AMENDMENT 1 TO UMA WITH CROWN CASTLE.PDF

C-73-00-002-1-01
AMENDMENT ONE TO MONOPOLE USE MANAGEMENT AGREEMENT
BETWEEN
MARICOPA COUNTY
AND
CROWN ATLANTIC COMPANY LLC
THIS AMENDMENT ONE TO MONOPOLE USE MANAGEMENT AGREEMENT is entered into
between Maricopa County, a political subdivision of the State of Arizona (the “County”), and Crown
Atlantic Company LLC, a Delaware limited liability company, (“User”), hereinafter sometimes
individually referred to as “Party” or together as “Parties.”
WHEREAS, pursuant to the authority granted under A.R.S. § 11-933, a Monopole Use
Management Agreement was entered into on October 29, 1999 (hereinafter referred to as the
“Agreement”) between the County and User for the construction, maintenance and operation of a
“Wireless Communication System” located at Lake Pleasant Regional Park (Site # 800612) ; and
WHEREAS, the Agreement erroneously identified Crown Castle International as a party to the
Agreement in the heading of the Agreement, but the Agreement was properly executed by Crown
Atlantic Company LLC, which is a subsidiary of Crown Castle International. Crown Atlantic Company
LLC is the correct entity to enter into the Agreement and this Amendment (defined below); and
WHEREAS, pursuant to the terms and conditions of Paragraph 2, TERM, of the Agreement, it
is hereby agreed to by both Parties that both two five (5)-year renewal options of the Agreement shall
take full effect on October 29, 2014 and shall expire on October 28, 2024; and
WHEREAS, the Parties now desire to enter into this Amendment One to the Agreement of
October 29, 1999 (“Amendment”), with the understanding that, unless otherwise modified in this
Amendment, all other provisions of the Agreement shall remain in full force and effect.
THEREFORE, in consideration of the foregoing recitals and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the following is now
mutually agreed upon by both Parties:
I. INCORPORATION OF RECITALS
The Recitals set forth above are hereby incorporated into this Amendment.
II. EFFECTIVE DATE
This Amendment shall be effective October 29, 2014. Until that date, the provisions of the
original Agreement control.
III. SECTION 2.0 - TERM
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Delete Paragraph 2.0, TERM, of the Agreement in its entirety and replace with text to read as
follows:
This Agreement shall commence on the date the Maricopa County Board of Supervisors
executes this Agreement. The term of this Agreement shall be for fifteen (15) years with two (2)
five (5) year renewal options at the discretion of the County, which will not be unreasonably
withheld. These renewal options are subject to negotiation and mutual agreement of the
Parties.
The two five (5) year renewal options are hereby agreed to and approved, subject to the terms
of this Amendment . Total term of Agreement, as amended, shall be for twenty-five (25) years
(October 29, 1999 through October 28, 2024). After that time there will be no renewal options
remaining.
IV. SECTION 3.0 - PAYMENT
Delete Paragraph 3.0, PAYMENT, of the Agreement in its entirety and replace with text to read
as follows:
3.0 PAYMENT
User per year shall pay to County, twenty thousand dollars ($20,000.00) plus 20% of
any secondary leases (Secondary Leases) exclusive of the primary tenant. All amounts
shall be subject to a four percent (4%) escalation rate compounded per year or the
percentage increase in the Consumer Price Index for the previous one year period,
whichever is greater. Any Secondary Leases entered into by User shall not be less than
fifteen thousand six hundred dollars ($15,600.00) per year and revenue shall coincide
with the commencement of the secondary lease. Payment for the first Contract Year, as
defined in Exhibit E hereto, shall be due and payable within one hundred twenty (120)
days after execution of the original Agreement by the Maricopa County Board of
Supervisors. Payment for subsequent contract years shall be due thirty (30) days prior
to the start of that Contract Year. Failure on User to make timely payments will subject
this Agreement to termination in accordance with Subsection 3.2 of this section. Each
Contract Year shall run from one (1) year from the date of Board of Supervisors
execution of the Agreement.
Effective at the start of the first of the two five (5) year renewal options (October 29,
2014), User, shall pay to County, effective October 29, 2014, each of the following
amounts listed in Subsections 3.0.1, 3.0.2 and 3.0.3 per each year:
3.0.1. Thirty six four thousand six hundred thirty-three dollars and fifty-three
cents ($34,633.53), said amount subject to a five (5) percent escalation rate
compounded per year.
3.0.2. Twenty (20) percent of any revenue actually received from any
subsequent Secondary Leases, which percentage shall not increase or be subject to
escalation. Any revenue share due pursuant to any Secondary Leases, exclusive of the
Primary Tenant, entered into by User shall coincide with the commencement of the this
Amendment with an effective date of October 29, 2014.
3.0.3. One time premium payment of ten-thousand dollars ($10,000.00) shall be
due and payable within thirty (30) days after this Amendment becomes effective.
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Payment for the first renewal Contract Year shall be due and payable within thirty (30)
days after this Amendment becomes effective. Payment for subsequent Contract Years
shall be due thirty (30) days prior to the start of that Contract Year. Failure of User to
make timely payments will subject this Amendment to termination in accordance with
Subsection 3.2 of this section. Each Contract Year shall start on October 29 of the
respective Contract Year. (See Exhibit E – Payment Schedule)
3.1 SECONDARY LEASES:
Once per calendar year, County may submit a written request to User for a
business summary report pertaining to User’s payment obligations for the prior
twelve (12) month period, and User shall provide such written accounting to
County within sixty (60) days after User’s receipt of such written request.
3.2 TIMELINESS:
User shall send all revenue payments and Secondary Leases to:
Maricopa County Parks and Recreation Department
Attn: Contract Administrator
Unit Operations Center
41835 N. Castle Hot Springs Road
Morristown, AZ 85342
User shall make punctual payments to County through its Parks Department of
all amounts due under this Amendment. Payments will be due and owing under
this Agreement pursuant to Section 3. Payments not received within the above
time period will be deemed late. Late payments will subject User to
administrative penalties of ten (10%) percent of the amount billed or due and
owing and interest at the statutory rate from the due date. In addition, failure to
make timely payments will be deemed a default of this Amendment if the
delinquency is not cured within thirty (30) days of receipt of written notice from
County of said delinquency. In the event of litigation to enforce this provision
(collection or default), the prevailing party shall recover its reasonable attorney’s
fees and costs in such proceeding.
V. SECTION 7.0 – INSURANCE
Delete Paragraph 7, INSURANCE, of the original Agreement in its entirety and substitute with
the following:
7.0 INSURANCE:
User at its own expense, shall purchase and maintain the herein stipulated minimum
insurance with companies duly licensed, possessing a current A.M. Best, Inc. Rating of
B++6, or approved unlicensed companies in the State of Arizona with policies and forms
satisfactory to the County.
All insurance required herein shall be maintained in full force and effect until all work or
service required to be performed under the terms of the Agreement is satisfactorily
completed and formally accepted. Failure to do so may, at the sole discretion of the
County, constitute a material breach of this Amendment.
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User’s insurance shall be primary insurance as respects the County, and any insurance
or self-insurance maintained by the County shall not contribute to it.
Any failure on the part of User to comply with the claim reporting provisions of the
insurance policies or any breach of an insurance policy warranty shall not affect
coverage afforded under the insurance policies to protect the County.
The insurance policies may provide coverage which contains deductibles or self-insured
retentions. Such deductible and/or self-insured retentions shall not be applicable with
respect to the coverage provided to the County under such policies. User shall be solely
responsible for the deductible and/or self-insured retention.
The County reserves the right to request and to receive, as soon as they can be made
available by the insurance company, certified copies of any or all of the herein required
insurance policies and/or endorsements. The County shall not be obligated, however, to
review such policies and/or endorsements or to advise User of any deficiencies in such
policies and endorsements, and such receipt shall not relieve User from, or be deemed
a waiver of the County’s right to insist on strict fulfillment of User’s obligations under this
Agreement.
The insurance policies required by this Agreement, except Workers’ Compensation,
shall name the County, its agents, representatives, officers, directors, officials and
employees as Additional Insureds.
The policies required hereunder, except Workers’ Compensation, shall contain a waiver
of transfer of rights of recovery (subrogation) against the County, its agents,
representatives, officers, directors, officials and employees for any claims arising out of
User’s work or service.
7.1 Commercial General Liability
User shall maintain Commercial General Liability insurance with a limit of not
less than $2,000,000 for each occurrence with a $4,000,000
Products/Completed Operations Aggregate and a $4,000,000 General
Aggregate Limit. The policy shall include coverage for bodily injury, broad form
property damage, personal injury, products and completed operations and
blanket contractual coverage including, but not limited to, the liability assumed
under the indemnification provisions of this Amendment which coverage will be
at least as broad as Insurance Service Office, Inc. Policy Form CG 00 01 10 93
or any replacements thereof. User may meet the foregoing requirements with
any combination of primary and umbrella liability insurance policies.
The policy shall contain a severability of interest provision, and shall not contain
a sunset provision or commutation clause, or any provision which would serve to
limit third party action over claims.
The Commercial General Liability additional insured endorsement shall be at
least as broad as the Insurance Service Office, Inc.’s Additional Insured, Form
CG 20 10 11 85, and shall include coverage for User’s operations and products
and completed operations.
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7.2 Automobile Liability
User shall maintain Automobile Liability insurance with an individual single limit
for bodily injury and property damage of no less than $2,000,000, each
occurrence, with respect to User’s vehicles (whether owned, hired, non-owned),
assigned to or used in the performance of this Amendment.
7.3 Workers’ Compensation
User shall carry Workers’ Compensation insurance to cover obligations imposed
by federal and state statutes having jurisdiction of User’s employees engaged in
the performance of the work or services, as well as Employer’s Liability
insurance of not less than $1,000,000 for each accident, $1,000,000 disease for
each employee, and $1,000,000 disease policy limit.
In case any work is subcontracted, User will require the Subcontractor to provide
Workers’ Compensation and Employer’s Liability insurance to at least the same
extent as required of User.
7.4 Certificates of Insurance
Prior to commencing work or services under this Amendment, User shall furnish
the County with Certificates of Insurance, or formal endorsements as required by
the Agreement, issued by User’s insurer(s), as evidence that policies providing
the required coverages, conditions and limits required by this Amendment are in
full force and effect. Such certificates shall identify this Agreement and title.
The County will be named as “additional insured” under all policies of insurance
with the exception of Worker’s Compensation policy. In addition, the Bureau of
Reclamation will be named as “additional insured” for conducting business at
Lake Pleasant. Copies of all insurance policies or certificates thereof will be
made available to the County upon request. Copies of the Certificate of
Insurance (COI) will be furnished annually to the County. The County will be
given thirty (30) days advance written notice of cancellation of a policy, non-
renewal, or change in coverage or limits.
In the event any insurance policy (ies) required by this Agreement is (are) written
on a “claims made” basis, coverage shall extend for two (2) years past
completion and acceptance of User’s work or services and as evidenced by
annual Certificates of Insurance.
If a policy does expire during the life of the Amendment, a renewal certificate
must be sent to the County fifteen (15) days prior to the expiration date.
7.5 Cancellation and Expiration Notice
User agrees to provide the County with thirty (30) days prior written notice of
cancellation or material change of any insurance policy required hereunder.
7.6 Damage and Destruction
If, prior to commencement of or during the term of this Amendment, any
property, real or personal, under the control of User or any buildings or
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improvements or such fixtures or equipment on, below, above, or appurtenant to
the premises at the commencement of the term or thereafter erected, installed or
placed thereon shall be destroyed or damaged in whole or in part by fire or any
other cause, except condemnation, User shall give immediate notice thereof to
County. User shall immediately secure the area to prevent injury, vandalism and
further damage to persons, improvements and contents thereof. User shall
restore the premises at least to the extent permitted by insurance proceeds.
However, User will remain responsible to clean-up and restore the premises to a
condition reasonable under the circumstances and acceptable to County. If the
Communication Site is capable of restoration within ninety (90) days, this
Amendment shall continue in full force and effect. If User can demonstrate, and
County may corroborate, that the Communication Site is not capable of
restoration within ninety (90) days, User shall have the right to terminate this
Amendment or install a temporary facility for such length of time as necessary to
complete restoration and resume operation.
User shall, as soon after damage as possible, apply for all required permits of
whatever nature to restore damaged improvements, and complete restorations
within a date mutually agreeable to the Parties. Should such damage or
destruction occur within twelve (12) months of the Amendment’s termination date
(original or amended), User and County may mutually agree to the extent of the
restoration, if any.
VI. CORRECT ENTITY
Crown Atlantic Company LLC and County acknowledge that in the introduction of the
Agreement, Crown Castle International was erroneously identified as the User, but the
Agreement was correctly executed by Crown Atlantic Company LLC. Crown Atlantic Company
LLC and County further agree that all actions taken previously by them pursuant to the
Agreement are hereby ratified and confirmed.
VII. DELEGATION OF AUTHORITY
The Director of the Maricopa County Parks and Recreation Department, or his designee, is
authorized to conduct required administrative actions as may be necessary to carry out the spirit
and intent of the Agreement, as amended.
VIII. COUNTERPARTS
This Amendment may be executed in two or more counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the same instrument. Faxed,
emailed and copied signatures, are acceptable as original signatures.
IX. REMAINING TERMS OF AGREEMENT
The foregoing paragraphs contain all the changes made by this Amendment One. All other
terms and condition of the Agreement shall remain unchanged and in full force and effect.
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MARICOPA COUNTY CROWN ATLANTIC COMPANY, LLC
BOARD OF SUPERVISORS
______________________________ _____________________________
Chairman Date By: Date
_____________________________
Name:
_____________________________
Title:
ATTEST
_______________________________
Clerk of the Board Date
Approved as to Form:
_______________________________
Deputy County Attorney Date
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Exhibit E – Payment Schedule
Lake Pleasant Monopole Payment Schedule
Total
Contract 4% Payment
Year Period Base Fee Escalation Due Due Date
1 10/29/1999 - 10/28/2000 $20,000.00 $0.00 $20,000.00 4/29/2000
2 10/29/2000 - 10/28/2001 $20,000.00 $800.00 $20,800.00 9/29/2001
3 10/29/2001 - 10/28/2002 $20,800.00 $832.00 $21,632.00 9/29/2002
4 10/29/2002 - 10/28/2003 $21,632.00 $865.28 $22,497.28 9/29/2003
5 10/29/2003 - 10/28/2004 $22,497.28 $899.89 $23,397.17 9/29/2004
6 10/29/2004 - 10/28/2005 $23,397.17 $935.89 $24,333.06 9/29/2005
7 10/29/2005 - 10/28/2006 $24,333.06 $973.32 $25,306.38 9/29/2006
8 10/29/2006 - 10/28/2007 $25,306.38 $1,012.26 $26,318.64 9/29/2007
9 10/29/2007 - 10/28/2008 $26,318.64 $1,052.75 $27,371.38 9/29/2008
10 10/29/2008 - 10/28/2009 $27,371.38 $1,094.86 $28,466.24 9/29/2009
11 10/29/2009 - 10/28/2010 $28,466.24 $1,138.65 $29,604.89 9/29/2010
12 10/29/2010 - 10/28/2011 $29,604.89 $1,184.20 $30,789.08 9/29/2011
13 10/29/2011 - 10/28/2012 $30,789.08 $1,231.56 $32,020.64 9/29/2012
14 10/29/2012 - 10/28/2013 $32,020.64 $1,280.83 $33,301.47 9/29/2013
15 10/29/2013 - 10/28/1014 $33,301.47 $1,332.06 $34,633.53 9/29/2014
5%
16 One-time premium payment $10,000.00 n/a $10,000.00 9/29/2014
16 10/29/2014 - 10/28/2015 $34,633.53 $1,731.68 $36,365.21 9/29/2015
17 10/29/2015 - 10/28/2016 $36,365.21 $1,818.26 $38,183.47 9/29/2016
18 10/29/2016 - 10/28/2017 $38,183.47 $1,909.17 $40,092.64 9/29/2017
19 10/29/2017 - 10/28/2018 $40,092.64 $2,004.63 $42,097.27 9/29/2018
20 10/29/2018 - 10/28/2019 $42,097.27 $2,104.86 $44,202.13 9/29/2019
21 10/29/2019 - 10/28/2020 $44,202.13 $2,210.11 $46,412.24 9/29/2020
22 10/29/2020 - 10/28/2021 $46,412.24 $2,320.61 $48,732.85 9/29/2021
23 10/29/2021 - 10/28/2022 $48,732.85 $2,436.64 $51,169.50 9/29/2022
24 10/29/2022 - 10/28/2023 $51,169.50 $2,558.47 $53,727.97 9/29/2023
25 10/29/2023 - 10/28/2024 $53,727.97 $2,686.40 $56,414.37 9/28/2024
Contract Year starts 10/29
Payment schedule does not consider CPI or Secondary User Payment
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