HomeMy WebLinkAboutAmerican Tower (2)FIRST AMENDMENT TO LAND LEASE AGREEMENT
This First Amendment to Land Lease Agreement (this "Amendment") is made effective as of the
latter signature date hereof (the "Effective Date") by and between Town of Los Altos Hills, a
municipal corporation ("Landlord") and GTE Mobilnet California Limited Partnership d/b/a
Verizon Wireless ("Tenant") by its attorney-in-fact, ATC Sequoia LLC ("American rower"), a
Delaware limited liability company (Landlord and Tenant being individually referred to herein
as a "Party" and collectively referred to herein as the "Parties").
RECITALS
WHEREAS, Landlord owns the real property located at 27210 Altamont Road., Los Altos Hills, in
the County of Santa Clara and described on Exhibit A attached hereto and by this reference
made a part hereof (the "Parent Parcel"); and
WHEREAS, Landlord (or its predecessor -in -interest) and Tenant (or its predecessor -in -interest)
entered into -that certain Land tease Agreement dated March 23,2006 (as the same may have
been amended, collectively, the "Lease", attached hereto and incorporated herein as Exhibit
B), pursuant to which Tenant leases approximately seven hundred six (706) square feet of
ground space on the Parent Parcel together with certain non-exclusive rights for ingress and
egress and for the installation and maintenance of utility wires, poles, cables, conduits, and
pipes over, under, or along a twelve (12) -foot wide right of way extending from Altamont Road
to the Parent Parcel, all as more particularly described in the Lease "Leased premises"), which
Leased Premises are also described on Exhibit A; and
WHEREAS, Tenant, Verizon Communications Inc., a Delaware corporation, and other parties
identified therein, entered into a Management Agreement and a Master Prepaid Lease, both
with an effective date of March 27, 2015 and both with American Tower, pursuant to which
American Tower subleases, manages, operates and maintains, as applicable, the Leased
Premises, and is authorized on behalf of Tenant in the execution of applicable lease
amendments and extensions, all as more particularly described therein; and
WHEREAS, Tenant has granted American Tower a limited power of attorney (the "POA") to,
among other things, prepare, negotiate, execute, deliver, record and/or file certain documents
on behalf of Tenant, all as more particularly set forth in the POA; and
WHEREAS, on March 24, 2015 and April 8, 2015, respectively, American Tower advised
Landlord of and Landlord consented to the transaction contemplated by the Management
Agreement and Master Prepaid Lease identified above; and
WHEREAS, Landlord and Tenant desire to amend the terms of the Lease to extend the term
thereof and to otherwise modify the Lease as expressly provided herein.
NOW THEREFORE, in consideration of the foregoing recitals and the mutual covenants set forth
herein and other good and valuable consideration, the receipt, adequacy, and sufficiency of
which are hereby acknowledged, the Parties hereby agree as follows:
1. Lease Term Extended. Notwithstanding anything to the contrary contained in the Lease,
the Parties agree that the Lease, without giving effect to this Amendment and assuming the
ATC Site No: 413837
VZW Site No: 157417
Site Name: Pagemill Highlands CA
exercise by Tenant of all remaining renewal terms in the Lease, has a final expiration date of
August 31, 2021 (the "Current Expiration Date"). Pursuant to this Amendment, the Lease
shall be renewed for an initial term of five (5) years commencing on September 1, 2021, and
Tenant shall have the option to extend the Lease for two (2) additional five (5) year renewal
terms (each a "New Renewal Term" and, collectively, the "New Renewal Terms"). All
existing renewal terms and New Renewal Terms shall automatically renew unless Tenant
notifies Landlord that Tenant elects not to renew the Lease not less than one hundred and
eighty (180) days prior to the expiration of the then current term. In the event the Lease is
not renewed, all rights for ingress and egress to, and installation and maintenance of
utilities and related equipment at the Leased Premises and within any public right of way as
granted pursuant to the Lease shall be revoked as of the termination of the Lease.
2. Rent and Escalation. Commencing with the first rental payment due following the Effective
Date, the rent payable from Tenant to Landlord under the Lease is hereby set at Four
Thousand- Four _Hundred _Seven and 12/100 Dollars -($4,407.12) per month (the "Rent")
Commencing on September 1, 2022 and on each successive annual anniversary thereof,
Rent due under the Lease shall increase by an amount equal to three percent (3%) of the
then current Rent. In the event of any overpayment of Rent prior to or after the Effective
Date, Tenant shall have the right to deduct from any future Rent payments an amount
equal to the overpayment amount provided that Tenant has provided evidence of such
overpayment to Landlord not less than thirty (30) days prior to the deduction taking effect.
Notwithstanding anything to the contrary contained in the Lease, all Rent and any other
payments expressly required to be paid by Tenant to Landlord under the Lease and this
Amendment shall be paid to Town of Los Altos Hills.. The escalations in this Section shall be
the only escalations to the Rent and any/all rental escalations otherwise contained in the
Lease are hereby null and void and are of no further force and effect.
3. Administrative Payment Separate from the Rent, Tenant agrees to make a one-time
payment, in the amount of Four Thousand Three Hundred 00/Dollars ($4300.00), to
Landlord to cover Landlord's actual costs of negotiating, preparing, reviewing and
processing this Amendment, including, but not limited to, all time and materials costs of
City employees, agents, consultants, and the City Attorney's office ("Administrative Costs")
Landlord shall provide Tenant an invoice of the Administrative Costs within ten (10)
business days from the Effective Date, and Tenant shall make payment to Landlord within
thirty (30) days of Tenant's receipt of such invoice.
4. Notices. The Parties acknowledge and agree that Section 19 of the Lease is hereby deleted
in its entirety and is of no further force and effect. From and after the Effective Date the
notice address and requirements of the Lease, as modified by this Amendment, shall be
controlled by this Section of this Amendment. All notices must be in writing and shall be
valid upon receipt when delivered by hand, by nationally recognized courier service, or by
First Class United States Mail, certified, return receipt requested to the addresses set forth
herein:
ATC Site No: 413837
VZW Site No: 157417
Site Name: Pagemill Highlands CA
To Landlord at: Town of Los Altos Hills
Attn: City Manager
23679 Fremont Road
Los Altos Hills, CA 94022;
To Tenant at: Verizon Wireless
Attn.: Network Real Estate
180 Washington Valley Road
Bedminster, NJ 07921
with copy to: American Tower
Attn.: Land Management
10 Presidential Way
- Woburn, -MA 01801— -- - --- -- - - -
and also with copy to: American Tower
Attn.: Legal Dept.
116 Huntington Avenue
Boston, MA 02116
Any of the Parties, by thirty (30) days prior written notice to the others in the manner
provided herein, may designate one or more different notice addresses from those set forth
above. Refusal to accept delivery of any notice or the inability to deliver any notice because
of a changed address for which no notice was given as required herein, shall be deemed to
be receipt of any such notice.
5. Other Terms/Conflict/Ca 12ital !zed Terms. All terms, conditions and obligations in the Lease
not otherwise specifically modified by this Amendment shall continue to remain in full force
and effect. The Parties hereby acknowledge and agree that in the event of a conflict
between the terms and provisions of this Amendment and those contained in the Lease, the
terms and provisions of the Lease shall control unless specifically modified by this
Amendment. Except as otherwise defined or expressly provided in this Amendment, all
capitalized terms used in this Amendment shall have the meanings or definitions ascribed to
them in the Lease. To the extent of any inconsistency in or conflict between the meaning,
definition, or usage of any capitalized terms in this Amendment and the meaning,
definition, or usage of any such capitalized terms or similar or analogous terms in the Lease,
the meaning, definition, or usage of any such capitalized terms in the Lease shall control
unless specifically modified by this Amendment.
Counterparts. This Amendment may be executed in multiple counterparts, each of which
when so executed and delivered, shall be deemed an original and all of which, when taken
together, shall constitute one and the same instrument.
ATC Site No: 413837
VZW Site No: 157417
Site Name: Pagemill Highlands CA
7. Authority to Execute. The individuals executing this Amendment warrant and represent
that they have the full right, power, and capacity to act on behalf of the signing Party and
have the authority to bind that Party to the performance of its obligations under this
Amendment and the Lease without the subsequent approval or consent of any other person
or entity.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
ATC Site No: 413837
VZW Site No: 157417
Site Name: Pagemill Highlands CA
LANDLORD:
Town of Los Altos Hills,
a municipal corporation,
Signature: CJ.'
Print Name:
Corl ---Cah;11
Title:
C
Date:
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
ATC Site No: 413837
VZW Site No: 157417
Site Name: Pagemill Highlands CA
TENANT:
GTE Mobilnet California limited Partnership d/b/a Verizon Wireless
By: ATC Sequoia LLC, a Delaware limited liability company
Title: Attorney -in -Fact
Signature:
Print Name: Carol MAx
Title:
Date: 8nli ,
Us rower
ATC Site No: 413837
VZW Site No: 157417
Site Name: Pagemill Highlands CA
EXHIBIT A
This Exhibit A may be replaced at Tenant's option as described below.
PARENT PARCEL
Tenant shall have the right, with Landlord's prior written consent, which consent shall not
unreasonably withheld, conditioned, or delayed, to replace this description with a description
obtained from Landlord's deed (or deeds) that include the land area encompassed by the Lease
and Tenant's improvements thereon. Such description revisions or replacement shall only be
provided for the purposes of providing a meets and bounds description and/or improving the
accuracy of the legal descriptions of the Leased Premises as described in Section 1 of the
Memorandum, but shall not in any event alter the scope of the area intended to be included in
the Leased Premises as set forth above.
The Parent Parcel consists of the entire legal taxable lot owned by Landlord as described in a
deed (or deeds) to Landlord of which the Leased Premises is a part thereof with such Parent
Parcel being described below:
PARCEL 1:
TRACT 1:
Lot 1 as shown on the map entitled "Map of the subdivision of Lot 2 and a part of Lot 1 in Taafe
Partition in the La Purisima Concepcion," recorded in Book H of Maps, Pages 66 and 67, in the
office of the recorder of said County.
AND BEING the same property conveyed to Town of Los Altos Hills, California, a municipal
corporation from Betty Byrne, also known as Betty Bryne De Zahara by Gift Deed dated
December 18, 1968 and recorded December 31, 1968 in Deed Book 8387, Page 1; AND BEING
the same property conveyed to Town of Los Altos Hills, a municipal corporation from Parkside
Estates LTD., a limited partnership by Grant Deed dated December 27, 1968 and recorded
January 02, 1969 in Deed Book 8389, Page 92.
TRACT 2:
Lot 2 as shown on the map entitled "Map of the subdivision of Lot 2 and a part of Lot 1 in Taafe
Partition in the La Purisima Concepcion," recorded in Book H of Maps, Pages 66 and 67, in the
office of the recorder of said County.
AND BEING the same property conveyed to Town of Los Altos Hills from The Nature
Conservancy by Corporation Grant Deed dated December 13, 1968 and recorded December 31,
1968 in Deed Book 8388, Page 409;
[LEGAL DESCRIPTION CONTINUED ON FOLLOWING PAGE]
ATC Site No: 413837
VZW Site No: 157417
Site Name: Pagemill Highlands CA
EXHIBIT A (Continuedl
AND BEING the same property conveyed to Town of Los Altos Hills from The Nature
Conservancy by Corporation Grant Deed dated December 11, 1969 and recorded December 26,
1969 in Deed Book 8781, Page 403; AND BEING the same property conveyed to Town of Los
Altos Hills from The Nature Conservancy by Corporation Grant Deed dated December 18, 1970
and recorded January 06, 1971 in Deed Book 9179, Page 47; AND BEING the same property
conveyed to Town of Los Altos Hills from The Nature Conservancy by Corporation Grant Deed
dated December 16, 1971 and recorded December 30, 1971 in Deed Book 9648, Page 330; AND
BEING the same property conveyed to Town of Los Altos Hills from The Nature Conservancy by
Corporation Grant Deed dated December 22, 1972 and recorded January 04, 1973 in Deed Book
0181, Page 635; AND BEING the same property conveyed to Town of Los Altos Hills from The
Nature Conservancy by Corporation Grant Deed dated December 12, 1973 and recorded
January 04, 1974 in Deed Book 0713, Page 730; AND BEING the same property conveyed to
Town of Los -Altos Hills from The Nature Conservancy by Corporation Grant Deed -dated July25,
1975 and recorded September 25, 1975 in Deed Book 630, Page 520.
TRACT 3:
Lots 60 and 61, as said lots are shown on the map entitled "Map of the Subdivision of Lot 2 and
a part of Lot 1 in Taafe Partition in the La Purisima Concepcion, recorded in Book H of maps,
Pages 66 and 67, in the Office of the Recorder of said County.
AND BEING the same property conveyed to Town of Los Altos Hills from The Nature
Conservancy by Corporation Grant Deed dated March 25, 1968 and recorded April 24, 1968 in
Deed Book 8099, Page 43.
Tax Parcel No. 182-21.016
PARCEL 2:
PARCEL ONE:
PARCEL A, as shown on the Parcel Map of a portion of the lands shown on Record of Survey
recorded in Book 14 of Maps, Page 44 which Parcel Map was filed September 23, 1975, Book
361 of Maps, Page 51, Santa Clara County Records.
PARCEL TWO: Parcel 4, as shown on the Parcel Map of a Portion of the lands shown on Record
of Survey recorded in Book 14 of Maps, Page 44, which Parcel Map was filed September 23,
1975, Book 361 of Maps, Page 51, Santa Clara County Records.
AND BEING the same property conveyed to Town of Los Altos Hills from Margit S. Bessenyey by
Individual Grant Deed dated September 02, 1975 and recorded September 23, 1975 in Deed
Book 627, Page 304.
Tax Parcel No. 182-28-039
ATC Site No: 413837
VZW Site No: 157417
Site Name: Pagemill Highlands CA
EXHIBIT A (Continued)
LEASED PREMISES
Tenant shall have the right, with Landlord's prior written consent, which consent shall not
unreasonably withheld, conditioned, or delayed, to replace this description with a description
obtained from the Lease or from a description obtained from an as -built survey conducted by
Tenant. Such description revisions or replacement shall only be provided for the purposes of
providing a meets and bounds description and/or improving the accuracy of the legal
descriptions of the Leased Premises as described in Section 1 of the Memorandum, but shall not
in any event alter the scope of the area intended to be included in the Leased Premises as set
forth above.
__The -Leased Premises consists -of that -portion -of the Parent Parcel as defined -in the Lease which
shall include non-exclusive rights for ingress, egress and utility purposes. The square footage of
the Leased Premises shall be the greater of: (i) the land area leased to Tenant in the Lease; (ii)
Tenant's (and Tenant's customers) existing improvements on the Parent Parcel pursuant to the
Lease; either of which shall be reflected as clearly as possible in the legal description or
depiction below (if any).
Situated in the Town of Los Altos Hills, County of Santa Clara and State of California;
Being part of Parcel 4, as shown on the Parcel Map of a Portion of the lands shown on Record of
Survey recorded in Book 14 of Maps, Page 44, which Parcel Map was filed September 23, 1975,
Book 361 of Maps, Page 51, Santa Clara County Records and being more particularly described
as follows: (Par the purpose of this description, all bearings are based on California State Plane
Zone 403 NAD 83.)
Commencing at a point at the southeasterly corner of said Parcel 4, said point being North
0935'55" West a distance of 1.89 feet from an iron pipe found; Thence along the easterly line
of said Parcel 4, North 0935'55" West a distance of 100.96 feet to the southeasterly corner and
Point of Beginning of the parcel herein described;
Thence South 80°24'05" West a distance of 17.67 feet to the southwesterly corner of the parcel
herein described; Thence North 09°35'55" West a distance of 40.00 feet to the northwesterly
corner of the parcel herein described; Thence North 80'24'05" East a distance of 17.67 feet to
the northeasterly corner of the parcel herein described; Thence South 09°35'55" East a distance
of 40.00 feet to the Point of Beginning and containing 0.016 acres (707 square feet) of land,
more or less.
ATC Site No: 413837
VZW Site No: 157417
Site Name: Pagemill Highlands CA
EXHIBIT A (Continued)
ACCESS AND UTILITIES
Non-exclusive rights for ingress and egress including that portion of the Parent Parcel currently
utilized byTenant (and Tenant's customers) for ingress, egress and utility purposes from the
Leased Premises tOand from 8public right ofway including but not limited to:
Access Easement
Situated |nthe Town ofLos Altos Hills, County ofSanta Clara and State VfCalifornia;
Being oI2'stripofland out ofParcel 4,asshown onthe Parcel Map oFePortion ofthe lands
shown on Record of Survey recorded in Book 14 of Maps, Page 44, which Parcel Map was filed
September 23, 1975,Book 3GlofMaps, Page 51rSanta Clara -County Records -said strip |y|ng G'
oneither side nfthe following described centerline: (For the purpose ofthis description, all
bearings are based onCalifornia State Plane Zone 4O3NAD Q3.)
CornnoeDdn8 at 8 point at the southeasterly corner of said Parcel /, said point being North
09'35'55" West a distance Of1.Q8feet from aniron pipe found; Thence along the easterly line
of said Parcel 4, North 09*35'55" West a distance of 100.96 feet to a point; Thence South
8O"24/O5'/West adistance Of23.87feet tothe Point OfBeginning ofthe centerline herein
Thence North 09'23'36" West a distance of 107.63 feet to a point; Thence on a curve to the
right having 8radius of21.00feet, anarc length oF23-62feet through acentral angle of
64"2R39'/,bearing North Z3"49'43"East odistance qf22.39feet tOapoint; Thence North
55003'02" East a distance of 58.39 feet to a point; Thence on a curve to the left having a radius
of13O.00feet, anarc length of171.29feet through acentral angle of75"29'44"/bearing
North17~18'11" East distance ofl59,17feet tn @ point; Thence North 20°26'41: West 8
distance nf89.16feet but tothe southerly r|ght-of-vveyline and Point ofTermination of said
centerline, said easement containing O.124acres /5,401 square feet) of land, more or less.
[LEGAL DESCRIPTION CONTINUED ONFOLLOWING PAGE]
ATC Site No: 413837
VZVVSite No: 157417
Site Name: PaQemiUHighlands CA
EXHIBIT A (Continued)
Utility Easement
Situated in the Town of Los Altos Hills, County of Santa Clara and State of California;
Being a5/strpOf land out OfParcel 4,asshown oDthe Parcel Map of8Portion Ofthe lands
shown on Record of Survey recorded in Book 14 of Maps, Page 44, which Parcel Map was filed
September 23, 1975, Book 361 of Maps, Page 51/ Santo Clara County Records said Strip lying
2.5'oneither side ofthe following described centerline: (For the purpose 0fthis description, all
bearings are based VnCalifornia State Plane Zone 4O3NAD Q3.)
Commencing at a point at the southeasterly corner of said Parcel 4, said point being North
09"35'55o West o distance of1.89feet from an iron pipe found; Thence along the easterly line
ofsaid Parcel 4, -North OB"35'5S"West a-diotanCeof1OO.9Gfeet toepoint; Thence South �
0O,24'OS"West adistance of17.67feet toapoint; Thence North O9"3S/55"West adistance of
2.5Ofeet tothe Point ofBeginning mfthe centerline herein described;
Thence South QO°34/OSxWest odistance of54.O7feet tUapoint; Thence North 09,35'55"West
adiytanne of 16.31 feet to the Point of Termination of said centerline, said easement containing
0.008 acres (352 square feet) of land, more or less,
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ATC Site No: 413837
VZVVSite No: 157417
EXHIBIT B
ORIGINAL LEASE
ATC Site No: 413837
VZW Site No: 157417
Site Name: Pagemill Highlands CA
LAND LEASE AGREEMENT
This Land. Lease Agreement ("Agreement") is made this nAZ &-t _ day of A.,
2006, between the Town of Los Altos gills, a Municipal Corporation, with its mailing address
located at 26379 Fremont Road, Los Altos Dills, California 94022, Tax ID # 94 -- 6027523,
hereinafter designated LESSOR, and GTE Mobilnet of California Limited Partnership, a California
limited partnership, dba Verizon Wireless, by Cellco Partnership, its general partner, with its
principal office located at 180 Washington Valley Road, Bedminster, New Jersey 07921,
hereinafter designated LESSEE, The LESSOR and LESSEE are at times collectively referred to
hereinafter as the "Parties" or individually as the "Party."'
LESSOR is the owner in :tee of that certain real property located at 27210 Altamont Road,
Los Altos Hills, California 94022, and being further described as APN; 182-21-016 and 182-28-039
(the entirety of LESSOR's property is referred to hereinafter as the "Property'). LESSEE desires
to lease a portion of said Property on the terms -and conditions set forth herein, with -a right-of-wayfor access thereto, containing approximately seven hundred six (706) square feet of ground space
on the Property as shown on Exhibit "A" attached hereto and made a pant hereof.
TERMS AND CONDIT'I'ONS OF LEASE
I. PREMISES. LESSOR hereby leases to LESSEE a portion of the Property and
being described as seven hundred six (706) square feet of ground space consisting of an
approximately seventeen (17) foot. eight (8) inch by forty (40) foot portion of ground space for
LESSEE's equipment and ground space sufficient for the installation of a monopine antenna
structure, together with the non-exclusive right for ingress and egress, seven (7) days a week
twenty-four (24) hours a day, on foot or motor vehicle, including trucks, and for the installation and
maintenance of utility wires, poles, cables, conduits, and pipes over, under, or along a twelve (12)
foot wide right-of-way extending from the nearest public right-of-way, Altamont Road, to the
demised premises, said demised premises and right-of-way (hereinafter collectively referred to as
the "Premises") for access being substantially as described herein in Exhibit "A" attached hereto
and made a part hereof, The Premises shall be used by LESSEE and any authorized successors or
assignees of LESSEE for installation, operation and maintenance of a communications tower as
described in Paragraph 7, below.
It, the event any public utility is unable to use the aforementioned right -of way, the
LESSOR hereby agrees to grant an additional right-of-way either to the LESSEE or to the public
utility at no additional cost to tine LESSEE.
2. SURVEY. LESSOR also hereby grants to LESSEE the right to survey the Property
and the Premises, and said survey shall then become Exhibit "B" which shall be attached hereto and
made a part hereof, and shall control in the event of boundary and access discrepancies between it
and Exhibit "A". Cost for such work shall be borne by the LESSEE.
3. TERM AND RENT. The initial term shall be for five (5) years and shall commence
on the first day of the month in which LESSEE is issued a building permit by LESSOR for the
proposed communications facility (the "Commencement Date'), The annual rental shall be
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Thirty -Six Thousand Dollars ($36,000.00), payable in equal monthly installments of Three
Thousand Dollars ($3,000,00), in advance, on the first day of each month, to LESSOR or to such
other person, 'Firm or place as the LESSOR may, from time to time, designate in writing at least
thirty (30) days in advance of any rental payment date. The foregoing rent shall allow LESSEE to
locate one monopine wireless communications tower and equipment shed on the Premises.
LESSEE may locate no additional towers or facilities on the Premises without an amendment to
this Agreement.
Notwithstanding anything to the contrary in this Agreement, this Agreement shall
automatically terminate if LESSEE: (a) has not coinnienced construction of tine communications
tower within one hundred eighty (180) days of the date that the LESSOR executes this Agreement;
or (b) has not, following commencement of construction, diligently pursued such construction to
completion. In the event this Agreement is automatically terminated pursuant to this provision,
LESSOR shall refund prepaid rent on a prorated basis based on 365 days in the rental period.
- 4. - EXTENSIONS, —This -Agreement shall -automatically be extended for two (2)
additional five (5) year term unless the LESSEE terminates it at the end of the them current term by
giving the LESSOR written notice of the intent to terminate at least six (6) months prior to the egad
of the then current term.
5. EXTENSION RENTALS. Commenoing upon the first annual anniversary of tlae
Commencement Date of this Agreement, and continuing on each anniversary thereafter,
("Adjustment Date") rent shall be increased by the percentage increase in the Consumer Price
Index, All Urban Consumers (CPI -U), San Francisco -Oakland -Sala Jose Area, All items (standards
reference base period 1982-84 = 100) published by the United States Department of Labor, Bureau
of Labor Statistics, during the 12 -month period preceding the Adjustment Date in question,
6. USE; GOVERNMENTAL APPROVALS. LESSEE shall use the Premises for the
purpose of constructing, maintaining and operating a communications tower and uses incidental
and all necessary appurtenances. A security fence consisting of chain large construction or similar
but comparable construction may be placed around the perimeter of the Premises at the discretion
of LESSEE (not including the access casement). All improvements shall be at LESSEE's expense
and the installation of all improvements shall be subject to the prior approval of LESSOR, which
approval shall not be unreasonably withheld. By way of example and not limitation, LESSEE shall
have the right, subject to the prior approval of LESSOR, which approval shall not be unreasonably
withheld, to install and use at the Premises a generator in connection with the LESSEE's
communications facilities. LESSEE shall have the right to replace, repair, add or otherwise modify
its equipment or any portion thereof, whether the equipment is specified or not on any exhibit
attached hereto, during the term of this Agreement, LESSEE will maintain the Premises in a good
condition reasonable wear and tear excepted. LESSOR will inahitain the Property, excluding the
Premises, in good condition, reasonable wear and tear excepted. It is understood and agreed that
LESSEE's ability to use the Premises is contingent upon its obtaining after the execution date of
this Agreement all of the certificates, permits and other approvals (collectively the "Governmental,
Approvals") that may be required by any Federal, State or Local authorities as well as satisfactory
soil boring tests which will permit LESSEE use of the Premises as set forth above. LESSOR shall
cooperate with LESSEE in its effort to obtain such approvals and shall take no action which would
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adversely affect the status of the Property with respect to the proposed use by LESSEE. In the
event that any of such applications for such Governmental Approvals should be finally rejected or
any Governmxental. Approval issued to LESSEE is canceled, expires, lapses, or is otherwise
withdrawn or terminated by governmental authority or soil boring tests are found to be
unsatisfactory so that LESSEE in its sole discretion will be unable to use the Premises for its
intended purposes or the LESSEE determines that the Premises is no longer technically compatible
for its intended use, LESSEE shall have the right to terminate this Agreement. Notice of the
LESSEE's exercise of its right to terminate shall be given to LESSOR ill writing by certified mail,
return receipt requested, and shall be effective upon the "railing of such notice by the LESSEE. All
rentals paid to said termination date shall be retained by the LESSOR. Upon such termination, this
Agreement shall be of no further force or effect except to the extent of the representations,
warranties and indemnities made by each party to the other hereunder. Otherwise, all the Parties
shall have no further obligations including the payment of "nosey, to each other,
7. .INDEMNIFICATION. Except to the extent of LESSOR'S sole negligence or
- willfitl-misconduct,-and to the -fullest extent permitted by law,, LESSEE hereby agrees to inde-m-nify,
hold harmless, protect, and defend (with counsel reasonably acceptable to LESSOR) LESSOR and
LESSOR'S elected and appointed officials, employees, agents, contractors, consultants, and
volunteers, from and against any and all claims, causes of action, liabilities, losses, costs, and
damages, whether foreseeable or unforeseeable, arising lion, or related to any act, omission, or
neglect of LESSEE or its customers, officers, directors, employees, agents, consultants, and
contractors, or arising from or related to LESSEE'S or its customer's use of or activities on or about
the Property, Notwithstanding anything to the contrary in this Agreement, in no event shall
LESSOR or LESSEE be liable to the other for, and LESSEE and LESSOR each hereby waive the
right to recover incidental, consequential (including, but not limited to, lost profits, loss of use, or
loss of business oppoitunity), punitive, exemplary and similar damages. The provisions of this
Section shall survive termination, cancellation, or expiration of this Agreement.
8. RLS RANCE. This Agreement shall not become effective until LESSEE delivers
to LESSOR certificates of insurance, in a form and type acceptable to LESSOR, against claims for
injuries to persons or damage to property, which may arise from or in connection with. the uses and
activities granted therein, including worker's compensation insurance. LESSEE shall maintain
such insurance during the Term of this Agreement of the types and amounts as follows:
(1) Insurance Services Office forma number GI, 0002 covering Comprehensive
General Liability and Insurance Service Office form, number GL 0404 covering Broad Form
Comprehensive General Liability; or Insurance Service Office Commercial General Liability
coverage ("occurrence" form CG 0001), or their equivalents.
(2) Minimum Limits of Insurance shall be maintained at limits no less than:
General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property
damage. If Commercial General Liability Insurance or other form with a general aggregate limit is
used, either the general aggregate limit shall apply separately to this project/location or the general
aggregate limit shall be twice the required occurrence limit.
287189.7
Nagemill Highlands
(3) LESSOR shall be named as additional insured and evidence of LESSOR's
status as all additional insured shall be provided through tile form of endorsement attached hereto as
Exhibit "C" and made a part hereof,
(4) LESSOR Shall be notified a minimum of thirty (30) days prior to the
cancellation of said policy or the reduction of coverage of said policy below the limits required
hereunder,
(5) Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
LESSOR and LESSEE shall each waive all claims against the other for claims based
upon first party property risks. All successors, assigns, and approved sublessees of LESSEE shall
be required to comply with all insurance requirements and provisions set forth herein.
9. INTERFERENCE,. _LESSOR agrees that LESSOR -and/or any -other tenants of -the --
Property who currently have or in the future take possession of the Property will be permitted to
install only such radio equipment that is of the type and frequency which will not cause measurable
interference to the existing equipment of the LESSEE. The Parties acknowledge that there will not
be an adequate remedy at law for non-compliance with the provisions of this paragraph and
therefore, LESSEE shall have the right to equitable remedies, such as, without limitation, injunctive
relief and specific performance. LESSEE shall not use, nor allow others to use, any part of the
communications facility in a manner that violates the Federal Communications Commission's
standards for radiated emissions.
10. REMOVAL UPON TERMINATION. LESSEE, upon termination of the
Agreement, shall, within ninety (90) days, remove its building(s), antenna structure(s) (except
footings), fixtures and all personal property and otherwise restore the Premises to its original
condition, reasonable wear and tear excepted. LESSOR agrees and acknowledges that all of the
equipment, fixtures and personal property of the LESSEE shall remain the personal property of the
LESSEE and the LESSEE shall have the right to remove the sante, whether or not said items are
considered fixtures and attachments to real property under applicable law, If such time for removal
causes LESSEE to remain on the Premises after termination of this Agreement, LESSEE shall pay
rent at the tlaetl existing monthly rate or on the existing monthly pro -rata basis if based upon a
longer payment term, until such time as the removal of the building, antenna structure, fixtures and
all personal property are completed. If LESSEE fails to remove its building(s), antenna str cture(s),
fixtures or any other personal property of LESSEE, or the personal property of any successor,
assignee, or sublessee of LESSEE, from the Premises or Property within the time periods specified
in this paragraph 12, the same shall be deemed abandoned and n3ay be removed, sold or otherwise
disposed of by LESSOR without any notification, or without incurring liability, to LESSEE.
11. ACCEPTANCE AND SLTRENDER OF PROPERTY, By- entry hereunder,
LESSEE accepts the Property as being in good and sanitary condition, order and repair and agrees
on the last day of the term of this Agreement, or sootier termination of the Agreement to remove all
nonpermanent improvements and to surrender the Property in the same condition as when received,
reasonable use and wear thereof and damage by Act of God or by the elements excepted,
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mean: 12. HAZARDOUS MATERIALS. As used in this section, hazardous materials shall
(1) "Hazardous substances" and "pollutants and contaminants" as defined i11
CERCLA 42 USC Sections 9601(14) and (33) and regulations issued pursuant thereto;
(2) "hazardous chemicals" within the meaning of OSCH's Hazard
Communication Rules, 29 CFR Section 1910,1200;
(3) "Extremely hazardous substances, hazardous chemicals" and "toxic
chemicals" as defined in the Emergency Planning and Corrimu pity Right to Know Act, 42 USC
Section I I002(a), 11021(e), and I I023(c), and regulations issued pursuant thereto;
regulations; (4) Any such materials regulated under state or local environmental laws and
(5) Any materials not covered by, or exempted t!'Om, the sources listed in
paragraphs (1)-(4) above, that may nevertheless pose a threat to human health or welfare or to the
envirorunent including, without limitation petroleum, including crude oil, and radon.
LESSEE understands that LESSOR has undertaken no internal investigation of its
files, examination of its employees or testing of the Property with respect to whether the .Property
has been used for the generation, storage, treatment or disposal of hazardous waste and with this
qualification LESSOR represents that it has no present knowledge that the Property has been so
used for hazardous waste.
LESSEE shall not bring any hazardous materials onto the property except for those
contained in its back-up power batteries (lead -acid batteries), fuel for emergency back-up
generators, and cleaning solvents necessary to the use of its facility. LESSEE will treat all
hazardous materials brought onto the Property by it in accordance with all federal, state, and local
laws and regulations. Irl the event of leakage or spillage from any of LESSEE'S equipment or any
vehicle in the control or custody of LESSEE or contractor or agent for LESSEE, LESSEE shall at
its own expense promptly clean LESSOR'S Property to the reasonable satisfaction of LESSOR, the
Environmental Protection Agency, and any public body having jurisdiction in the matter, Any
expense of required compliance with federal, state or local cnviromrrerntal regulations incurred by
LESSOR or LESSEE as a direct consequence of LESSEE'S use of the Property shall be borne by
LESSEE, including any fines and judgments levied against LESSEE.
13. ENTRY AND INSPECTION. LESSOR reserves and shall always have the right to
enter upon the Property at reasonable times and upon reasonable notice to determine compliance
with applicable laws or the terms hereof Irl the event that such envy or inspection by LESSOR
discloses that the Property or any part here of it is not in a safe, healthy and satisfactory condition or
discloses a violation of any municipal, state, or federal ordinance, statute, or law, or any breach of
covenant or condition of this Agreement, including but not limited to, the requirements relating to
repair, maintenance, restoration and reconstruction, LESSOR may, at its option, mandate
immediate repairs or changes to LESSEE'S equipment, improvements, or operations found not to
287189.7
Pagemill Highlands
be in compliance with local, county, state or federal laws, rules or regulations for the safe operation
Of communications facilities. LESSEE shall be considered in default of this Agreement if any
violation is not cured within ten (10) business days, but if LESSEE has failed to complete the cure
due to circumstances beyond LESSEE'S control, no default shall occur as long as LESSEE is
diligently prosecuting said Gare to connpletion..
14, RIGHTS UPON SALE. Should the LESSOR, at any time during the term of this
Agreement, decide to sell all or any part of the Property to a purchaser other than LESSEE, such
sale shall be under and subject to this Agreement and LESSEE's rights hereunder, and any sale by
the LESSOR of the portion of this Property underlying the right-of-way herein granted shall be
under and subject to the right of the LESSEE in and to such right-of-way.
15. QUIET ENJOYMENT. LESSOR promises so long as LESSEE performs its
obligations under this Agreement, LESSEE shall peaceably and quietly have, hold and enjoy the
coin ill unications site, and. the LESSOR shall not act in any manner that would interfere With or
disrupt LESSEE'S business or frustrate LESSEE'S -use -of the Site. --LESSEE acknowledges that -the -
Property and the Premises are subject to all existing lease between LESSOR and Friends of
Westwind, Inc. and that this covenant of quiet enjoyment of the Premises is subject to the rights and
interests of said existing lease.
16. INTEGRATION. It is agreed and understood that this Agreement contains all
agreements, promises and understandings between the LESSOR and. LESSEE and that no verbal or
oral agreements, promises or understandings shall be binding upon either the LESSOR. or LESSEE
in any dispute, controversy or proceeding at law, and any addition, variation or modification to this
Agreement shall be void and ineffective unless made in writing and signed by the Parties. In the
event any provision of the Agreement is found to be invalid or unenforceable, such finding shall not
effect the validity and enforceability of the remaining provisions of this Agreement. The failure of
either Party to insist upon strict perforxniance of any of the terms or conditions of this Agreement or
to exercise any of its rights tinder the Agreon-iont shall not waive such rights and such Party shall
have the right to enforce such rights at any time and take such action as may be lawful and
authorized under this .Agreement, either in law or in equity.
17. GOVERNING LAW. This Agreement shall be governed by the laws of the State of
California. Any legal action to enforce any provision of this Agreement shall only be brought in the
Superior Court of the County of Santa. Clara, California.
18, ASSIGNMENT, This Agreement may be sold, assigned or transferred by the
LESSEE without any approval or consent of the LESSOR to the LESSEE's principal, affiliates,
subsidiaries of its principal; to any entity which acquires all or substantially all of LESSEE's assets
in the market defined by the ,Federal Communications Commission in which the Property is located
by reason of a merger, acquisition or other business reorganization; or to any entity which acquires
or receives all interest in the majority of com11nu11ication towers of the LESSEE in the market
defined by the Federal Communications Commission in which the Property is located. As to other
parties, this Agreement may not be sold, assigned or transferred without the written consent of the
LESSOR, which such consent will not be unreasonably witlnlleld or delayed. LESSEE may sublet.
the Premises only upon notice to, and the written consent of, LESSOR. Any sublease that is
287139.7
Pagemill Highlands
entered into by LESSEE shall be subject to the provisions of this Agreement and shall be binding
upon the successors, assigns, heirs and legal representatives of the, respective parties hereto.
19. NOTICES. All notices hereunder must be in writing and shall be deemed validly
given if sent by certified mail, return receipt requested or by commercial courier, provided the
courier's regular business is delivery service and provided further that it guarantees delivery to the
addressee by the end of the next business day following the courier's receipt from the sender,
addressed as follows (or any other address that the Party to be notified may have designated to the
sender by like Notice):
LESSOR: Town of Los Altos Hills
26379 Fremont Road
Los Altos Hills, California 94022
Attn: City Manager
ESSEE-- - GTE Mobilnet of California Limited Partnership,
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
Notice shall be effective upon actual receipt or refusal as shown on the receipt
obtained pursuant to the foregoing.
20. SUCCESSORS, This Agreement shall extend to and bind the heirs, personal
representatives, successors and assigns of the. Parties hereto.
21. SUBORDINATION AND NON DISTURBANCE. At LESSOR's option, this
Agreement shall be subordinate to any mortgage or other security interest by LESSOR which from
time to time may encumber all or part of the Property or right-of-way, provided, however, every
such mortgage or other security interest shall recognize the validity of this Agreement in the event
of a foreclosure of LESSOR's interest and also LESSEE's right to remain in occupancy of and have
access to the Premises as long as LESSEE is not in default of this Agreement. LESSEE shall
execute whatever instruments may reasonably be required to evidence this subordination clause. In
the event the Property is encumbered by a mortgage or other security interest, the LESSOR
immediately after this Agreement is executed, will obtain and furnish to LESSEE, a
non -disturbance agreement for each such mortgage or other security interest in recordable form, It,
the event the LESSOR defaults in the payment and/or other performance of any mortgage or other
security interest encumbering the Property, LESSEE, may, at its sole option and without obligation,
erne or correct LESSOR's default and upon doing so, LESSEE shall be subrogated to any and all
rights, titles, liens and equities of the holders of such mortgage or security interest and the LESSEE
shall be entitled to deduct and setoff against all rents that may otherwise become due under this
Agreement the sums paid by LESSEE to cure or correct such defaults.
257154.7
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22. RECORDING. LESSOR. agrees
which LESSEE may record with the appropriate
Memorandum of Agreement is for recording
commencement of either term or rent payments,
to execute a Memorandum of this Agreement
Recording Officer. The date set forth in the
purposes only and bears no reference to
23, DEFAULT. III the event there is a default by the LESSEE with respect to any of the
provisions of this Agreement or its obligations under it, including the payment of rent, the LESSOR
shall give LESSEE written notice of such default. After receipt of such written notice, the LESSEE
shall have fifteen (15) days in which to cure any monetary default and thirty (30) days in which to
cure any non -monetary default, provided the LESSEE shall have such extended period as may be
required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more
than thirty (30) days and the LESSEE commences the cure within the thirty (30) day period and
thereafter continuously and diligently pursues the cure to completion. The LESSOR. may not
maintain any action or effect any remedies for default against the LESSEE unless and until the
LESSEE has failed to cure the same within the time periods provided in this Paragraph,
24. REMEDIES OF LESSOR ON DEFAULT. III the event of any breach of this
Agrcement by LESSEE which is not cured, LESSOR, in addition to all other rights and remedies it
may have, shall have the immediate right of re-entry and may remove all persons and LESSEE'S
property from the Property. Any property of LESSEE that is removed from the 'remises may be
stored in a public warehouse or elsewhere at the reasonable cost of and for the account of LESSEE.
Should LESSOR elect to reenter, as herein provided or should LESSOR take possession pursuant
to any remedy provided for by law, LESSOR may either terminate this Agreement by giving written
notice of such intention to LESSEE or may re -let the Property. Notwithstanding any such re -letting
LESSOR may at any time thereafter elect to terminate this Agreement. Upon any breach of this
Agreement, in addition to any other retnedy LESSOR may have, LESSOR may immediately
recover from LESSEE all damages LESSOR may incur by reason of such breach, including the
reasonable cost of recovering the Premises or the Property.
25, WASTE NUISANCE OR UNLAWFUL USE PROHIBITED, LESSEE shall not
permit, or suffer to be permitted, any waste on the Property, nor shall LESSEE maintain or permit
the maintenance or commission of any nuisance, as defined in California Civil Code, on the
Premises or the Property.
26, WAIVER. OF BREACH. No waiver of any default shall constitute a waiver of any
other breach or default, whether of the same or any other covenant or condition. No act or omission
by either party shall constitute a modification of this Agreement, it being understood by all parties
that this Agreement may be changed or otherwise modified only by written agreement of all parties.
27. ATTORNEY'S FEES. Should any legal action be brought by either party for
breach of this Agreement or to enforce or interpret any provisions herein, the prevailing party to
such action shall be entitled to reasonable attorneys' fees, court costs and such other costs as may be
fixed by the Court.
28. TIME IS OF THE ESSENCE, Time is of the essence with respect to the
performance of every provision of this Agreement in which time or performance is a factor,
287139.7
Pagemill Highlands
29. USE. LESSEE may use the Prernises, and LESSOR consents to the use of the
Premises for the construction, operation, maintenance, reconstruction, restoration or replacement
of a commercial relay communication facility and uses incidental thereto, which facility may
consist of such buildings) as is necessary to house communications equipment, anterum support
structures of sufficient height, now or in the future, to meet the need of LESSEE, and all
necessary appurtenances, a security fence of chain link or comparable construction which may be
placed around the outside perimeter of the Premises, or additional improvement at any time
during the Terni of this Agreement. LESSEE'S use of the Property shall be in full compliance
with all applicable federal, state, and local laws, ordinances, regulations, codes, and
specifications, including without lirnitation, local zoning ordinances and noise ordinances.
LESSEE shall not do or permit to be done ori the Premises, nor bring or keep or
permit to be brought or kept in the Premises, anything (a) which is prohibited by any law,
ordinance, or governmental or Town rule, or, (b) which is prohibited by the standard form of fire
insurance policy, or (c) which will increase the existing rate of insurance on the Premises or
--cause-a_ cancel lation-of anyinsurancepolicy-covering the -Premises or -airy art of it; -LESSEE
shall not use or store on the Property any hazardous or toxic substances, except as permitted in
Paragraph 12 above,
LESSEE shall not make, or suffer to be made, any improvements or alterations of
or to the Premises or the Property or any pari thereof without the prior written consent of
LESSOR.. LESSEE shall keep the premises free from any liens arising out of work performed,
materials furnished, or obligations incurred by LESSEE.
30, MAINTENANCE AND REPAIR. LESSEE, at its sole cost and expense, shall
maintain, repair, and keep the Premises and all, structures and improvements thereon in neat and
sanitary order and condition, hereby waiving all right to make repairs at the expense of LESSOR
as provided in California Civil Code Section 1942. LESSEE further warrants that all repair's and
improvements shall be completed in accordance with required permits, and/or approvals from
LESSOR, County of Santa Clara, State of California and/or Federal Goverrinent,
31. CASUALTY. In the event of damage by fire or other casualty to the Premises that
cannot reasonably be expected to be repaired within forty-five (45) days following sarne or, if the
Property is damaged by fire or other casualty so that such damage may reasonably be expected to
disrupt LESSEE's operations at the Premises for more than forty-five (45) days, then LESSEE may
at any time following such fire or other casualty, provided LESSOR has not completed the
restoration required to permit LESSEE to resume its operation at the Premises, terminate this.
Agreement t Bort fifteen (15) days written notice to LESSOR. Any such notice of termination shall
cause this Agreement to expire with the same force and. effect as though the date set forth in such
notice were the date originally set as the expiration date of this Agreement and the Parties shall
make an appropriate adjustment, as of such termination date, with respect to payments due to the
other under this Agreement. Notwithstanding the foregoing, all rental shall abate during the period
of repair following such fire or other casualty.
32. CONDEMNATION. In the event of any condemnation of the Property, LESSEE
may terminate this Agreement upon fifteen (15) days written notice to LESSOR if such
287189.7
Pagemill Highlands
condemnation may reasonably be expected to disrupt LESSEE's operations at the Premises for
more than forty-five (45) days. LESSEE may on its own behalf make a claim in any condemnation
proceeding involving the Premises for losses related to the antemlas, equipment, and its damages
and losses (but not for the loss of its leasehold interest), Any such notice of termination shall cause
this Agreement to expire with the same force and effect as though the date set forth in such notice
were the date originally set as the expiration date of this Agreement and the Parties shall make an
appropriate adjustment as of such termination date with respect to payments due to the other wider
this Agreement.
33. SUBMISSION OF AGREEMENT. The submission of this Agreement for
examination does not constitute an offer to lease the Premises and this Agreement becomes
effective only upoia the full execution of this Agreement by the Parties. If any provision herein is
invalid, it shall be considered deleted from this Agreement and shall not invalidate the remaining
provisions of this Agreement. Each of the Parties hereto warrants to the other that the person or
persons executing this Agreement on behalf of such Party has the full right, power and authority to
__etlte�r_ into _aud_execute-this-Agreement oil such -Party's behalf-and-tliatrao- cor7sent from ally other _-
person or entity is necessary as a condition precedent to the legal effect of this Agreement.
34. APPLICABLE LAWS. LESSEE shall use the Premises as may be required or as
permitted by applicable laws, rules and regulations. LESSOR agrees to reasonably cooperate
with the LESSEE regarding any compliance required by the LESSEE in respect to its use of the
Premises.
35. AMENDMENT RENEWAL OR EXTENSION. This Agreement may be
amended, or extended, only by mutual written agreement of LESSOR and LESSEE,
36. SURVIVAL. The provisions of the Agreement relating to indemnification shall
survive any termination or expiration of this Agreement, Additionally, any provisions of tills
Agreement which require performance subsequent to the termination or expiration of tills
Agreement shall also survive such termination or expiration.
37. CAPTIONS. The captions contained in this Agreement are inserted for convenience
only and are not intended to be part of the Agreement. They shall not affect or be utilized in the
construction or interpretation of the Agreement.
237189.7 10
Pagemill Highlands
IN WITNESS WHEREOF, the Parties hereto have set their bands and affixed thein
l respective seals the day and year first above written.
LESSOR:
Town of Los Altos Hills,
a Municipal Corporation
BY: k1tj
Name;
—Lwa-
Title: /�ernc,,t�t Manage(
Date:
LESSEE:
GTE Mobilnet of California Limited Partnership,
a California limited partnership,
dba Verizon Wireless
By: Cellco Partnership
Its; general partner
By:
4L—
Keith A. Surratt
West Area ice President — Network
Date: L �
287189.7
Pagulill Highlands
Exhibit "A"
(Description of premises)
[See Attached]
289731.2
Pagemiil Highlands
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(Survey of Premises and Property)
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289731.2
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Exhibit "C"
Cndorsement
[See Attached]
239731,2
Pagemill Highlands
POLICY N0NBERRNQL:57440Q3
Issued by: American Home Assurance
COMMERCIAL GENERAL LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED DESIGNATED PERSON OR
ORGANIZATION
°wZx-^x o�n��n���
This endorsement mod0eeinsurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
Name nfPerson urOrganization: Any person ororganization with whumynuhavnaQraod|n wwr|tt
written
Named insured: OelcuPartnership DBA Verizon Wireless
Policy Effective: June 30, 2005— June 30, 2006
(if no entry appears above, information required to complete this endorsement will be Shown in the Declarations as
applicable mthis endormamenL)
WHO 0ANINSURED(Section |)Isamended boInclude cmaninsured the person morganization shown inthe
omv^uuve as on insured but only with respect to liability arising out of your operations or premises owned by or
rented to you.
CG%O2811 85
Copyright, Insurance Services office, Inc., 1984 Page 1 of 0