By and Between
BellSouth Telecommunications, Inc.
Revised 4/00 1
THIS AGREEMENT, made this 9th day of May, 2000, by and between BellSouth
Telecommunications, Inc., (“BellSouth”) a corporation organized and existing under the laws of
the State of Georgia, and Winstar Wireless Inc., (“Winstar”) a (corporation) organized and existing under the laws of Delaware;
W I T N E S S E T H
WHEREAS, Winstar is a telecommunications carrier and wishes to occupy space on the roofs of BellSouth Central Office Buildings for the physical collocation of microwave equipment as defined herein for the purpose of interconnection to BellSouth’s facilities;
WHEREAS, BellSouth has space available on its Central Office rooftop(s) which Winstar
desires to utilize; and
WHEREAS, BellSouth is willing to make such space available to Winstar on its Central Office rooftop(s) subject to all terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual agreements and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
Where technically feasible and where space is available, BellSouth will provide for physical collocation of Winstar’s microwave equipment on the roofs of BellSouth’s Central Office Buildings. Such equipment will be limited to that necessary for interconnection of Winstar’s network facilities to BellSouth’s network or access to BellSouth’s unbundled network elements.
Microwave Collocation includes placement of supporting masts, non-penetrating roof mounts (“NPRM”), penetrating pipe stands, parapet mounts, and microwave antenna(e) on the roof top or other suitable exterior spaces of BellSouth’s Central Offices and does not include the
construction of towers. The Parties will work together to determine the preferable type of antenna mount reasonably considering such factors as permitting requirements, roof maintenance issues and any other relevant factors. BellSouth shall have final approval of the type of antenna mount. The Parties agree that the elements listed below reflect requirements for Microwave Collocation, which shall be provided in accordance with the rates, terms and conditions set forth below. The Parties acknowledge that Microwave Collocation requires unobstructed line-of-sight. Unobstructed line-of-sight will be provided by BellSouth where technically feasible but is not guaranteed to be available. Winstar accepts the responsibility of determining unobstructed line-of-sight at any location where Winstar applies for Microwave Collocation.
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1. PROVISIONING PROCESS AND FEES
The Term of this Agreement shall be for an initial period of two (2) years, beginning
on the Agreement date stated above and ending two (2) years later on the month and
day corresponding to such date.
B. Initial Site Visit
Winstar will provide a Site Visit Request to BellSouth, in writing, setting forth the
names of the BellSouth Central Office Buildings(s) Winstar wishes to visit for
potential Microwave Collocation. Such site visit consists of Winstar representatives
and appropriate BellSouth personnel visiting a BellSouth Central Office building for
the purpose of determining whether an unobstructed line-of-sight is technically
feasible. Winstar will be responsible for making an unobstructed line-of-sight
determination. Such Site Visit does not obligate Winstar to request, or BellSouth to
provide, Microwave Collocation on the site. The site visit will take place within fifteen
(15) business days of receipt by BellSouth of Winstar’s Site Visit Request or as soon
thereafter as can be scheduled by the Parties.
Winstar will submit a Site Visit Request fee of $250.00 and will pay for the reasonable
cost BellSouth incurs for travel, if necessary, for each site requested with each Site
Visit not to exceed two hours. Charges for site visits that take longer than two (2)
hours will be charged by BellSouth to Winstar at BellSouth’s loaded labor rates on a
per hour basis in addition to the $250.00 fee. BellSouth will make every effort
possible to use resources near the requested location to minimize travel required. If
BellSouth determines that airline travel is required, BellSouth will contact Winstar in
an effort to discuss possible alternatives.
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C. Microwave Collocation Application
Winstar shall submit the Application and Inquiry document and appropriate
collocation application fee and BellSouth will respond to Microwave Collocation
Application(s) pursuant to the relevant sections of BellSouth’s FCC #1, Section 20
tariff (BellSouth Virtual Expanded Interconnection) , in addition to a Microwave
Collocation Agreement for each central office building where Winstar seeks
Microwave Collocation. This application and fees will apply both to space on the roof
as well as space inside the BellSouth central office.
Winstar shall provide BellSouth with the following data on the application to the
extent available recognizing that certain information may change depending on the
final determination of the location providing line of sight:
; Type of antenna mount (pipe, NPRM)
; Type of equipment to be collocated within Winstar’s case (vendor,
; Line of sight requirements (Azimuth)
; Relevant information includes: Station Name, Call Sign, Latitude,
Longitude, Primary Antenna Type, Equipment Type, Equipment
Emission, Power (dBm/Watts), Receive Level (dBm), EIRP
(dBm/Watts), Transmit Frequency (MHz)
; WEIGHT AND CONFIGURATION
; Other relevant information as identified at the INITIAL site visit.
Roof Inspection: BellSouth may require a roof inspection at any site where
Winstar requests Microwave Collocation. Winstar will bear
the reasonable cost of the inspection including reasonable travel cost if any.
BellSouth intends to use an independent contractor which may be accompanied by
BellSouth personnel. The roof inspection fee shall be assessed on an individual case
basis unless negotiated as a flat rate by the Parties. Such Roof Inspection does not
obligate BellSouth to provide Microwave Collocation on the site.
If BellSouth concludes that rooftop/exterior space which provides Winstar with
unobstructed line-of-sight does not appear to be technically feasible, BellSouth will
provide Winstar a written explanation of such technical infeasibility within thirty (30)
business days of BellSouth’s receipt of the collocation application including those
cases where BellSouth’s known business plans provide for or include an addition to
the building which would impact the line of sight. This explanation will be included in
the response to Winstar’s application.
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BellSouth or its designated subcontractors shall perform all necessary work
associated with the Microwave Collocation arrangement involving power and building
modifications unless otherwise agreed to by the Parties. All work performed shall be
done by a BellSouth certified vendor. Winstar shall select a vendor which has been
approved as a BellSouth Certified Vendor to perform all engineering and installation
work of the Microwave Collocation arrangement pursuant to TR-73503, BST Electrical
Standards for Wireless Service Providers on BellSouth facilities Issue 1, Sept 1996,
and BST Building Construction and Fire Safety Standards – Section 16170 – June
1998. In some cases Winstar must select separate BellSouth Certified Vendors for
transmission equipment, switching equipment and power equipment. BellSouth shall
provide Winstar with a list of Certified Vendors pursuant to Section 20.20 of
BellSouth’s FCC #1, Virtual Expanded Interconnection tariff and the Certified Vendor
shall bill Winstar directly for all work performed for Winstar and BellSouth shall have
not liability for nor responsibility to pay such charges imposed by the Certified Vendor.
BellSouth shall consider certifying Winstar or any vendor proposed by Winstar.
If rooftop/exterior space is available BellSouth shall provide Winstar an estimate for
such microwave collocation as described more fully in provision 1.D at the same time
BellSouth provides its interior collocation space quote.
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D. Preparation of Estimate / Application Response
Within thirty (30) business days of receiving from Winstar a single complete and
accurate Application and Inquiry document, BellSouth will provide, as more fully
described below, an estimate including an estimate for the Non-Recurring Charges
and Monthly Recurring Charges pursuant to the rates and terms set forth in
BellSouth’s FCC #1, Section 20 tariff for virtual collocation and Exhibit B.
The estimate shall reflect the specifications submitted by Winstar and may change
based on the actual field conditions encountered during construction.
(a) The Estimate /Application Response shall set forth separate estimated
charges for the following work related to the installation of the Microwave
(i) Architectural Plan and Structural Review:
This shall be the reasonable sum of hourly charges of BellSouth
Architects or its contractors necessary to review the plans for the
Microwave Collocation Arrangement. This will include applicable
consulting charges and fees for reviewing permitting material and/or
assisting Winstar in the permitting process to the extent required.
(ii) Permitting Review:
This shall be the sum of the hourly charges of BellSouth Property and
Services Management and/or Project Managers whose time was
reasonably necessary and actually spent reviewing permitting material
and/or assisting Winstar in the permitting process. BellSouth shall
have final approval authority on all proposed conditions, (which shall
not be unreasonably withheld) imposed by relevant jurisdictions and
BellSouth shall have the right to be represented at all hearings in
connection with governmental approvals.
(iii) Exterior (and Related Interior) Building Modification Work:
BellSouth will include a quote for BellSouth to perform coring within
the Central Office, roof strengthening or any other exterior or related
interior building modification that may be required.
(iv) Supervision of General Contractor:
This shall be the reasonable sum of the hourly charges, if necessary,
of any BellSouth Property and Services Management personnel,
Consultants, or Project Managers who monitor the Microwave Antenna
Support Structure installation performed by Winstar’s contractor. The
level of BellSouth’s personnel or consultants shall be commensurate
with the requirements for supervising the project and monitoring
(v) Special Security Construction:
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If BellSouth demonstrates that new secure access to the Microwave
Collocation location is reasonably necessary, the costs associated with
the construction of such access shall be described on a separate
schedule to be provided by BellSouth to Winstar.
(b) Recurring Charges
These consist of:
(i) Monthly Recurring Roof-top Space Rental Fee:
The Monthly Recurring Roof-top Space Rental Fee shall be on a per
square foot basis with a minimum of 12 square feet per microwave
arrangement as set forth in this Agreement in Exhibit B. Winstar is
limited to building and structural support constraints for determining the
number of antenna(e) which can be placed on a roof mount, pipe stand,
or parapet mount. The diameter of the microwave antenna(e) will be
subject to a height limitation of twenty (20) feet above the building or
point of attachment, subject to line-of-sight, safety, and structural
engineering guidelines, (e.g., weight, wind load). Such equipment will
be subject to a structural analysis to be performed by BellSouth’s
Structural Engineer at Winstar’s sole expense, to ensure that the
equipment does not overload the building structure. If any structural
reinforcement is required in order to accommodate the placement of the
requested diameter and height of such microwave antenna(e), Winstar
will not be allowed to place such microwave antenna(e).Winstar agrees
that the height of the structure will be no greater than the minimum
required to accommodate line of sight requirements. At no time shall an
antenna (e) be directed across open roof space without approval of
BellSouth which shall not be unreasonably withheld. Winstar shall be
responsible for ensuring that the arrangement complies with local zoning
The billing for the Rooftop Space Rental Fee shall begin the date the
interior and rooftop space preparation activities are complete and the
space is made available to Winstar, or the date Winstar first begins the
Rooftop microwave equipment installation, whichever is sooner.
BellSouth will work with Winstar to avoid unreasonable time differences
between the completion of rooftop space preparation and interior
collocation space construction.
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E. Firm Order
All estimates shall be valid for thirty (30) days from issuance, and Winstar shall
accept or reject within such time period, unless an extension is requested in writing
by Winstar and agreed to by BellSouth. Such extension will not exceed thirty (30)
days. To accept an estimate, Winstar shall so state in writing by submitting a Firm
Order to BellSouth and shall pay BellSouth 50% of the total estimated charges (“Initial
Payment”) with the balance of the actual charges due upon completion of the
Microwave Collocation area and any necessary supporting electrical or building
modification work. Payment requirements will be commensurate with BellSouth’s
FCC #1tariff, Section 20, and Exhibit B.
BellSouth will permit one accompanied site visit to Winstar’s designated Microwave
collocation arrangement location after receipt of the Firm Order without charge to
F. Pre-Design Meeting
Unless otherwise agreed to by the Parties, a joint planning meeting or other method
of joint planning between BellSouth and Winstar will commence within a maximum of
15 business days from BellSouth's receipt of a Firm Order and the payment of
agreed upon fees. At such meeting, the Parties will agree to the preliminary design of
the Microwave Collocation Space and the equipment configuration requirements as
reflected in the Application and affirmed in the Firm Order. The Collocation Space
Completion time period will be provided to Winstar during the joint planning meeting
or as soon as possible thereafter. BellSouth will complete all design work following
the joint planning meeting.
G. Equipment and Testing:
Winstar shall be responsible for providing, at its sole expense, the antenna (e),
coaxial cable, brackets, connectors, support structure, grounding and bonding
materials, and weather-proofing materials for such support structure or antenna (e)
required for the Microwave Collocation. Winstar shall also be solely responsible for
final adjustments (e.g., pointing) of the antenna (e).
H. Use Permits:
Winstar shall be responsible for obtaining all relevant Use Permits (UPs) and shall
bear all costs and fees. Winstar shall regularly apprise BellSouth of the status of
such permitting and consult with BellSouth as reasonably necessary.
2. NO PROPERTY RIGHT CONFERRED
Notwithstanding anything contained herein to the contrary, Microwave Collocation shall not
confer or be deemed to confer any property interest or right in BellSouth’s property, and
Winstar hereby acknowledges that the rights conferred hereunder shall constitute merely a
non-exclusive license to use a portion of BellSouth’s property solely for the purposes set
forth herein. A limit of two (2) Winstar Microwave Collocation arrangements per Central
Office will be permitted unless otherwise agreed to by the Parties.
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Title to Winstar’s Microwave Collocation equipment shall remain in Winstar as the property
of Winstar and shall not become fixtures to BellSouth’s property.
INTENTIONALLY LEFT BLANK
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3. RESPONSIBILITY OF THE PARTIES
A. Winstar shall obtain any and all applicable and necessary permits, variances, licenses, approvals and authorizations from the governmental agencies with jurisdiction, including without limitation, use permits, buildings permits, FCC licenses and FAA approval, if required, to operate and maintain Winstar’s facilities during the Term of this Agreement.
B. Winstar shall not use BellSouth’s property or permit Winstar’s agents or contractors to do anything in or about the Central Office (s) in conflict with any applicable law affecting the condition, use or occupancy of the property or the installation, operation or maintenance of Winstar’s Microwave Collocation equipment. Winstar shall not commit any public or private nuisance or any other act or practice which might or would materially disturb the quiet enjoyment of any occupant of nearby properties.
C. Where BellSouth performs any of the work pursuant to the quotes set forth in 1.C.(2)(a), BellSouth shall select the architect, engineers, surveyors, contractors, suppliers, consultants and subcontractors which may be necessary to develop plans, furnish materials and equipment, and perform construction work. BellSouth shall manage all such work in accordance with the plans and specifications approved by the Parties, all applicable laws, codes and regulations, and shall require that all contractors perform their work in a good workmanlike manner. BellSouth shall require that all BellSouth Contractors include Winstar as an ADDITIONAL INSURED to any policies of insurance maintained by the Contractor for purposes of the work, and shall indemnify Winstar from losses, costs and expenses incurred as a result of contractor’s work. Winstar hereby acknowledges and agrees that BellSouth shall not be liable for the work performed, material, supplies, or work products furnished by any contractor, and that Winstar shall look solely to the contractor and any warranties, indemnification or insurance furnished by such Contractor, waiving and releasing BellSouth from any claim or liability therefrom except to the extent of the negligence or willful misconduct of BellSouth in the performance of its project management activities.
D. Notwithstanding any other provision of this Agreement, Winstar hereby acknowledges that BellSouth may have existing wireless communications facilities of its own or of other tenants or licensees on or at BellSouth’s Central Office, and/or BellSouth may desire from time to time throughout the term of this Agreement to enter into agreements with other wireless communications providers for the installation, operation and maintenance of communications facilities on or at BellSouth’s Property (“Other Wireless Carriers”). Winstar shall cooperate with BellSouth and all Other Wireless Carriers so as to reasonably accommodate the needs and requirements of such Other Wireless Carriers with respect to the installation, operation, use and maintenance of their equipment and facilities, and all necessary alterations, modifications and other improvements to BellSouth’s property, including utility connections and access. Subject to ownership of
any exclusive frequency rights, Winstar’s facilities shall not physically, electronically, or inductively interfere with the existing BellSouth or other customers’ or tenants’ existing facilities. Each transmitter individually and all transmitters collectively at a given location shall comply with appropriate federal, state, and/or local regulations governing the safe levels of RF radiation. The foregoing obligations shall apply equally to all Other Wireless Carriers.
E. In the event Winstar desires to relocate any of its then-existing Microwave Collocation facilities to a different place on the relevant BellSouth Central Office rooftop, Winstar shall submit a new application with fee to BellSouth specifying the new location Winstar proposes to occupy. If the relocation does not require BellSouth to expend capital, then a Subsequent Application fee will apply as covered in Exhibit B.
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