[2023-79 Contract Cell Tower Park Exhibit A.pdf]
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EXHIBIT
OPTION AND GROUND LEASE AGREEMENT
THIS OPTION AND GROUND LEASE AGREEMENT (“Agreement”) is made this
day of , 2023, by and between the CITY OF NORTH OLMSTED, an Ohio
municipal corporation (“Optionor’) and TOWERCO 2013 LLC, a Delaware limited liability company
(“Optionee”).
I. OPTION TO LEASE
1, Grant of Option. Optionor is the owner of a parcel or parcels of real property located
in the county of Cuyahoga, State of Ohio, as more particularly described in Exhibit A annexed hereto
(the “Parent Parcel”). For good and valuable consideration and the mutual promises herein set forth,
Optionor hereby gives and grants unto Optionee and its assigns, an exclusive and irrevocable option
(“Option”) to lease a certain portion or portions of the Parent Parcel (the “Property’”), together with
easements for ingress, egress and utilities for the duration of this Agreement (collectively, the
“Easement’”), The Property together with the Easement is collectively the “Premises” and are more
particularly described and/or depicted on Exhibit B attached hereto. Optionor agrees and
acknowledges that Optionee may at Optionee’s sole cost and expense have a metes and bounds survey
prepared of the Premises and that the legal description of the Premises as shown on the survey shall
thereafter become the legal description of the Premises. Any assignment of this Option that is entered
into by Optionor or Optionee shall be subject to the provisions of this Agreement. Optionee may not
assign this Agreement without the consent of Optionor.
2. Option Initial Term. The initial term of this Option shall be for eighteen (18) months
from the date this Option is executed by Optionee (“Option Initial Term”).
3. Consideration for Option. Consideration for the Option Initial Term granted
hereunder shall be Five Hundred and No/100 Dollars ($500.00) (“Option Consideration”). Payment of
the Option Consideration by Optionee to Optionor shall be credited in full to the first year’s Rent
payment due Optionor if this Option is exercised by Optionee.
4. Extension of Option. This Option can be extended at the discretion of Optionee for
two (2) additional period(s) of twelve (12) months each (“Option Renewal Term(s)’”) by Optionee
paying to Optionor the additional consideration of Five Hundred and No/100 Dollars ($500.00)
(“Option Extension Consideration”) prior to the expiration of the then existing term of this Option.
Any Option Extension Consideration shall be credited in full to the first year’s Rent due Optionor if
this Option is exercised by Optionee.
5. Optionor’s Representations and Warranties. As an inducement for Optionee to enter
into and be bound by the terms of this Option, Optionor represents and warrants to Optionee and
Optionee’s successors and assigns that Optionor (i) has good and marketable title to the Premises, (ii)
has the authority to enter into and be bound by the terms of this Option, (iii) to the best of Optionor’s
knowledge, there are no pending or threatened lawsuits, administrative actions (including bankruptcy
or insolvency proceedings) suits, claims or causes of action against Optionor or which may otherwise
affect the Premises; and (iv) the Premises are not presently subject to an option, lease, agreement or
other contract which may adversely affect Optionor’s ability to fulfill its obligations under this Option.
Optionor covenants and agrees that it shall not grant an option or enter into any contract which will
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TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
adversely affect Optionee’s Intended Use (as defined in Paragraph 10 below) of the Premises until this
Option expires or is terminated by Optionee.
The representations and warranties of Optionor shall survive the exercise of the Option and
the termination or expiration of the term of this Agreement.
6. Taxes. Optionor shall pay any ad valorem taxes or other special assessment taxes
attributable to the Premises during the Option.
7. Inspections and Investigations. Optionor hereby grants to Optionee, its officers,
agents, employees and independent contractors the right and privilege to enter upon the Premises at
any reasonable time after the date of this Option, upon prior notification of Optionor, to perform or
cause to be performed test borings of the soil, environmental audits, engineering studies and to
conduct a survey of the Premises. Upon reasonable notification, Optionor shall grant Optionee access
by personnel with any necessary keys or access codes to the Premises if needed for ingress and egress,
and Optionee shall not unreasonably interfere with Optionor’s use of the Premises in conducting these
activities.
8. Further Acts. Optionor shall cooperate with Optionee in executing any documents
necessary to protect Optionee’s rights under this Option or Optionee’s use of the Premises and to take
such action as Optionee may reasonably require to effect the intent of this Option.
I]. LEASE AGREEMENT
9. Exercise of Option. Upon the tender of written notice of Optionee’s intent to exercise
the Option, the terms of this Agreement applying to the lease of the Premises shall govern the
relationship of the parties and this Agreement shall thereafter be referred to as the “Lease,” Optionor
shall thereafter be referred to as Lessor and Optionee shall thereafter be referred to as Lessee. The date
of the written notice to exercise the Option shall constitute the commencement date of the Lease
(“Commencement Date”).
10. Use. The Premises may be used by Lessee and Lessee’s tenants and licensees for the
transmission and receipt of wireless communication signals in any and all frequencies, the
construction, maintenance, operation, subleasing and licensing of towers, antennas, and buildings, and
related facilities and activities, and for any other uses which are incidental thereto (“Intended Use”).
Lessee and its sublessees and licensees shall have emergency access to the Premises twenty-four (24)
hours a day, seven (7) days a week and shall otherwise have reasonable access upon notification.
Lessor agrees to cooperate with Lessee in obtaining, at Lessee’s expense, all licenses and permits
required for Lessee’s use of the Premises (the “Governmental Approvals’). Lessor further agrees to
cooperate with Lessee in executing and delivering any documents requested by Lessee to obtain
Government Approvals necessary for its Intended Use. In the event that Lessee’s Intended Use of the
Premises is actually or constructively prohibited then, in addition any other remedies available to
Lessee, Lessee shall have the option to terminate this Lease with notice to Lessor. Lessee grants to
Lessor the rights to locate equipment, approved in advance by Lessee, on the tower between the 90
and 140 height level (maximum of ten feet of vertical space), specifically parties anticipate the
possible installation of safety forces radio antennae, including but not limited to Ohio Marks system,
above the 140’ height, and also anticipate possible installation of electrical lighting fixtures (stadium
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TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
lighting) below the 90’ height, including but not limited to radar or lightening alert systems. It is the
parties’ intention that the Lessee’s accommodation of Lessor equipment, at no cost, shall not displace
or interfere with leasable tower space available to co-locators. Lessor shall provide Lessee with
construction drawings depicting a Class 3 Tower for Lessee’s review and approval prior to the
installation of the equipment. Lessor shall also provide Lessee with a complete listing of the
equipment which Lessor desires to install on the tower prior to Lessee purchasing the construction
materials for the Improvements, as defined below. Lessor’s rights, as provided above, shall only
include the initial installation of equipment and shall not include any future modifications or
improvements, unless such modifications and improvements do not impact the structural capacity of
the tower site.
11. Term. The term of this Lease shall be forty (40) years commencing on the
Commencement Date and terminating on the fortieth (40) anniversary of the Commencement Date
(“Term”).
12. Intentionally Deleted.
13. Consideration. Lessee shall pay Lessor a lump sum payment of Four Hundred
Thousand Dollars ($400,000) as the sole consideration, other than the Co-Location Lump Sum Rent
Payments, as provided herein, for leasing the Premises (‘‘Rent”).
14. Improvements; Utilities; Access.
(a) Subject to compliance with zoning review and approval, as well as issuance of
building code permits, as necessary, including but not limited to landscaping or buffering
requirements, Lessee shall have the right, at Lessee’s sole cost and expense, to erect and maintain on
the Premises all improvements, personal property and facilities necessary or desired for its Intended
Use at a location approved by the Lessor (collectively the “Improvements”). The Improvements shall
remain the exclusive property of the Lessee throughout the term, upon and after the termination of this
Lease. Lessee may construct, alter, demolish, reconstruct, restore, replace, supplement, modify and
reconfigure the Improvements at any time during the Initial Term or any Renewal Term of this Lease.
Lessee shall remove all of the above-ground portions of the Improvements not later than one hundred
eighty (180) days following any termination of this Lease. Lessor grants Lessee the right to clear all
trees, undergrowth, or other obstructions and to trim, cut, and keep trimmed and cut all tree limbs
which may interfere with or fall upon the Improvements or Premises. Lessor grants Lessee a non-
exclusive easement in, over, across and through other real property owned by Lessor as reasonably
required for construction, installation, maintenance, and operation of the Improvements.
(b) Lessee shall have the right to install power, telecommunications, cables,
conduit, and any other utilities, including cabinets, vaults and improvements directly related to such
utilities, on the Property, at Lessee’s expense, and to improve present utilities on the Premises
(including but not limited to the installation of emergency power generators). Lessee shall have the
right to permanently place utilities on (or to bring utilities across or under) the Premises and the
Improvements. In the event that utilities necessary to serve the equipment of Lessee or the equipment
of Lessee’s licensee(s) or sublessee(s) cannot be located within the Premises, Lessor agrees to
cooperate with Lessee and to act reasonably in allowing the location of utilities on the Parent Parcel or
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TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
other real property owned by Lessor without requiring additional compensation from Lessee or
Lessee’s licensee(s) or sublessee(s). Lessor shall, upon Lessee’s request, execute within fifteen (15)
days a separate written easement to the utility company providing the service or Lessee in a form
which may be filed of record evidencing this right. Lessee shall, prior to any ground clearing, tree
removal, installation of access drives or underground utility lines, conduct a tree survey and
present improvement plans to the Lessor. Lessee’s improvement plans shall be subject to review
and approval by Lessor and Lessee shall not initiate such improvement prior to plan approval
and issuance of any and all required state and local permits.
(c) Lessor grants to Lessee, its officers, agents, employees, sublessees, licensees
and their independent contractors, the right and privilege to enter upon the Premises and the Parent
Tract, to perform or cause to be performed test borings of the soil, environmental audits, engineering
studies and to conduct a survey of the Premises and all or part of the Parent Tract. Lessor grants
Lessee and its sublessees and licensees a license to use such portion of Lessor’s property contiguous to
the Premises on a temporary basis as reasonably required during the Term or any Renewal Term of
this Lease for the construction, installation, maintenance or removal of the Improvements, including
access for construction machinery and equipment, storage of construction materials and equipment and
staging areas.
(d) Lessor represents and warrants to Lessee that Lessee shall at all times during
this Lease enjoy ingress, egress and emergency access from the Premises twenty-four (24) hours a
day, seven (7) days a week to an open and improved public road which presently exists and which
shall be adequate to service the Premises and the Improvements. If no such public road exists or
ceases to exist in the future, Lessor will grant an exclusive easement to Lessee, Lessee’s sublessees
and assigns so that Lessee may, at its own expense, construct a suitable private access drive to the
Premises and the Improvements. To the degree such access is across other property owned by Lessor,
Lessor shall execute an easement within fifteen (15) days of evidencing this right and Lessor shall
maintain access to the Easement in a free and open condition so that no interference is caused to
Lessee by other lessees, licensees, invitees or agents of the Lessor which may utilize the Easement.
15. Termination. Except as otherwise provided herein, this Lease may be terminated,
without any penalty or further liability upon written notice as follows:
(a) By either party upon a default of any covenant or term hereof by the other
party which default is not cured within sixty (60) days of receipt of written notice of default (without,
however, limiting any other rights available to the parties pursuant to any other provisions hereof);
provided, that if the defaulting party commences good faith efforts to cure the default within such
period the cure period may be extended upon mutual agreement, in writing, of the parties hereto;
(b) Upon thirty (30) days’ written notice by Lessee to Lessor if (i) Lessee is
unable to obtain or maintain any license, permit or other Governmental Approval necessary for the
construction and operation of the Improvements or Lessee’s business, or (ii) Lessee’s Intended Use of
the Premises is actually or constructively interfered with or technological obsolescence; or (iii)
Lessee’s suffers loss of tenancy due to bankruptcy rendering financial performance impossible; and
Notwithstanding termination, the Lessee shall continue to pay Rents pending removal of the
Improvements, which removal shall occur within 180 days at Lessee’s expense.
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TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
16. Subleases. Lessee at its sole discretion shall have the right, without the consent of or
notice to Lessor, to license, sublease or otherwise allow the occupancy of all or a portion of the
Premises and the Improvements. If Lessee licenses or subleases a portion of the Premises to a third
party for the purpose of sending and receiving telecommunications signals (each such grant a
Sublease”) then Lessee agrees to pay to Lessor, as additional rent, an amount equal to Nine Hundred
and No/100 Dollars ($900.00) per month (“Co-Location Rent”) which shall escalate on the
anniversary of the Commencement Date by two percent (2%) under the following conditions: (i)
Lessee shall only be required to pay the Co-Location Rent Payment where the Sublease is with a
major wireless carrier (such as Verizon, AT&T, Sprint or T-Mobile); and (ii) Lessee shall not be
required to pay Lessor the Co-Location Rent Payment for the first or initial Sublease (“Anchor
Tenant’).— In the event the Anchor Tenant vacates the Premises, Lessee shall have the right to
substitute the Anchor Tenant with an existing sublessee or licensee who shall become the new Anchor
Tenant. The Co-Location Rent Payment for each such Sublease shall be paid to Lessor on the first day
of the month following the commencement date of the relevant Sublease and shall be the only
consideration for each Sublease (other than the Anchor Tenant). Lessee shall have sole discretion as
to whether, and on what terms, to enter into, amend or terminate any such Sublease, and there shall be
no express or implied obligation of Lessee to do so nor is Lessor a third-party beneficiary of any
Sublease. Lessee’s licensee(s) and sublessee(s) shall be entitled to modify the tower and
Improvements, and erect and install additional improvements and personal property on the Premises
and Improvements, subject to compliance with zoning review and approval, as well as issuance
of building code permits, as necessary, including but not limited to antennas, dishes, cabling,
utilities, emergency or back up power, generators, and equipment shelters. Lessee’s licensee(s) and
sublessee(s) shall be entitled to all rights of ingress and egress to the Premises, the right to install
utilities on the Premises and the right to use the Premises for the Intended Use as if said licensee or
sublessee were the Lessee under this Lease.
17. Taxes. Lessee shall pay any personal property taxes assessed on the Improvements.
Lessor shall pay when due all real property taxes and all other fees and assessments attributable to the
Premises. In the event that Lessor fails to pay when due any taxes affecting the Premises or the
Easement, Lessee shall have the right but not the obligation to pay such taxes and deduct the full
amount of the taxes paid by Lessee on Lessor’s behalf from future payments of Rent. Lessor agrees to
provide to Lessee a copy of any notice, assessment or billing relating to any real or personal property
taxes for which Lessee is responsible under this Lease within thirty (30) days of receipt of same by
Lessor. Lessee shall have no obligation to make payment of any real or personal property taxes until
Lessee has received notice, assessment or billing relating to such payment in accordance herewith.
Lessee shall have the right, at its sole option, and at its sole cost and expense, to appeal, challenge or
seek modification of any real or personal property tax assessment or billing for which Lessee is wholly
or partly responsible for payment under this Lease. Lessor shall reasonably cooperate with Lessee in
filing, prosecuting and perfecting any appeal or challenge to real or personal property taxes as set forth
herein, including but not limited to executing consent to appeal or other similar document.
18. Damage or Destruction. If the Premises or the Improvements are destroyed or
damaged so as to hinder the effective use of the Improvements in Lessee’s judgment, Lessee may elect
to terminate this Lease as of the date of the damage or destruction by so notifying the Lessor.
19. Condemnation. If a condemning authority takes all of the Premises, or a portion
sufficient in Lessee’s determination, to render the Premises in the opinion of Lessee unsuitable for the
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TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
use which Lessee was then making of the Premises, this Lease shall terminate the earlier of (i) the date
title vests in the condemning authority or (ii) the date the condemning authority takes possession of the
Premises or a portion of it. Lessor and Lessee shall share in the condemnation proceeds in proportion
to the values of their respective interests in the Premises (which for Lessee shall include, where
applicable, the value of its Improvements, moving expenses, prepaid rent, lost business, goodwill, and
business relocation expenses). A sale of all or part of the Premises to a purchaser with the power of
eminent domain in the face of the exercise of eminent domain power shall be treated as a taking by
condemnation for the purposes of this paragraph. Except as provided in this paragraph, generally
applicable condemnation law will apply in the event of a condemnation.
20. Insurance. Lessee, at Lessee’s sole cost and expense, shall procure and maintain on
the Premises and on the Improvements, bodily injury and property damage insurance with a combined
single limit of at least One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Such insurance
shall insure, on an occurrence basis, against liability of Lessee, its employees and agents arising out of
or in connection with Lessee’s use of the Premises and Improvements. Lessee shall name Lessor an
Additional Insured under its policy and shall provide Lessor with a Certificate of Additional
Insurance. Lessor, at Lessor’s sole cost and expense, shall procure and maintain on the Parent Parcel,
bodily injury and property damage insurance with a combined single limit of at least One Million
Dollars ($1,000,000) per occurrence. Such insurance shall insure, on an occurrence basis, against
liability of Lessor, its employees and agents arising out of or in connection with Lessor’s use,
occupancy and maintenance of the Parent Parcel.
21. Interference. Lessor shall not, nor shall Lessor permit its lessees, licensees, invitees or
agents, to use any portion of the Parent Parcel or adjacent real property owned or controlled by Lessor
in any way which interferes with Lessee’s Intended Use of the Premises. Such interference shall be
deemed a material breach of this Lease by Lessor and Lessor shall have the responsibility to terminate
such interference upon notification.
22. Environmental Compliance. Lessor represents, warrants and agrees (1) that neither
Lessor nor, to Lessor’s knowledge, any third party has used, generated, stored or disposed of, or
permitted the use, generation, storage or disposal of, any contaminants, oils, asbestos, PCBs,
hazardous substances or wastes as defined by federal, state or local environmental laws, regulations or
administrative orders or other materials the removal of which is required or the maintenance of which
is prohibited, regulated or penalized by any federal, state or local government authority (“Hazardous
Materials”) on, under, about or within the Parent Parcel and/or Easement in violation of any law or
regulation, and (2) that Lessor will not, and will not permit any third party to use, generate, store or
dispose of any Hazardous Materials on, under, about or within the Parent Parcel and/or Easement in
violation of any law or regulation. Lessee agrees that it will not use, generate, store or dispose of any
Hazardous Material on, under, about or within the Premises in violation of any law or regulation. This
Lease shall at the option of Lessee terminate and be of no further force or effect if Hazardous
Materials are discovered to exist on the Parent Parcel and/or Easement through no fault of Lessee after
Lessee takes possession of the Premises.
23. Environmental Indemnities.
(a) Lessee, its heirs, grantees, successors, and assigns shall indemnify, defend,
reimburse and hold harmless Lessor from and against environmental damages caused by the presence
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TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
of Hazardous Materials on the Premises arising solely as the result of Lessee’s activities after the
execution of this Lease.
(b) Lessor shall, upon demand of Lessee, and at Lessor’s sole cost and expense,
promptly take all actions to remediate the Parent Parcel and/or Easement which are required by any
federal, state or local governmental agency or political subdivision or which are reasonably necessary
to mitigate environmental damages or to allow full economic use of the Premises, which remediation
is necessitated from the presence upon, about or beneath the Parent Parcel and/or Easement of a
Hazardous Material. Such actions shall include but not be limited to the investigation of the
environmental condition of the Parent Parcel and/or Easement, the preparation of any feasibility
studies, reports or remedial plans, and the performance of any cleanup, remediation, containment,
operation, maintenance, monitoring or actions necessary to restore the Parent Parcel and/or Easement
to the condition existing prior to the introduction of Hazardous Material upon, about or beneath the
Parent Parcel and/or Easement notwithstanding any lesser standard of remediation allowable under
applicable law or governmental policies.
(c) The duties and indemnifications in this paragraph shall survive expiration or
earlier termination of this Lease.
24. Notices. All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt
requested, or via a nationally recognized overnight delivery service to the following addresses or to
such other addresses as may be specified in writing at any time during the term of this Lease:
If to Lessor, to:
City of North Olmsted
5200 Dover Center Road
North Olmsted, OH 44070
Attention: Safety Director
Phone: 440-716-4136
Fax: 440-777-0480
Email: glaunerd@north-olmsted.com
If to Lessee, to:
TowerCo 2013 LLC
5000 Valleystone Drive, Suite 200
Cary, North Carolina 27519
Attention: Property Management
Site ID#: OH0391
25. Title and Quiet Enjoyment. Lessor warrants and represents that (i) it has the full right,
power, and authority to execute this Lease; (ii) it has good and marketable fee simple title to the
Premises free and clear of any liens and encumbrances or mortgages; (iii) there are no easements,
licenses, rights, covenants or restrictions on use related to or affecting the Premises which will
interfere with Lessee’s Intended Use of the Premises; and (iv) the execution of this Lease by Lessor
will not cause a breach or an event of default of any other agreement(s) to which Lessor is a party, and
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TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH040!
(v) the Premises constitutes a legal lot that may be leased without the need for any subdivision or
platting approval. Lessor covenants that it shall comply with all applicable laws, regulations and
requirements related to the Property and that Lessee shall have the quiet enjoyment of the Premises
during the term of this Lease. In the event that Lessor fails to keep the Premises free and clear of any
liens and encumbrances, Lessee shall have the right but not the obligation to satisfy such lien or
encumbrance and deduct the full amount paid by Lessee on Lessor’s behalf from future installments of
Rent.
26. Occurrence of Lessor Default. The covenants, representations and conditions in this
Agreement are mutual and dependent. Upon the occurrence of any breach or nonperformance of any
representation, warranty, covenant, agreement or undertaking made by Lessor in this Agreement
(“Default”), Lessee shall have the option to pursue any one or more of the following remedies without
notice or demand: (a) Lessee, may, at its sole election, terminate the Lease; (b) Lessee, may, without
being obligated and without waiving the Default, cure the Default, whereupon Lessor shall pay to
Tenant, upon demand, all costs expenses, and disbursements incurred by Tenant to cure the Default.
Tenant shall be permitted to offset said costs, expenses and disbursements incurred by Tenant against
Rent or any other amounts due or becoming due by Tenant to Landlord under this Lease; or (c) Tenant
shall be entitled to pursue any and all other rights or remedies available at law or equity, including
specific performance of this Lease, with respect to Landlord’s default.
27. Assignment. Upon written notice to Lessee, Lessor is permitted to transfer this Lease
only in connection with the sale of the Parent Parcel and only on the following conditions: (a) the
acquiring party must and will assume in writing all of the rights and obligations of Lessor under this
Lease on and after the date of purchase of the Parent Parcel and (b) Lessor must retain no rights or
obligations under the Lease after the date of sale of the Parent Parcel (a “Lessor Permitted
Assignment”). Lessee may assign this Lease without the consent of but only following prior
reasonable notice to Lessor. From and after the date this Lease has been sold, assigned or transferred
by Lessee to a third party agreeing to be subject to the terms hereof, Lessee shall be conditionally
released from any and all liability under this Lease, including the payment of any rental or other sums
due, without any further action, so long as the Assignee assumes full responsibility. Lessor shall grant
novation after said Assignee performs obligations for five (5) years. Additionally, Lessee may
mortgage or grant a security interest in this Lease and the Improvements, and may assign this Lease
and the Improvements to any such mortgagees or holders of security interests including their
successors and assigns (hereinafter collectively referred to as “Secured Parties”). If requested, Lessor
shall execute such consent to leasehold financing as may reasonably be required by Secured Parties.
Lessor agrees to notify Lessee and Lessee’s Secured Parties simultaneously of any default by Lessee
and to give Secured Parties the same right to cure any default as Lessee except that the cure period for
any Secured Party shall not be less than ten (10) days after the receipt of the default notice If a
termination, disaffirmance or rejection of the Lease pursuant to any laws (including any bankruptcy or
insolvency laws) by Lessee shall occur, or if Lessor shall terminate this Lease for any reason, Lessor
will give to the Secured Parties prompt notice thereof and Lessor will give the Secured Parties the
right to enter upon the Premises during a thirty (30)-day period commencing upon the Secured Party’s
receipt of such notice for the purpose of removing any Improvements. Lessor acknowledges that the
Secured Parties shall be third-party beneficiaries of this Lease.
TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
28. Successors and Assigns. This Lease shall run with the Premises and shall be binding
upon and inure to the benefit of the parties, their respective heirs, successors, personal representatives
and assigns.
29. Waiver of Lessor’s Lien. Lessor hereby waives any and all lien rights it may have,
statutory or otherwise, in and to the Improvements or any portion thereof, regardless of whether or not
same is deemed real or personal property under applicable laws.
30. Waiver of Incidental and Consequential Damages.
31. Liability and Indemnity. Lessee shall indemnify and hold Lessor harmless from all
claims (including reasonable attorneys’ fees, costs and expenses of defending against such claims)
arising from the negligence or willful misconduct of Lessee or Lessee’s agents or employees in or
about the Property. The duties described herein survive termination of this Lease.
32. Right of First Refusal; Sale of the Premises. If Lessor elects, during the term of the
Option or during the Initial Term or any Renewal Terms of the Lease, (i) to sell or otherwise transfer
to a third party all or any portion of the Premises, whether separately or as part of a larger parcel of
which the Premises is a part, or (ii) to grant to a third party by easement, or other legal instrument, an
interest in and to any portion of the Property for any purpose relating to operating and maintaining
communications facilities or the management thereof, with or without an assignment of this agreement
to such third party (including but not limited to assignments of rental streams associated with this
agreement), Lessee shall have the right of first refusal to meet any bona fide offer of sale, assignment,
or any other transfer on the same terms and conditions as such offer. Lessor shall immediately provide
the Lessee with a copy of the bona fide offer together with a notice a notice describing the offer in
sufficient detail. If Lessee fails to accept such bond fide offer within thirty (30) days after receipt of
the foregoing, Lessor may sell or grant the easement or interest in the Property in accordance with the
terms of such bona fide offer.
33. Miscellaneous.
(a) Each party agrees to furnish to the other, within ten (10) days after request,
such truthful estoppel information as the other may reasonably request.
(b) This Lease constitutes the entire agreement and understanding of the parties
with respect to the subject matter of this Lease, and supersedes all offers, negotiations and other
agreements. There are no representations or understandings of any kind not set forth herein. Any
amendments to said Lease must be in writing and executed by the parties.
(c) If either party is represented by a real estate broker in this transaction, that
party shall be fully responsible for any fees due such broker and shall hold the other party harmless
from any claims for commission by such broker.
(d) Lessor agrees to cooperate with Lessee in executing any documents necessary
to protect Lessee’s rights under this Lease or Lessee’s use of the Premises, including but not limited to
affidavits relating to title curative measures and subordination and non-disturbance agreements and to
take any further action which Lessee may reasonably require as to effect the intent of this Lease.
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TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
(e) This Lease shall be construed in accordance with the laws of the state in
which the Premises is situated.
(f) If any term of this Lease is found to be void or invalid, such invalidity shall
not affect the remaining terms of this Lease, which shall continue in full force and effect.
(g) Upon request of Lessee, Lessor shall promptly execute and deliver to Lessee
such documents as Lessee requests to evidence Lessee’s rights in the Premises, including a
memorandum of option and a memorandum of lease and/or amendments thereto. Lessee may file such
documents of record in the property records in the county in which the Premises are located.
(h) Lessee may obtain title insurance on its interest in the Premises and Easement,
and Lessor shall cooperate by executing documentation required by the title insurance company. In the
event the Premises is encumbered by a mortgage or deed of trust, Lessor agrees to obtain and furnish,
within thirty (30) days written request by Lessee, a non-disturbance agreement to the effect that Lessee
and Lessee’s sublessees or licensees will not be disturbed in the occupancy of the Premises by any
foreclosure; provided that the rights and interests of Lessee under this Lease shall be subject and
subordinate to such mortgage or deed of trust.
(i) This Lease may be executed in two or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or more counterparts
have been signed by the each of the parties, it being understood that all parties need not sign the same
counterpart and that scanned or electronically reproduced copies of this Agreement shall have the
same force and effect as originals.
() Lessor will not, during the term of this Lease together with any extensions
thereof, enter into any other lease, license, or other agreement for a similar purpose as set forth herein,
on or adjacent to the Property.
(m) In any case where the approval or consent of one party hereto is required,
requested or otherwise to be given under this Lease, such party shall not unreasonably condition, delay
or withhold its approval or consent.
[SIGNATURES BEGIN ON NEXT PAGE]
TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
IN WITNESS WHEREOF, Optionor and Optionee have executed this Agreement and Lease
as of the date affixed to their signatures below.
OPTIONOR/LESSOR:
CITY OF NORTH OLMSTED, an Ohio municipal corporation
By:
Name:
Title:
Date:
STATE OF )
) ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this (date) by
(name of officer or agent, title of officer or agent)
of City of North Olmsted a municipal corporation, on behalf of the municipal corporation.
Notary Public
Print Name
Title (and Rank):
My commission expires:
Serial Number, if any: (seal)
TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
OPTIONEE/LESSEE:
TOWERCO 2013 LLC,
a Delaware limited liability company
By:
Name:
Title:
Date:
STATE OF NORTH CAROLINA )
) ss:
COUNTY OF WAKE )
The foregoing instrument was acknowledged before me this (date) by
(name), (title) of TowerCo 2013
LLC, a Delaware limited liability company, on behalf of the limited liability company.
Notary Public
Print Name
Title (and Rank):
My commission expires: (seal)
Serial Number, if any:
12
TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
EXHIBIT A
DESCRIPTION OF PARENT PARCEL
The Parent Parcel is described and/or depicted as follows:
TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
EXHIBIT B
DESCRIPTION OR DEPICTION OF PREMISES
An approximately square foot tract of land, together with easements for ingress, egress and
utilities described or depicted as follows:
LEASE AREA
20’ WIDE ACCESS & UTILITY EASEMENT
(see attached Survey)
Note: At Lessee’s option, Lessee may replace this Exhibit with an exhibit setting forth the legal description of the Premises,
or an as-built drawing depicting the site. Any visual or textual representation of the Improvements and facilities is illustrative
only, and does not limit the rights of Lessee as provided for in the Lease. Without limiting the generality of the foregoing:
1. The Premises may be setback from the boundaries of Lessor’s property as required by the applicable governmental
authorities.
2. The access road’s width may be modified as required by governmental authorities, including police and fire
departments.
3. The locations of any access and utility easements are illustrative only. Actual locations may be determined by Lessee
and/or the servicing utility company in compliance with local laws and regulations.
14
TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
Prepared by and after recording return to:
TowerCo
5000 Valleystone Drive, Suite 200
Cary, North Carolina 27519
(Recorder’s Use Above this Line)
STATE OF OHIO Parcel No:
COUNTY OF CUYAHOGA
MEMORANDUM OF AGREEMENT
This Memorandum of Agreement is entered into on this _ day of ,20_,
by and between CITY OF NORTH OLMSTED, an Ohio municipal corporation, having a mailing
address of 5200 Dover Center Road, North Olmsted, OH 44070 (hereinafter referred to as “Lessor’’)
and TOWERCO 2013 LLC, a Delaware limited liability company having a mailing address of 5000
Valleystone Drive, Suite 200, Cary, North Carolina 27519 (hereinafter referred to as “Lessee”).
1. Lessor and Lessee entered into that certain Option and Ground Lease Agreement dated the
____ day of , 2023 (the “Lease’’) for certain real property and easements as described in
Exhibit B attached hereto (collectively, the “Premises”), which are a portion of that certain parcel of
real property located in North Ridgeville, County of Cuyahoga, State of Ohio, described in Exhibit A
attached hereto (the “Land”’).
2. The Option Initial Term is for a period of eighteen (18) months, with two (2) Option Renewal
Terms of twelve (12) months. At any time during the Option Initial Term or any Option Renewal
Term, Lessee may provide written notice to Lessor of its election to exercise the Option. Upon
exercise of the Option, the Lease shall commence for a term of fifty (50) years. Should Lessee fail to
exercise the Option during the Option Initial Term or any Option Renewal Term, the Lease shall be
void and of no further force or effect.
3. The purpose of this Memorandum is to give record notice of the Lease and of the rights
created thereby, all of which are hereby confirmed. In the event of a conflict between the terms of this
Memorandum or the addition of any terms in this Memorandum which are not contained in the Lease,
the Lease shall control. The terms of the Lease are hereby incorporated by reference.
4. Upon written notice to Lessee, Lessor is permitted to transfer the Lease only in connection
with the sale of the Land and only on the following conditions: (a) the acquiring party must and will
15
TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
assume in writing all of the rights and obligations of Lessor under this Lease on and after the date of
purchase of the Land and (b) Lessor must retain no rights or obligations under the Lease after the date
of sale of the Land (a “Lessor Permitted Assignment”). Other than a Lessor Permitted Assignment,
Lessor is prohibited from assigning, selling or otherwise transferring the Lease in whole or in part and
Lessor is prohibited from granting any third party an easement or other real property interest in the
Premises.
5. Pursuant to the Lease, Lessee has a right of first refusal to meet any bona fide offers for (i) any
sale or transfers of the Land, and any (ii) grant from Lessor to a third party by easement or other legal
instrument of an interest in and to any portion of the Land, the Premises or the Lease for any purpose
relating to operating and maintaining communications facilities or the management thereof, with or
without an assignment of the Lease to such third party, including but not limited to assignments of any
right to the rent or rental stream associated with the Lease.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
16
TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
IN WITNESS WHEREOF, the parties have executed this Memorandum under seal as of the dates set
forth in the respective acknowledgements.
LESSOR:
CITY OF NORTH OLMSTED, an Ohio municipal corporation
By:
Name:
Title:
Date:
STATE OF )
) ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this (date) by
(name of officer or agent, title of officer or agent)
of City of North Olmsted a municipal corporation, on behalf of the municipal corporation.
Notary Public
Print Name
Title (and Rank):
My commission expires:
Serial Number, if any: (seal)
17
TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
LESSEE:
TowerCo 2013 LLC,
a Delaware limited liability company
By:
Name:
Title:
Date:
STATE OF NORTH CAROLINA )
) ss:
COUNTY OF WAKE )
The foregoing instrument was acknowledged before me this (date) by
(name), (title) of TowerCo 2013
LLC, a Delaware limited liability company, on behalf of the limited liability company.
Notary Public
Print Name
Title (and Rank):
My commission expires: (seal)
Serial Number, if any:
18
TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
EXHIBIT A
DESCRIPTION OF LAND
The Land is described and/or depicted as follows:
TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
EXHIBIT B
DESCRIPTION OR DEPICTION OF PREMISES
An approximately square foot tract of land, together with easements for ingress, egress and
utilities described or depicted as follows, exact legal description to be determined by survey.
LEASE AREA
20’ WIDE ACCESS & UTILITY EASEMENT
(see attached Survey)
Note: At Lessee’s option, Lessee may replace this Exhibit with an exhibit setting forth the legal description of the Premises,
or an as-built drawing depicting the site. Any visual or textual representation of the Improvements (as defined in the Lease)
and facilities is illustrative only, and does not limit the rights of Lessee as provided for in the Lease. Without limiting the
generality of the foregoing:
1.
2,
The Premises may be setback from the boundaries of Lessor’s property as required by the applicable governmental
authorities and as may be recommended by Lessor.
The access road’s width may be modified as required by governmental authorities, including police and fire
departments, and shall be constructed of crush aggregate unless Lessee proposes and Lessor approves other
material.
The locations of any access and utility easements are illustrative only. Actual locations may be determined by Lessee
and/or the servicing utility company in compliance with local laws and regulations and subject to Lessor’s approval.
Lessee shall submit improvement plans to Lessor depicting the location of utilities and access drive and Lessee
shail not initiate ground clearing, tree removal, installation or construction of such improvement prior to Lessor
approval.
20
TowerCo Site Name: North Olmsted Park
TowerCo Site Number: OH0401
---
[2023-79 Contract Cell Tower Park.pdf]
CITY OF NORTH OLMSTED
RESOLUTION NO. 2023 - 79
By: Mayor Jones
A RESOLUTION AUTHORIZING THE MAYOR TO ENTER INTO AN
OPTION AND GROUND LEASE AGREEMENT WITH TOWERCO 2013
LLC TO PROVIDE FOR A MONOPOLE CELLULAR TOWER LOCATED
AT NORTH OLMSTED PARK, AND FURTHER AUTHORIZING THE
MAYOR
TO
EXECUTE
ALL
CONTRACT
DOCUMENTS,
AND
DECLARING AN EMERGENCY.
WHEREAS, the City of North Olmsted has received and reviewed a proposal from
TowerCo. 2013 LLC ("TowerCo.") to construct a monopole cellular tower on City property, to
be located generally north of the Community Cabin in North Olmsted Park, with space to
accommodate four (4) carriers at a height not to exceed one hundred and forty feet (140'), as well
as a secure ground compound for equipment; and
WHEREAS, TowerCo. proposes an Option and Ground Lease Agreement, a copy of
which is attached hereto as Exhibit A, in order to secure a tower location, which location is
consistent with the Recreation Master Plan, and subject to review and recommendation to this
Council by the Planning and Design Commission; and
WHEREAS, TowerCo. proposes to compensate the City in the amount of Four Hundred
Thousand Dollars ($400,000.00) upon the exercise of its Option and upon the commencement of
the forty (40) year term, and propose; further TowerCo. proposes to pay additional rent at the
rate of Nine Hundred Dollars ($900.00) per month in the event that specified additional co-
locator sublease space on the cell tower; and
WHEREAS, it is the desire of Council to authorize the Mayor, on behalf of the City of
North Olmsted, to enter into an Option and Ground Lease Agreement, in consideration of a 40-
year term and advanced lump sum payment in the amount of $400,000.00, together with fixed
co-locator rents, if applicable; and
NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
NORTH OLMSTED, COUNTY OF CUYAHOGA AND STATE OF OHIO:
SECTION 1: That the Mayor be and she is hereby authorized to enter into and sign, on
behalf of the City of North Olmsted, an Option and Ground Lease Agreement with TowerCo.
2013 LLC, a copy of which is attached as Exhibit A, for the purpose of permitting the
construction of a cellular monopole tower of not more than one hundred and forty feet (140'), at
2
a location generally north of the Community Cabin in North Olmsted Park, subject to final
development plan approval by the City, for a term of forty (40) years, in consideration of
advancement payment of rent in the amount of $400,000.00, and such further terms and
conditions including but not limited to additional co-locator rents, as set forth in said Option and
Ground Lease Agreement, subject to only such changes therein as are not substantially adverse
to the City and which are approved by the Mayor and the Director of Law. The character of any
such changes as not being substantially adverse to the City shall be evidenced conclusively by
the execution of the lease agreement by the Mayor and the approval of the agreement by the
Director of Law.
SECTION 2: That this Resolution is hereby declared to be an emergency measure
immediately necessary for the public health, safety and welfare to expedite the substantial
federal, state and local review and approval process prior to construction; and further provided it
receives the affirmative vote of two thirds of the members of Council, it shall take effect upon its
approval by the Mayor.
PASSED: ________________________
First Reading: _______________
Second Reading: _______________
Third Reading: _______________
Committee: __________________
ATTEST:
_____________________________
__________________________
BEATRICE TAYLOR
LOUIS J. BROSSARD
APPROVED: _____________________
APPROVED AS TO LEGAL FORM:
_______________________________
/s/ Michael R. Gareau, Jr._________
MAYOR NICOLE DAILEY JONES
MICHAEL R. GAREAU, JR.
Director of Law