorneys' fees, to process, prepare, and review the new easement agreement. If any Secured Party shall succeed to SBA's interest under this Easement Agreement, such Secured Party shall have no liability for any defaults of SBA accruing prior to the date that such Secured Party succeeds to such interest. Site Owner hereby waives any and all lien rights it may have, statutory or otherwise, in and to the Easements and/or the Systems or any portion thereof.

18. CASUALTY; CONDEMNATION:

Casualty. In the event of damage to or destruction of the Property or any part thereof not caused by SBA or any Customer which renders the Property unusable or inoperable, and as a result of which SBA determines that the Property is no longer suitable for SBA or the Customers to continue their operations and any necessary repairs have not been completed or cannot be reasonably completed within ninety (90) days from the date of the damage, SBA shall have the right, but not the obligation, to terminate this Easement Agreement and all of its duties and obligations therein upon written notice to Site Owner. If SBA does not terminate this Easement Agreement, any Revenue Share payment to Site Owner shall be reduced or abated in proportion to the actual reduction or abatement of rent paid by the Future Customers subject to Section 3.3.

Condemnation. In the event of condemnation, unless SBA is allowed by the condemning authorities to continue its operation on the Property, this Easement Agreement shall terminate as of the date title to the land vests in the condemning authority or the date SBA is required to cease its operation, whichever is earlier. SBA shall be entitled to seek its own award from the condemning authority provided such award does not reduce any award to Site Owner, DEFAULT: In the event of a default by SBA, Site Owner agrees to notify SBA and any Secured Parties in writing of such default, and to give SBA and/or any Secured Parties the right to cure any monetary default within a period of not less than twenty (20) days and sixty (60) days in which to cure any non-monetary default from SBA's receipt of the written default notice. IfSBA or any Secured Parties shall fail to cure the default in accordance with this Section 19, Site Owner shall have the right to injunctive relief, to require specific performance of this Easement Agreement, and to pursue an action for damages (including, without limitation, Site Owner's reasonable attorneys' fees and all reasonable costs and expenses incurred by Site Owner as a result of such violations). All of Site Owner's rights and remedies provided under this Easement Agreement are cumulative and may be pursued singularly, in any combination, and in any order. The failure to enforce any of the terms and provisions contained herein shall in no event be deemed to be a waiver of the right to thereafter strictly enforce the terms and provisions hereof. Notwithstanding anything to the contrary in this Easement Agreement, in no event may Site Owner terminate this Easement Agreement as a result of SA's failure to cure any violation of the terms contained herein. In the event that any dispute or claim arises that could impair the use or possession of the Systems by SBA or its Customers, SBA shall have the right to seek injunctive relief. In no event will a Secured Party have any obligation to cure a default by SBA. In the event of a default by Site Owner, SBA agrees to notify Site Owner in writing of such default, and to give Site Owner the right to cure the default within a period of not less than thirty (30) days from receipt of the written notice. In the event SA's default is the failure to maintain the structural sufficiency of the New Tower, SBA may cure by either performing, or having performed, the necessary repairs, or constructing a wireless communications tower as a replacement structure, for use as described herein. If a default by SBA or Site Owner is of such a nature that it cannot be reasonably cured in such thirty (30) day period, and if the defaulting party proceeds promptly to cure the same with due diligence, the time for curing such default shall be extended for such a period of time as may be reasonable to complete such curing. In the event that SBA or Site Owner has issued a notice of default for any non-monetary default and the defaulting party disputes that it is in default, such defaulting party shall, within ten (10) calendar days of receipt of said notice, submit to the other party a written request for dispute resolution. Upon receipt of a timely request for dispute resolution, the cure period provided above is tolled. Each party shall designate a senior representative ("Senior Representative") and the Senior Representatives for the parties shall meet as soon as conveniently possible, but in no case later than thirty (30) days after such a request is made, to attempt to resolve the controversy related to the default, Prior to any meetings between the Senior Representatives, the parties will exchange relevant information that will assist the parties in resolving the dispute. If the dispute cannot be resolved through dispute resolution within a reasonable time, not to exceed thirty (30) days, then the parties shall be free to pursue: (i) any other remedies it may have under this Easement, applicable law or in equity relating to such default; (i) arbitration or other legal action pursuant to Section 20 below, and (iii) may suspend or delay performance of its obligations under this Easement.

20. DISPUTES: SBA and Site Owner agree that, upon mutual agreement of the parties, any controversies relating to, in connection with, or arising out of this Easement Agreement, its modifications, making or the authority or obligation of the signatories hereto, 7 whether involving the principals, agents, brokers or others who actually subscribe hereto, may be resolved by arbitration. In the event that the parties agree to arbitrate any such controversy, the arbitration proceedings shall be held in the County and State in which the Property is located and shall be governed by one (1) JAMS arbitrator pursuant to JAMS' "Comprehensive Arbitration Rules and Procedures" as they exist at the time of the proceedings (including provisions for payment of fees and expenses) unless both parties mutually agree to instead utilize JAMS "Streamlined Arbitration Rules and Procedures." Arbitration shall not be mandatory and shall only be used if mutually agreed in writing by the parties with respect to any particular controversy. If either party participates in an action against the other party arising out of or in connection with this Easement Agreement or any covenants or obligations hereunder, then the prevailing party shall be entitled to have or recover from the other party, upon demand, all reasonable attorneys' fees, costs and expenses, including, without limitation, court costs, filing fees, recording costs, and all other legal and administrative costs and expenses incurred in connection therewith.

RIGHT OF FIRST REFUSAL FOR SALE OF FUTURE CUSTOMER REVENUE SHARE: This Section shall only apply if one or more Future Customers has installed a System upon the Easements, generating a Revenue Share payable to Site Owner.

This Section shall not apply in the event of a third party offer to purchase the entirety of the Property, including the Revenue Share payments.

If at any time during the Term, Site Owner receives a bona fide written offer from a third party to pay Site Owner for the right to purchase and receive the Revenue Share payments ("Offer") which Site Owner desires to accept, Site Owner shall first give SBA written notice of such Offer, including a copy of the proposed contract or letter of intent, prior to becoming obligated under such Offer, with such notice giving SBA the right to pay Site Owner for future Revenue Share payments. SBA shall have a period of thirty (30) days after receipt of Site Owner's notice and terms to exercise SBA's right to purchase the Revenue Share payments and exercise this right of first refusal by notifying Owner in writing. If SBA has not exercised its right to purchase the Revenue Share payments in writing to Site Owner within such thirty (30) day period, the Offer will be deemed rejected by SBA.

22. NO WARRANTY: Except as expressly set forth herein, Site Owner makes no representation or warranty of any kind as to the present or future condition of or suitability of the Site Owner's Property or Easements for SBA's use and disclaims any and all warranties express or implied with respect to the physical, structural, or environmental condition of Site Owner's Property, improvements thereon, and Easements, and the merchantability or fitness for a particular purpose.

23. delivery of this Easement Agreement have been obtained; (ii) except for the Existing Agreements and the Title Encumbrances disclosed on Exhibit "D," no leases, mortgages, deeds of trust or other encumbrances affect the New Tower or Easements as of the Effective Date, (iii) Site Owner has delivered to SBA true, correct and complete copies of the Existing Agreements, and, to Site Owner's best knowledgc, no party is in default of any of their respective obligations under the Existing Agreements; and (iv) Site Owner shall not use nor permit its affiliates, licensees, invitees or agents to use any portion of the New Tower or any other property owned or controlled by Site Owner, either directly or indirectly, in a manner which could result in default of the Existing Agreements or otherwise interfere with the operations of SBA and/or any Customers.

ESTOPPEL CERTIFICATE: Each party shall, within ten (10) days after request by the other party, execute and deliver to the requesting party, or the party designated by requesting party, a statement certifying (i) that this Easement Agreement is unmodified and in full force and effect (or, if there have been modifications, stating the modifications and that the modified Easement Agreement is in full force and effect); (i) whether or not, to the best knowledge of the responding party, the requesting party is in default in performance of any of its obligations under this Easement Agreement, and, if so, specifying each such default; (iii) that there are no amounts due to Site Owner by SBA; and, (iv) any other information reasonably requested concerning this Easement Agreement.

25. FORCE MAJEURE: The time for performance by Site Owner or SBA of any term, provision, or covenant of this Easement Agreement shall be deemed extended by time lost due to delays resulting from strikes, civil riots, floods, labor or supply shortages, material or labor restrictions by governmental authority, litigation, injunctions, and any other cause not within the control of Site Owner or SBA, as the case may be.

26. ZONING: To the extent any improvements, whether now or in the future existing, upon the Communication Easement do not meet zoning or other land-use requirements, or to the extent such improvements may otherwise have to be constructed and/or relocated, Site Owner hereby consents to the reasonable construction and/or relocation of such improvements to accommodate such requirements and agrees to reasonably cooperate with SBA to create a revised legal description for the Communication Easement and the Access and Utility Easement, at no cost to Site Owner. Site Owner shall promptly cooperate with SBA in making applications for obtaining all licenses, permits, and any other necessary approvals that may be required for SA's Permitted Use of the Easements consistent with the terms of the Easement Agreement.

27. LABOR STANDARDS. SBA is aware of the requirements of California Labor Code sections 1720, et seq., and 1770, et seq, as well as California Code of Regulations, Title 8, Section 16000, et seq. ("Prevailing Wage Laws"). SBA agrees to comply with such Prevailing Wage Laws with respect to any work under this Easement Agreement which constitutes, or is determined by the Department of Industrial Relations or by a court to be, a "public works" project under California law. Accordingly, SBA shall also defend, indemnify and hold the Site Owner, its elected officials, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Easement Agreement, from any claim or liability arising out of any failure or alleged failure by SBA to comply with the Prevailing Wage Laws in connection with this Easement Agreement.

SURVIVORSHIP: The provisions of and covenants contained in this Easement Agreement shall run with the land and shall bind and inure to the benefit of the Parties, and their respective successors, heirs and assigns. In the event of a sale or transfer of the Property, Site Owner shall provide SBA with the contact information (name, telephone, email) for the purchaser, as well as a copy of the bill RECORDATION: SBA, at its option, shall have the right to record a Memorandum of this Easement Agreement, in the form attached hereto as Exhibit "E" with the county clerk's office in which the Property is located and/or the county clerk's office in which this Easement Agreement was executed.

30. INTERPRETATION. The singular includes the plural and the plural includes the singular. The word "or" is not exclusive and the word "including" is not limiting. References to a law include any rule or regulation issued under the law and any amendment to the law, rule or regulation. References to a Section, Exhibit or Schedule mean a Section, Exhibit or Schedule contained in or attached to this Easement Agreement or the Purchase Agreement. This Easement Agreement will be interpreted and enforced in accordance with its provisions and without the aid of any custom or rule of law requiring or suggesting construction against the party drafting or causing the drafting of the provisions in question.
31 MISCELLANEOUS: (a) This Easement Agreement and all Exhibits attached hereto constitute the entire agreement and understanding of Site Owner and SBA with respect to the subject matter of this Easement Agreement, and supersedes all offers, negotiations and any other written or verbal agreements; (b) any amendments to this Easement Agreement must be in writing and executed by both parties; (c) this Easement Agreement is governed by, enforced and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws; (d) if any term of this Easement Agreement is found to be void or invalid, such provision shall be fully severable here from and such invalidity shall not affect the remaining terms of this Easement Agreement, which shall continue in full force and effect; (e) the section headings of this Easement Agreement have been inserted for convenience of reference only, and shall in no way modify or restrict the terms of this Easement Agreement; (f) this Easement Agreement may be executed in any number of counterparts and by facsimile, each of which shall, when executed, be deemed to be an original and all of which shall be deemed to be one and the same instrument; and (g) Site Owner and SBA each represent that the signatories of this Easement Agreement presently have and shall maintain full authority to enter into this Easement Agreement and to bind and obligate their respective organizations to the terms, rights and obligations under this Easement Agreement.

NOTICES: All notices required under or permitted by this Easement Agreement shall be given and served in writing, delivered personally, by overnight courier, or if sent by United States Mail, certified or registered, return receipt requested, providing proof If to Site Owner: City of Calexico
City Hall
608 Heber Avenue
Calexico, California 92231
ATTN: City Manager
If to SBA: SBA Towers XI, LLC
8051 Congress Avenue
Boca Raton, Florida 33487
ATTN: Site Administration
[SIGNATURES APPEAR ON THE FOLLOWING PAGES
The parties hereto have executed this Easement Agreement as of the Effective Date.

SITE OWNER:

THE CITY OF CALEXICO, CALIFORNIA, a California
municipal corporation
By:

Printed Name:

Title:

Date:

SBA:

SBA TOWERS XI, LLC, a Delaware limited liability company Printed Name: Neil Seidman
Title: Senior Vice President
Date:

ATTACHMENTS:

Schedule "1" Definitions
Exhibit "A" Legal Description of Property
Exhibit "B" Communication Easement Descriptiot
Exhibit "C" Access and Utility Easement Descriptior
Exhibit "D" Title Encumbrances
Exhibit "E" Form Memorandum
Exhibit "P" Existing Agreements
Exhibit "G" Construction Drawings of New Tower
10 SCHEDULE "1"

DEFINITIONS
The following defined terms shall apply throughout this Easement Agreement:

Access and Utility Easement- that portion of the Property for ingress and egress to and from the Communication Easement and First Street, a public right-of-way, and for the construction, installation, operation and maintenance, repair and removal of utilities providing service to the Communication Easement and the Systems, and any related activities and uses, as described on Exhibit "C"

2. Affiliate- a party controlling, controlled by, or under common control with SBA. of Niacy-wo Thousad Twe Hundred Fishy Right and 00/100 Dollars (32283,00, which shall increase in accordance with the Base Rent- the total annualized rent pursuant to all Existing Agreements as of the Effective Date hereof, in the amount escalations in the Existing Agreements.

Communication Easement- the portion of the Property granted to Existing Customers pursuant to the Existing Agreements, and the portion of the Property actually in use by the Existing Customers, together with the portion of the Property necessary for the placement of the New Tower and more particularly described on Exhibit "B."

5. Customers- collectively, the Existing Customers and Future Customers.

Customer Agreements- collectively the Existing Agreements and any agreements with Future Customers granting occupancy and use of the Easements during the Term.

7. Easements- collectively, the Communication Basement and Access and Utility Easements.

8. Existing Agreements- the lease and license agreements encumbering the Property as of the Effective Date and identified in Exhibit "P" as may be amended from time-to-time shall remain Existing Agreements.

9. Existing Customers- third parties operating Systems at the Property as of the Effective Date pursuant to the Existing Agreements. Existing Customers who execute amendments or new agreements for the same or enhanced Systems shall remain Existing Customers.

10. Existing Revenue- the revenue generated by the Existing Agreements.

11. Future -_Customers- third parties operating Systems at the Property pursuant to leases, licenses or other agreements between SBA and those third parties granting occupancy of the Property during the Term.

12. Hazardous Substance- shall mean any substance which is (f) designated, defined, classified or regulated as a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any Environmental Law, as currently in effect or as hereafter amended or enacted, (i) a petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, (v) asbestos, (vi) flammable explosives, (vii) infectious materials, or (viii) radioactive materials. "Environmental Law(s)" means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Sections 9601, et seg., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et seq., the Toxic Substances Control Act, 15 U.S.C. Sections 2601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. 5101, et seq., and the Clean Water Act, 33 U.S.C. Sections 1251, et seq., the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the Hazardous Substance Account Act, Health and Safety Code Section 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Section 25249.5 et seq.; California Health and Safety Code Section 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Section 25170.1 et seq.; California Health and Safety Code Section 25501 et seg. (Hazardous Materials Release Response Plans and Inventory); or the California Porter-Cologne Water Quality Control Act, Water Code Section 13000 et seg., as said laws have been supplemented or amended to date, the regulations promulgated pursuant to said laws and any other federal, state or local law, statute, rule, regulation or ordinance which regulates or proscribes the use, storage, disposal, presence, cleanup, transportation or release or threatened release into the environment of Hazardous Materials.

13. Memorandum- the Memorandum of Easement Agreement, attached to and made a part of this Easement Agreement.

New Tower - the approximately One Hundred Thirty (130) foot self-support tower to be constructed by SBA, as more particularly described and depicted in Exhibit "G" to this Easement Agreement.

Schedule "1"
Offer-a bona fide written offer from a third party to pay Site Owner for the right to purchase and receive the Revenue Share payments.
elease shall mean any depositing, spilling, leaking, pumping, pouring, placing, emitting, discarding, abandonin nptying, discharging, migrating, injecting, escaping, leaching, dumping, or disposing into the environmer Revenue Share- an amount equal to Seventy percent (70%) of the total revenue collected by SBA from Future Customers utilizing the Easements, in excess of the Base Rent.

Secured Party- third parties to which SBA may assign, mortgage or grant a security interest or lien in all of SBA nterest in and to this Easement Agreement and the Easements quipmen, transm gone a wire in communication facility eids a for conco of antin, mouses, potem daton alecton ew towers, whether temporary or otherwis
Telecommunications Purposes- the transmission, reception and relay of communication signals, intended to provide radio frequency coverage to the Property and areas surrounding the Property over the wireless spectrum.

21. Term- a period of fifty-five (55) years commencing on the Effective Date.

Water Tank- the structure comprising the uppermost portion of the Water Tower above the existing mechanical room, approximately one hundred (100) feet above the natural grade of the Property. The Water Tank includes the steel angle guardrail and catwalk affixed thereto.

Water Tower- the approximately one hundred forty-one (141) foot structure currently located within the Property, containing the Water Tank and Water Tower Support Structure, to be decommissioned in such a manner to preserve the Water Tank for Site Owner's relocation to a new location and replaced with the New Tower.

Water Tower Support Structure- the portion of the Water Tower below the Water Tank, comprising the legs and foundation of the Water Tower.

Schedule "1"
EXHIBIT "A"

LEGAL DESCRIPTION OF PROPERTY

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF IMPERIAL, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

Lots 1,2 and 3 of Block 73, and all of Block 74 and 75 of the Townsite of Calexico, in the City of Calexico, County of Imperial, State of California, according to map thereof No. 911 on file in the Office of the County Recorder of the County of San Diego, a copy of which being North file in the Office of the County Recorder of the County of gether with the South 20 feet of First Street and that portion of Heber Avenue between Blocks 73 and 74 ar ing South of the North line of the South 20 feet of 1st Street, all as vacated and closed to public use t Resolution of the City Council of the City of Calexico.

Ex 24, 9 has on then 28, i or al 3, and to the United States of America by Deed recorded APN: 058-535-001-000
Exhibit "A"
Legal Description of Property
EXHIBIT "B"

COMMUNICATION EASEMENT
Site Owner agrees that this Exhibit "B" will be replaced with descriptions and/or depictions from an As-Built survey conducted by SBA at SBA's option that depict and/or describe the Communication Easement.

That portion of the Property on which any Systems exist on the date of this Easement Agreement together with the portion of the Property leased by Site Owner under the Existing Agreements, as substantially described as follows:

The entirety of the portion of Property depicted as the _on the attached survey prepared by for SBA and described as follows:

The Communication Basement described above, includes the New Tower upon the Property, which New Tower is suitable for the attachment and installation of Systems as described in the Agreement.

Exhibit "B"
Communication Easement Description
EXHIBIT "C"

ACCESS AND UTILITY EASEMENTS
Site Owner agrees that this Exhibit "C" will be replaced with descriptions and/or depictions from an As-Built survey conducted by SBA at SBA's option that depict and/or describe the Access and Utility Easements That portion of the Property provided by Site Owner under the Existing Agreements for Existing Customer access to the Systems and utility providers, substantially described as follows:

Exclusive Access Basement:

All rights of ingress and egress across the portion of the Property containing the New Tower, to and from the Communication Easement described in Exhibit "B" hereof, providing access to a publicly dedicated roadway, including but not limited to East First Street, a portion of which is described as follows:

Utility Easement:

A non-exclusive easement in, to, under and over portion of the Property containing the New Tower for ingress and egress to the Communication Easement, risers, conduits, shafts, raceways or other designated space to connect the telecommunications equipment to other locations inside or outside the structure as is necessary to install wiring, electronic equipment and other personal property, and to support and maintain the Systems, along with the right to use said Exclusive Access Easement and Utility Easement for the development, repair, maintenance and removal of utilities providing service to the Communication Easements and the Systems, as defined herein, and any related activities and uses and described as follows:

Exhibit "C"
Access and Utility Easement Description
EXHIBIT "D"

TITLE ENCUMBRANCES
Site Owner agrees that this Exhibit "D" may be replaced upon Purchaser's receipt of an updated Title Commitment.

SBA Site ID SBA Site Name Commitment File No. Effective Date CA24329-A-R 352 East First Street 00722398-988-DN1 February 26, 2021 Exhibit "p"
Title Encumbrances
EXHIBIT "E"
Form Memorandum
Instrument Prepared By:

SBA Towers XI, LLC
Elizabeth Chace
8051 Congress Avenue
Boca Raton, FL. 33487
(561) 981-9917
Upon Recording Return to:

SBA Towers XI, LLC
Attn: Mergers & Acquisitions
8051 Congress Avenue
Boca Raton, FL 33487
(561) 981-9917
SBA Site ID: CA24329-A, 352 East First Street

MEMORANDUM OF EASEMENT AND ASSIGNMENT AGREEMENT
This Memorandum of Easement and Assignment Agreement is entered into this , 202 by and between THE CITY OF CALEXICO, CALIFORNIA, a California municipal corporation (hereinafter referred to as "Site Owner") and SBA TOWERS XI, LLC, a Delaware limited liability company (hereinafter referred to as "SBA")

1. Site Owner and SBA entered into an Easement Agreement on this date pursuant to which Site Owner has granted to SBA an exclusive easement on a portion of the Property identified in Exhibit "1," which Easement area is more clearly defined and described on Exhibit "2" and Exhibit "3," for the purpose of installing, removing, operating and maintaining radio communication systems and other accessories. All of the foregoing is set forth in the Easement Agreement.

2. The term of the Easement Agreement shall be for a period of fifty-five (55) years commencing on On the date hereof, Site Owner sold, transferred and assigned to SBA all of its right, title and interest in and to those agreements identified in Exhibit "4," attached hereto and made a part hereof. {SIGNATURE PAGE FOLLOWS}
Exhibit "E"
Form Memorandum
Accepted by: Site Owner Accepted by: SBA
THE CITY OF CALEXICO, CALIFORNIA, a California SBA TOWERS XI, LLC, a Delaware limited liability company municipal corporation
By: _ By:

Printed Name: Printed Name: Neil Seidman
Title: Title: Senior Vice President
Date: Date:

State of: California State of: Florida
County of: County of: Palm Beach
(NOTARIZATION PAGE FOLLOWS)
Exhibit "g»
Form Memorandum

ACKNOWLEDGMENT
State of California
County of
On _ before me, _
(insert name and title of the officer
_ who provide to me on the basis of satisfactory evidence to be the person 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)

STATE OF FLORIDA

COUNTY OF PALM BEACH
Signature of Notary Public
Printed Name of Notary Public
Place Notary Seal and/or Stamp Above
My Commission Expires
Exhibit "F"
Form Memorandum
EXHIBIT "1"
to Memorandum of Easement Agreement

LEGAL DESCRIPTION OF PROPERTY
See Exhibit "A" to Easement Agreement
to Memorandum of Basement Agreement
EXHIBIT "2"
to Memorandum of Easement Agreement

COMMUNICATION EASEMENT
See Exhibit "B" to Easement Agreement
to Memorandum of Basement Agreement
EXHIBIT "3"
to Memorandum of Easement Agreement

ACCESS AND UTILITY EASEMENTS
See Exhibit "C" to Easement Agreement
FYHIRIT "2
› Memorandum nf Rasement Aareeme:

EXHIBIT "4"
to Memorandum of Easement Agreement

EXISTING AGREEMENTS
See Exhibit "F" to Easement Agreement
to Memorandum ofBasement Agreement
EXHIBIT "Т"

EXISTING AGREEMENTS
Site Owner sells, assigns and transfers to SBA, as of the Effective Date herein, all of its right, title and interest in, to and under the following existing lease or license agreements, as amended, and any assignments thereof from a third party or prior owner of the Property to Site Owner, affecting any portion of the Property leased by Site Owner under the Existing Agreements:

California Lease Agreement dated on or about September 12, 2005, by and beiween the City of Calexico, as landlord, and New Cingular Wireless PCS, LLC, as fenant.

Ground Lease and Tower License Agreement daled May 1, 1992, by and between the City of Calexico, as landlord, and Contel Cellular of California, Ine, as tenant, as amended by Amendment and Extension of Lease Agreement dated January 25, 1999, Second Amendment and Extension of Lease Agreement dated June 4, 2008, Third Amendment to Ground Lease and Tower License Agreement dated May 21, 2013, and Fowth Amendment to Ground Lease and Tower License Agreement dated October 17, 2014.

Non-Exclusive License Agreement for Cellular Site dated June 18, 2014, by and between the City of Calexico, as grantor, and T-Mobile West LL.C, as grantee.

U.S. Govemment Lease for Real Property dated November 13, 2000, by and between the City of Calexico, as lessor, and he United States of America, as lessee.

EXHIBIT "G"
Exhibit "P"
Existing Agreements

CONSTRUCTION DRAWINGS OF NEW TOWER
Fyhibit "C»
Construction Drawings of New Tower