draft boom agreement - bayweb project - 09-24-2010

8/3/2019 Draft BOOM Agreement - BayWEB Project - 09-24-2010

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DRAFTBuild, Own, Operate & MaintainCommunications System Agreement

Motorola, Inc. ("Motorola") and Alameda County ("Lead Eligible User"), through its Sheriffs Office as theRegion 2 Coordinator of mutual aid and the executive sponsor of the Say RICS initiative (the "Sheriff),acting on behalf of the Say RICS Policy Group which is the governing body of the shared San FranciscoSay Area Regional Interoperability Communications System ("Say RICS"), enter into this "Agreement,"pursuant to which Motorola will build, own, operate, and maintain the System (as described below), andLead Eligible User and other "Eligible Users" (as defined below) will use the System and pay "User Fees"for such use, and will provide their Sites, Facilities and Licensed Frequencies (all as defined below) toMotorola for the proper operation and use of the System. Motorola and Lead Eligible User may bereferred to individually as a "Party" and collectively as the "Parties."The Parties acknowledge that the deployment of the System (and the Public Access Subsystem asdefined in Section 3.11) will be funded in large part by American Recovery and Reinvestment Act funds,specifically a grant from the Department of Commerce ("DOC") under its Broadband TechnologyOpportunities Program ("STOP"), Award Number NT10SIX5570089 (the "STOP Grant'). This STOPGrant will be administered by the National Telecommunications and Information Administration ("NTIA").The Parties acknowledge further that Motorola has certain obligations under the STOP Grant.Notwithstanding any provision suggesting the contrary, the Parties agree that they will each perform theirduties under this Agreement in a manner that promotes compliance with all applicable requirements ofthe STOP Grant, including the Special Award Conditions, and Motorola's STOP Grant obligations andrequirements shall supersede and take precedence over any conflicting terms in this Agreement. TheSTOP Grant Award Documents are set forth in Exhibit T. Other information about the STOP Grant isavailable on the NTIA's website.

Section 1For good and valuable consideration, the Parties agree as follows:

EXHIBITSThe exhibits listed below are incorporated into and made a part of this Agreement. In interpreting thisAgreement and resolving any ambiguities, the main body of this Agreement takes precedence over theexhibits and any inconsistency between the exhibits will be resolved in their listed order.Exhibit AExhibit SExhibit CC-1

C-2Exhibit DExhibit EExhibit FExhibit GExhibit HExhibit IExhibit JExhibit KExhibit LExhibit MExhibit NExhibit 0

System DescriptionSpecifications (including List of Sites, List of Licensed Frequencies, and Facilities)Statement of WorkDeployment Stage (including the Description of the Phases and the PerformanceSchedule)Operation StageEquipment List[Intentionally omitted][Intentionally omitted][Intentionally omitted]System Readiness Certif icate by PhaseService LevelsSystem Loading Schedule[Intentionally omitted]Motorola "Software License Agreement" (for Software in Devices and System i f LeadEligible User acquires ownership of the System)Maintenance Service Statement of Work, including Service Terms and ConditionsList of Eligible UsersEligible User Entity Use Agreement

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Exhibit PExhibit QExhibit RExhibit SExhibit T

List of Motorola Key PersonnelMotorola's Insurance RequirementsLead Eligible User's Insurance RequirementsDescription of the Relationship between the System and the Pilot SystemBTOP Grant Award Documents (excluding the budget)Section 2 DEFINITIONSCapitalized terms used in this Agreement have the following meanings:2.1. "BTOP Grant" means Motorola's Award Number NT10BIX55700a9 under the BroadbandTechnology Opportunities Program of the Department of Commerce.2.2. "Confidential Information" means any information that is disclosed in written, graphic, verbal, ormachine-recognizable form, and is marked, designated, or identified at the time of disclosure as beingconfidential or its equivalent; or if the information is in verbal form, it is identified as confidential at the timeof disclosure and is confirmed in writing within thirty (30) days of the disclosure. Confidential Informationdoes not include any information that: is or becomes publicly known through no wrongful act of thereceiving Party; is already known to the receiving Party without restriction when it is disclosed; is orbecomes, rightfully and without breach of this Agreement, in the receiving Party's possession without anyobligation restricting disclosure; is independently developed by the receiving Party without breach of thisAgreement; or is explicitly approved for release by written authorization of the disclosing Party.2.3. "Deployment Stage" means the time period from the Effective Date until Final Project Readiness.2.4. "Device" means a communications, computing or other portable or mobile device used by EligibleUsers on the System.2.5. "Effective Date" means that date upon which the last Party executes this Agreement.2.6. "Eligible User" means Lead Eligible User, those other Eligible User entities whose names arelisted on the List of Eligible Users (Exhibit N) (referred to as "Eligible User' Entities"), and all of theiremployees and agents they permit to use the System and for which they pay User Fees and other feesfor such use.~.7. "Equipment" means the equipment that Motorola provides under this Agreement and that is eitherpart of the System (as described in the Equipment List) or a Device.2.a. "Facilities" means the Pilot System, the microwave, fiber, and other backhaul subsystems, securespace at the Alameda County Sheriff's Operations Center, office and warehousing space (if applicable),and other assets to be provided by Lead Eligible User or other Eligible User Entities for the properdeployment and operation of the System (except for the Sites and Licensed Frequencies which aredefined elsewhere), all as described in the Specifications (Exhibit B).2.9. "Final Project Readiness" means when System Readiness of the last Phase occurs.2.10. "Force Majeure" means an event, circumstance, or act of a third party that is beyond a Party'sreasonable control (e.g., an act of God, an act of the public enemy, strikes or other labor disturbances,hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, and riots). Lead Eligible User'sinability to provide the Licensed Frequencies due to action or inaction by the FCC, the Public SafetySpectrum Trust Corporation ("PSST"), any Eligible User, or any other party shall not be a Force Majeureas to Lead Eligible User. Lead Eligible User's inability to provide Sites or Facilities owned, leased orcontrolled by other Eligible User Entities shall not be a Force Majeure as to Lead Eligible User but may bethe proper subject matter of a change order.

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2.11. "Infringement Claim" means a third party claim alleging that the Equipment or the MotorolaSoftware directly infringes a United States patent or copyright.2.12. "Licensed Frequencies" means the FCC licensed frequencies as listed in the Specifications(Exhibit B), including those leased by the PSST. If the 10 MHz "0 Block" spectrum becomes available forpublic safety use by Lead Eligible User or other Eligible User Entities, whether by means of lease fromthe PSST or otherwise, the term Licensed Frequencies will include the D Block spectrum so that theSystem may use the D Block spectrum in addition to the originally specified Licensed Frequencies.2.13. "Motorola Software" means Software that Motorola or its affiliated company owns.2.14. "Non-Motorola Software" means Software that another party owns.2.15. "Open Source Software" (also called "freeware" or "shareware") means software that has itsunderlying source code freely available to evaluate, copy, and modify.2.16. "Operation Stage" means the time period beginning on Final Project Readiness and continuingduring the remainder of the term of this Agreement. The Parties acknowledge the operation and use of. the early Phases of the System will occur before Final Project Readiness, i.e., during the DeploymentStage and before the Operation Stage.2.17. "Phase" means a distinct portion of the System that is under contract with this Agreement, witheach Phase having its own commencement and System Readiness event. Upon System Readiness ofeach Phase, that portion of the System will be available for use by enrolled Eligible Users.2.18. "Pilot System" means the Regional 700 MHz Wireless Broadband Network to be sold andprovided by Motorola to East Bay Regional Communications System Authority ("Pilot System Customer")under a separate sales contract.2.19. "Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets,trademarks, trade names, mask works, know-how, and other intellectual property rights in and to theEquipment and Software, including those created or produced by Motorola under this Agreement and anycorrections, bug fixes, enhancements, updates or modifications to or derivative works from the Softwarewhether made by Motorola or another party.2.20. "Service Level" means the System availability, capacity, performance, and other level of servicecriteria that Motorola commits to provide to Lead Eligible User as the primary Eligible User Entity as morefully described in Service Levels (Exhibit I).2.21. "Site" means a facility, such as a tower or building, at, on or in which Equipment or Software willbe installed as part of the System.2.22. "Software" means the Motorola Software and Non-Motorola Software, in object code format thatis furnished with the System or Equipment.2.23. "Specifications" means the System functionality and performance requirements that are describedin the Specifications exhibit (including List of Sites, List of Licensed Frequencies, and Facilities) (ExhibitB).2.24. "System" means the Equipment, Software, and incidental hardware and materials that arecombined together into an integrated system as generally described in the System Description (ExhibitA). The term System excludes the Pilot System except as expressly described otherwise in theDescription of the Relationship between the System and the Pilot System (Exhibit S).2.25. "User Fees" means the basic fees to be paid to Motorola by Lead Eligible User in exchange forthe right of each enrolled Eligible User Entity, and their permitted employees and agents, to use theBOOM.9.24.20IO.Alameda County. no exhibits.docConfidential Preliminary Drafts for Discussion Purposes Only Not For Public Disclosure


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System. User Fees exclude (i) activation fees, (ii) subscription and roaming fees paid to public carriersfor use of their public carrier networks (if applicable), and (iii) other fees to be paid to Motorola by or forEligible Users to use the System or receive additional services offered by Motorola under this Agreement,the Eligible User Entity Use Agreement, or any Amendment to Join Eligible User Entity Use Agreement.User Fees are in addition to the Contract Price. Note: The form of Amendment to Join Eligible User EntityUse Agreement is Attachment D to the Eligible User Entity Use Agreement.Section 3 SCOPE OF AGREEMENT AND TERM3.1. SCOPE OF WORK. The Parties will provide all of the necessary personnel and other resourcesto perform all of their duties as agreed in this Agreement. During the Deployment Stage, each Party willdesignate a Lead Project Manager, who will be the Party's primary team leader and point of contact fordeployment of the System. On or before the commencement of the Operation Stage, Motorola willdesignate a System Manager, who will be Motorola's primary point of contact and who will have oversightresponsibility for operation and maintenance of the System; and Lead Eligible User will appoint a____ [insert title], who will be Lead Eligible User's primary point of contact during the OperationStage.3.1.1 . Motorola will:(i) provide, install, test, accept, own, operate and maintain the System, including the Equipment andSoftware comprising the System;(ii) execute concurrently with this Agreement the Eligible User Entity Use Agreement (Exhibit 0) withLead Eligible User, counter-execute an Amendment to Join Eligible User Entity Use Agreement with eachother Eligible User Entity who has first executed the amendment, and make the System (starting with thefirst Phase and continuing with successive Phases) available for use by Eligible Users in accordance withSection 3.2;(iii) perform its other contractual responsibilities all in accordance with this Agreement, including theexhibits; and(iv) cooperate with Lead Eligible User in the performance of all of Lead Eligible User's contractualresponsibilities under this Agreement.3.1.2. Lead Eligible User will:(i ) perform its contractual responsibil ities in accordance with this Agreement, including the exhibits;(ii) execute concurrently with this Agreement the Eligible User Entity Use Agreement (Exhibit 0) withMotorola, counter-execute an Amendment to Join Eligible User Entity Use Agreement with each otherEligible User Entity who has first executed the amendment, and enroll and use the System (starting withthe first Phase and continuing with successive Phases) in accordance with Section 3.2;(iii) satisfy its System Loading commitment to Motorola and to the BTOP award for sustainability of atleast 50,000 devices as set forth in the System Loading Schedule (Exhibit J);(iv) at its cost and expense, provide, maintain, and make available to Motorola during the term of theAgreement: (a) the Sites and access to the Sites in accordance with Section 6 and the Specitications(Exhibit B); (b) the Licensed Frequencies in accordance with Section 16.9 and the Specifications; and (c)the Facilities in accordance with Section 6 and the Specifications;(v) serve as the primary interface to the other Eligible User Entities concerning this Agreement andthe System; and(vi) cooperate with Motorola in the performance of all of Motorola's contractual responsibilities underthis Agreement.BOOM. 9.24.201 O.Alameda County. no exhibits. docConfidential Preliminary Drafts for Discussion Purposes Only Not For Public Disclosure


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3.1.3. The Eligible User Entity Use Agreement will provide that Lead Eligible User, and any joiningEligible User Entity that executes an Amendment to Join Eligible User Entity Use Agreement document,will provide at their cost and expense (and at no cost and expense to Motorola) their Sites, LicensedFrequencies, and Facilities. That obligation in the Eligible User Entity Use Agreement or any Amendmentto Join Eligible User Entity Use Agreement is independent of, though similar to, the obligation of LeadEligible User to provide or cause to be provided all Sites, Licensed Frequencies and Facilities under thisAgreement; is necessary for Motorola's proper deployment, operation, management, and maintenance ofthe System as a whole; and among other things is intended to give Motorola direct but severalenforcement rights and remedies against the Eligible User Entities other than Lead Eligible User in caseany of them default under their Amendments to Join Eligible User Entity Use Agreement.3.2. ENROLLMENT AND USE. Lead Eligible User agrees to load the System with its permittedemployees and agents, and cause the other enrolled Eligible User Entities to load the System with itspermitted employees and agents, so that at least 50,000 total devices will use the System (starting withthe first Phase and continuing with successive Phases) in accordance with the System Loading Schedule(Exhibit J). Further, Lead Eligible User agrees to pay the applicable User Fees (and all other feespayable to Motorola under Section 5.2.1 below) for itself, all other enrolled Eligible User Entities, and theirpermitted employees and agents during the term of the Agreement. The User Fees and other fees areset forth in the Eligible User Entity Use Agreement (Exhibit 0) that is to be executed by Motorola andLead Eligible User concurrently with this Agreement. Lead Eligible User acknowledges and agrees thatloading the System and paying the User Fees and other fees during the term of this Agreement are bothcrucial to the success and purpose of this Agreement and essential in meeting the sustainabilityrequirements of the STOP grant funding.3.2.1. Lead Eligible User will become enrolled as a user on the System when the Eligible User EntityUse Agreement between Motorola and Lead Eligible User is mutually executed (i.e., concurrently with thisAgreement). Lead Eligible User may commence actual use of the System when System Readiness forthe first Phase occurs and Motorola has executed the System Readiness Certificate (Exhibit H) for thefirst Phase. Thereafter, Lead Eligible User will on behalf of itself and its permitted employees and agentscommence using the System (starting with the first Phase and continuing with successive Phases).Restrictions and limitations on use are set forth in the Eligible User Entity Use Agreement.3.2.2. After the Effective Date of this Agreement, Lead Eligible User will use its best efforts to cause eachof the other Eligible User entities listed on the List of Eligible Users (Exhibit N) to enroll as a user on theSystem by fully executing three (3) originals of the Amendment to Join Eligible User Entity UseAgreement and providing to Motorola and the joining Eligible User Entity one of the executed originals ofthe Amendment to Join Eligible User Entity Use Agreement document (and Lead Eligible User will retainthe last executed original). After the joining Eligible User Entity has enrolled as a user on the System,and Lead Eligible User has commenced using the System as provided in Section 3.2.1 above, that joiningEligible User Entity may on behalf of itself and its permitted employees and agents commence using theSystem (starting with the first Phase and continuing with successive Phases). In other words, the Partiesintend for Lead Eligible User to be the first Eligible User that enrolls and commences use of the System,but other Eligible User Entities may enroll after the Effective Date of this Agreement and may commenceuse of the System immediately after Lead Eligible User commences use.3.2.3. Motorola and Lead Eligible User will jointly develop and maintain a current list of Eligible UserEntities that have enrolled as users on the System. This list will indicate the number of employees andagents that an enrolled Eligible User Entity has permitted to use the System.3.2.4. Other than Lead Eligible User, Eligible Users are not Parties to this Agreement and are not thirdparty beneficiaries under it, but have the rights to use the System in accordance with their Amendment toJoin Eligible User Entity Use Agreement.3.2.5. Lead Eligible User will actively promote and encourage the use of the System among the otherEligible User Entities and among other public safety governmental entities, districts, agencies or bodiesBOOM.9.24.201 O.Alameda County.no exhibits.docConfidential Preliminary Drafts for Discussion Purposes Only Not For Public Disclosure


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within the ten-county San Francisco Say Area Region who might be interested in becoming an EligibleUser Entity. Lead Eligible User will not agree to allow other actual or potential Eligible User Entities touse a system owned or controlled by Lead Eligible User that competes with and has the same generalpurpose as the System.3.2.6. Nothing in this Agreement is intended to diminish or actually diminishes any rights that LeadEligible User has concerning other Eligible User Entities who, under separate agreements, memoranda ofunderstanding, or arrangements with Lead Eligible User, have agreed to reimburse or pay to LeadEligible User the User Fees or other fees for themselves and their permitted employees and agents andto make available their Sites, Licensed Frequencies, and Facilities.3.3. CHANGES. Either Party may request changes to the work within the general scope of thisAgreement. Each Party upon receipt of a change request from the other Party will promptly evaluate andnegotiate in good faith the change request. However, neither Party is obligated to perform a requestedchange unless both Parties agree to the requested change and execute a written change order. Certainprovisions below indicate under what circumstances a Party must agree to a requested Change.3.3.1. If a requested change causes an increase or decrease in the time required to perform thisAgreement, the change order will reflect an equitable adjustment of the Performance Schedule or othertime commitment under this Agreement.3.3.2. If Motorola requests a change that in its reasonable opinion is: (i) necessary for Motorola tosatisfy one or more of its Service Level commitments, the STOP Grant requirements, or direction from oragreement with the NTIA; or (ii) appropriate to deploy, operate, manage, maintain or improve the System(e.g., coverage, capacity, stability, equipment standardization, user accessibility, functionality, security,software refresh or upgrade, and the like), then Lead Eligible User must agree to the requested change.3.3.3. If Lead Eligible User requests a change that will cause Motorola in its reasonable opinion to incuradditional costs, then Motorola will determine whether the requested change is necessary to be made forMotorola to satisfy its Service Level commitments. If Motorola concludes the requested change isnecessary to be made for Motorola to satisfy its Service Level commitments, the STOP Grantrequirements, or direction from or agreement with the NTIA, then Motorola must agree to the requestedchange. If Motorola concludes the requested Change is not necessary to be made for Motorola to satisfyits Service Level commitments, the STOP Grant requirements, or direction from or agreement with theNTIA, then Motorola (i) may agree to the requested change, (ii) may reject the requested change, or (iii)may conditionally agree to the requested change if Lead Eligible User pays a quoted price for thechanged work. Concerning this last choice, Lead Eligible User will either agree to pay the quoted price,in which case the Parties will execute the change order which will include Lead Eligible User's agreementto pay the quoted price, or Lead Eligible User will reject the quoted price, in which case the changerequest from Lead Eligible User is deemed withdrawn. Unless the Change order provides to the contrary,payment of the quoted price will be due within thirty (30) days of Lead Eligible User's receipt of anaccurate and complete invoice which will be sent promptly after the execution of the change order.Depending on the nature and scope of the requested change, the Parties may agree to paymentmilestones rather than a single invoice.3.4. DEVICES. This Agreement does not cover the purchase of any initial Devices but may byamendment include the option to purchase a user subscription plan that includes Device refresh andupgrades on a regular basis throughout the term of the Agreement. Under a different agreement oragreements, Motorola, Lead Eligible User, and other entities that are enrolled Eligible Users may agreeon the means to purchase Devices.3.5. SOFTWARE. While Motorola is the owner of the System, it is not necessary for Motorola andLead Eligible User (or other Eligible Users) to enter into a Software License Agreement concerning theSystem. However, if at any time and for any reason Lead Eligible User acquires ownership or operationof the System, Software is licensed in accordance with the following provisions.

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3.5.1. Any Motorola Software, including subsequent releases, is licensed solely in accordance with theSoftware License Agreement (Exhibit L). Lead Eligible User hereby accepts and agrees to abide by all ofthe terms and restrictions of the Software License Agreement.3.5.2. Any Non-Motorola Software is licensed in accordance with the standard license, terms, andrestrictions of the copyright owner on the effective date that Lead Eligible User acquires ownership oroperation of the System unless the copyright owner has granted to Motorola the right to sublicense theNon-Motorola Software pursuant to the Software License Agreement, in which case it applies and thecopyright owner will have all of Licensor's rights and protections under the Software License Agreementconcerning its Non-Motorola Software. Motorola makes no representations or warranties of any kindregarding Non-Motorola Software but agrees to use reasonable efforts to obtain for Lead Eligible User theapplicable license agreement for Non-Motorola Software. Non-Motorola Software may include OpenSource Software. All Open Source Software is licensed in accordance with the provisions of the standardlicense of the copyright owner and not the Software License Agreement. Lead Eligible User herebyaccepts and agrees to abide by all of the terms and restrictions of the software license agreementapplicable to Non-Motorola Software.3.6. TERM. Unless terminated by mutual agreement of the Parties or in accordance with otherprovisions of this Agreement, or extended by mutual agreement of the Parties, the term of this Agreementbegins on the Effective Date and continues until the date which is ten (10) years after the date of FinalProject Readiness. The Parties by mutual agreement may extend the term for additional years.3.7. MAINTENANCE SERVICE. During the term of this Agreement, Motorola will provide at itsexpense maintenance and support services for the System in accordance with the Maintenance ServicesStatement of Work (Exhibit M). Unless otherwise agreed by the Parties in writing, the terms andconditions applicable to those maintenance and support services will be Motorola's standard ServiceTerms and Conditions included as part of Exhibit M, subject to Motorola's duty to satisfy its Service Levelcommitments while it is the owner and operator of the System. So long as Motorola is the owner andoperator of the System, it will maintain at its expense an inventory of spare parts and spare Equipmentthat in Motorola's reasonable judgment is sufficient for it to satisfy its Service Level commitments.3.7.1. Unless the Maintenance Services Statement of Work (Exhibit M) explicitly states to the contrary,Motorola's maintenance and support duties extend only to the System that Motorola delivers and installsunder this Agreement and does not extend to (i) any other equipment, software, subsystem, or system(including other equipment, software, subsystems, or systems installed at a shared Site) or(ii)maintenance and support of the Sites or Facilities. Although the Lead Eligible User must maintain thePilot System on the same platform and software version level as the System, maintenance and support ofthe Pilot System is not covered by this Agreement. (See Exhibit S.)3.7.2. Lead Eligible User or any other Eligible User Entity may request a quote for and purchase fromMotorola spare parts; spare or additional Equipment or Software; or installation, maintenance andsupport, or other services for Equipment or Software that is not part of the System, by means of aseparate agreement that is mutually executed by Motorola and the Eligible User Entity.3.8. SUBSTITUTIONS. At no additional cost to Lead Eligible User, Motorola may substitute anyEquipment, Software, or services to be provided by Motorola under this Agreement, if the substitutemeets or exceeds the Specifications, is of equivalent or better quality to what is being substituted, anddoes not degrade the Service Levels in any material respect. Motorola will document any substitution.3.9. OPTIONS.3.9.1. The Parties have identified and described below [or in an exhibit to be added] the following optionswhich are foreseeable changes to the System or a Phase of the System ("Options") but are not presentlyunder contract and covered by this Agreement. In other words, although the Parties presently know thatLead Eligible User might desire in the future to purchase the work and deliverables described in theOptions, Motorola presently has no duty to provide, and Lead Eligible User presently has no duty to payBOOM.9.24.201 O.Alameda County.no exhibits.docConfidential Preliminary Drafts for Discussion Purposes Only Not For Public Disclosure


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for, the work and deliverables described in an Option. An Option represents Motorola's irrevocable offerto provide the work and deliverables described in that Option at the stated Option price, but only if LeadEligible User exercises the Option as described in this section.Lead Eligible User, at its election, may exercise some or all of the Options by delivering a written notice toMotorola during the Option period, indicating that Lead Eligible User is exercising the particular Optionand agreeing to pay the Option price. Each Option description below identifies the Option period withinwhich Lead Eligible User must elect to purchase the Option, the price of the work and deliverablesdescribed in the Option, and any other significant aspects concerning the Option. Time is of the essenceconcerning exercising an Option within the applicable Option period. The Option price will be added tothe Contract Price to be paid by Lead Eligible User. Motorola will submit invoices to Lead Eligible Userwho will pay the Option price in accordance with Section 5.2 below, except that unless the Optiondescription indicates to the contrary, the Payment Schedule for the Option will have two (2) equalpayment milestones: (i) Lead Eligible User exercising the Option, and (ii) Motorola completing the workand delivering the deliverables described in the Option. If the Parties so desire, they can mutuallydevelop and agree upon a Statement of Work, performance schedule, payment milestone schedule, orother related documents that more specifically describe the work and dellverables covered by an Option.Final Project Readiness may be delayed without penalty or liability to either Party if that delay isreasonably necessary to allow Motorola to complete the work and deliver the deliverables of all exercisedOptions.

A .

B .

[Describe here or in a new exhibit to be attached any Options that become part of the System or a Phaseof the System and which are to be paid by Lead Eligible User, such as known subsystems offered byMotorola and to be used with the System. or any knownlforeseeabfe changes concerning the System,such as future Phases o r System coverage, stability, security, accessibility, capacity.functjonalityfupgrades, refreshes, etc. which the Parties do not presently want to cover by this Agreement but whichthey might want t o cover in the future. Describe the Option price and Option period for each Option, andother relevant information.}3.9.2. If Lead Eligible User or any other Eligible User Entity wishes to purchase from Motorola optionalservices that do not become part of the System, like user training, consulting or advisory services, it willrequest Motorola to provide a quote. In response, Motorola will develop and provide to the requestingEligible User Entity a quote that includes a preliminary statement of work for these requested services,pricing and payment terms, a performance schedule, and other pertinent information. Motorola and therequesting Eligible User Entity will negotiate in good faith these optional services, and any agreement forthe purchase and sale of these optional services will be by means of a separate agreement that ismutually executed by Motorola and the Eligible User Entity.3.10. KEY PERSONNEL. From the Effective Date until the date of Final Project Readiness, Motorolawill not re-assign any of its Key Personnel enumerated in the Deployment Stage portion of the List ofMotorola Key Personnel (Exhibit P) without the prior written consent of Lead Eligible User, which will notbe unreasonably withheld or delayed. On and after the date of Final Project Readiness and so long asMotorola is the owner and operator of the System, Motorola will not re-assign any of its Key Personnelenumerated in the Operation Stage portion of the List of Motorola Key Personnel (Exhibit P) without theprior written consent of Lead Eligible User, which will not be unreasonably withheld or delayed. TheParties acknowledge that Key Personnel changes are likely to occur during the term of this Agreement. Ifany of its Key Personnel become unable or unavailable to perform his or her assigned duties (e.g., jobchange, retirement, or relocation), Motorola will assign a replacement Key Person having similarqualifications and skills as the replaced Key Person, and such assignment is subject to Lead EligibleUser's prior review and approval of the replacement Key Person's resume (and interview if so desired).The preceding sentence does not apply to a Key Person who temporarily is unavailable to perform his orher duties because of vacation, holidays, training, illness, short term leave, etc.BOOM . 9.2 4.2 0 I O .A la me da C ou nty . n o e xh ib its.d ocConfidential Preliminary Drafts for Discussion Purposes Only Not For Public Disclosure


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3.11. PUBLIC ACCESS SUBSYSTEM. The BTOP Grant and Motorola's contractual commitments tothe NTIA provides for both this System and a public internet access subsystem based on Motorola'spoint-to-point and point-to-multipoint technologies (the "Public Access Subsystem"). Lead Eligible Useragrees that Motorola may install the Public Access Subsystem equipment at some or all (as determinedby Motorola in accordance with the Public Access Subsystem design) of the same Sites specified for theSystem and that Motorola may install the Public Access Subsystem equipment when and in a mannersimilar to the installation of System equipment, provided that the Site is qualified (per Section 6.1.2 below)for the Public Access Subsystem equipment installation All of Lead Eligible User's. duties in thisAgreement pertaining to Sites apply to both the System and the Public Access Subsystem.3.12. PILOT SYSTEM. The Parties acknowledge that Motorola is providing under a different salescontract the Pilot System that will be used in connection with this System. Title to the Pilot Systemhardware assets and the software license of the Pilot System software assets will be held by LeadEligible User. Unless changed by mutual agreement under that separate sales contract, the Pilot Systemwill be comprised of LTE eNodeB equipment including antenna systems to be installed at up to ten (10)installation ready sites that are provided or caused to be provided by Pilot System Customer, one (1) LTEcore, and some Devices to be provided to Lead Eligible User and four (4) other Eligible User entities.Although the relationship between the Pilot System and the System is described in Exhibit S, the PilotSystem is not a Phase under this Agreement.Section 4 PERFORMANCE SCHEDULEThe Parties will perform their respective responsibilities in accordance with the Performance Schedulethat is included in the Statement of Work, with time being of the essence. The Performance Schedule willshow the target date for System Readiness of each Phase and of Final Project Readiness. By executingthis Agreement, Lead Eligible User authorizes Motorola to proceed with contract performance beginningon the Effective Date. Each Party will take all reasonable actions that are consistent with its duties underthis Agreement to deploy the System and each Phase of it on schedule, and neither Party mayunilaterally suspend deployment of the System. Delays are covered under Section 10 below.Section 5 CONTRACT PRICE, PAYMENT AND INVOICING5.1. CONTRACT PRICE. The primary compensation to be paid to Motorola consists of User Fees;activation fees; subscription and roaming fees for use of public carrier networks (if applicable and if thosefees are paid to Motorola rather than the public carrier); and other fees to be paid to Motorola by or forEligible Users to use the System. However, this Agreement may provide or may be amended to provideOptions under Section 3.9 or other goods and services for which Lead Eligible User is to pay a ContractPrice. If so, the Contract Price and the payment terms will be set forth in or with the description of thegoods and services purchased.5.2. FEES. In addition to the Contract Price (if any), Lead Eligible User will pay to Motorola when dueall of the User Fees and all activation, subscription, roaming, and other fees except for those paid directlyto a public carrier, for itself, all other enrolled Eligible User Entities, and all of their permitted employeesand agents. As more fully described in the Eligible User Entity Use Agreement, User Fees and theseother fees as applicable begin to accrue once System Readiness for the first Phase occurs, and arebased upon Lead Eligible User's duty to load the System in accordance with the System LoadingSchedule (Exhibit J). (See Attachment A to the Eligible User Entity Use Agreement.)5.3. INVOICING AND PAYMENT. Motorola will submit invoices for User Fees and other fees to LeadEligible User in accordance with the Eligible User Entity Use Agreement.5.3.1. Lead Eligible User will make payments when due in the form of a wire transfer, check, orcashier's check from a U.S. financial institution. Overdue invoices will bear simple interest at themaximum allowable rate.

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5.3.2. For reference, the Federal Tax Identification Number for Motorola, Inc. is 36-1115800.5.3.3. Invoices for Contract Price, User Fees, and other fees payments will be sent to Lead Eligible Userat the following address: _5.3.4. For sales or use tax purposes, Lead Eligible User and Motorola will jointly develop an accuratelist of cities which are the ultimate destinations where the Equipment will be delivered to the Sites, theirapplicable sales or use tax rates, and the allocation of Equipment to each city.5.3.5. Lead Eligible User acknowledges that sales or use tax, federal excise tax, federal universalservice tax, and other governmental taxes, charges, assessments or fees may apply to the ContractPrice, User Fees, and any other fees paid to Motorola, and Lead Eligible User agrees to pay those taxes,charges, assessments and fees for itself, all other enrolled Eligible User Entities, and all of their permittedemployees and agents. Lead Eligible User will identify, claim, and provide to Motorola properdocumentation for any applicable tax exemption that Lead Eligible User believes it may be entitled to.(See Section 16.1 regarding taxes.)5.4. FREIGHT, TITLE, AND RISK OF LOSS. Because Motorola is to own the System initially, it willpay for all freight charges to ship Equipment to Sites, it will retain title to the System and the Equipmentcomprising the System, and it will retain risk of loss concerning the System and the Equipment comprisingthe System unless such loss is caused by the default, negligence or intentional misconduct of LeadEligible User, another Eligible User Entity, or their employees or agents; or is covered by Lead EligibleUser's insurance as provided in Section 13.5 below. Title to Software will not pass at any time but islicensed. Also, Lead Eligible User (or the applicable other Eligible User Entity) and not Motorola willretain their own title and risk of loss concerning the Sites and Facilities or any improvements to thoseSites and Facilities.5.5. TRANSFER OF TITLE. Motorola will transfer ownership of the System assets (as well as thecomponents of the Public Access Subsystem) that are funded by the BTOP Grant to the Sheriff or someother governmental transferee in the Bay Area approved by the Sheriff and Motorola, with their approvalnot to be unreasonably withheld. The transfer shall occur, at no charge to transferee (other thanapplicable sales tax on the fair market value of the transferred assets, which Lead Eligible Useracknowledges it must pay), provided that the following conditions are fulfilled: (i) the BTOP Grant perrodhas expired; (ii) the System assets to be transferred have been completely depreciated by Motorola; (iii)the Sheriff or other approved governmental transferee expressly agrees to fulfill the terms and conditionsof the BTOP Grant relating to the System; (iv) the NTIA gives its written approval of andcontemporaneously with the transfer; and (v) Motorola and the Sheriff must each in good faith make thedetermination that there are no material and adverse financial, tax, risk, or operational effects caused bythe transfer. The specific details of the transfer agreement must be agreed before the BTOP Grantperiod expires (scheduled to occur on July 31,2013, subject to extensions).Section 6 SITES, FACILITIES, AND SITE CONDITIONS6.1. ACCESS TO AND USE OF SITES AND FACILITIES. The Specifications (Exhibit B) identifies theSites and Facilities that Lead Eligible User at its cost and expense will provide or cause to be provided toMotorola from the Effective Date or such later date if so indicated in the Performance Schedule by Phase(Exhibit F) and continuously throughout the term of this Agreement. Lead Eligible User at its cost andexpense will provide or cause to be provided, and during the term of this Agreement will maintain andsupport, each of the Sites and Facilities in "installation ready" condition for Motorola's continuous,uninterrupted use in connection with the System and its proper operation, management, use andmaintenance. This Agreement does not involve and Motorola has no responsibility to provide Site orFacility acquisition or improvement, or any construction services.6.1.1. The term "installation ready" means (i) the Site is accessible, available, ready and suitable forMotorola to install the intended Equipment or Software at the Site consistent with Motorola's design

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requirements, and (ii) the Facilities are accessible, available, ready and suitable for Motorola to use aspart of or in connection with the System consistent with Motorola's design requirements.For Sites, such design requirements are addressed in the Specifications and include but are not limitedto: (i) Site access by authorized personnel of Motorola and its subcontractors; (ii) the Site is accessible byvehicle; (iii) the Site has available tower or other space to install the Equipment or Software, and forMotorola to perform its related installation, operation, maintenance and other services; (iv) the Site hasavailable, adequate and accessible electr ical power (including electrical outlets, distribution, equipmentand connections); (v) the Site has adequate telephone or other communication lines (including modemaccess and adequate interfacing and networking capabilities); (vi) the Site has, if applicable, adequatewind and ice loading capabilities; (vii) the Site has adequate air conditioning if the Site is inside a buildingrequiring air conditioning for the proper operation, use and maintenance of the Equipment or Software;(viii) the Site is in full compliance with all necessary construction and building permits, zoningrequirements or variances, licenses, and any other governmental (including FCC and FAA) approvals,and with all environmental laws and regulations; (ix) the Site has structural integrity and is in fullcompliance with all applicable and reasonable safety and security requirements, including grounding andapplicable industry and OSHA standards; and (x) the Site has other physical characteristics as may bereasonably requested by Motorola, including compliant with R-56 standards.For Facil it ies, such design requirements are addressed in the Specifications.Site and Facilities access and continuous use as described in this Section 6.1 will be provided at no costor expense to Motorola.6.1.2. Sites and Facilities will be "qualified" by the process described as follows. Throughout the term ofthis Agreement, Lead Eligible User will provide to Motorola all available records, structural, environmentalor other analytical reports (including R56 compliance reports), photographs, drawings, certifications, andother information in Lead Eligible User's possession concerning each Site and Facility, and concerningthe issue of whether the Site or FaCility is in installation ready condition. If the Site or Facility is notowned or leased by Lead Eligible User but is being provided by another Eligible User Entity or by someother third party, then Lead Eligible User will cause that other Eligible User Entity or third party to providesuch information to Motorola. Before installing the Equipment or Software at a Site, Motorola will inspectthe Site and conduct analysis, testing, and other due diligence activities concerning the Site as Motoroladeems necessary or proper, and will provide a written report that advises Lead Eligible User of anyapparent deficiencies or non-conformities with the requirements of this Section. Before using with orconnecting the System to any Facility, Motorola will conduct analysis and other due diligence activitiesconcerning the Facility as Motorola deems necessary or proper, and will provide a written report thatadvises Lead Eligible User of any apparent deficiencies or non-conformities with the requirements of thisSection. Because Lead Eligible User is responsible for Sites, Facilities and access to them, the reportsand advice given by Motorola to Lead Eligible User concerning Sites or Facilities will be without anywarranty from Motorola or any liability on the part of Motorola. Lead Eligible User assumes the risk andmay rely upon Motorola's advice to the extent that it in its sole discretion considers such reliance to beappropriate. Lead Eligible User may at its expense employ other consultants, contractors or experts toadvise it on any Site or Facility.6.1.3. A Site or Facility that has no uncorrected deficiencies or non-conformances is "qualified" forMotorola's use in connection with the System. After a Site or Facility is qualified, Lead Eligible User willnot modify and will not allow another Eligible User Entity or third party to modify the Site or Facility(including adding to or changing equipment installed at or connected to the Site or Facility) without firstreceiving Motorola's prior written consent which will not be unreasonably withheld or delayed. Thepreceding sentence does not apply to Sites that are owned by a commercial rather than a governmentalentity and concerning which Lead Eligible User provides to Motorola a copy of a Site analysis reportdescribing the effects of the modification.6.1.4. Upon request by Lead Eligible User, Motorola may (but has no duty to) correct any disqualifiedSite or Facility on behalf of Lead Eligible User, and Lead Eligible User will immediately reimburseBOOM . 9 .2 4.2 0 IO.Alameda Coun ty . no exh ib i ts .docConfidential Preliminary Drafts for Discussion Purposes Only Not For Public Disclosure


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Motorola for this corrective work using Motorola's then current labor rates and equipment prices for soldwork (which may be higher than pricing for BTOP grant purposes). If Motorola corrects a disqualified Siteor Facility on behalf of Lead Eligible User, that Site or Facility will no longer be disqualified.6.2. LATENT SITE ISSUES. If at any time the Parties mutually determine that any Site or Facilityidentified in the Specifications (Exhibit B) is no longer available or desired, or if unforeseen subsurface,structural, adverse environmental or latent conditions at any Site or Facility differ from thosecontemplated, the Parties will promptly investigate the conditions and Lead Eligible User will at itsexpense correct the deficient or non-conforming Site or Facility conditions; alternatively, the Parties mayby agreement select replacement qualified Sites or Facilities to be provided by Lead Eligible User at itsexpense and adjust the installation plans, as necessary. If a change in Sites or Facilities, or anadjustment to the installation plans occurs, the Parties will equitably amend, as applicable, the ContractPrice, Performance Schedule, the Specifications (Exhibit B), the Service Levels (Exhibit I), and any otherrelevant exhibit or part of this Agreement.6.2.1. Motorola reserves the right, but has no duty, to provide Sites or Facilities or substitute Sites orFacilities, if in its reasonable judgment such action: (i) will enable it to satisfy one or more of its ServiceLevel commitments, or (ii) is appropriate to deploy, operate, manage, maintain or improve the System(e.g. coverage, capacity, stability, user accessibility, functionality, security, and the like).Section 7 TRAININGAny training to be provided by Motorola to Lead Eligible User will be described in the Statement of Work(Exhibit C) or will be handled as an optional service under Section 3.9.2. Lead Eligible User will notifyMotorola immediately if a date change for a scheduled training program is required. If Motorola incursadditional costs because Lead Eligible User reschedules a training program less than thirty (30) daysbefore its scheduled start date, Motorola may recover these additional costs from Lead Eligible User.Section 8 SYSTEM READINESS8.1. COMMENCEMENT OF TESTING. Motorola will determine what tests are appropriate for theSystem (by Phase) and when those tests are to be performed. After Motorola completes the testing byPhase, it will demonstrate to Lead Eligible User that the applicable Phase of the System is ready for use.Motorola will provide to Lead Eligible User prior notice before the demonstration of readiness is to occur.The prior notice will be at least ten (10) days for the first Phase and at least five (5) days for subsequentPhases.8.2. SYSTEM READINESS. System Readiness will occur on a Phase-by-Phase basis when Motorolademonstrates to Lead Eligible User's reasonable satisfaction that the applicable Phase of the System isready for use. Upon that demonstration, Motorola will memorialize this event by promptly executing aSystem Readiness Certificate by Phase (Exhibit H) and delivering a copy to Lead Eligible User. Minoromissions or variances in the Phase of the System that do not materially impair the operation of thePhase of the System will not postpone System Readiness for that particular Phase, but will be correctedaccording to a punch list schedule developed by Motorola (a copy of which will be provided to LeadEligible User).8.3. FINAL PROJECT READINESS. When Final Project Readiness occurs, Motorola will promptlymemorialize this final Deployment Stage event by so indicating on a Final Project Readiness certificate. IfLead Eligible User believes Final Project Readiness has not occurred, it will provide to Motorola a writtennotice that includes the specific details of the alleged non-occurrence and Motorola will evaluate theallegations in this notice. Either Party may resort to the Dispute resolution process described in Section11 below.Section 9 REPRESENTATIONS AND WARRANTIES

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9.1. RELATION TO SERVICE LEVELS. During the term of this Agreement, Motorola promises tomeet or exceed the Service Levels as set forth in Exhibit I, subject to: (i) Motorola's excused non-performance due to Force Majeure events; (ii) Motorola's excused non-performance due to Lead EligibleUser's failure to perform its contractual duties if that failure causes or materially contributes to Motorola'snon-performance; or (iii) Motorola's excused non-performance due to the failure by an Eligible User Entityother than Lead Eligible User to perform its contractual duties under its executed Amendment to JoinEligible User Entity Use Agreement if its failure causes or materially contributes to Motorola's non-performance. Further, Motorola's promise to meet or exceed the Service Levels is made only to LeadEligible User and not to any other Eligible User, and is subject to the exclusive remedies set forth inExhibit I. Because Motorola is the owner of the System and has made Service Level commitments as setforth in Exhibit I, Motorola makes no representation or warranty concerning the System, Equipment orSoftware except as expressly set forth below.9.2. SYSTEM FUNCTIONALITY. Subject to the disclaimer of warranties in Section 9.4, Motorola.represents that, when System Readiness for a Phase occurs, that Phase of the System will comply withthe Specifications applicable to Motorola's obligations in all material respects other than punch list items.Upon the date which is thirty (30) days after System Readiness of the Phase, this System functionalityrepresentation is fulfilled. Motorola is not responsible for System performance deficiencies that arecaused by ancillary equipment, software, or facilities not furnished by Motorola which is attached to orused in connection with the System, Force Majeure events, or Lead Eligible User's failure to perform itscontractual duties (including those pertaining to Sites or Facilities) if Lead Eligible User's failure causes ormaterially contributes to the deficiency.9.3. LEAD ELIGIBLE USER IS COVERED. The express limited warranties are extended by Motorolato Lead Eligible User only and are not assignable or transferable.9.4. DISCLAIMER OF WARRANTIES. ALTHOUGH MOTOROLA HAS PROVIDED TO LEADELIGIBLE USER COVERAGE PREDICTION MAPS AND MAY PROVIDE IN THE FUTURE ADDITIONALCOVERAGE PREDICTION MAPS, MOTOROLA DOES NOT GUARANTEE OR WARRANTCOVERAGE. COVERAGE PREDICTION MAPS ARE INTENDED TO PROVIDE ESTIMATES OFGENERAL COVERAGE AREAS UNDER ASSUMED CONDITIONS. SOME OF THESE ASSUMEDCONDITIONS MIGHT NOT ACTUALLY OCCUR. FURTHER, ACTUAL COVERAGE WILL DEPEND INPART UPON THE DEVICE BEING USED. COVERAGE IS NOT AVAILABLE EVERYWHERE, ANDGAPS IN COVERAGE WITHIN THE PREDICTED COVERAGE AREAS MAY OCCUR AND SHOULD BEEXPECTED. ACTUAL SERVICE SPEEDS AND SIGNAL STRENGTH VARY, AND MOTOROLA DOESNOT GUARANTEE OR WARRANT SERVICE SPEEDS OR SIGNAL STRENGTH. PREDICTINGWIRELESS COVERAGE, SERVICE SPEEDS, AND SIGNAL STRENGTH IS NOT SCIENTIFICALLYEXACT, AND A VARIETY OF FACTORS CAN AFFECT THESE. SOME OF THESE FACTORS AREWITHIN MOTOROLA'S CONTROL AND SOME ARE NOT. SOME SERVICES OR APPLICATIONSRELY ON LOCATION INFORMATION AND DEVICE CAPABILITY. BECAUSE THIS AGREEMENTDOES NOT INVOLVE DEVICES, NO WARRANTIES CONCERNING DEVICES ARE GIVEN AND, INALL CASES, IT DOES NOT WARRANT DEVICES IT DOES NOT PROVIDE. MOTOROLA DOES NOTWARRANT THAT ALL MESSAGES AND COMMUNICATIONS WILL BE SUCCESSFULLY RECEIVEDAND IS NOT RESPONSIBLE FOR LOST OR MISDIRECTED MESSAGES AND COMMUNCITIONS.MOTOROLA DOES NOT WARRANT ROAMING SERVICES AS THESE SERVICES ARE DEPENDENTUPON ANOTHER'S NETWORK; WHEN ROAMING ONTO ANOTHER'S NETWORK, COMPLIANCEWITH THAT NETWORK OWNER'S POLICIES AND USE REQUIREMENTS ARE THERESPONSIBILITY OF THE USER. MOTOROLA DOES NOT WARRANT DATA CONTENT ORSOFTWARE APPLICATIONS. MOTOROLA DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE SERVICE. SERVICE INTERRUPTION MAY OCCUR WHEN SOFTWARE DOWNLOADS AREBEING MADE. THE WARRANTIES ABOVE IN SECTION 9.2 ARE SUBJECT TO THESEDISCLAIIMERS AND ARE THE COMPLETE WARRANTIES FOR THE SYSTEM, EQUIPMENT,MOTOROLA SOFTWARE, AND SERVICES PROVIDED UNDER THIS AGREEMENT AND ARE GIVENIN LIEU OF ALL OTHER WARRANTIES. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES ORCONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OFMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.BOOM.9.24.201O.Alameda County. no exhibits.docConfidential Preliminary Drafts for Discussion Purposes Only Not For Public Disclosure


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Section 10 DELAYS10.1. FORCE MAJEURE. Neither Party will be liable for its non-performance or delayed performance ifcaused by a Force Majeure. During the Deployment Stage, a Party that becomes aware of a ForceMajeure that will significantly delay performance will notify the other Party promptly (but in no event laterthan ten (10) days) after it discovers the Force Majeure. If a Force Majeure occurs, the Parties willexecute a change order to extend the Performance Schedule for a time period that is reasonable underthe circumstances. In addition, if Motorola becomes aware that a Force Majeure will cause it to fail tosatisfy its Service Level commitments as set forth in Exhibit I, then it will notify Lead Eligible Userpromptly (but in no event later than ten (10) days) after it discovers the Force Majeure and Motorola willbe excused from any penalties or liabilities otherwise owed to Lead Eligible User for failing to meet orexceed its Service Level commitments.10.2. UNEXCUSED PERFORMANCE SCHEDULE DELAYS CAUSED BY LEAD ELIGIBLE USER. IfLead Eligible User delays the Performance Schedule by Phase, it will make the promised Contract Pricepayments according to the Payment Schedule as if no delay occurred, if applicable; and the Parties willexecute a change order to extend both the term of the Agreement and the Performance Schedule and, ifrequested by Motorola, compensate Motorola for all reasonable charges incurred because of the delay.Delay charges payable by Lead Eligible User to Motorola have two categories, referred to as "calculateddelay charges" and "liquidated delay damages". Calculated delay charges may include costs incurred byMotorola or its subcontractors for additional freight, warehousing and handling of Equipment; extension ofany warranties; travel; suspending and re-mobilizing the work; additional engineering, projectmanagement, and standby time calculated at then current rates; and preparing and implementing analternative implementation plan. If Motorola requests these calculated delay charges, it will present toLead Eligible User a statement of Motorola's calculations and the supporting information.In addition to calculated delay charges, Lead Eligible User will pay to Motorola liquidated delay damagesresulting from delayed payment of User Fees and other fees, as follows.10.2.1. Motorola and Lead Eligible User agree that: (0 although they are difficult to ascertain, liquidateddelay damages in the amount of $ [estimate the delayed per diem User Fees minus the per diemreduction in Motorola's operating costs, if any, resulting from the delay] per calendar day as more fullydescribed below are a reasonable approximation of the amount of damages that Motorola would suffer (inaddition to the calculated delay charges) as a result of unexcused Performance Schedule delays causedby Lead Eligible User and not by a Force Majeure; and (ii) these liquidated delay damages are not apenalty but are intended to compensate Motorola as its sole and exclusive remedy for all damages (otherthan the calculated delay charges) caused by such delay. In determining the liquidated delay damagesamount, the Parties have taken into consideration the other provisions of this Agreement. The maximumamount of liquidated delay damages that Lead Eligible User is obligated to pay Motorola under thisAgreement will be equal to $ . [180 days x per diem damage]10.2.2. If Motorola wishes to assert a liquidated delay damages claim, it must first give written notice toLead Eligible User.10.2.3. Because deployment of the System is subject to some expected delays, the Parties wish toestablish a reasonable grace period that is cumulative for all Phases before any liquidated delaydamages accrue. Therefore, and notwithstanding any time is of the essence provision, Lead EligibleUser shall be entitled to a cumulative thirty (30) day grace period before Motorola is entitled to anyliquidated delay damages.10.2.4. Liquidated delay damages do not apply to delayed payment of other fees or to any Options underSection 3.9.1.Section 11 DISPUTES

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The Parties will use the following procedure to address any dispute arising under this Agreement (a"Dispute").11.1. GOVERNING LAW. This Agreement will be governed by and construed in accordance with thelaws of the State of California.11.2. NEGOTIATION AND ESCALATION. Either Party may initiate the Dispute resolution proceduresby sending a notice of Dispute ("Notice of Dispute") to the other Party. The Parties will attempt to resolvethe Dispute promptly through good faith negotiations initially by the Parties' respective project managers.If the Dispute has not been resolved within ten (10) days from the Notice of Dispute, the Parties willescalate the Dispute to the senior managers identified in Section 16.8. If the Dispute has not beenresolved within thirty (30) days from the Notice of Dispute, the Parties will escalate the dispute toexecutive officers of the Parties. If the Dispute has not been resolved within forty-five (45) days from theNotice of Dispute, the Parties will proceed to mediation.11.3 MEDIATION. The Parties will choose an independent mediator within thirty (30) days of a noticeto mediate from either Party ("Notice of Mediation"). Neither Party may unreasonably withhold consent tothe selection of a mediator. If the Parties are unable to agree upon a mediator, either Party may requestthat American Arbitration Association nominate a mediator. Each Party will bear its own costs ofmediation, but the Parties will share the cost of the mediator equally. Each Party will participate in themediation in good faith and will be represented at the mediation by a business executive with authority tosettle the Dispute.11.4. LITIGATION, VENUE AND JURISDICTION. If a Dispute remains unresolved for sixty (60) daysafter receipt of the Notice of Mediation, either Party may then submit the Dispute to a court of competentjurisdiction in the State of California. Each Party irrevocably agrees to submit to the exclusive jurisdictionof the courts in such state over any claim or matter arising under or in connection with this Agreement.11.5. CONFIDENTIALITY. All communications whether written or verbal pursuant to subsections 11.2and 11.3 will be treated as compromise and settlement negotiations for purposes of applicable rules ofevidence and any additional confidentiality protections provided by applicable law, and are not admissiblein any litigation. The use of these Dispute resolution procedures will not be construed under the doctrinesof laches, waiver or estoppel to affect adversely the rights of either Party.Section 12 DEFAULT AND TERMINATION12.1 DEFAULT BY A PARTY. If either Party fails to perform a material Obligation under thisAgreement, the other Party may consider the non-performing Party to be in default unless a ForceMajeure causes the failure. The non-defaulting Party may assert a default claim by giving the defaultingParty a written and detailed notice of default ("Notice of Default"). A default by Lead Eligible User to paywhen due the Contract Price or any other amount that is due under this Agreement and is not disputed ingood faith must be cured immediately. Concerning all other defaults, the defaulting Party will have thirty(30) days after receipt of the Notice of Default to either cure the default or, if the default is not curablewithin thirty (30) days, provide a written cure plan that is acceptable to the non-defaulting Party. The non-defaulting Party must act reasonably in determining whether a cure plan is acceptable and must makegood faith and collaborative efforts to agree upon a mutually acceptable cure plan. The defaulting Partywill begin implementing the cure plan immediately after receipt of notice by the other Party that itapproves the cure plan. Because the liquidated delay damages set forth in Section 10 above areexclusive remedies, neither Party may resort to the remedies mentioned in this Section 12 for delayedperformance which is covered by the grace period or the time period in which liquidated delay damagesmay accrue.12.2. FAILURE TO CURE. If a defaulting Party fails to cure the default as provided above in Section12.1, unless otherwise provided in this Agreement or unless otherwise agreed in writing, the non-defaulting Party may resort to any available legal or equitable remedy, including termination of anyunfulfilled portion of this Agreement and recovering from the defaulting Party damages recoverable underBOOM.9.24.201 O.Alameda County. no exhibits.docConfidential Preliminary Drafts for Discussion Purposes Only Not For Public Disclosure


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applicable law but subject to Section 14 below. In the event of termination for default, the defaulting Partywill promptly return to the non-defaulting Party any of its Confidential Information and the non-defaultingParty will mitigate damages.12.2.1. In addition to the remedies described above in Section 12.2, Motorola will have the additional andextraordinary right and remedy to require Lead Eligible User to continue to provide the Sites, LicensedFrequencies, and Facilities (whether owned, leased, or licensed by Lead Eligible User or another EligibleUser Entity) for continued use by Motorola for the operation of the System (for the benefit of Motorola andthe Eligible Users other than Lead Eligible User) even if Lead Eligible User's right to use the System hasbeen terminated, but only if Lead Eligible User: (i) defaults after System Readiness of the first Phase, and(ii) fails to cure the default or, if the default is not curable within thirty (30) days, provides to Motorola anacceptable cure plan as described in Section 12.1 above. Before Motorola may exercise this additionaland extraordinary right and remedy, it must provide to Lead Eligible User (including its seniormanagement identified in Section 16.8 below) a second notice of default, an additional thirty (30) dayopportunity to cure as described in Section 12.1, and if requested by Lead Eligible User an opportunity tomeet and confer with senior managers of Motorola. If Motorola selects this additional and extraordinaryright and remedy, and if despite this second notice of default and additional thirty (30) day opportunity tocure Lead Eligible User fails to cure or implement a cure plan that is acceptable to Motorola, Motorola willcontinue to mitigate damages.12.2.2. If Motorola elects the extraordinary default right and remedy described in paragraph 12.2.1,senior managers of both Parties will negotiate in good faith a transition plan, which might include transferof ownership or lease to Motorola or another party of the Sites, Facilities, or Licensed Frequencies(subject to any necessary approvals); a continued but limited role for Lead Eligible User so that itsdamages can be mitigated further and an effective transition may occur; and similar matters .. 12.2.3. The additional and extraordinary default right and remedy under Section 12.2.1 does not apply tomatters that are Disputes but not defaults; or defaults involving Device orders, optional services underSection 3.9.2, Lead Eligible User's failure to perform administrative or minor matters, or other defaults byLead Eligible User that do not significantly and adversely affect Motorola's prospective economicadvantage concerning the System and receipt of the Contract Price, User Fees and other fees describedin Section 5.2.1 .12.3. TERMINATION. Except as provided above in this Section 12, by mutual agreement executed byan authorized senior officer of both Parties, or by operation of law, this Agreement may not be terminatedbefore the expiration of the term of this Agreement as provided in Section 3.6. Notwithstanding thepreceding sentence, if during the Deployment Stage the BTOP Grant is terminated for any reason,Motorola has the right to terminate this Agreement and the Eligible User Entity Use Agreement.12.4. EFFECT ON ELIGIBLE USER ENTITY USE AGREEMENT. A default or termination for defaultunder this Agreement is not a default or termination for default under the Eligible User Entity UseAgreement or any Amendment to Join Eligible User Entity Use Agreement. However, Motorola mayterminate service to and use of the System (i) by Lead Eligible User if the Eligible User Entity UseAgreement is terminated or becomes ineffective for any reason, or (ii) by any other Eligible User Entity ifits Amendment to Join Eligible User Entity Use Agreement is terminated or becomes ineffective for anyreason. Motorola's termination of service to and use of the System by Lead Eligible User or anotherEligible User Entity will have no effect on any other Eligible User Entity except that if User Fees or otherfees are based on the total number of users, they will be increased automatically as of the date of theservice termination to reflect the adjusted total number of users after deducting the terminated users. AtMotorola's election, its termination for default by Lead Eligible User of the Eligible User Entity UseAgreement will be a termination for default by Lead Eligible User under this Agreement.Section 13 INDEMNIFICATION AND INSURANCE13.1. GENERAL INDEMNITY BY MOTOROLA. Motorola will indemnify, defend, and hold Lead EligibleUser harmless from any and all liability, expense, judgment, suit, cause of action, or demand for personalBOOM.9.24.20 1O.Alameda County. no exhibits.docConfidential Preliminary Drafts for Discussion Purposes Only Not For Public Disclosure


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injury, death, or direct damage to tangible property which may accrue against Lead Eligible User to theextent it is caused by the default, negligence or intentional misconduct of Motorola, its subcontractors, ortheir employees or agents, while performing their duties under this Agreement, if Lead Eligible User givesMotorola prompt, written notice of any the claim or suit. Lead Eligible User will cooperate with Motorola inits defense or settlement of the claim or suit. This section sets forth the full extent of Motorola's generalindemnification of Lead Eligible User from liabilities that are in any way related to Motorola's performanceunder this Agreement.13.2. GENERAL INDEMNITY BY LEAD ELIGIBLE USER. Lead Eligible User will indemnify, defend,and hold Motorola harmless from any and all liability, expense, judgment, suit, cause of action, or demandfor personal injury, death, or direct damage to tangible property which may accrue against Motorola to theextent it is caused by the default, negligence or intentional misconduct of Lead Eligible User, its othercontractors, or their employees or agents, while performing their duties under this Agreement, if Motorolagives Lead Eligible User prompt, written notice of any the claim or suit. Motorola will cooperate with LeadEligible User in its defense or settlement of the claim or suit. This section sets forth the full extent of LeadEligible User's general indemnification of Motorola from liabilities that are in any way related to LeadEligible User's performance under this Agreement.13.3. PATENT AND COPYRIGHT INFRINGEMENT.13.3.1. Motorola will defend at its expense any suit brought against Lead Eligible User to the extent it isbased on a third-party claim alleging that (i) the Equipment that is manufactured by Motorola or (ii) theMotorola Software (collectively referred to in this Section 13.3. as "Product") directly infringes a UnitedStates patent or copyright ("Infringement Claim"). Motorola's duties to defend and indemnify areconditioned upon: Lead Eligible User promptly notifying Motorola in writing of the Infringement Claim;Motorola having sole control of the defense of the suit and all negotiations for its settlement orcompromise; and Lead Eligible User providing to Motorola cooperation and, if requested by Motorola,reasonable assistance in the defense of the Infringement Claim. In addition to Motorola's obligation todefend, and subject to the same conditions, Motorola will pay all damages finally awarded against LeadEligible User by a court of competent jurisdiction for an Infringement Claim or agreed to, in writing, byMotorola in settlement of an Infringement Claim.13.3.2. If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at itsoption and expense: (a) procure for Lead Eligible User the right to continue using the Product; (b) replaceor modify the Product so that it becomes non-infringing while providing functionally equivalentperformance; or (c) if title to the Product has transferred to Lead Eligible User, accept the return of theProduct and grant Lead Eligible User a credit for the Product, less a reasonable charge for depreciation.The depreciation amount will be calculated based upon generally accepted accounting standards.13.3.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon:(a) the combination of the Product with any software, apparatus or device not furnished by Motorola; (b)the use of ancillary equipment or software not furnished by Motorola and that is attached to or used inconnection with the Product; (c) the Product is designed or manufactured in accordance with LeadEligible User's designs, specifications, guidelines or instructions, if the alleged infringement would nothave occurred without such designs, specifications, guidelines or instructions; (d) a modification of theProduct by a party other than Motorola; (e) use of the Product in a manner for which the Product was notdesigned or that is inconsistent with the terms of this Agreement; or (f) the failure by Lead Eligible User toinstall an enhancement release to the Motorola Software that Motorola recommends and is intended tocorrect the claimed infringement. In no event will Motorola's liability resulting from its indemnityobligation to Lead Eligible User extend in any way to royalties payable on a per use basis or the LeadEligible User's revenues.13.3.4. This Section 13 provides Lead Eligible User's sole and exclusive remedies and Motorola's entireliability in the event of an Infringement Claim. Lead Eligible User has no right to recover and Motorolahas no obligation to provide any other or further remedies, whether under another provision of thisAgreement or any other legal theory or principle, in connection with an Infringement Claim. In addition,BOOM. 9.2 4.2 01 O .A lame da C ou nty. no exhibi ts .docConfidential Preliminary Drafts for Discussion Purposes Only Not For Public Disclosure


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the rights and remedies provided in this Section 13 are subject to and limited by the restrictions set forthin Section 14. However, the rights and remedies provided under this Section 13 do not affect the rightsand duties of the Parties under other provisions of this Agreement, such as Service Level or SystemLoading commitments.13.4. Motorola's Insurance Requirements. During the term of this Agreement, Motorola will maintain atits expense the insurance as provided in Motorola's Insurance Requirements (Exhibit Q). Theseinsurance requirements may differentiate between what is required during the Deployment Stage and theOperation Stage.13.5. Lead Eligible User's Insurance Requirements. During the term of this Agreement and primarily toprotect the Sites and Facilities from damage and lost use, Lead Eligible User will maintain at its expensethe insurance as provided in Lead Eligible User's Insurance Requirements (Exhibit R).Section 14 LIMITATION OF LIABILITYExcept for personal injury or death, Motorola's total liability, whether for breach of contract, warranty,negligence, strict liability in tort, indemnification, or otherwise will be limited to the direct damagesrecoverable under law, but not to exceed $5,000,000. Notwithstanding the preceding sentence,Motorola's total and aggregated liability owed to Lead Eligible User and all other Eligible Users for breachof contract under this Agreement, the Eligible User Entity Use Agreement, and the Amendments to JoinEligible User Entity Use Agreement will not exceed $15,000,000. ALTHOUGH THE PARTIESACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THATMOTOROLA WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DEVICE NOTPROVIDED BY MOTOROLA OR ANY SOFTWARE APPLICATION., OR FOR ANY COMMERCIALLOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS ORSAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANYWAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE SYSTEM,EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANTTO THIS AGREEMENT. This limitation of liability provision survives the expiration or termination of theAgreement and applies notwithstanding any contrary provision, but it is not intended to diminish anyinsurance protection or benefits obtained by Motorola pursuant to Section 13.4 above or by Lead EligibleUser pursuant to Section 13.5 above. No action for contract breach or otherwise relating to thetransactions contemplated by this Agreement may be brought more than two (2) years after the accrual ofthe cause of action, except for money due upon an open account.Section 15 CONFIDENTIALITY, REPORTING AND PROPRIETARY RIGHTS15.1. CONFIDENTIAL INFORMATION. During the term of this Agreement, the Parties may provideeach other with Confidential Information. Each Party will: maintain the confidentiality of the other Party'sConfidential Information and not disclose it to any third party, except as authorized by the disclosing Partyin writing or as required by a court of competent jurisdiction; restrict disclosure of the ConfidentialInformation to its employees who have a "need to know" and not copy or reproduce the ConfidentialInformation; take necessary and appropriate precautions to guard the confidentiality of the ConfidentialInformation, including informing its employees who handle the Confidential Information that it isconfidential and is not to be disclosed to others, but these precautions will be at least the same degree ofcare that the receiving Party applies to its own confidential information and will not be less thanreasonable care; and use the Confidential Information only in furtherance of the performance of thisAgreement. Confidential Information is and will at all times remain the property of the disclosing Party,and no grant of any proprietary rights in the Confidential Information is given or intended, including anyexpress or implied license, other than the limited right of the recipient to use the Confidential Informationin the manner and to the extent permitted by this Agreement. Lead Eligible User acknowledges that theBTOP Grant requires Motorola to report on various matters concerning the System and the grant fundedproject, and agrees that any disclosures that Motorola reasonably makes in support of its reporting orother BTOP Grant compliance responsibilities shall not be a breach of this Agreement. Lead EligibleUser further acknowledges that the BTOP Grant application contains Motorola's confidential and tradeBOOM.9.24.20 IO .A lameda Coun ty. no exhib it s.do cConfidential Preliminary Drafts for Discussion Purposes Only Not For Public Disclosure


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secret information. Notwithstanding any provisron suggesting the contrary, Motorola has no duty toprovide the full STOP Grant application to Lead Eligible User or any Eligible User Entity.15.1.1. After the project kickoff but before System Readiness of the first Phase occurs, Motorola willdevelop the formats of reports that are intended to verify whether Motorola is satisfying its Service Levelcommitments and whether Lead Eligible User is satisfying its System Loading commitments as set forth inthe System Loading Schedule (Exhibit J). Motorola will provide a copy of these report formats to LeadEligible User, and Lead Eligible User will have at least three (3) weeks to provide to Motorola commentsabout and suggested revisions to the report formats. Motorola will consider those comments andsuggested revisions, and will determine and provide to Lead Eligible User a copy of the final formats ofthe reports. After System Readiness of the first Phase and during the remainder of the term of thisAgreement, Motorola will provide to Lead Eligible User a copy of the actual reports using the applicablefinal format. During the first 12 months after System Readiness of the first Phase, Motorola will providethese reports to Lead Eligible User on a monthly basis. Thereafter, Motorola will provide these reports ona quarterly basis. The Parties may, from time to time, add to or amend the report formats or thefrequency with which they are provided. All of these reports and their report formats will be treated asMotorola's Confidential Information, but Lead Eligible User may use them in a manner that is consistentwith the provisions of Section 15.1 .15.1.2. Until Final Project Readiness, Motorola will notify Lead Eligible User of any known significantissues of its non-compliance with the Specifications, the reasons for the non-compliance, and theintended remediation efforts to establish or restore compliance with the Specifications. Until Final ProjectReadiness, Lead Eligible User will notify Motorola of any known significant issues of its non-compliancewith the Specif ications (e.g., the Sites, Licensed Frequencies, or Facilities) or its duties concerning theSites, Licensed Frequencies, or Facilities, the reasons for the non-compliance, and the intendedremediation efforts to establish or restore compliance with the Specifications. In all cases, suchnotifications provided under this Section 15.1.2 are to be given within ten (10) days of discovery and areintended solely to identify System-related issues as early as possible so that they may be resolvedeffectively and with minimal disruption to the System, its operations, or its users; and such notificationsare to be treated as the Confidential Information of the disclosing Party; are not admissions of breach,default, or liability; and may not be used for evidentiary purposes.15.1.3. After the project kickoff but before System Readiness of the first Phase occurs, the Parties willmutually develop and implement adequate procedures for protecting from misuse or unauthorizeddisclosure of Confidential Information belonging to Lead Eligible User or another Eligible User Entity(such as public safety information). Lead Eligible User at its expense may conduct criminal and driverhistory background checks of Motorola's officers, employees or agents, or those of its subcontractors,who would directly supervise or physically perform Motorola's contractual duties under this Agreement atLead Eligible User's facilities or who would be given access to unencrypted data that is transmitted overthe System or Confidential Information belonging to Lead Eligible User or another Eligible User Entity. IfLead Eligible User reasonably concludes that any such officer, employee or agent is unsuitable forworking on this project as a result of the background check, it will so notify Motorola and Motorola will re-assign and remove that person from working on this project and will replace him or her promptly withanother qualified person.15.2. MUTUAL DEVELOPMENT OF NON-CONFIDENTIAL INFORMATION. The Parties acknowledgethat potentia l Eligible Users or other interested parties may desire to receive non-Confidentia l Informationconcerning the System and its operation. The Parties will mutually develop, and each Party may discloseto third parties having a legitimate interest in the System, a general description of the System, theDeployment Phases, the Service Levels, and the System Loading information. Further, each Party maydisclose to actual or prospective Eligible User entities the List of Eligible Users (Exhibit N) and the form ofAmendment to Join Eligible User Entity Use Agreement. Except for these exhibits enumerated in thepreceding sentence and the general descriptions mutually developed, the remainder of this Agreementshall be treated as Motorola Confidential Information.

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15.3. PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS. Motorola, the third partymanufacturer of any Equipment or Device, and the copyright owner of any Non-Motorola Software ownand retain all of their respective Proprietary Rights in the Equipment, Device and Software, and nothing inthis Agreement is intended to restrict their Proprietary Rights. All intellectual property developed,originated, or prepared by Motorola in connection with providing to Lead Eligible User or any otherEligible User the Equipment, Device, Software; use of those products; or related services remain vestedexclusively in Motorola, and this Agreement does not grant to Lead Eligible User or any other EligibleUser any shared developmen.t rights of intellectual property. Except as explicitly provided in the SoftwareLicense Agreement, Motorola does not grant to Lead Eligible User or any other Eligible User, eitherdirectly or by implication, estoppel, or otherwise, any right, title or interest in Motorola 's Proprietary Rights.Lead Eligible User and any other Eligible User will not modify, disassemble, peel components, decompile,otherwise reverse engineer or attempt to reverse engineer, derive source code or create derivative worksfrom, adapt, translate, merge with other software, reproduce, distribute, sublicense, sell or export theSoftware, or permit or encourage any third party to do so. The preceding sentence does not apply toOpen Source Software which is governed by the standard license of the copyright owner.15.4. PRESERVATION OF LEAD ELEGIBLE USER'S PROPRIETARY RIGHTS. Lead Eligible Userand other Eligible Users own and retain all of their respective intellectual property rights in and to anydata that is transmitted over the System, but Motorola may reasonably access and use such data toperform its responsibili ties under this Agreement.15.5. ACCESS TO AND INSPECTION OF SITES. In addition to the provisions of Section 6 above,Lead Eligible User shall have access to Sites as may be reasonable or necessary (i) for the performanceof its duties under this Agreement, or (ii) for it to observe and inspect Motorola's operation, managementand maintenance of the System. Lead Eligible User's rights under the preceding sentence will be subjectto Motorola's or the Site owner's reasonable rules concerning Site security and access, upon reasonableadvance notice to Motorola, and will be exercised with reasonable frequency of occurrence and atreasonable times and days.Section 16 GENERAL16.1. TAXES. The Contract Price (and any transfer of ownership consideration under Section 5.5),User Fees, and other fees to be paid to Motorola does not include any excise, sales, lease, .use, property,or other governmental taxes, charges, assessments, fees or duties (collectively as used in this Section16.1, "tax"), all of which will be paid by Lead Eligible User (or by another Eligible User if the tax isapplicable to that Eligible User's use) except as exempt by law. If Motorola is required to pay any ofthese taxes (including any taxes as a result of a tax audit), Motorola will send an invoice to Lead EligibleUser (or by another Eligible User if the tax is applicable to that Eligible User's use) who will pay toMotorola the amount of the taxes (including any interest and penalties) within twenty (20) days after thedate of the invoice. Each Party, to the extent of their respective ownership, will be solely responsible forreporting the Equipment (and Devices) for personal property tax purposes, and Motorola will be solelyresponsible for reporting taxes on its income or net worth. Notwithstanding the preceding sentence,Motorola may seek to recover from parties other than Lead Eligible User (e.g., the U.S. federalgovernment) the amount of corporate income taxes on the sale or transfer of ownership of the System orpart