HomeMy WebLinkAbout5905City: Tenant:
The City of Bremerton Vertical Bridge Development, LLC
345 6th Street, Suite 100 750 Park of Commerce Drive, Suite 200
Bremerton, WA 98337 Boca Raton, FL 33487
Site #: US -WA -5107
Site Name: Forest Ridge
OPTION AND LEASE AGREEMENT
THIS OPTION AND LEASE AGREEMENT (this "Agreement") is made this44hday
of bb l� ' , 2018 (the "Effective Date"), by and between the City of Bremerton, a
Washington municipal corporation (which acquired the portion of the Property in the East half of
the Southwest quarter of the Southeast quarter as the City of Charleston), hereinafter the "City,"
whose address is 345 6th Street, Suite 100, Bremerton, WA 98337, and Vertical Bridge
Development, LLC, a Delaware limited liability company, hereinafter, "Tenant," whose address
is 750 Park of Commerce Drive, Suite 200, Boca Raton, FL 33487.
WHEREAS, the City owns certain real property located at 3100 1" Street, Bremerton, WA
98337 (APN: 152401-4-021-2007) in the County of Kitsap, in the state of Washington, that is
commonly known as Forest Ridge Park and that is more particularly described and/or depicted in
Exhibit 1 attached hereto (the "Property"); and
WHEREAS, the Tenant desires to lease from City a certain portion of the Property
measuring approximately 40' x 40' (approximately 1,600 square feet) (the "Premises"), which
Premises is more particularly described and/or depicted in Exhibit 2 attached hereto, for the
erection of a communications tower.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree:
1. OPTION TO LEASE.
(a) City grants to Tenant the exclusive option to lease the Premises.
(b) From and after the date of this Agreement as set forth above for the time period set
forth below (the "Option Period"), and at any time during the Term (defined below) with advance
notice to the City, Tenant and its agents, engineers, surveyors and other representatives will have
the right to enter upon the Property to inspect, examine, conduct soil borings, drainage testing,
material sampling, and other geological or engineering tests or studies of the Property (collectively,
the "Tests"), to apply for and obtain licenses, permits, approvals, or other relief required of or
deemed necessary or appropriate at Tenant's sole discretion for its use of the Premises and include,
without limitation, applications for zoning variances, zoning ordinances, amendments, special use
permits, and construction permits (collectively, the "Government Approvals"), initiate the
ordering and/or scheduling of necessary utilities, and otherwise to do those things on the Property
that are necessary to determine the physical condition of the Property, the environmental history
of the Property, City's title to the Property and the feasibility or suitability of the Property for
Tenant's Permitted Use, all at Tenant's expense. Tenant will not be liable to City or any third
party on account of any pre-existing defect or condition on or with respect to the Property, whether
or not such defect or condition is disclosed by Tenant's inspection. Tenant shall obtain City
approval prior to any physical disturbance of the Property, and such approval shall not be
unreasonably withheld, delayed or conditioned. Tenant will restore the Property to its condition
as it existed at the commencement of the Option Period (as defined below), reasonable wear and
tear and casualty not caused by Tenant excepted. In addition, Tenant shall indemnify, defend and
hold City harmless from and against any and all injury, loss, damage or claims arising directly out
of Tenant's Tests.
(c) In consideration of City granting Tenant the Option Period, Tenant agrees to pay
City the sum of Five Hundred Dollars ($500.00) within thirty (30) business days of the full
execution of this Agreement. The Option Period will be for a term of one (1) year from the
Effective Date.
(d) During the Option Period, Tenant may commence the Initial Term of this
Agreement by notifying City in writing. If Tenant commences the Initial Term, then City leases
the Premises to the Tenant subject to the terms and conditions of this Agreement. If Tenant does
not commence the lease portion of this Agreement during the Option Period, this Agreement will
terminate and the parties will have no further liability to each other.
2. TERM.
(a) The lease portion and Term shall commence on the first day of the month in which
Tenant begins construction if such construction commences on or before the 15th day of the month,
or the first day of the month after Tenant commences construction if such construction commences
after the 15th day of the month (the "Commencement Date"). Unless extended or sooner
terminated as herein provided, the initial term shall be for a period of five (5) years following the
Commencement Date ("Initial Term").
(b) Tenant shall have the option to extend the Term of this Agreement for four (4)
successive terms of five (5) years each (each a "Renewal Term"). Each Renewal Term shall
commence automatically, unless Tenant delivers notice to City of its intent not to renew, such
notice to be delivered not less than sixty (60) days prior to the end of the then -current Term. For
purposes of this Agreement, "Term" shall mean the Initial Term and any applicable Renewal
Term(s).
3. RENT.
(a) Base rent. Tenant shall pay City beginning at Commencement Date a monthly
rental payment of One Thousand Seven Hundred Fifty Dollars ($1,750.00) ("Rent"), at the address
set forth above on or before the fifth (5th) day of each calendar month in advance, together with
such month's leasehold excise tax in accordance with Section 4 below. Rent will be prorated for
any partial month. The initial Rent payment will be forwarded by Tenant to City within thirty (30)
days from Commencement Date.
I
Each year after the first year of the Term of the Agreement, the Rent shall be increased by
three percent (3%).
Any payments received after the due date and after any applicable cure period shall include
a late payment penalty of two percent (2%) of the monthly rental fee for each day or part thereof
past the due date.
(b) One -Time Payment. In addition to the commencement of Rent as set forth above,
Tenant will pay to City a one-time payment of Five Thousand Two Hundred Fifty Dollars ($5,250.00)
within sixty (60) days after the Commencement Date, which shall not be a credit toward Rent or any other
fee that may be due under this Agreement.
There shall be no revenue share fee. However, Tenant's right to sublet, consistent with
this Agreement, shall be contingent upon: Tenant furnishing City with a copy of each proposed
sublease and City approval thereof, sublessee compliance with this Agreement's requirements to
the extent applicable, and the Tenant's continued ownership and control over the tower facility
unless otherwise agreed by the City. The City encourages co -location on existing
telecommunications facilities and to that end the City agrees not to unreasonably withhold, delay
nor condition approval of subleases.
(c) Reservation of Space on Tower for City - Additional consideration.
(i) At no rent due from City to Tenant nor any reduction in the Rent, City shall
be allowed, at City's sole expense, to attach its communication antennas to Tenant's
telecommunications tower provided City first obtains Tenant's written consent, with such consent
not to be unreasonably withheld. Pursuant to the foregoing, Tenant hereby agrees to reserve on
behalf of City a ten foot (10') vertical envelope (360 degrees) at a height of eighty feet (80') to
ninety feet (90') with a centerline of eighty-five (85') on Tenant's tower at the Premises in the
event Tenant builds a tower on the Premises ("City's Tower Space"). Any equipment installed
on City's Tower Space shall not exceed seven thousand and five hundred (7,500) square inches of
wind loading capacity. Tenant's approval for said attachments shall be contingent upon
determining whether Tenant's tower is properly engineered to accommodate City's antenna system
and such transmission shall not result in any impairment or diminution in the quality of Tenant's
service. Further, said approval shall be given only after Tenant has reviewed and approved City's
engineering plans for said antenna attachments. Approval shall not be unreasonably withheld.
Upon written approval by Tenant, said attachments shall be installed, at City sole expense, by
qualified licensed contractors and in accordance with Tenant's directives for the method of
installment. In addition to the City being responsible for its own installation, the City shall also
be responsible for its own utilities and operations and agrees that any ground space required for
City's Tower Space shall be outside the Premises. City acknowledges and agrees that Tenant
reserves the right to relocate City's antennas at any time(s) to accommodate modifications required
for Tenant's future system requirements, provided such relocation shall provide equivalent quality
of service after such relocation.
(ii) Any reservation of right granted to the City pursuant to this Section is
solely limited to City's use only of the ten foot (10') vertical envelope described above and City
acknowledges and agrees that the City does not have the right to lease, license, sublease,
3
sublicense, etc. such space on the tower on the Premises to any other party including, without
limitation, any wireless communication entity.
4. TAXES. Tenant shall pay any personal property taxes assessed on, or any portion of such
taxes attributable to, the communication facility located on the Premises. Tenant agrees to pay the
leasehold excise tax on the rent payment pursuant to Chapter 82.29A RCW currently in the amount
of 12.84 percent (12.84%) and as may be adjusted pursuant to Chapter 82.29A RCW. The
leasehold excise tax applies to revenue sharing of sublessees' rent payments pursuant to Section 3
of this Agreement. Tenant shall be responsible for paying business and occupation, and/or other
taxes or licenses which may in the future be assessed as a direct result of the Tenant's operations
at the Premises.
5. USE AND INSPECTION.
(a) The Premises are being leased for the purpose of erecting, installing, operating and
maintaining one (1) radio or communications tower, transmitting and receiving equipment,
antennas, dishes, mounting structures, equipment shelters and other supporting structures, and
related equipment (the "Facility," or collectively, the "Communication Facilities") and to
sublease or license space to subtenants or licensees in accordance with the terms of this Agreement.
Tenant may, subject to the foregoing, make any improvement, alteration or modification to the
Premises as may be necessary; however, in the event Tenant desires to increase the height of the
original Tower or place any Facility on the Tower that will protrude above the height of the Tower,
or to add any Facility that protrudes off the side of the Tower in excess of ten feet (10'), Tenant
must first obtain City's permission which shall not be unreasonably denied. Tenant must obtain
City permission to clear the Premises of any trees, vegetation, or undergrowth which interferes
with Tenant's use of the Premises for the intended purposes; City shall not unreasonably deny such
clearing. Tenant shall have the exclusive right to install and operate upon the Premises one (1)
communications tower, cabinets, equipment, antennas, dishes, fencing, and other accessories
related thereto, and to alter, supplement, and/or modify same, pursuant to plans submitted to and
approved by City.
(b) Tenant agrees to obtain an inspection of its Communication Facilities at a minimum
of once every five years by a state -licensed engineer capable of certifying the structural integrity
of the facilities (the "Inspection"). The Inspection must be compliant with the inspection
procedures set forth in the Telecommunications Industry Association's TIA-222 (G or current
revision). Any structural problems must be brought to the attention of the City
immediately. Written reports shall be generated for all such Inspections, and Tenant shall retain
all reports of all structural inspections — whether required under this Agreement or not for the
duration of this Agreement. Tenant shall provide a copy of any inspection report to the City upon
request.
6. ACCESS AND UTILITIES. At all times during the Term, Tenant, and its agents,
customers, lessees, sublessees and assigns shall have the unrestricted, exclusive right to use, and
shall have free access to, the Premises seven (7) days a week, twenty-four (24) hours a day. City
for itself, its successors and assigns, hereby grants and conveys unto Tenant, its customers,
employees, agents, sublessees, sublicensees, successors and assigns a nonexclusive Easement(s)
(defined below) for: (i) ingress and egress, (ii) construction, installation, maintenance, and
4
operation of the Communication Facilities, and (iii) the construction, installation, operation and
maintenance of overhead and underground electric and other utility facilities (including wires,
poles, cables, conduits and appurtenant equipment), with the right to reconstruct, improve, add to,
enlarge, change and remove such facilities, over, across and through the Easement for the benefit
of and access to the Premises, subject to the terms and conditions herein set forth. City agrees to
cooperate with Tenant's efforts to obtain such utilities and services. If there are utilities already
existing on the Premises which serve the Premises, Tenant may utilize such utilities and services
to the extent possible. The rights granted to Tenant herein shall also include the right to partially
assign its rights hereunder to any public or private utility company or authority to facilitate the
uses contemplated herein, and all other rights and privileges reasonably necessary for Tenant's
safe and efficient use and enjoyment of the easements for the purposes described above.
The Easement(s) are defined as both the access and utility easements as depicted on Exhibit
2. The Easements shall be included in any recorded Memorandum of Lease. The Easements will
not be perpetual and shall expire upon the last to occur of (i) expiration or termination of this
Agreement, or (ii) removal by Tenant of all its property from the Premises after expiration or early
termination of this Agreement.
Tenant agrees that City may, at City's expense, relocate the access only portion of the
Easement to another location on the Property, provided that (i) City provides Tenant with at least
sixty (60) days prior written notice, and (ii) Tenant's resulting access and beneficial use of the
Premises is equivalent to that contemplated in this Agreement.
7. EQUIPMENT, FIXTURES AND REMOVAL. Tenant's tower, all improvements,
equipment or other property attached to or otherwise brought onto the Premises shall at all times
be the personal property of Tenant and/or its subtenants and licensees. Tenant or its customers
shall have the right to erect, install, maintain, and operate on the Premises such equipment,
structures, fixtures, signs, and personal property in accordance with the terms of this Agreement,
and such property shall not be deemed to be part of the Premises, but shall remain the property of
Tenant or its customers. Within ninety (90) days after the expiration or earlier termination of this
Agreement (the "Removal Period"), Tenant at its sole expense shall remove its improvements
and restore the Premises to grade and to its condition prior to this Agreement and shall perform all
obligations under this Agreement during the Removal Period, including without limitation, the
payment of Rent at the rate in effect upon the expiration or termination of this Agreement. City
may allow Tenant, by written agreement, to abandon its property in place, but City shall not be
obligated to compensate Tenant for the property or any value derived therefrom. If City does not
allow abandonment and Tenant does not remove its property within the Removal Period, Tenant
must reimburse City for its reasonable costs in having the property removed and the Premises
restored.
Tenant understands and agrees that its improvements, equipment and other property shall
meet all applicable local, State and Federal code. City may require screening, fencing, and other
safety and aesthetic features due to the nature of the Property. In addition, City may limit any
future changes (from the original approved installation) to the height and width of the
Communication Facilities and all other improvements and modifications to maintain the overall
aesthetic of the original design.
8. ASSIGNMENTS OR TRANSFERS OF THIS AGREEMENT. City may assign this
Agreement only in its entirety and only to a purchaser acquiring fee title to the entire Property,
subject to Section 17. As to Tenant, this Agreement may be sold, assigned or transferred by Tenant
without any approval or consent of City to Tenant's lender, principal, affiliates, subsidiaries,
subsidiaries of its principal or to any entity which acquires all of or substantially all of Tenant's
assets or ownership interests by reasons of merger, acquisition or other business reorganization (a
"Pre -Approved Transaction"). As to transfers or assignments that do not constitute a Pre -
Approved Transaction, Tenant shall be required to obtain City's prior written consent, which
consent shall not be unreasonably conditioned, withheld or delayed and, provided that (i) City is
provided an instrument of assumption by an assignee that assumes all of the obligations of Tenant
under this Agreement (ii) such assignee owns not less than one thousand (1,000)
telecommunications towers, and (iii) assignee pays City any assignment or other fee required under
the Bremerton Municipal Code as currently written or hereafter amended, Tenant shall be relieved
of all liability hereunder. Tenant shall have the exclusive right to sublease or grant licenses without
City's consent to use the radio tower or any other tower or structure or equipment on the Premises,
but no such sublease or license shall relieve or release Tenant from its obligations under this
Agreement. Further, with respect to Tenant:
(a) This Agreement shall not be assigned or transferred in any manner within twelve
(12) months after the initial grant of this Agreement, unless otherwise provided.
(b) Absent extraordinary and unforeseeable circumstances, no system or integral part
of a system shall be assigned or transferred before construction of the telecommunications facility
has been completed.
(c) Tenant shall provide to City any reasonable information pertaining to any transfer
or assignment pursuant to this Section that is requested by City.
(d) Any transfer or assignment of this Agreement, system, or integral part of a system
not in accordance with the foregoing shall be void and is cause for revocation of this Agreement.
9. TRANSACTIONS AFFECTING CONTROL OF THIS AGREEMENT. Any
transactions which singularly or collectively result in a change of fifty percent (50%) or more of
the ownership or working control of the Tenant, of the ownership or working control of the
telecommunications facility, of the ownership or working control of affiliated entities having
ownership or working control of the Tenant or of a telecommunications facility, or of control of
the capacity or bandwidth of the Tenant's telecommunication system, facilities or substantial parts
thereof, shall be considered an assignment or transfer requiring City approval pursuant to Section
8 hereof. Transactions between affiliated entities are not exempt from City approval. The Tenant
shall promptly notify the City prior to any proposed change in, or transfer of, or acquisition by any
other party of control of Tenant's company. Every change, transfer, or acquisition of control of a
Tenant's company shall cause a review of the proposed transfer. In the event that the City adopts
a resolution or other appropriate order denying its consent and such change, transfer or acquisition
of control has been effected, the City may cancel this Agreement. Approval shall not be required
for mortgaging purposes or if said transfer is from the Tenant to another person or entity
controlling, controlled by, or under common control with the Tenant.
10. COVENANTS, WARRANTIES AND REPRESENTATIONS.
(a) City warrants and represents that it is the owner in fee simple of the Premises, free
and clear of all liens and encumbrances except as to those which may have been disclosed to
Tenant, in writing prior to the execution hereof, and that it alone has full right to lease the Premises
for the Term set out herein.
(b) City shall not do or knowingly permit anything that will interfere with or negate
any special use permit or approval pertaining to the Premises or cause any tower on the Premises
to be in nonconformance with applicable local, state, or federal laws. City shall cooperate with
Tenant in any effort by Tenant to obtain certificates, permits, licenses and other approvals that may
be required by any governmental authorities. City agrees to execute any necessary applications,
consents or other documents as may be reasonably necessary for Tenant to apply for and obtain
the proper zoning approvals required to use and maintain the Premises and the tower site, provided
Tenant complies with application, zoning, and all other City department requirements.
(c) Tenant shall not generate, release, spill, store, deposit, or dispose of (collectively
"Release") any hazardous substances, sewage, petroleum products, hydrocarbons, radioactive
substances, medicinal, bacteriological, or disease -producing substances, hazardous materials,
toxic substances or any pollutants or substances defined as hazardous or toxic in applicable federal,
state, and local laws and regulations ("Hazardous Substances") in, on or about the Premises, the
Property or any Easement. To the extent that Tenant must use generators, batteries or vehicles,
the obligations of Tenant contained in this Section shall apply to any spill or leakage of fuel, acid,
or any other chemical. Tenant shall clean up and restore all affected areas, including testing and
abatement for any soil contamination, and shall obtain all applicable permits to so restore the areas,
at Tenant's sole expense and as soon as possible but not later than seven (7) days after such spill
or leakage. Tenant shall indemnify, defend and hold City, its officers, employees, successors and
assigns harmless from any and all debts, liens, claims, liabilities, administrative orders and notices,
demands, losses, damages, cleanup costs, response costs, personal injuries, interest, fines,
penalties, costs and expenses (including reasonable attorneys' fees and consultants' fees) and all
other out-of-pocket expenses arising out of or in any way related to the Release by Tenant, or any
of its agents, employees, customers, sublicensees or sublessees, or the presence of such Hazardous
Substances in, on or about the Premises occurring at any time after the Commencement Date and
arising out of the activities of Tenant or any of its agents, employees, customers, sublicensees or
sublessees. This Section shall not limit Tenant's liability as set forth in this Agreement. The
provisions of this Section shall survive termination or expiration of this Agreement.
(d) Tenant shall have access to all utilities required for the operation of the Tenant's
improvements on the Premises that are existing on the Property. Tenant will pay for all water, gas,
heat, light, power, telephone service, and other utilities furnished to the Premises and used by
Tenant, and all other costs and expenses of every kind whatsoever in connection with the use,
operation, and maintenance of the Premises by Tenant and all activities conducted thereon by
Tenant.
(e) Tenant will maintain the Premises in good condition and state of repair.
(f) There currently exist no licenses, sublicenses, or other agreements, written or oral,
granting to any party or parties the right of use or occupancy of any portion of the Premises; there
are no outstanding options or rights of first refusal to purchase the Premises or any portion thereof
or interest therein; and there are no parties (other than City) in possession of the Premises.
(g) City does not grant, lease, let or demise hereby, but expressly excepts and reserves
herefrom, all rights to oil, gas and other minerals in, on or under and that might be produced or
mined from the Premises. No drilling or other activity will be undertaken on or beneath the surface
of the Premises or Easement to recover any oil, gas or minerals during the Term. Any future oil,
gas or mineral lease covering any part of the Premises will be in all respects subordinate and
inferior to the rights, privileges, powers, options, immunities, and interests granted to Tenant under
the terms of this Agreement provided that such oil, gas or mineral lease(s) do not interfere with
Tenant's use of the Premises hereunder.
11. HOLD OVER TENANCY. Should Tenant or any assignee, sublessee or licensee of
Tenant hold over the Premises or any part thereof after the expiration of this Agreement, such
holdover shall constitute and be construed as a tenancy from month-to-month only, but otherwise
upon the same terms and conditions as set forth in this Agreement.
12. GENERAL INDEMNIFICATION.
(a) Tenant covenants not to bring suit against the City and hereby agrees to defend,
indemnify, and hold harmless the City, its appointed and elected officers, employees, agents and
volunteers from and against any and all liability, loss, costs, damage, and expense, including costs
and reasonable attorney fees in defense thereof, and including claims by the Tenant's own
employees to which the Tenant might otherwise be immune under Title 51 RCW, because of
actions, claims or lawsuits for damages resulting from personal or bodily injury, including death
at any time resulting therefrom, sustained or alleged to have been sustained by any person or
persons, and on account of damage to property, arising or alleged to have arisen directly or
indirectly out of or in consequence of the performance of this Agreement, whether such injuries to
persons or damage to property is due to the negligence of the Tenant, its agents, employees,
representatives or assigns. This provision shall be inapplicable to the extent such damage or injury
is judicially found to be caused by the sole negligence of the City. This provision waiving
immunity for claims arising out of Title 51 RCW was specifically negotiated by the parties.
(b) Tenant assumes the risk of damage to its facilities located in the City's public ways,
rights-of-way, easements, and property from activities conducted by the City, its officers,
employees, agents, and volunteers. The Tenant releases and waives any and all claims against the
City, its officers, employees, agents, and volunteers for damage to or destruction of the Tenant's
facilities except to the extent any such damage or destruction is caused by the willful and malicious
action of the City, its officers, employees, agents, or volunteers.
8
(c) Tenant shall not cause mechanic's or materialman's liens to be placed on the
Premises and Tenant agrees to indemnify, defend and hold City harmless from any such lien from
a party claiming by, through or under Tenant.
13. WAIVERS. EACH PARTY HERETO WAIVES ANY AND ALL CLAIMS AGAINST
THE OTHER FOR ANY LOSS, COST, DAMAGE, EXPENSE, INJURY OR OTHER
LIABILITY WHICH IS IN THE NATURE OF INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUSINESS LOSS AND
BUSINESS INTERRUPTION, WHICH ARE SUFFERED OR INCURRED AS THE RESULT
OF, ARISE OUT OF, OR ARE IN ANY WAY CONNECTED TO THE PERFORMANCE OF
THE OBLIGATIONS UNDER THIS AGREEMENT.
14. INSURANCE. The Tenant shall, as a condition of this Agreement and prior to beginning
any work on the Premises, secure, maintain and provide the City proof of the following liability
insurance policies insuring both the Tenant and the City, and its elected and appointed officers,
officials, agents, employees, representatives, engineers, consultants, and volunteers against claims
for injuries to persons or damages to property which may arise from or in connection with the
exercise of the rights, privileges, and authority granted to the Tenant:
(a) Comprehensive general liability insurance, written on an occurrence basis, with
limits not less than:
$2,000,000.00 for bodily injury or death to each person;
ii. $4,000,000.00 for property damage resulting from any one accident; and
iii. $2,000,000.00 for all other types of liability.
(b) Automobile liability for owned, non -owned and hired vehicles with a limit of
$2,000,000.00 for each person and $2,000,000.00 for each accident;
(c) If required by the laws of the State of Washington, worker's compensation within
statutory limits and employer's liability insurance with limits of not less than $1,000,000.00;
(d) Comprehensive form premises -operations, explosions and collapse hazard,
underground hazard and products completed hazard with limits of not less than $4,000,000.00;
(e) Tenant's insurance shall contain a clause stating that coverage shall apply
separately to each insured against whom claim is made or suit is brought, except with respect to
the limits of the insurer's liability;
(f) The liability insurance policies required by this Section shall be maintained by the
Tenant throughout the Term, and such other period of time during which the Tenant is operating
without a lease hereunder, or is engaged in the removal of its telecommunications facilities. The
Tenant shall provide an insurance certificate, together with an endorsement designating the City,
and its elected and appointed officers, officials, agents, employees, representatives, engineers,
consultants, and volunteers as additional insureds, to the City prior to the commencement of any
work or installation of any facilities pursuant to said Agreement. Payment of deductibles and self-
insured retentions shall be the sole responsibility of the Tenant. The Tenant's insurance shall be
primary insurance as respects the City, its officers, officials, employees, agents, consultants, and
volunteers. Any insurance maintained by the City, its officers, officials, employees, consultants,
agents, and volunteers shall be in excess of the Tenant's insurance and shall not contribute with it.
All insurance policies provided by Tenant shall contain a waiver of subrogation against the City
for claims arising out of any operations, liabilities and obligations to which coverage applies.
(g) The City shall be provided thirty (30) days advance notice of cancellation of any
coverages required above. Within thirty (30) days after receipt by the City of said notice, and in
no event later than fifteen (15) days prior to said cancellation or intent not to renew, the Tenant
shall obtain and furnish to the City replacement insurance policies meeting the requirements of
this Section.
(h) Any insurance required to be provided by Tenant may be provided by a blanket
insurance policy covering the Premises and other properties leased or owned by Tenant, provided
that such blanket insurance policy complies with all of the other requirements of this Section.
15. REMOVAL BOND. Within thirty (30) days of the Commencement Date, Tenant shall execute
a bond in the amount of Thirty Thousand Dollars ($30,000.00) to the benefit of City for use for the removal
of the improvements in the event Tenant fails to comply with the removal obligations described above.
16. INTERFERENCE. The Tenant acknowledges that the City may enter into leases with
other tenants on the Property for the purposes of transmitting and receiving telecommunication
signals. The City, however, is not in any way responsible or liable for any interference with
Tenant's use of the Premises which may be caused by the use and operation of any other tenant's
equipment, even if caused by new technology. In the event that any other tenant's activities
interfere with the Tenant's use of the Property, and such use or operation was not in existence on
the date of execution of this Agreement, and the Tenant cannot resolve this interference with the
other tenants, the City will, upon written request by Tenant, cause such interfering use to cease.
Tenant understands that if its use interferes with a prior tenant, and the interference problem cannot
be cured, this Agreement may be terminated by the City. The Tenant shall cooperate with all other
tenants to identify the causes of and work towards the resolution of any interference problem. In
addition, the Tenant agrees to eliminate any radio or television interference caused to City -owned
facilities or surrounding residences at Tenant's own expense and without installation of extra filters
on City -owned equipment. Tenant further agrees to accept such interference as may be received
from City -operated telecommunications or other City facilities except any City antenna sites
placed upon Tenant's facilities.
17. RIGHT OF FIRST REFUSAL. In the event that City determines to sell, transfer, license
or otherwise convey any interest, whether fee simple interest, easement interest, leasehold, or
otherwise, and whether direct or indirect by way of transfer of ownership interests in City if City
is an entity, which interest underlies or affects any or all of the Premises (the "ROFR Property")
to any third party, during the Option Period or Term, City shall offer Tenant a right of first refusal
to purchase the Premises (or such larger portion of City's property that encompasses the Premises,
if applicable) or such interest proposed to be conveyed. City shall provide a copy of any offer to
10
purchase or acquire, or any executed purchase agreement or letter of intent ("Offer"), to Tenant
which copy shall include, at a minimum, the purchase or acquisition price and financing terms
("Minimum Terms"). Within thirty (30) days of receipt of such Offer, Tenant shall provide
written notice to City of Tenant's election to purchase the ROFR Property on the same Minimum
Terms; provided, the closing date shall be no sooner than sixty (60) days after Tenant's purchase
election notice. In such event, City agrees to sell the ROFR Property to Tenant subject to Tenant's
payment of the purchase price and compliance with a purchase and sale agreement to be negotiated
in good faith between City and Tenant. If Tenant provides written notice that it does not elect to
exercise its rights of first refusal to purchase the ROFR Property, or if Tenant does not provide
notice of its election within the thirty (30) day period, Tenant shall be deemed to have waived such
right of first refusal only with respect to the Minimum Terms of the Offer presented (and any
subsequent Offers shall again be subject to Tenant's continuing right of first refusal hereunder),
and City shall be permitted to consummate the sale of the ROFR Property with the same Minimum
Terms ("Permitted Sale").
18. SECURITY. The parties recognize and agree that Tenant shall have the right to safeguard
and protect its improvements located upon or within the Premises. Consequently, Tenant may
elect, at its expense, to construct enclosures and/or fences to secure its improvements, including
the tower(s), shelter(s), and related improvements situated upon the Premises. Tenant may also
undertake any other appropriate means to restrict access to its communications towers, shelter(s),
and related improvements. All enclosures, fencing and facilities are subject to City approval and
must meet City code and concealment requirements, due to the nature of the Property. Such
approval shall not be unreasonably withheld.
19. FORCE MAJEURE. The time for performance by City or Tenant of any term, provision,
or covenant of this Agreement shall be deemed extended by time lost due to delays resulting from
acts of God, strikes, civil riots, floods, material or labor restrictions by governmental authority,
and any other cause not within the control of City or Tenant, as the case may be.
20. CONDEMNATION. Notwithstanding any provision of this Agreement to the contrary,
in the event of condemnation of the Premises, the City and Tenant shall be entitled to separate
awards with respect to the Premises, in the amount determined by the court conducting such
condemnation proceedings based upon the City's and Tenant's respective interests in the Premises.
If a separate condemnation award is not determined by such court, City shall permit Tenant to
participate in the allocation and distribution of the award. In no event shall the condemnation
award to City exceed the unimproved value of the Premises, without taking into account the
improvements located thereon, and in no event shall this Agreement be terminated or modified
(other than an abatement of rent) due to a casualty or condemnation without the prior written
consent of Lender (as hereinafter defined).
21. DEFAULT. The failure of Tenant or City to perform any of the covenants of this
Agreement shall constitute a default.
In addition, City may terminate this Agreement for any of the following reasons:
IF
(a) Tenant's construction or operation in the City or in the public ways of the City or
upon City property without proper City authorization;
(b) Tenant's construction or operation at an unauthorized location;
(c) Unauthorized substantial transfer of control of the Tenant;
(d) Unauthorized assignment of this Agreement;
(e) Unauthorized sale, assignment or transfer of this Agreement, assets, or a
substantial interest therein;
(f) a material Misrepresentation by or on behalf of the Tenant in any application or
written statement upon which the City relies in making the decision to grant, review or amend
this Agreement;
(g) Abandonment of telecommunications facilities in the public ways or upon City
property;
(h) Failure to relocate or remove facilities as required in this Agreement;
(i) Failure to pay taxes, compensation, fees or costs when and as due the City;
0) Insolvency or bankruptcy of Tenant;
(k) Failure to construct or operate in accordance with approved permits; and
(1) Violation of any material provision or term of this Agreement.
The non -defaulting party shall give the other written notice of such default, and the
defaulting party shall cure such default within thirty (30) days after receipt of such notice if such
default is non -monetary and within ten (10) days after receipt of such notice if such default is
monetary. In the event any such non -monetary default cannot reasonably be cured within such
thirty (30) day period, if the defaulting party shall proceed promptly after the receipt of such notice
to cure such default, and shall pursue curing such default with due diligence, the time for curing
shall be extended for such period of time as may be necessary to complete such curing, however,
in no event shall this extension of time be in excess of sixty (60) days, unless agreed upon in
writing by the non -defaulting party.
22. REMEDIES. Should the defaulting party fail to cure a default under this Agreement, the
other party shall have all remedies available either at law or in equity, including the right to
terminate this Agreement. In the event City elects to terminate this Agreement due to a default by
Tenant, it shall continue to honor all sublease and sublicense commitments made by Tenant
through the expiration of the term of any such commitment if (a) there is no threat to the safety of
persons or property in maintaining then -current installations, and (b) City receives the appropriate
12
rental payments for each sublessee and sublicensee; it being intended hereby that each such
commitment shall survive the early termination of this Agreement.
23. ATTORNEY'S FEES. If there is any legal proceeding between City and Tenant arising
from or based on this Agreement, the unsuccessful party to such action or proceeding shall pay to
the substantially prevailing party all costs and expenses, including reasonable attorney's fees and
disbursements, incurred by such prevailing party in such action or proceeding and in any appeal
in connection therewith. If the substantially prevailing party recovers a judgment in any such
action, proceeding or appeal, such costs, expenses and attorney's fees and disbursements shall be
included in and as a part of such judgment.
24. ADDITIONAL TERMINATION RIGHT. If at any time during the Term, Tenant
determines, in its sole and absolute discretion, with or without cause, that the Premises is no longer
suitable or desirable for Tenant's intended use and/or purposes, Tenant shall have the right to
terminate this Agreement upon one hundred eighty (180) days prior written notice to City.
However, no prepaid rent shall be refundable except in the event any changes occur with respect
to the City's use of the Property subsequent to the effective date of this Agreement (including but
not limited to additional lessees as permitted by the City) and such changes result in the property
becoming unsuitable for Tenant's intended purpose.
25. EMERGENCY REMOVAL OR RELOCATION OF FACILITIES. The City retains
the right and privilege to cut or move any telecommunications facilities located within the public
ways of the City and upon City property, as the City may determine to be necessary in response to
any public health or safety emergency. The City shall not be liable to Tenant, or any other party
for any direct, indirect, or any other such damages suffered by any person or entity of any type as
a direct or indirect result of the City's actions under this Section.
26. RELOCATION OR REMOVAL OF FACILITIES. Within one hundred eighty (180)
days following written notice from the City, Tenant shall, at its own expense, temporarily or
permanently remove, relocate, change or alter the position of any reasonably removable facilities
(i.e., not to include the tower or any buildings) within the public ways or upon City property
whenever the City shall have reasonably determined that such removal, relocation, change or
alteration is necessary for:
(a) The construction, repair, maintenance or installation of any City or other public
improvement in or upon City property or the public ways; and
(b) The operations of the City or other governmental entity in or upon City property or
the public ways.
Additional time for removal or relocation may be granted at the discretion of the City which
extension shall not be unreasonably withheld. If Tenant fails to remove the property upon request
by the City, Tenant agrees to reimburse the City for any and all reasonable removal costs incurred
by the City.
13
27. PRIOR AGREEMENTS. The parties hereby covenant, recognize and agree that the
terms and provisions of this Agreement shall constitute the sole embodiment of the arrangement
between the parties with regard to the Premises, and that all other written or unwritten agreements,
contracts, or leases by and between the parties with regard to the Premises are hereby terminated,
superseded and replaced by the terms hereof.
28. SUBORDINATION, NON -DISTURBANCE AND ATTORNMENT. In the event the
Property is encumbered by a mortgage or deed of trust or other security instrument of any kind (a
"Landlord Mortgage"), City, within fifteen (15) days following Tenant's request or immediately
prior to the creation of any encumbrance created after the date this Agreement is fully executed,
will obtain from the holder of each such Landlord Mortgage a fully -executed subordination, non-
disturbance and attornment agreement (a "SNDA") in recordable form, which shall be prepared or
approved by Tenant. The holder of every such Landlord Mortgage shall, in the SNDA, agree that
in the event of a foreclosure, or conveyance in lieu of foreclosure of City's interest in the Premises,
such Landlord Mortgage holder shall recognize and confirm the validity and existence of this
Agreement and Tenant shall have the right to continue its use and occupancy of the Premises in
accordance with the provisions of this Agreement, provided Tenant is not in default of this
Agreement beyond applicable notice and cure periods.
29. LENDER'S RIGHTS.
(a) City agrees to recognize the leases/licenses of all subtenants and sublicensees and
will permit each of them to remain in occupancy of its premises notwithstanding any default
hereunder by Tenant so long as (i) there is no threat to the safety of persons or property in
maintaining then -current installations, and (ii) City receives the appropriate rental payments for
each sublessee and sublicensee. City agrees to execute such documents as any such subtenant
and/or sublicensee might reasonably require, including customary subordination, non -disturbance
and attornment agreements if applicable and/or City recognition agreements, to further
memorialize the foregoing, and further agrees to use reasonable efforts to also cause its lenders to
similarly acknowledge, in writing, subtenant/sublicensee's right to continue to occupy its premises
as provided above.
(b) City consents to the granting by Tenant of a lien and security interest in Tenant's
interest in this Agreement and all of Tenant's personal property and fixtures attached to the real
property described herein, and furthermore consents to the exercise by Tenant's Lender of its rights
of foreclosure with respect to its lien and security interest. City agrees to recognize Tenant's
Lender (as hereinafter defined) as Tenant hereunder upon any such exercise by Lender of its rights
of foreclosure. Nothing contained herein shall be construed to grant a lien upon or security interest
in any of City's assets.
(c) City hereby agrees to give Lender written notice of any breach or default of the
terms of this Agreement, within fifteen (15) days after the occurrence thereof, at the address set
forth in Section 33. City further agrees that in the event of any such breach or default under the
terms of this Agreement, Lender shall have the right, to the same extent, for the same period and
with the same effect, as the Tenant, plus an additional thirty (30) days after any applicable grace
period to cure or correct any such default.
14
(d) City acknowledges that nothing contained herein shall be deemed or construed to
obligate the Lender to take any action hereunder, or to perform or discharge any obligation, duty
or liability of Tenant under this Agreement. No Lender shall become liable under the provisions
of this Agreement or any lease executed pursuant to Section 30 hereof unless and until such time
as it becomes, and then only for as long as it remains, the owner of the leasehold estate created
hereby or thereby.
(e) The Tenant shall have the right from time to time to mortgage or otherwise
encumber the Tenant's interest in this Agreement; provided, however, in no event shall there be
more than one such mortgage or encumbrance outstanding at any one time. If the Tenant shall so
mortgage (each a "Tenant Mortgage") the Tenant's interest in this Agreement to one or more
lenders (any such lender, and any successor, assign, designee or nominee of such lender,
hereinafter a "Lender"), the Tenant shall ensure that the City is given prompt notice of such Tenant
Mortgage and shall furnish the City with a complete and correct copy of such Tenant Mortgage,
certified as such by the Tenant or such Lender, together with the name and address of such Lender.
(f) This Agreement shall not be amended or modified in any respect which would be
reasonably likely to have a material adverse effect on Lenders' interest therein without the consent
of any Lender. In the event that a Lender shall become the owner of such leasehold estate, such
Lender shall not be bound by any such modification or amendment of this Agreement made
subsequent to the date of the Tenant Mortgage unless Lender shall have consented to such
modification or amendment at the time it was made.
30. RIGHT TO NEW LEASE.
(a) In the case of termination of this Agreement for any reason, or in the event this
Agreement is rejected or disaffirmed pursuant to any bankruptcy, insolvency or other law affecting
creditor's rights, the City shall give prompt notice thereof to a Lender at the address set forth in
Section 33. Thereafter, City, upon written request of Lender, and within thirty (30) days after the
receipt of such request, shall promptly execute and deliver a new lease of the Premises and
assignment of all subleases and sublicenses to Lender or its designee or nominee, for the remainder
of the Term upon all the covenants, conditions, limitations and agreements contained herein
(including, without limitation, options to extend the Term) except for such provisions which must
be modified to reflect such termination, rejection or disaffirmance and the passage of time,
provided that such Lender (i) shall pay to the City, simultaneously with the delivery of such new
lease, all unpaid rent due under this Agreement up to and including the date of the commencement
of the term of such new lease and all reasonable expenses, including, without limitation, reasonable
attorneys' fees and disbursements and court costs, incurred by the City in connection with the
default by the Tenant, the termination of this Agreement and the preparation of the new lease, and
(ii) shall cure all defaults existing under this Agreement which are susceptible to being cured by
such Lender promptly and with due diligence after the delivery of such new lease.
Notwithstanding anything to the contrary contained herein, provided such Lender shall have
otherwise complied with the provisions of this Section, such Lender shall have no obligation to
cure any defaults which are not susceptible to being cured by such Lender (for example, the
bankruptcy of the Tenant).
15
(b) For so long as Lender shall have the right to enter into a new lease with the City
pursuant to this Section, the City shall not enter into a new lease of the Premises with any person
or entity other than Lender, without the prior written consent of Lender, as long as the Lender acts
reasonably and without undue delay.
31. ADDITIONAL PROVISIONS.
(a) The parties hereto agree that (i) the Tenant is in possession of the Premises
notwithstanding the fact that the Tenant has subleased, or may in the future sublease, certain of the
improvements thereon to third parties and (ii) the requirements of Section 365(h) of Title II of the
United States Code (the "Bankruptcy Code") with respect to the Tenant's possession of the
leasehold under this Agreement are satisfied. Accordingly, the right of the Tenant to remain in
possession of the leasehold under this Agreement shall continue notwithstanding any rejection of
this Agreement in any bankruptcy proceeding involving the City, or any other actions by any party
in such a proceeding. This provision, while included in this Agreement, has been separately
negotiated and shall constitute a separate contract between the parties as well as a part of this
Agreement. The provisions of this Section 31(a) are for the benefit of the Tenant and its assigns,
including, without limitation, Lender. The parties hereto also agree that Lender is a party in
interest and shall have the right to appear as a party in any proceeding brought under any
bankruptcy law or under any other law which may affect this Agreement.
(b) The provisions of Sections 29 and 30 hereof shall survive the termination, rejection
or disaffirmance of this Agreement and shall continue in full force and effect thereafter to the same
extent as if Sections 29 and 30 hereof were a separate and independent contract made by the City,
the Tenant and Lender and, from the effective date of such termination, rejection or disaffirmance
of this Agreement to the date of execution and delivery of such new lease, Lender may use and
enjoy the leasehold estate created by this Agreement without hindrance by the City. The aforesaid
agreement of the City to enter into a new lease with Lender shall be deemed a separate agreement
between the City and such Lender, separate and apart from this Agreement as well as a part of this
Agreement, and shall be unaffected by the rejection of this Agreement in any bankruptcy
proceeding by any party.
(c) City shall have no right and expressly waives any right arising under applicable
law, in and to that portion of the rentals payable to the Tenant under any lease of the improvements
on the land demised hereunder, if any, which rentals may be assigned by the Tenant to Lender.
(d) If a Tenant Mortgage is in effect, (i) this Agreement shall not be modified or
amended by the parties hereto in any respect which would be reasonably likely to have a material
adverse effect on Lenders' interest herein, or terminated or surrendered by the Tenant, nor shall
the City accept any such termination or surrender of this Agreement by the Tenant, without the
prior written consent of Lender and (ii) the City shall not have the right to terminate this Agreement
in the event of a casualty or condemnation without the prior written consent of Lender.
(e) The provisions of Sections 29 and 30 hereof are for the benefit of Lender and may
be relied upon and shall be enforceable by Lender as if Lender were a party to this Agreement.
16
(f) The City shall, within ten (l 0) days of the request of the Tenant or any Lender or
prospective Lender, provide an estoppel certificate as to any matters reasonably requested by the
Tenant or Lender.
(g) The right to extend or renew this Agreement and any right of first refusal to
purchase the Premises may be exercisable by the holder of a Tenant Mortgage and, before the
expiration of any periods to exercise such a right, the City must provide to Lender at least thirty
(30) days prior written notice before the expiration of the right to so extend or renew in order to
extinguish Lender's right to so extend, renew or purchase.
(h) Under no circumstances shall the fee estate of the City and the leasehold estate
created hereby merge, even though owned by the same party, without the written consent of the
holder of a Tenant Mortgage.
32. QUIET ENJOYMENT. So long as Tenant is not in default under this Agreement beyond
the applicable notice and cure period, City covenants and agrees that Tenant shall peaceably and
quietly hold and enjoy the Premises throughout the Term, without any hindrance, molestation or
ejection by City, its successors or assigns or by those claiming by, through or under them.
33. NOTICES. All notices, requests, claims, demands, and other communications hereunder
shall be in writing and may be hand delivered (provided the deliverer provides proof of delivery)
or sent by nationally -established overnight courier that provides proof of delivery, or certified or
registered mail (postage prepaid, return receipt requested). Notice shall be deemed received on
the date of delivery as demonstrated by the receipt of delivery. Notices shall be delivered to a
parties at the address below, or to such other address that a party below may provide from time to
time:
If to City:
City of Bremerton
City Clerk
345 6th Street, Suite 100
Bremerton, WA 98337
34. MISCELLANEOUS.
If to Tenant:
Vertical Bridge Development, LLC
750 Park of Commerce Drive
Suite 200
Boca Raton, FL 33487
Attn: General Counsel
If to Lender:
Toronto Dominion
(Texas) LLC
31 West 52nd Street
New York, NY 10019
Attn: Admin Agent
Fax No. 416-982-5535
(a) Each party hereto warrants and represents that it has the necessary power and
authority to enter into and perform its respective obligations under this Agreement.
(b) If any term of this Agreement is found to be void or invalid, such invalidity shall
not affect the remaining terms of this Agreement, which shall continue in full force and effect.
(c) All attached exhibits are hereby incorporated by this reference as if fully set forth
herein.
17
(d) Failure of party to insist on strict performance of any of the conditions or provisions
of this Agreement, or failure to exercise any of a party's rights hereunder, shall not waive such
rights.
(e) This Agreement shall be governed by and construed in accordance with the laws of
the state in which the leased Premises are located. Venue shall be in the Kitsap County Superior
Court in the State of Washington.
(f) This Agreement constitutes the entire Agreement and understanding of the parties
and supersedes all offers, negotiations and other lease agreements with regard to the leased
Premises. There are no representations or understandings of any kind not set forth herein. Any
amendment to this Agreement must be in writing and executed by both parties.
(g) This Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, legal representatives, successors and assigns.
(h) A short -form Memorandum of Option to Lease (and a short -form Memorandum of
Lease in the event Tenant exercises its option to lease the Premises) may be recorded at City or
Tenant's option in the form as depicted in Exhibit 3 and Exhibit 4 attached hereto.
[SIGNATURES BEGIN ON NEXT PAGE]
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date last signed by a party hereto.
CITY:
City of Bremerton
A Municipal Corporation
By: t.J
Greg W e er, Mayor
Date: ► 2 J A' Z o 1$
Approved as to Form:
City Attorney
Attest:
_. �,. 1 ���I i
WITNESSES:
TENANT:
Vertical Bridge Development, LLC
a Delaware limited liability company
By:
Name: n
Title: C;C-7p
Date:it I IQ l l Q,
19
;c_-
EXHIBIT 1
Legal Description of the Property (Parent Parcel)
An interest in land, said interest being over a portion of the following described parent parcel
Resultant "Forest Ridge park" Parcel of Boundary Line Adjustment recorded under Recording No.
200511090001, records of Kitsap County, Washington, described as follows:
That portion of the East half of the Southwest quarter of the Southwest quarter of the Southeast
quarter and the East half of the Southwest quarter olthe Southeast quarter, situate in Section 15,
Township 24 North, Range 1 East, W.M., Kitsap County, Washington;
Except that portion of the said East half of the Southwest quarter of the Southwest quarter of the
Southeast quarter conveyed to the State of Washington under Kitsap County Auditor's File Number
96073OG048, being more particularly described as follows;
Beginning at the South quarter corner of said Section 15;
thence North 1°22' 19" East 667.86 feet along the center section line to the Northwest corner of the
Southwest quarter, Southwest quarter, Southeast quarter of said Section 15;
thence South 88°56'05" East 331.84 feet to the Northwest corner of the East half of said Southwest
quarter and the true point of beginning;
thence continuing along the North line of said Southwest quarter, South 88056'05" East 257.87 feet;
thence South 1023'14" West 475.25 feet;
thenc6e North 88°56'05" West 257.81 feet;
thence North 1°22'47" East 475.25 feet to the true point of beginning;
Also except that portion of the Southwest quarter of the Southeast quarter of said Section 15 being
more particularly described as follows:
Beginning at the Northeast corner of the the said Southwest quarter of the Southeast quarter, also
being the true point of beginning;
thence Southerly along the East line of said Southwest quarter of the Southeast quarter to its
intersection with the Southerly right of way of 6th Street;
thence continuing along said East line to the Southwest corner of Lot 10, Block 1 of the plat of First
Addition to Charleston, as recorded in Volume 4 in the book of plats, Page 57, records of Kitsap
County, Washington;
thence leaving said East line North 76°0610" West 51.01 feet;
thence on a curve to the right, the center of which bears North 39°43'43" West 45.00 feet an arc
distance of 183.67 feet;
thence South W07'42" West 5.00 feet;
thence North 65°49'06" West 143.10 feet to its intersection with a line parallel to the East lire of said
Southwest quarter of the So-utheast quarter ar.d 2D0 Westerly thereof;
thence along said parallel line North 1°22'14" East 150.00 feet to the said Southerly right of way of f5rh
Street;
thence along said Southerly right of way to the true point of beginning;
20
Also Except for the Nortn 3C feet of !,he said East half of the Southwest quarter of the Southeast
quarter for road.
The following may be used as an abbreviated legal description on the documents to be recorded, per
Amended RCW 55.04.045. Said abbreviated legal description is -jot a substitute for a complete legal
descriptior within the body of the doc. men -,-
Portion SW SE, 15 24N 01E
Tax Parcel No. 152401-4-021-2007
21
ONsoII1.3fI A
Premises
(Site Sketch to be Replaced with a Final Survey)
22
EXHIBIT 3
Memorandum of Option to Lease
(Attached)
23
(Above 3" Space for Recorder's Use Only)
Upon Recording Return to:
Vertical Bridge Development, LLC
750 Park of Commerce Drive, Suite 200
Boca Raton, FL 33487
Attn: Daniel Marinberg
Site Name: US -WA -5107
Site Number: Forest Ridge
MEMORANDUM OF OPTION TO LEASE
This Memorandum of Option to Lease ("Memorandum") evidences an Option and Lease
Agreement (the "Lease") between by and between the City of Bremerton, a Washington municipal
corporation (which acquired the portion of the Property in the East half of the Southwest quarter
of the Southeast quarter as the City of Charleston), hereinafter the "City," whose address is 345
6`h Street, Suite 100, Bremerton, WA 98337, and Vertical Bridge Development, LLC, a Delaware
limited liability company, hereinafter, "Tenant," whose address is 750 Park of Commerce Drive,
Suite 200, Boca Raton, FL 33487, dated T ZQ 11- - , 2018 (the "Effective Date"), for a
portion (the "Premises") of the real property (the "Property") described in Exhibit A attached
hereto.
Pursuant to the Lease, City has granted Tenant an exclusive option to lease the Premises
(the "Option"). The Option commenced as of the Effective Date and shall continue in effect for a
period of one (1) year from the Effective Date.
City ratifies, restates and confirms the Lease and, upon exercise of the Option, shall lease
to Tenant the Premises, subject to the terms and conditions of the Lease. The Lease provides for
the lease by the City to Tenant of the Premises for an initial term of five (5) years with four (4)
renewal option(s) of an additional five (5) years each, and further provides:
1. The Lease may be assigned by City only in its entirety and only to a purchaser of
the fee interest of the Property; and may be assigned by Tenant only in accordance with the terms
of the Lease;
24
2. Under certain circumstances, Tenant has a right of first refusal to acquire the
Premises from City;
3. This Memorandum is not intended to amend or modify, and shall not be deemed or
construed as amending or modifying, any of the terms, conditions or provisions of the Lease. In
the event of a conflict between the provisions of this Memorandum and the provisions of the Lease,
the provisions of the Lease shall control. The Lease shall be binding upon and inure to the benefit
of the City and Tenant and shall inure to the benefit of their respective heirs, successors, and
assigns, subject to the provisions of the Lease.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK,
SIGNATURES BEGIN ON NEXT PAGE]
25
IN WITNESS WHEREOF, the parties hereto have executed this MEMORANDUM OF
OPTION TO LEASE as of the date last signed by a party hereto.
Cy 1619
City of Bremerton
a municipal corporation
By:
Name: G c
Title: a.
Date: Zo t
Approved as to Form:
Name:�r-
Attest:
STATE OF h fl tp n
COUNTY OF j
On this LAth day of 2019, before me, the undersigned, a
Notary Public in and for the State of duly commissioned and
sworn, personally appeared r to me known to be the _
r' of re►�er4o� , the
corporate that executed the foregoing instrument aM acknowledged the said instrument to be
the free and voluntary act of and deed of said corporation, for the uses and purposes therein
mentioned, and on oath stated that _&(C, V` hCeP t -C r is authorized to execute the
said instrument and that the seal affixed is*e corporate seal of said corporation.
Witness my hand and seal the day and year first above written.
N
II Q ,...._
CIJ
Notary Public residing at�2V-4- Dy-ci O,Y'd ,
O9.Vg.�4 41
26 .i
�/ ��a.
S
/11`OCWA�`.
Printed Name: )2� (\ o)ei\ a, M • QC)C) d S
My Commissio Expires -
1q
27
[Tenant's Signature Page to Memorandum of Option to Lease]
WITNESSES:
'RrnT �
Name:- Rachel Williamson
STATE OF B r,pr r�-A
COUNTY OF ;,>p(m F�<iAC A
ILYA&Ram
Vertical Bridge Development, LLC
a Delaware limited liability company
By:
Name:
Title:
—d
Date: ►►
IQ la
rILcJ
On this lq -day of _ Kt)p mLLT- , 2019, before me, the undersigned, a
Notary Public in and for the State of ptoe-L(*j-A duly commissioned and
sworn, personally appeared A ( o�L GI-ttI rl Af> to me known to be the
CSC) of Vertical Bridge Development, LLC, the limited liability
company that executed the foregoing instrument and acknowledged the said instrument to be the
free and voluntary act of and deed of said limited liability company, for the uses and purposes
therein mentioned, and on oath stated that GhU is authorized to
execute the said instrument.
Witness my hand and seal the day and year first above written.
Notary Public residing at.
Printed Name:
My Commission Expires:
28
5
EXHIBIT A
(TO MEMORANDUM OF OPTION TO LEASE)
The Property
An interest in land, said interest Being over a portion of the following described parent parcel:
Resultant "Forest Ridge Park" Parcel of Boundary Line Adjustment recorded ander Recording No.
200511090001, records of Kitsap County, Washington, described as follows:
That portion of the East half of the Southwest quarter of the Southwest quarter of the Southeast
quarter and the East half of the Southwest quarter olthe Southeast quarter, situate in Section 15,
Township 24 North, Range 1 East, W.M., Kitsap County, Washington;
Except that portion of the said East half of the Southwest quarter of the Southwest quarter of the
Southeast quarter conveyed to the State of Washington under Kitsap County Auditor's File Number
9607300048, being more particularly described as follows:
Beginning at the South quarter corner of said .Section 15;
thence North 1°22'19" East 667.86 feet along the center section line to the Northwest comer of the
Southwest quarter, Southwest quarter, Southeast quarter of said Section 15;
thence South 88`56'05" East 331.84 feet to the Northwest corner of the East half of said Southwest
quarter and the true point of beginning;
thence continuing along the North line of said Southwest quarter, South 88°.56'05"" East 257.87 feet;
thence South 1°23'14" West 475.25 feet;
thenc6e North 88°56'05" West 257.81 feet;
thence North 1°22'47" East 475.25 feet to the true point of beginning;
Also except that portion of the Southwest quarter of the Southeast quarter of said Section 15 being
more particularly described as follows:
Beginning at the Northeast corner of the the said Southwest quarter of the Southeast quarter, also;
being the true point of beginning;
thence Southerly along the East line of said Southwest quarter of the Southeast quarter to its
intersection with the Southerly right of way of 6th Street;
thence continuing along said East line to the Southwest corner of Lot 10, Block 1 of the plat of First
Addition to Charleston, as recorded in Volume 4 in the book of plats, Page 57, records of Kitsap
County, Washington;
thence leaving said East line North 76°06'10" West 51.01 feet;
thence on a curve to the right, the center of which bears North 39°43'43" West 45.00 feet an arc
distance of 183.67 feet;
thence South 14007'42" West u.00 feet;
thence North 55°49'06" West 143.10 feet to its intersection with a line parallel to the East line of said
c,,Ahwes` q a ter of the Southeast quarter and 21CDC Westerly thereof;
thence_ along said parallel line Norte 1022'14" Eas`. 150.00 feet to the said Southerly right of way of 6th
Street;
thence along said Southerly right of way to the true point of beginning;
29
Also Except for the North 3C feet of -he said East half of the Southwest quarter of the Soi-',heast
quarter for road,
The following may be used as an abbreviated legal description on the documents to be rec ;rded, per
Amended RCW 65.04.045. Said abbreviated legal description is not a substitute for a comple`e legal
description within the body of the document:
Portion SW .SE, 15 24N OIE
Tax Parcel No. 152401-4-021-2007
30
EXHIBIT 4
Memorandum of Lease
(Attached)
31
(Above 3" Space for Recorder's Use Only)
Upon Recording Return to:
Vertical Bridge Development, LLC
750 Park of Commerce Drive, Suite 200
Boca Raton, FL 33487
Attn: Daniel Marinberg
Site Name: US -WA -5107
Site Number: Forest Ridge
MEMORANDUM OF LEASE
This Memorandum of Lease ("Memorandum") evidences a Lease Agreement (the
"Lease") between the City of Bremerton, a Washington municipal corporation (which acquired
the portion of the Property in the East half of the Southwest quarter of the Southeast quarter as the
City of Charleston), hereinafter the "City," whose address is 345 6t" Street, Suite 100, Bremerton,
WA 98337, and Vertical Bridge Development, LLC, a Delaware limited liability company,
hereinafter, "Tenant," whose address is 750 Park of Commerce Drive, Suite 200, Boca Raton, FL
33487, dated 2018 (the "Effective Date''), for a portion (the "Premises")
of the real property (the "Property") described in Exhibit A attached hereto.
City hereby ratifies, restates and confirms the Lease and leases to Tenant the Premises,
subject to the terms and conditions of the Lease. The Commencement Date of the Lease is
. The Lease provides for the lease by the City to Tenant of the Premises
for an initial term of five (5) years with four (4) renewal option(s) of an additional five (5) years
each, and further provides:
1. As to Tenant's interest in the Lease and all Tenant's assets and personal property
on the Premises, City will attorn to any mortgagee of Tenant and will subordinate any City's lien
to the liens of Tenant's mortgagees;
2. Tenant (and persons deriving rights by, through, or under Tenant) are the sole
parties to market, use, or sublease any portion of the Premises for wireless communications or
32
broadcast facilities during the term of the Lease (such restriction shall run with the land for the
duration of the Lease and be binding on the successors and assigns of City);
3. The Premises may be used exclusively by Tenant for all legal purposes related to
its installation and maintenance of communications facilities, including without limitation,
erecting, installing, operating and maintaining radio and communications towers, and equipment;
4. Tenant is entitled to sublease and/or sublicense the Premises, including any
communications tower located thereon;
5. Under certain circumstances, Tenant has a right of first refusal to acquire the
Premises from City;
6. The Lease may be assigned by the City only in its entirety and only to a purchaser
of the fee interest of the Property; and by the Tenant only in accordance with the terms of the
Lease; and
7. This Memorandum is not intended to amend or modify, and shall not be deemed or
construed as amending or modifying, any of the terms, conditions or provisions of the Lease. In
the event of conflict between the provisions of this Memorandum and the provisions of the Lease,
the provisions of the Lease shall control. The Lease shall be binding upon and inure to the benefit
of the City and Tenant and shall inure to the benefit of their respective heirs, successors, and
assigns, subject to the provisions of the Lease.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK,
SIGNATURES BEGIN ON NEXT PAGE]
33
IN WITNESS WHEREOF, the parties hereto have executed this MEMORANDUM OF
LEASE as of the date last signed by a party hereto.
CITY:
City of Bremerton
a municipal corporation
By:.
Name:
Title:
Date: 1'Z' A 12-0 t
Approved as tP" Q -,
Name: _
Attest:
STATE OF 1 1
COUNTY OF
On this — day of ht c&yl br-4- , 20L, before me, the undersigned, a
Notary Public in and for the State of WUe-pM'qcA1,cn duly commissioned and
sworn, personally appeared 6ir to me known to be the
off the
corporate hat executed the foregoing instrument an acknowledged the said instrument to be
the free and voluntary act of and deed of said corporation, for the uses and purposes therein
mentioned, and on oath stated that FinEn is authorized to execute the
said instrument and that the seal affixed i's -76 corporate seal of said corporation.
Witness my hand and seal the day and year first above written.
Notary Public residing atdo
It09,0a- � rr
34
Printed Name:
My Commission Exp res:
OCi
35
[Tenant's Signature Page to Memorandum of Lease]
WITNESSES:
STATE OF (<LC)o 10 A
COUNTY OF �)4Lrt) (j AC -14
Vertical Bridge Development, LLC
a Delaware limited liability company
Name:
Title: tF
Date: 11 ) 14 Ig
T
-,—I
On this 19 day of tj6 U—m b aj- , 20 19, before me, the undersigned, a
Notary Public in and for the State of T:7-Idt2k (DA duly commissioned and
sworn, personally appeared ...ted Cay eZ l I rt 6C( to me known to be the
GE[) of Vertical Bridge Development, LLC, the limited liability
company that executed the foregoing instrument and acknowledged the said instrument to be the
free and voluntary act of and deed of said limited liability company, for the uses and purposes
therein mentioned, and on oath stated that r-tFTn is authorized to
execute the said instrument.
Witness my hand and seal the day and year first above written.
Notary Public residing at —
Printed Name: ]�A nt) E M , `, , a r)
My Commission Expires:
/d o fav
vl �-x <•e'r :.., zF v. �,.. ter. .. ,r.. i _ � _ .. .x-
36
EXHIBIT
(TO MEMORANDUM OF LEASE)
The Property
An interest in land, said interest being over a portion of the following described parent parcel
Resultant "Forest Ridge Park" Parcel of Boundary Line Adjustment recorded under Recording No
Z0051lO9OOO1,records mfKitsapCounty, Washington, described aufollows:
That portion of the East half of the Southwest quarter of the Southwest quarter of the Southeast
quarterandtheEastha|fofthe3oothxvestquarte/oltbeSoutheastquarter, situate |nSection 15,
Township 24North, Range 1East, VV.M.,K|tsapCounty, Washington;
Except that portion of the said East half of the Southwest quarter of the Southwest quarter of the
Southeast quarter conveyed to the State of Washington under KitSaD County Auditor's File Number
95O7380O48,being more particularly described asfollows:
Beginning atthe South quarter corner mfsaid Section l5;
thence North 1'22'19" East 667.86 feet along the center section line to the Northwest corner of the
Southwest quarter, Southwest quarter, Southeast quarter ofsaid Section 15/
thence South 88*56'05" East 331.84 feet to the Northwest corner of the East half of said Southwest
quarter and the true point ofbeginning;
thence continuing along the North line of said Southwest quarter, South 88'56'05" East 257.87 feet;
thence South l"23'l4~West 475.25feet;
thenc0eNorth 8D^56'O5^West 257.8Ifeet;
thence North l^22'47"East 475.l5feet 10the true point ofbeginning;
Also except that portion of the Southwest -quarter of the Southeast quarter of said Section 15 being
more particularly described asfollows:
Beginning at the Northeast corner of the the said Southwest quarter of the Southeast quarter, also
being the true point ofbeginning;
thence Southerly along the East line of said Southwest quarter of the Southeast quarter to its
intersection with the Southerly right ofway of6th Street;
thence continuing along said East line to the Southwest corner of Lot 10, Block I of the plat of First
Addition to Charleston, as recorded in Volume 4 in the book of plats, Page 57, records of Kitsap
County, Washington;
thence leaving said East line North 7h°06^10"West 5I.O1feet;
thence on a curve to the right, the center of which bears North 39*43'43" West 45.00 feet an arc
distance ofI83.67feet;
thence South l4^07'42"West 5.DDfeet;
thence North 55"49'Ob''West l4].l0feet to |tsintersection with aline parallel tuthe East lire ofsaid
3o.thwestq_artercfthe Southeast quarter and 2CDVVes-er|ytl�ereof:
thencealong said parallel line North l^22'14''East l5C.O0fee' to*he saia Souzhedyright ofway of6th
Street;
th-�nce alorg said Southerly right cif way to the true pont of begrining;
37
Also Except for the North 30 feet of the said East half of the Southwest quarter of the Southeast
quarter for road.
The following may be ,:sed as a, abbreviated legal descriptio-, o, the doc- mens_ to be recorded, per
Amended RCW X5.04.045, Said abbreviated legal descriptior is not a substitute for a complete legal
descriptior, within the body of the document:
Portio, SW SE, 15 24.N OIE
Tax Parcel No. 152401-4-021-2007
Said interest being over land more particularly described by the following description:
Insert metes and bounds description of area
38
NOTICE 11 11 IMPORTANT: READ BOTH
TO RECEIVED SIDES OF THIS NOTICE CARE-
FULLY. PROTECT YOURSELF
OWNER MAR 2 2 2019 FROM PAYING TWICE.
920653City of Bremerton
City Attorney's Office 7196 9004 5239 2065 3025 088317
DATE: 03/19/2019 YOU ARE HEREBY NOTIFIED THAT...
GLACIER NORTHWEST DBA CALPORTLAND 9429
OWNER or Reputed Owner(on private work) 0 2 P 0 BOX 3601
or PUBLIC AGENCY(on public work) SEATTLE WA 98124-3601
CITY OF BREMERTON Brief description of professional services, materials, or
345 6TH ST#100 equipment provided or to be provided:
BREMERTON WA 98337
READY MIX,AGGREGATE,ASPHALT,
PRECAST,CEMENT AND/OR BUILDING
MATERIALS
CONSTRUCTION LENDER or
Reputed Construction Lender, if any.
SUB CONTRACTOR /person or firm who...
NO CONST LENDER PER REPRESENTATION the purchase of such labor, services, equipment or...
OF THE 253-891-1311
GENL CONTR DMI DRILLING CONSTRUCTION
14211 16TH ST E UNIT 8
SUMNER WA 98390-9608
ORIGINAL CONTRACTOR or 03
Reputed Contractor, if any.
for the building, structure or other work of improvement
360-829-1330 located at, or on property described as follows:
STEELHEAD COMMUNICATIONS
28120 STATE RTE 410 E#A "FOREST RIDGE PARK-CELL TOWER"
BUCKLEY WA 98321 3100 1ST ST
BREMERTON WA
SUB JOB #16890
GC JOB#10219
ADDITIONAL INFORMATION 0 4
SENDER:
VERTICAL BRIDGE HOLDINGS LLC-
PROJ OWNER Caprenos, Inc.
750 PARK OF COMMERCE DR 4345 Murphy Canyon Rd, Suite 200
BOCA RATON FL 33487 San Diego,CA 92123 tel: (800)854-2100
On behalf of:
GLACIER NORTHWEST DBA...
3283180
THIS IS NOT A LIEN: This notice is sent to you to tell you who is providing professional services, materials, or
equipment for the improvement of your property and to advise you of the rights of these persons and your
responsibilities. Also take notice that laborers on your project may claim a lien without sending you a notice.
OWNER/OCCUPIER OF EXISTING RESIDENTIAL PROPERTY
Under Washington law, those who furnish labor, professional services, materials, or equipment for the repair,
remodel, or alteration of your owner-occupied principal residence and who are not paid, have a right to enforce their
claim for payment against your property. This claim is known as a construction lien.
The law limits the amount that a lien claimant can claim against your property. Claims may only be made against
that portion of the contract price you have not yet paid to your prime contractor as of the time this notice was given
to you or three days after this notice was mailed to you. Review page 2 of this notice for more information and ways
to avoid lien claims.
COMMERCIAL AND/OR NEW RESIDENTIAL PROPERTY
We have or will be providing professional services, materials or equipment for the improvement of your commercial
or new residential project. In the event you or your contractor fail to pay us, we may file a lien against your property.
A lien may be claimed for all professional services, materials, or equipment furnished after a date that is sixty days
before this notice was given to you or mailed to you, unless the improvement to your property is the construction of
a new single-family residence, then ten days before this notice was given to you or mailed to you.
(Page 1 of 2) *2E3*
IMPORTANT INFORMATION ON ATTACHED SHEET
Important Information for Your Protection
O This notice is sent to inform you that we have or will provide
professional services, materials or equipment for the repair, remodel
or alteration of your property. We expect to be paid by the person who
ordered our services, but if we are not paid, we have the right to enforce
our claim by filing a construction lien against your property.
O LEARN more about the lien laws and the meaning of this notice by
discussing them with your contractor, suppliers, Department of Labor
and Industries, the firm sending you this notice, your lender, or your
attorney.
O COMMON METHODS TO AVOID CONSTRUCTION LIENS:
There are several methods available to protect your property from
construction liens. The following are two of the more commonly used
methods.
O DUAL PAYCHECKS (Joint Checks): When paying your
contractor for services or materials, you may make checks
payable jointly to the contractor and the firms furnishing
you this notice.
O LIEN RELEASES: You may require your contractor to provide
lien releases signed by all the suppliers and subcontractors
from whom you have received this notice. If they cannot
obtain lien releases because you have not paid them, you may
use the dual payee check method to protect yourself.
YOU SHOULD TAKE APPROPRIATE STEPS TO PROTECT
YOUR PROPERTY FROM LIENS.
YOUR PRIME CONTRACTOR AND YOUR CONSTRUCTION
LENDER ARE REQUIRED BY LAW TO GIVE YOU WRITTEN
INFORMATION ABOUT LIEN CLAIMS. IF YOU HAVE NOT
RECEIVED IT, ASK THEM FOR IT.
(Page 2 of 2)
*1E3*