Master Design Build Agreement

EXHIBIT 10.23


AMENDED AND RESTATED MASTER DESIGN BUILD AGREEMENT


THIS AMENDED AND RESTATED MASTER DESIGN BUILD AGREEMENT ("AGREEMENT"), dated as of the 21st day of March, 2000 is made by and between Texas Telecommunications, L.P., a Texas limited partnership and Alamosa Wisconsin Limited Partnership, a Wisconsin limited partnership (collectively, "CARRIER") and SBA Towers, Inc., a Florida corporation ("BTS COMPANY").


WHEREAS, Carrier and BTS Company entered into a Master Design Build Agreement, dated as of February 22, 2000 (the "EXISTING MASTER DESIGN BUILD AGREEMENT"); and


WHEREAS, Carrier and BTS Company have agreed to amend and restate the Existing Master Design Build Agreement to make certain changes, including the addition of confidentiality provisions, on the terms and conditions set forth herein;


NOW, THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree that on the date set forth above, the Existing Master Design Build Agreement shall be amended and restated in its entirety as follows:


I. RELATIONSHIP OF PARTIES


1.1 INDEPENDENT CONTRACTOR RELATIONSHIP. The parties intend by this Agreement to establish an independent contractor relationship. Neither party nor their employees shall be agents or legal representatives of the other party for any purpose. Neither party shall have the authority to act for, bind, or commit the other party. BTS Company and Carrier agree that this Agreement does not establish or create a relationship of employer-employee, principal-agent, or a franchise, joint venture, or partnership for any purpose whatsoever.


1.2 CONTRACTS WITH AFFILIATES. BTS Company may contract with any Affiliate (as hereinafter defined) of BTS Company to provide goods or services beyond those which its employees would perform, if it deems the same to be necessary or advisable for development and/or construction of the Sites (as hereinafter defined).


1.3 LANDLORD AND TENANT RELATIONSHIP. BTS Company and Carrier have executed the Master Site Agreement ("MSA"), dated as of February 22, 2000, which governs the relationship of BTS Company, as landlord, and Carrier, as tenant, on those BTS Sites (as hereinafter defined) which are accepted by Carrier pursuant to SECTION 2.7(b) of this Agreement. A copy of the MSA is attached hereto as EXHIBIT A. BTS Company and Carrier shall execute a Site Lease Agreement ("SLA") with respect to each BTS Site in accordance with SECTION 2.7. The parties agree to cooperate and act reasonably while performing under this Agreement, the MSA and all SLAs.


1.4 EXCLUSIVITY. During the term of this Agreement, BTS Company shall be the exclusive build-to-suit service provider, site acquisition service provider, line and antenna installation provider (except as to structural collocations that are installed on a structure that is not a tower or in an instance where a collocation tower owner requires the use of a designated contractor for installation of Carrier's equipment on


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such tower), and construction company for wireless telecommunications tower sites for Carrier and its Affiliates in the BTAs listed on SCHEDULE A attached hereto and those BTAs agreed upon by the parties made subject to this Agreement by amendment (the "APPLICABLE GEOGRAPHIC AREA"). For purposes of this Agreement, "AFFILIATES" with respect to either party, shall mean companies which control, are controlled by, or under common control with that party. For purposes of this Agreement, the word "control" shall mean the ownership, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, or the power to veto major policy decisions of any such entity, whether through the ownership of voting securities, by contract or otherwise. During the term of this Agreement, Carrier shall not engage any third party or Affiliate directly or indirectly to perform build-to-suit, site acquisition, construction, or equipment installation services in the Applicable Geographic Area and will not enter into any discussions with any third party or Affiliate concerning, or furnish any information relating to such services to any third party or Affiliate, for the purpose of considering, soliciting or inducing any offer by such third party.


1.5 RESTRICTIONS ON SERVICES TO OTHERS. During the term of this Agreement, BTS Company will not provide build-to-suit or site acquisition services for any other person or entity in the BTAs that are subject to the exclusivity restrictions set forth in SECTION 1.4, with the exception of (a) any of such services being provided prior to the date of this Agreement and disclosed to Carrier in SCHEDULE A attached hereto, and (b) any of such services commenced after the date of this Agreement for which BTS Company has obtained the prior approval of Carrier, such approval not to be unreasonably withheld.


II. SITE ACQUISITION SERVICES.


2.1 SITE ACQUISITION SERVICES.


(a) Carrier shall establish small geographic areas within the Applicable Geographic Area within which a cell site or transmission tower shall be located, based on the network grid's RF design (a "SEARCH RING"). For each Search Ring, Carrier shall provide (i) minimum tower specifications, (ii) desired mounting height, (iii) a description of the equipment that Carrier intends to put on the tower, including any expansion plans, and (iv) any other technical data reasonably necessary to permit SBA to effectively identify the candidate sites that meet Carrier's needs. Carrier will provide to BTS Company its system network grid, with the established Search Rings overlaid thereon. Carrier will from time to time, assign Search Rings to BTS Company. BTS Company shall provide the personnel and facilities which are necessary to locate and lease or license existing towers, buildings or other structures by Carrier to be used for the installation of Carrier's equipment ("COLLOCATION SITES") or locate and lease, license or purchase unimproved real property suitable for the construction and installation of a communications tower and related facilities by BTS Company ("BTS SITE") and the installation of Carrier's equipment. As used herein, "SITES" shall refer to both Collocation Sites and BTS Sites. BTS Company shall perform site acquisition services with respect to each Search Ring in accordance with the scope of work attached hereto as SCHEDULE B ("SITE ACQUISITION SERVICES"). BTS Company shall be entitled to compensation from Carrier for the Site Acquisition Services performed on Collocation Sites as set forth on SCHEDULE D attached hereto. BTS Company shall be entitled to compensation from Carrier for the Site Acquisition Services performed on BTS Sites under SECTIONS 2.2, 2.3, 2.4(c), 2.4(f) AND 2.7(c) as set forth on SCHEDULE D attached hereto. BTS Company hereby acknowledges that Carrier maintains a preference to fulfill its needs for wireless communications installations via suitable Collocation Sites that may be available within the respective Search Rings designated hereunder. In the performance of the Site Acquisition Services, BTS Company shall use diligent and good faith efforts to maximize collocation opportunities as a primary responsibility, with BTS Sites to be a secondary fulfillment of Carrier's needs.


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(b) Upon receipt of a Search Ring designated hereunder by Carrier, BTS Company shall promptly, diligently and professionally perform the Site Acquisition Services with respect to such Search Ring in accordance with this Agreement, including, without limitation, the objectives and procedures set forth in SCHEDULE B attached hereto ("OBJECTIVES AND PROCEDURES").


(c) Except as expressly authorized in this Agreement or otherwise expressly authorized by Carrier in writing, BTS Company shall provide all labor, equipment, material and supplies necessary or appropriate to perform Site Acquisition Services.


(d) During the performance of Site Acquisition Services with respect to any designated Search Ring, BTS Company shall at all times apprise Carrier of any expressed opposition, protest, litigation or other efforts, whether by an individual, group, neighborhood association or other organization, to restrict, alter or prohibit the construction, installation or operation of any structure, structures or other facilities that Carrier or BTS Company proposes to construct or operate on any Site within such Search Ring.


2.2 WITHDRAWAL OF SITE. In the event Carrier elects to withdraw a Collocation Site at any time or a BTS Site pursuant to the terms of this Agreement, Carrier shall give BTS Company notice of such withdrawal. In the event that the withdrawn Site is a Collocation Site, Carrier shall pay BTS Company 50% of the milestone installment that would be due if the work currently in progress was completed, 100% of the reimbursable costs which were incurred prior to the date on which BTS Company receives notice of the withdrawn Site, and 100% of all other amounts due hereunder for work completed on the Site as of the date BTS Company receives Carrier's withdrawal notice and shall substitute the withdrawn Site with an alternative Site or Search Ring within sixty (60) days ("ALTERNATIVE SITE"), if available. In the event that a withdrawn Site is a BTS Site, Carrier shall pay BTS Company for the Services (as hereinafter defined), except where BTS Company otherwise so chooses to develop such BTS Site for its own purposes, including, without limitation, Site Acquisition Services, in connection with such Site in the same percentage as though such site was a Collocation Site using the milestones and amounts set forth in SECTION B(1)(b) of SCHEDULE D attached hereto. Notwithstanding anything to the contrary contained in this Agreement, in the event that Carrier rejects or withdraws a Site due to the Carrier's reasonable conclusion based upon the Carrier's due diligence pursuant to Section 2.7(b)(v), that there is a material defect existing with respect to the Site that will materially adversely affect Carrier's use of the Site as contemplated under this Agreement, then Carrier shall only be obligated to reimburse BTS Company for third party services in connection with the withdrawn or rejected Site.


2.3 SEARCH RINGS DESIGN. Carrier shall have the right at any time in its sole and absolute discretion to expand or reconfigure a previously designated Search Ring. In the event that Carrier redesigns a Search Ring for a Collocation Site beyond 0.5 miles of an urban or suburban Site or 1.5 miles of a rural Site for which BTS Company has begun but not yet completed all Site Acquisition Services, then Carrier shall pay BTS Company 100% for all Site Acquisition Services completed at the time that the notice of redesign is received by BTS Company, 100% of the reimbursable costs which were incurred prior to the date on which BTS Company receives notice of such reconfigured Search Ring, and 50% of the milestone installment that would be due if the work currently in progress was completed. In the event that such Search Ring was a BTS Site, Carrier shall pay BTS Company for such Site Acquisition Services in connection with the original Search Ring in the same percentage as though such site was a Collocation Site using the milestones and amounts set forth in SECTION B(1)(b) of SCHEDULE D attached hereto. For all Site Acquisition Services rendered for the redesigned search ring, in the event that the Site in the redesigned Search Ring is a Collocation Site, Carrier shall pay BTS Company 100% for all milestones performed and 100% of the reimbursable costs which are incurred. Carrier agrees not to develop any site within any withdrawn Search


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Rings or an original Search Ring which has been subsequently redesigned as a tower site and each party hereto further agrees not to transfer the associated Work Product to any third party, including Affiliates


2.4 TERM OF SITE ACQUISITION SERVICES AGREEMENT; DEFAULT.


(a) The term of this Agreement (the "Site Acquisition Term") commenced as of February 22, 2000 and shall expire on December 31, 2001.


(b) A party shall be in default under this Agreement with respect to a Site or a Search Ring if such party breaches an obligation or covenant under this Agreement to be performed with respect to that Search Ring or Site, which breach is not cured within thirty (30) days after the breaching party's receipt of written notice; provided, however, that so long as the defaulting party commenced appropriate curative action within such thirty (30) day period, and thereafter diligently prosecutes such cure to completion as promptly as possible, the cure period will be extended until the cure is completed.


(c) If BTS Company is in default under this Agreement with respect to a Site or Search Ring, Carrier shall have the right to terminate this Agreement as to the applicable Site or Search Ring only. In the event of such a termination, Carrier shall have the right to terminate BTS Company's right to complete the Services with respect to the Site or Search Ring subject to the default, and Carrier shall have the right to complete or engage a third party to complete such Services.


(d) If Carrier is in default under this Agreement with respect to a Site or Search Ring, BTS Company shall have the right to terminate this Agreement as to the applicable Site or Search Ring only.


(e) Neither a termination as to any particular Search Ring or Site, nor the expiration of this Agreement shall affect:


(i) the terms of the MSA or any SLA as such agreements affect any
Site or Search Ring not subject to a default, which has been entered
into by the parties prior to the date of termination of this Agreement
as to any particular Search Ring or Site, which shall continue in
accordance with its terms and conditions;


(ii) the terms of this Agreement that apply to any SLA which has
been entered into by the parties prior to the date of termination of
this Agreement and is not subject to a default;


(iii) any duties or obligations for payment or performance that
are or become owing hereunder prior to the effective date of such
termination;


(iv) the terms of this Agreement that apply to any Search Ring
which was issued prior to the date of termination of this Agreement
that is not the subject of a default; or


(v) any other duties or obligations that expressly survive the
termination or expiration hereof.


(f) A default regarding one Search Ring or Site shall not constitute a default under this Agreement or with respect to any other Search Ring or Site. Notwithstanding the previous sentence, in the event that BTS Company is in default with respect to the greater of (i) fifteen (15) Search Rings in a BTA, or (ii) twenty percent (20%) or more of the Search Rings issued in such BTA, BTS Company's right to provide exclusive services under SECTION 1.4 shall terminate with respect to the BTA subject to such defaults. Upon


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such termination, BTS Company's obligation to provide exclusive Services under SECTION 1.5 in such BTA shall terminate. BTS Company's and Carrier's rights and obligations with respect to the Sites and Search Rings subject to the default shall be governed by SECTION 2.4(c). With respect to Search Rings issued in the BTA subject to the default after BTS Company's exclusivity rights have terminated, Carrier shall have the right to perform the Services or to engage a third party to perform the Services with the exception of the construction services described in the next sentence. Notwithstanding the termination of BTS Company's rights of exclusivity under SECTION 1.4 with respect to a BTA subject to a default described in the second sentence of this section and provided that BTS Company is not in default with respect to the Construction Management Services or construction scope of work or deliverable work product, BTS Company shall have the right to construct the Tower Facilities (as hereinafter defined) and perform the Construction Management Services with respect to BTS Sites, and may perform Carrier Installation Services with respect to such BTS Sites upon Carrier's request on a Site resulting from Search Rings issued in the BTA subject to the default after BTS Company's rights of exclusivity under SECTION 1.4 are terminated. BTS Company shall be paid for those Services pursuant to the terms of this Agreement. With respect to all Search Rings issued in a BTA subject to a default described in the second sentence of this section after the termination of BTS Company's rights of exclusivity under SECTION 1.4, Provided that the Services that were not performed by BTS Company with respect to such a BTS Site are performed to the satisfaction of BTS Company, Carrier shall convey the Tower Facilities and any site development material not subject to confidentiality requirements, including, without limitation, ground leases, title reports, environmental reports and geotechnical reports to BTS Company upon completion of the Services with respect to such Search Ring lien free pursuant to assignment documentation reasonably acceptable to both parties, and BTS Company shall reimburse Carrier for the reasonable costs of completing the Services, provided that Carrier provides BTS Company with reasonable substantiation for such costs. BTS Company and Carrier shall execute an SLA for the applicable Site simultaneously with the conveyance of the site development material and such Site shall be subject to the terms of the MSA as though BTS Company had completed all of the Services for such Site.


2.5 GROUND LEASES. The acquisition of BTS Sites by BTS Company pursuant to this Agreement shall be accomplished by BTS Company purchasing the BTS Site or leasing the BTS Site using a lease agreement between BTS Company and the lessor (hereafter the "GROUND LEASE") as approved by Carrier or Carrier's authorized representatives in accordance with SECTION 2.7(b)(v). The acquisition of Collocation Sites by BTS Company pursuant to this Agreement shall be accomplished using a lease agreement between Carrier and the lessor, which Carrier shall provide to BTS Company or on such other form which Carrier may, in its sole discretion, approve.


2.6. ACCEPTANCE AND REJECTION OF COLLOCATION SITES. Carrier may at any time in its sole and absolute discretion accept or reject any proposed Collocation Site. Without limiting the foregoing, Carrier may withdraw its prior acceptance of a Collocation Site and thereby reject such Collocation Site. A withdrawal or any rejection by Carrier of a Collocation Site shall not affect its obligation for fees earned through the date of termination for Site Acquisition Services as more particularly described in SECTION 2.2.


2.7 ACCEPTANCE AND REJECTION OF BTS SITES; EXECUTION AND DELIVERY OF SLAS


(a) A BTS Site shall be deemed to be an accepted BTS Site from and after the date that the Candidate Site which corresponds to the BTS Site has been approved by Carrier pursuant to SECTION 2(a) of SCHEDULE B attached hereto and shall continue to be deemed an accepted BTS Site unless and until Carrier rejects the BTS Site pursuant to SECTION 2.7(b) hereof or Carrier terminates the applicable SLA pursuant to the terms of the MSA.


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(b) Carrier may at any time prior to the parties' execution and delivery of an SLA corresponding thereto, and in Carrier's sole and absolute discretion, reject any BTS Site. In the case of a BTS Site that is accepted by Carrier, the following shall apply:


(i) BTS Company shall continue the diligent, thorough and
professional prosecution of Site Acquisition Services (including the
completion of Ground Lease negotiations and required zoning, land use
and permitting matters) necessary for the construction of a
communications tower and related facilities consistent with the
criteria theretofore identified by Carrier;


(ii) Subject to SECTION 2.7(b)(iii) below, BTS Company and
Carrier shall prepare and finalize the SLA (and exhibits thereto)
applicable to such BTS Site;


(iii) Within ten (10) days following Carrier's notice from BTS
Company that BTS Company has received all necessary zoning or other
land use permits or approvals applicable to the improvements to be
constructed by BTS Company on the BTS Site and the completion of Site
Acquisition Services in accordance with the Objectives and Procedures,
but subject to SECTION 2.7(b)(iv) below, BTS Company shall prepare an
SLA for such BTS Site, Carrier shall provide to BTS Company all
information reasonably requested by BTS Company to enable BTS Company
to prepare the SLA and Carrier and BTS Company shall execute and
deliver the SLA applicable thereto. Upon the full execution of an SLA,
BTS Company shall ...