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Frequency Reconfiguration Agreement~ oo ~- a ~,~ 3 0 ~ ~6/~ ~ _ C `7 c CONFIDENTIAL FREQUENCY RECONFIGURATION AGREEMENT THIS FREQUENCY RECONFIGURATION AGREEMENT (this "Agreement") is made as of this day of /~j,GC `/ , 2007 ("Effective Date"), by and between the City of Miami Beach, Florida, a~Flori municipality, ("Incumbent"), and Nextel South Corp. ("Nextel"), a wholly owned indirect subsidiary of Nextel Communications, Inc., a Delaware corporation (each is referred to in this Agreement as a "Party" and collectively as the "Parties"). RECITALS A. On August 6, 2004, the Federal Communications Commission ("FCC") issued a report and order that modified its rules governing the 800 MHz band. The purpose of the order was to reconfigure the 800 MHz band to minimize harmful interference to public safety radio communications systems in the band ("Reconfiguration"). B. On December 22, 2004, the FCC issued a Supplemental Order and Order on Reconsideration. The August 6, 2004 and December 22, 2004 FCC orders, any binding actions issued by the Transition Administrator pursuant to its delegated authority under the orders ("Actions"), and any supplemental FCC orders in the Reconfiguration proceeding or subsequent Actions after the date of this Agreement, are collectively referred to as the "Order." C. Pursuant to the Order, Incumbent and Nextel are licensed on frequency allocations subject to Reconfiguration. D. Pursuant to the Order, Nextel will pay Incumbent an amount to effect a Reconfiguration of Incumbent's affected frequency allocations ("Reconfiguration Cost"). Incumbent will certify to the transition administrator appointed pursuant to the Order (the "Transition Administrator") that to the best of Incumbent's knowledge, the Reconfiguration Cost is the minimum amount necessary to provide comparable facilities. FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS: AGREEMENT 1. Frequencies to be Reconfigured: Incumbent is the licensee under the license(s) granted by the FCC identified in Schedule A (the "Incumbent Licenses") for the operation of certain 800 MHz frequencies at the locations identified on Schedule A (the "Incumbent Frequencies"). Nextel, including its subsidiaries or affiliates, is the licensee under license(s) granted by the FCC (the "Nextel Licenses") for the operation of Specialized Mobile Radio ("SMR") systems on the frequencies and at the locations identified in Schedule B (the "Replacement Frequencies"). Pursuant to the Order, Incumbent must relinquish the Incumbent Frequencies and relocate its system to the Replacement Frequencies. 2. Frequency Reconfiguration Process: (a) On or before the Closing Date (as defined below) (i) Nextel or Incumbent will cause the modification of the Incumbent Licenses to add the Replacement Frequencies or Nextel will cause the creation of a new FCC license for Incumbent that includes the Replacement Frequencies; (ii) Incumbent will cause the assignment of the Incumbent Frequencies to Nextel or will cause the deletion of the Incumbent Frequencies from the Incumbent Licenses following Reconfiguration of Incumbent's system:; and (iii) Nextel will cause the modification and/or cancellation of the FCC licenses it holds for the operation of 800 MHz frequencies that are co-channels of the Replacement Frequencies, to the extent required to meet ±he MB FRA 6-07-07 CLEAN.doc Page 1 of 26 CONFIDENTIAL technical short-spacing requirements of Section 90.621(b) of the FCC's Rules, 47 C.F.R. § 90.621(b), as such rule may be amended from time to time by the FCC. (b) The FCC applications for the Replacement Frequencies and Incumbent Frequencies will be filed with the FCC no earlier than ninety (90) days from the Effective Date, and no later than one hundred fifteen (115) days from the Effective Date, by Nextel if so requested by Incumbent or otherwise by Incumbent. 3. Reconfiguration Costs: (a) Acknowledgement of Obli atg ions. Incumbent agrees that: (i) the cost estimate set forth in Schedule C (the "Cost Estimate") sets forth all of the work anticipated as of the date hereof required to reco~gure Incumbent's existing facilities to comparable facilities that will operate on the Replacement Frequencies; and (ii) after all of the work contemplated by the Cost Estimate has been successfully performed in accordance with this Agreement and any and all Change Orders, the Incumbent has determined that the system is operational and in compliance with all applicable federal, state, county and city laws, rules, regulations and industry standards, Nextel has paid all amounts required by this Agreement and any and all change Orders and the Closing as defined in Paragraph 8 hereof has taken place, the Incumbent's reconfigured system shall be deemed for all purposes of the Order to be "comparable" to Incumbent's existing system prior to Reconfiguration, and Nextel shall be deemed to have satisfied its obligations under the Order to pay the cost of relocating Incumbent's system from the Incumbent Frequencies to the Replacement Frequencies. (b) Payment Terms. In order to facilitate the Incumbent's transition to the Replacement Frequencies, Nextel will pay the costs incurred to reconfigure Incumbent's system in an amount not to exceed the Cost Estimate. Nextel will make payments in accordance with the payment terms identified on Schedule C for both payments made directly to Incumbent and payments made on behalf of Incumbent directly to each third party service vendor identified on the Cost Estimate ("Vendor"). In addition to any items on Schedule C, Motorola, Inc. ("Motorola") will be providing Incumbent the equipment specifically identified on Schedule D as "Motorola Equipment" (the "Motorola Schedule D Equipment"). Incumbent will enter into a purchase commitment with Motorola for the Motorola Schedule D Equipment and any Motorola items listed on Schedule C within thirty (30) business days from the Effective Date. Nextel and Motorola have entered into an agreement enabling Nextel to pay for the Motorola Equipment identified on Schedule D. Nextel will make payments directly to Motorola on behalf of Incumbent for the Motorola Schedule D Equipment and will make payments to Motorola as a "Vendor", as that term is used in this Agreement, for all Motorola costs identified on Schedule C. In order for Nextel to make payments to Motorola for the Motorola Schedule D Equipment, Incumbent will fax to Nextel a bill of lading associated with each shipment of Motorola Schedule D Equipment signed by an authorized representative of Incumbent acknowledging receipt of the Motorola Schedule D Equipment in good working order. Incumbent will be required to follow all Vendor related procedures identified in this Agreement for all Motorola Services and other Motorola costs identified on Schedule C. (i) Prior to the Closing Date, Incumbent will submit to Nextel documentation (including without limitation invoices, receipts, and timesheets or equivalent documentation) demonstrating the actual costs that Incumbent reasonably incurred or paid to other entities to reconfigure Incumbent's system ("Actual Costs"). Upon receipt by Nextel of documentation of the Actual Costs, Nextel and Incumbent will reconcile the Actual Costs against the payments made by Nextel to Incumbent, Vendor(s) and Motorola (for Motorola Services and/or other Motorola costs identified on Schedule C) (the "Reconciliation"). The Reconciliation Statement will identify what the Parties will agree upon the amount MB FRA 6-07-07 CLEAN.doc Page 2 of 26 CONFIDENTIAL of any additional payments (subject to Section 7) due to Incumbent, Vendor(s) and Motorola (for Motorola Services and/or other Motorola costs identified on Schedule C), or any refunds due to Nextel. (The effective date of agreement on reconciliation and signing of the Closing documents is the "Reconciliation Date".) (ii) Any additional payments due to Incumbent from Nextel will be disbursed to Incumbent within thirty (30) days of the Reconciliation Date, provided the additional payments do not result from Actual Costs that exceed the Cost Estimate (in which case the provisions of Section 3(b)(iii) of this Agreement will apply). Any refunds due from the Incumbent to Nextel will be made within thirty (30) days of the Reconciliation Date. (iii) In the event Incumbent's Actual Costs exceed the Cost Estimate, Incumbent must submit a Change Notice pursuant to Section 7 of this Agreement describing the change in scope of work that resulted in Incumbent's Actual Costs exceeding the Cost Estimate. Approval of any Change Notice will not be automatic but will be processed in accordance with Section 7 of this Agreement. Additional payments due to Incumbent, Vendor(s) or Motorola (for Motorola Services and/or other Motorola costs identified on Schedule C) which result from an excess of Actual Costs over the Cost Estimate, as agreed on the Reconciliation Date, will be disbursed to Incumbent, Vendor(s) or Motorola (for Motorola Services and/or other Motorola costs identified on Schedule C) within thirty (30) days of the Transition Administrator's approval of a Change Notice. (iv) Prior to the Closing Date, Nextel will pay on behalf of itself and Incumbent, both Parties' applicable sales and transfer taxes, if any, and all FCC fees in connection with the preparation and filing of the necessary FCC applications for the assignment(s) described in Section 2 of this Agreement. 4. RetuninE Cooperation: The Parties agree that Incumbent may commence activities associated with the reconfiguration of its system as further detailed on Schedule C hereof upon the approval of this Agreement by the TA. Nextel will ensure that, the Replacement Frequencies will be cleared of all users no later than thirty (30) days following the earlier of (a) the grant by the FCC to Incumbent of a special temporary authority to operate on the Replacement Frequencies or; (b) the grant of a modification to add the Replacement Frequencies to the Incumbent Licenses or grant by the FCC of a new FCC license for Incumbent that includes the Replacement Frequencies. Nextel will notify Incumbent of the decommissioning of the Replacement Frequencies within five (5) days following completion of the decommissioning. Incumbent will then have thirty (30) days following receipt of notice of the decommissioning of the Replacement Frequencies to clear all users from the Incumbent Frequencies. Incumbent will notify Nextel that Incumbent has cleared the Incumbent Frequencies of users within five (5) business days following the clearing. Representations and Warranties: Each Party represents and warrants to the other as follows: (i) it is duly organized, validly existing and in good standing under the laws of the state of its incorporation; (ii) this Agreement has been duly authorized and approved by all required organizational action of the Party; (iii) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will conflict with, or result in any material violation or default under, any term of its articles of incorporation, by-laws or other organizational documents or any agreement, mortgage, indenture, license, permit, lease, encumbrance or other instrument, judgment, decree, order, law or regulation by which it is bound; MB FRA 6-07-07 CLEAN.doc Page 3 of 26 CONFIDENTIAL (iv) it is the lawful and exclusive FCC licensee of its respective license(s) described in this Agreement, such licenses are valid and in good standing with the FCC, and it has the authority to request the FCC to assign, modify or cancel such licenses; (v) there is no pending or threatened action or claim that would have the possible effect of enjoining or preventing the consummation of this Agreement or awarding a third party damages on account of this Agreement; and (vi) to the best of its knowledge, all information provided to the other Party concerning the transactions contemplated by this Agreement is true and complete. All representations and warranties made in this Agreement shall survive the Closing (defined below) for two (2) years. 6. Covenants: From the Effective Date until the Closing Date (defined below), each Party will promptly notify the other Party of any pending or threatened action by the FCC or any other governmental entity or third party to suspend, revoke, terminate or challenge any license described in this Agreement or to investigate the construction, operation or loading of any system authorized under such licenses. From the Effective Date until the Closing Date, Incumbent will not knowingly enter into any agreement resulting in, or otherwise cause, the encumbrance of any license for the Incumbent Frequencies, and Nextel will not enter into any agreement resulting in, or otherwise cause, the encumbrance of any of the Replacement Frequencies. 7. ChanEes: The Parties acknowledge that as the Reconfiguration of Incumbent's facilities proceeds in accordance with the work contemplated by the Cost Estimate, the need for changes to the scope of such work may arise. The Parties agree that their review of any such needed changes must be performed expeditiously to keep the work on schedule and that they will provide sufficient staff to manage changes. If either Party believes that a change to the work contemplated by the Cost Estimate is required (including changes by Vendors and/or Motorola), such Party will promptly notify the other Party in writing. Such written notice (the "Change Notice") shall set forth (i) a description of the scope of the change to the work contemplated by the Cost Estimate believed to be necessary and (ii) an estimate of any increase or decrease in the Cost Estimate and in the time required to reconfigure Incumbent's existing facilities to operate on the Replacement Frequencies. A Party receiving a Change Notice shall perform its own analysis of the need for and scope of the change and its impact on the Cost Estimate and within fourteen (14) business days schedule and negotiate the change in good faith with the other Party. Within ten (10) business days after the Parties have agreed upon a change to this Agreement, they shall prepare a proposed amendment to this Agreement pursuant to Section 23 and submit to the Transition Administrator a copy of the proposed amendment together with a written request for its approval. Such request shall be accompanied by reasonable documentation supporting the need for and scope of the change and any proposed increase or decrease in the Cost Estimate and in the time required to reconfigure Incumbent's existing facilities to operate on the Replacement Frequencies. Incumbent is responsible for all unauthorized changes necessary as it relates to work performed by a Vendor on behalf of Incumbent and/or Motorola. No change to the Cost Estimate, the work contemplated by the Cost Estimate or the time required to reconfigure Incumbent's existing facilities to operate on the Replacement Frequencies shall become effective until the Transition Administrator has approved the change in writing and both Parties have signed an amendment incorporating such approved change into this Agreement pursuant to Section 23. The Incumbent shall not be obligated to continue or to authorize continuance of any specifically enumerated work on Schedule C when the monetary cost of said work has exceeded the approved dollar amount listed on Schedule C, until the date on which Incumbent receives approval from the Transition Administrator of the Change Order. MB FRA 6-07-07 CLEAN.doc Page 4 of 26 CONFIDENTIAL 8. Closing: The closing ("Closing") of the transactions contemplated by this Agreement will take place after (i) FCC approval of the assignment of the Incumbent Frequencies to Nextel and/or deletion of the Incumbent Frequencies from the Incumbent Licenses, (ii) FCC approval of the modification to add the Replacement Frequencies to the Incumbent Licenses or the creation of a new license for Incumbent that includes the Replacement Frequencies, (iii) notification by Incumbent to Nextel that the Incumbent Frequencies have been cleared of all Incumbent users pursuant to Section 4 of this Agreement, (iv) delivery by Incumbent of all receipts, invoices and other documentation required to substantiate the Actual Cost, (v) FCC approval of the modification and/or cancellation of the FCC licenses Nextel holds for the operation of 800 MHz frequencies that are co-channels of the Replacement Frequencies, to the extent required to meet the technical short-spacing requirements of Section 90.621(b) of the FCC's Rules, 47 C.F.R. § 90.621(b), as such rule may be amended from time to time by the FCC, (vi) the refund to Nextel or payment to Incumbent as described in Section 3(b)(ii), (if applicable) and (vii) the satisfaction of all other conditions specified in this Agreement (the "Closing Date"). 9. Closing Conditions: Performance of each Party's Closing obligations is subject to satisfaction of the following conditions (except to the extent expressly waived in writing by the other Party): (a) the continued truth and accuracy of the other Party's representations and warranties set forth in this Agreement; (b) all of the covenants of the other Party described in this Agreement are performed in all material respects; and (c) execution and delivery by the other Party of Closing documents as well as any other Closing instruments and documents either Party or its counsel may reasonably request. Incumbent will execute and deliver to Nextel a closing certification required by the Transition Administrator ("Completion Certification"). (d) The Parties will cooperate in good faith and exercise their reasonable best efforts to finalize and execute these instruments and documents on or prior to the Closing Date in order to effect the Reconfiguration contemplated. 10. Review Rights: In order to enable the Transition Administrator to comply with its audit obligations under the Order, Incumbent agrees to maintain records and other supporting evidence related to the costs that Incumbent has expended in connection with the Reconfiguration contemplated by this Agreement and that Nextel has paid or will pay to Incumbent pursuant to this Agreement. Incumbent agrees to maintain such records and make them reasonably available to the Transition Administrator for review or reproduction until eighteen (18) months after the date of Incumbent's executed Completion Certification required by this Agreement or for a longer period if Incumbent, for its own purposes, retains such records for a longer period of time. As used in this provision, "records" includes books, documents, accounting procedures and practices and other data regardless of type and regardless of whether such items are in written form, in the form of computer data or in any other form. 11. Excluded Assets; No Assumution of Liabilities: Nothing in this Agreement should be construed as a transfer or assignment from either Party to the other Party of any assets (including FCC licenses) except as expressly set forth in this Agreement. Other than as expressly provided in this Agreement, neither Party is obligated to assign and transfer to the other any asset, tangible or intangible, nor is either Party entitled to assume any asset, tangible or intangible. Neither Party is assuming, nor is either Party responsible for, any liabilities or obligations of the other Party arising out of or in connection with the other Parry's licenses (or related systems and facilities) that are the subject of this Agreement. MB FRA 6-07-07 CLEAN.doc Page 5 of 26 CONFIDENTIAL 12. Confidentiality: Subject to applicable law, including but not limited to disclosures required by the State of Florida Public Records la (FL. STAT. 119), the terms of this Agreement, any confidential information disclosed in connection with this Agreement (whether before or after the Effective Date, including during any negotiations or any mediation related to such negotiations or the Agreement), and any proprietary, non-public information regarding the Incumbent Frequencies, Replacement Frequencies, Nextel's business and Incumbent's business must be kept confidential by the Parties and their employees, shareholders, agents, attorneys and accountants (collectively, "Agents"), which confidentiality will survive the Closing or termination of this Agreement for a period of two (2) years. The Parties may make disclosures as required by law, to the Transition Administrator and to a Vendor and/or Motorola (but only to the extent that such disclosure specifically relates to that Vendor's work and costs under this Agreement (as identified on Schedule C) or Motorola's work and costs under this Agreement (as identified on Schedule Candor Schedule D) as required to perform obligations under this Agreement, provided, however, that each Party will cause all of its Agents to honor the provisions of this Section. 13. Cooperation: The Parties will cooperate with each other and the Transition Administrator with respect to the Reconfiguration work contemplated by this Agreement. Without limiting the foregoing obligations, the Parties agree to cooperate in the preparation of any applications required to be filed with the FCC, and Incumbent agrees to provide reasonable access to its facilities so that the Transition Administrator may comply with any audit obligations and so any Reconfiguration work contemplated by this Agreement may be performed in accordance with the Cost Estimate and performance schedule. If a Party is subject to a denial of FCC benefits for delinquent non-tax debts owed to the FCC that would prevent or delay the timely processing of any FCC applications, such Party shall cure such delinquency in an expeditious manner and at its sole expense. 14. Indemnification: From and after the Closing Date, each Party (the "Indemnifying Party") will indemnify and defend, to the extent allowable under applicable law, including but not limited to Fl. Stat. 768.28 as applicable to the Incumbent, the other Party, its officers, directors, employees and agents (collectively, the "Indemnified Party"), from and against all demands, claims, actions, losses, damages, liabilities, costs and expenses, including, without limitation, reasonable attorneys' fees and expenses (collectively, "Costs"), asserted against, imposed upon or incurred by the Indemnified Party arising from or related to: (i) any breach of any covenant, agreement, representation or warranty of the Indemnifying Party contained in, or made pursuant to, this Agreement; or (ii) any and all liabilities (including successor liabilities) or obligations relating to periods prior to the Closing Date resulting from the Indemnifying Party's operation of the system operated pursuant to the Incumbent Licenses or the Nextel Licenses, as applicable, or the ownership or use of those licenses or from the Indemnifying Party's employment, or termination of employment, of its employees. The obligations under this Section survive the Closing for a period of three (3) years. 15. Disputes: The Parties agree that any dispute related to the Replacement Frequencies, Nextel's obligation to pay any cost of the Reconfiguration of Incumbent's system contemplated by this Agreement, or the comparability of Incumbent's reconfigured system to Incumbent's existing system prior to Reconfiguration, which is not resolved by mutual agreement, shall be resolved in accordance with the dispute resolution provisions of the Order, as it may be amended from time to time. 16. No Gratuities: No gift, gratuity, credit, thing of value or compensation of any kind shall be offered or provided by Incumbent, directly or indirectly, to any officer, employee or official of Nextel for the purpose of improperly obtaining or rewarding favorable treatment under this Agreement. 17. Liens: If any liens or security interests attach to any of Incumbent's facilities in favor of any vendor or service provider that is performing any Reconfiguration work contemplated by this Agreement MB FRA 6-07-07 CLEAN.doc Page 6 of 26 CONFIDENTIAL as a result of Nextel's breach of any obligation to make direct payment (not in dispute) to such vendor or services provider, Nextel upon receipt of Notice from Incumbent will take any and all action necessary to remove any Liens. 18. Vendor Performance Issues: Incumbent will select and contract directly with Motorola and any vendor or service provider performing work required to reconfigure the Incumbent's existing facilities to operate on the Replacement Frequencies. Neither the Transition Administrator nor Nextel will be responsible for, or assume the risk of any failure of that Vendor or Motorola to perform its obligations under any contract entered into between Incumbent and such Vendor or Motorola in connection with the Reconfiguration contemplated by this Agreement except where Vendor's (or Motorola's, as applicable) failure to perform is a result of Nextel's failure to pay an invoice properly received in a timely manner, in which case Nextel will be responsible and assume the risk of Vendor's (or Motorola's, as applicable) failure to perform. 19. Termination: This Agreement may be terminated and the transactions contemplated by this Agreement abandoned: (i) by mutual consent of the Parties provided in writing; (ii) for cause by either Party upon material breach of the other Party, following a thirty (30) day period for cure by the breaching Party following written notice of the breach or (iii) by Nextel in the event of any Adverse Decision by any governmental entity of competent jurisdiction affecting the Order. For purposes of this Agreement, an "Adverse Decision" means an order, decree, opinion, report or any other form of decision by a governmental entity of competent jurisdiction that results, in whole or part, in a stay, remand, or reversal of the Order, or otherwise in any revision to the Order that Nextel determines, in its reasonable discretion, to be adverse to its interests. In the event of termination due to an Adverse Decision, Nextel will pay Incumbent for all costs incurred up to the date of termination plus (i) any and all costs which Incumbent is contractually obligated to any Vendor, notwithstanding termination and (ii) any and all costs, if any, needed to return Incumbent's existing facilities to the status quo ante. 20. Notices: All notices and other communications under this Agreement must be in writing and will be deemed given (i) the same day if delivered personally or sent by facsimile; (ii) the next business day if sent by overnight delivery via a reliable express delivery service; or (iii) after five (5) business days if sent by certified mail, return receipt requested, postage prepaid. All notices are to be delivered to the Parties at the following addresses: If to Incumbent, to: If to Nextel, to: City of Miami Beach Nextel South Corp. 1700 Convention Center Blvd. c/o Nextel Communications, Inc. Miami Beach, FL 33139 2000 Edmund Halley Drive Reston, VA 20191 Attn: Heather P. Brown, Esq. Phone: (703) 433-4000 Fax: 703 433-4483 With a copy that shall not constitute Notice: With a copy that shall not constitute Notice: Nextel Communications, Inc. 6575 The Corners Parkway Norcross, GA 30092 Attn: Julian H. Edwards, VP S ectrum Resources MB FRA 6-07-07 CLEAN.doc Page 7 of 26 CONFIDENTIAL Phone: (678) 405-8442 Fax: (678) 405-8252 22. AssiEnment: This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns. Either Party may assign this Agreement to any wholly owned direct or indirect subsidiary or affiliate of the Party, upon delivery of written notice to the other Party. 23. Amendments: This Agreement, including without limitation the scope of work contemplated hereby and the Estimated Cost thereof to be paid by Nextel, may be amended or modified only by a written instrument signed by authorized representatives of both Parties, provided, however, no amendment or modification to this Agreement shall become effective until approved by the Transition Administrator. 24. Benefits: This Agreement is for the benefit of the Parties and their successors and permitted assigns, and nothing in this Agreement gives or should be construed to give any legal or equitable rights under this Agreement to any person or entity, other than (i) the successors and assigns of the Parties, and (ii) the Transition Administrator as specifically provided for in Sections 3(b), 7, 10, 13, 18, and 23. 25. Miscellaneous: If any provision(s) of this Agreement is held in whole or part, to be invalid, void or unlawful by any administrative agency or court of competent jurisdiction, then such provision(s) will be deemed severable from the remainder of this Agreement, will in no way affect, impair or invalidate any other provision contained in the Agreement and the Parties will use their commercially reasonable efforts to amend this Agreement to make the unlawful provision compliant with applicable law so as to preserve the rights and obligations of the Parties. No action taken pursuant to this Agreement should be deemed to constitute a waiver of compliance with any representation, warranty, covenant or agreement contained in this Agreement and will not operate or be construed as a waiver of any subsequent breach, whether of a similaz or dissimilaz nature. This Agreement, together with the Schedules, constitutes the entire understanding and agreement between the Parties concerning the subject matter of this Agreement, and supersedes all prior oral or written agreements or understandings. This Agreement is governed by the laws of the State of Florida without regard to conflicts of law principles thereof. This Agreement may be executed in one or more counterparts, including by facsimile, which will be effective as original agreements of the Parties executing the counterpart. 26. Loaned Reconfiguration Equipment: If needed in order to facilitate the Incumbent's transition to the Replacement Frequencies, Nextel will loan any equipment identified in Schedule D as "Loaned Reconfiguration Equipment". Nextel will deliver any Loaned Reconfiguration Equipment to Incumbent in accordance with Schedule D. Any Loaned Reconfiguration Equipment will be returned to Nextel by Incumbent prior to the Closing Date. 27. Motorola Replaced Equipment: (a) If the reconfiguration of the Incumbent's existing facilities to operate on the Replacement Frequencies involves the replacement of any of Incumbent's existing equipment with Motorola Schedule D Equipment (as identified on Schedule D), Incumbent will return the equipment replaced by the Motorola Schedule D Equipment as identified on Schedule D (the "Motorola Replaced Equipment") to Motorola within 30 days of receipt of the Motorola Schedule D Equipment (shipping fees to be paid by Nextel). Title to the Motorola Replaced Equipment will pass from Incumbent to Motorola upon receipt by Motorola. (b) If Incumbent has ordered field implementation services for subscriber radios ("Motorola Subscriber Services") and Incumbent fails to return any item of the Motorola Replaced Equipment to MB FRA 6-07-07 CLEAN.doc Page 8 of 26 CONFIDENTIAL Motorola, Incumbent must either: (i) return to Motorola those items of the Motorola Schedule D Equipment that would have replaced the Motorola Replaced Equipment not returned, in new condition within thirty (30) days of receipt of the Motorola Schedule D Equipment; or (ii) in accordance with Incumbent's mutual agreement with Motorola, Incumbent will make payment to Motorola for those items of the Motorola Schedule D Equipment that would have replaced those items of the Motorola Replaced Equipment not returned (including tax (if any) and shipping). (c) If Incumbent did not order Motorola Subscriber Services and Incumbent fails to return any item of the Motorola Replaced Equipment to Motorola, Incumbent must return to Motorola those items of the Motorola Schedule D Equipment that would have replaced the Motorola Replaced Equipment not returned, in new condition within thirty (30) days of receipt of the Motorola Schedule D Equipment. If Incumbent fails to return any item of the Motorola Replaced Equipment to Motorola under this Section 20(c) and prior to receipt of a Reconciliation Statement from Nextel Incumbent does not demonstrate to Nextel that Incumbent has made payment of the Product Typical Value (as identified on Schedule E) directly to Motorola for those items of Motorola Schedule D Equipment that would have replaced the Motorola Replaced Equipment not returned, then either: (i) Nextel will deduct the Product Typical Value for those items of Motorola Schedule D Equipment provided to replace the Motorola Replaced Equipment not returned to Motorola (including tax (if any) and shipping) from the final payment due to Incumbent after the Reconciliation; (ii) Incumbent must refund the Product Typical Value amount for those items of Motorola Replaced Equipment not returned to Nextel prior to the Closing Date (if no final payment is due to Incumbent); or (iii) Nextel will deduct the portion of the total Product Typical Value up to the value of the final payment due to Incumbent and Incumbent must refund the remaining Product Typical Value amount to Nextel not covered by the final payment prior to the Closing Date (If the final payment due Incumbent is less than the total Product Typical Value for those items of Motorola Replaced Equipment not returned to Motorola) In consideration of the mutual consideration set forth herein, this Agreement is effective as a ~binding~~+greement between the Parties upon execution by the Parties. Florida Name: David Dermer Title: Mayor City of iami Beach, City Clerk By: Name: Robert Parcher Title: City Clerk MB FRA 6-07-07 CLEAN.doc NEXTEL: Nextel South Co By: Name: Title: ~I.i.Ulild M IENKINS AUT~10R~ SIGNATORY APPROVED AS TO FORM 8~ LANGUAGE ~ FOR EXECUTION (d ity Atto Date Page 9 of 26 CONFIDENTIAL SCHEDULE A Incumbent Frequencies Incumbent's Name: City of Miami Beach, Florida Incumbent Assigns to Nextel: Call Sign Frequencies Licensee Location # of Frequencies Exp. Date Lat (1~ Long (VV) WNFW911 851.6375 MIAMI BEACH, Miami 1 7/23/2013 25' S1' 80' 7' CITY OF Beach, FL 35.5' N 38.5' W WNFW911 851.6375 MIAMI BEACH, Miami 1 7/23/2013 25' 48' 80' 7' 33' CITY OF Beach, FL 51' N W WNFW911 851.6375 MIAMI BEACH, Miami 1 7/23/2013 25' 46' 80' 7' CITY OF Beach, FL 53' N 54.5' W WNFW911 860.7875 MIAMI BEACH, Miami 1 7/23/2013 25' S1' 80' 7' CITY OF Beach, FL 35.5' N 38.5' W WNFW911 860.7875 MIAMI BEACH, Miami 1 7/23/2013 25' 46' 80' 7' CITY OF Beach, FL 53' N 54.5' W WNFW911 860.7875 MIAMI BEACH, Miami 1 7/23/2013 25' 48' 80' 7' 33' CITY OF Beach, FL 51' N W WNFW911 860.9125 MIAMI BEACH, Miami j 7/23/2013 25' S1' 80' 7' CITY OF Beach, FL 35.5' N 38.5' W WNFW911 860.9125 MIAMI BEACH, Miami 1 7/23/2013 25' 46' 80' 7' CITY OF Beach, FL 53' N 54.5' W WNFW911 860.9125 MIAMI BEACH, Miami 1 7/23/2013 25' 48' 80' 7' 33' CITY OF Beach, FL 51' N W WNJX242 853.3875 MIAMI BEACH, Miami 1 4/19/2014 "' N "' W CITY OF Beach, FL WNJX242 853.3875 MIAMI BEACH, Miami 1 4/19/2014 25' 46' 80' 7' CITY OF Beach, FL 57.4' N 57.2' W WPFC768 851.6375 MIAMI BEACH, Miami 1 6/28/2014 25' 47' 80' 7' CITY OF Beach, FL 58.4' N 52.2' W WPFC768 851.6375 MIAMI BEACH, Miami 1 6/28/2014 25' 48' 80' 7' CITY OF Beach, FL 55.4' N 34.2' W WPFC768 860.7875 MIAMI BEACH, Miami 1 6/28/2014 25' 47' 80' 7' CITY OF Beach, FL 58.4' N 52.2' W WPFC768 860.7875 MIAMI BEACH, Miami 1 6/28/2014 25' 48' 80' 7' CITY OF Beach, FL 55.4' N 34.2' W WPFC768 860.9125 MIAMI BEACH, Miami 1 6/28/2014 25' 47' 80' 7' CITY OF Beach, FL 58.4' N 52.2' W MB FRA 6-07-07 CLEAN.doc Page 10 of 26 CONFIDENTIAL WPFC768 860.9125 MIAMI BEACH, Miami CITY OF Beach, FL s/2a/2o1a 25' 48' 180' 7' 55.4 34.2 MB FRA 6-07-07 CLEAN.doc Page 11 of 26 CONFIDENTIAL SCHEDULE B Replacement Frequencies Incumbent's Name: City of Miami Beach, Florida Nextel Assigns to Incumbent: Replacement Lat Long ERP Gnd Ant. New Licensee Location Call Sign Frequencies (N) (VV) (VV) Elev Height (ft) (ft) 854.6375 25' 46' 80' 7' 70 7 ft. 66 ft. Miami Beach, Miami WNJX242 57.4 N 57.2 City of Beach, FL W 855.0625 25' 46' 80' 7' 726.5 8 ft. 143 ft. Miami Beach, Miami WNFW911 53 N 54.5 City of Beach, FL W 855.0625 25' 47' 80' 7' 280 7 ft. 213 ft. Miami Beach, Miami WPFC768 58.4 N 52.2 City of Beach, FL W 855.0625 25' 48' 80' 7' 443.2 7 ft. 217 ft. Miami Beach, Miami WNFW911 51 N 33 W City of Beach, FL 855.0625 25' 48' 80' 7' 310 7 ft. 141 ft. Miami Beach, Miami WPFC768 55.4 N 34.2 City of Beach, FL W 855.0625 25' S1' 80' 7' 443.2 7 ft. 187 ft. Miami Beach, Miami WNFW911 35.5 N 38.5 City of Beach, FL W 855.3375 25' 46' 80' 7' 726.5 8 ft. 143 ft. Miami Beach, Miami WNFW911 53 N 54.5 City of Beach, FL W 855.3375 25' 47' 80' 7' 280 7 ft. 213 ft. Miami Beach, Miami WPFC768 58.4 N 52.2 City of Beach, FL W 855.3375 25' 48' 80' 7' 443.2 7 ft. 217 ft. Miami Beach, Miami WNFW911 51 N 33 W City of Beach, FL 855.3375 25' 48' 80' 7' 310 7 ft. 141 ft. Miami Beach, Miami WPFC768 55.4 N 34.2 City of Beach, FL W 855.3375 25' 51' 80' 7' 443.2 7 ft. 187 ft. Miami Beach, Miami WNFW911 35.5 N 38.5 City of Beach, FL W 855.9375 25' 46' 80' T 726.5 8 ft. 143 ft. Miami Beach, Miami WNFW911 53 N 54.5 City of Beach, FL W 855.9375 25' 47' 80' 7' 280 7 ft. 213 ft. Miami Beach, Miami WPFC768 58.4 N 52.2 City of Beach, FL W 855.9375 25' 48' 80' 7' 443.2 7 ft. 217 ft. Miami Beach, Miami WNFW911 51 N 33 W City of Beach, FL MB FRA 6-07-07 CLEAN.doc Page 12 of 26 CONFIDENTIAL 855.9375 25' 48' 80' 7' 310 7 ft. 141 ft. Miami Beach, Miami WPFC768 55.4 N 34.2 City of Beach, FL W 855.9375 25' 51' 80' 7' 443.2 7 ft. 187 ft. Miami Beach, Miami WNFW911 35.5 N 38.5 City of Beach, FL W MB FRA 6-07-07 CLEAN.doc Page 13 of 26 CONFIDENTIAL SCHEDULE C 800 MHZ RECONFIGURATION COST ESTIMATE -CERTIFIED REQUEST Incumbent's Name: City of Miami Beach Request for Reconfiguration Funding Pursuant to the Order, Incumbent is required to reconfigure its existing facilities and requests Nextel to fund the estimated reconfiguration costs included below: Incumbent Payment Terms: Nextel will pay Incumbent an amount not to exceed the Estimated Cost(s) for Incumbent with respect to each category of work, as set forth below. Nextel will pay Incumbent 2 000 within 15 days (30 days if Incumbent elects to be paid by check rather than electronic fiznds transfer) after receipt by Sprint Nextel of the fully executed Agreement and fully completed Incumbent Information Form (as set forth on Exhibit A). Nextel will pay any outstanding balance of the Actual Costs due to Incumbent within 30 days after the Reconciliation Date (as "Actual Costs" and "Reconciliation Date" are defined in Section 3(b)(i)). Vendor Payment Terms: Sprint Nextel will pay each Vendor an amount not to exceed the Estimated Cost(s) for that Vendor with respect to each category of work, as set forth below. Sprint Nextel will pay each Vendor within 30 days after receipt by Sprint Nextel of (A) an invoice from the Vendor and (B) Incumbent's approval of receipt of goods and services and approval of associated costs included on the Vendor invoice. 1. System Description: City of Miami Beach's SmartZone 4.1 five site, 10 channel trunking system identified as Emergency Operations Center (Master/Prime Site), Parkview, Tower 41, Council Towers, and Rebecca Towers as well as the single site, one channel conventional backup system located at the Emergency Operations Center. The major system elements to be reconfigured are summarized in the table below: MB FRA 6-07-07 CLEAN.doc Page 14 of 26 CONFIDENTIAL 2. Reconfiguration Milestones: For each major reconfiguration milestone listed in the table below, provide (1) the anticipated number of days after required to begin execution of the task identified, and (2) the estimated duration in number of days required to complete the task identified. 3. Implementation Plan: The attached Implementation Plan and associated deliverables describe the reconfiguration implementation plan resulting from funds expended under the Planning Funding Agreement dated 8/23/06. See attachment Exhibit One. 4. Cost Estimate: Description of Work To Be Performed Payee (separately identify Incumbent and each Vendor being paid for work erformed Estimated Cost(s) for Incumbent and each Vendor (Not to exceed listed amount) I. Subscriber Equipment Reconfiguration Motorola, Inc. Networks & Enterprise a. Subscriber Equipment Reconfi ru ation 1301 E. Algonquin Rd. 1566 Radios Retuned @ $50/unit Schaumburg, IL 60196 $78,300 6 Mobile radios Programmed and Installed @ $324/unit $1,944 Template build (2) @ $590 each $1,180 Remove conventional frequencies to ensure proper and safe operation by users 1572 @ $41/unit $64,452 b. Project Management (PM) w/ licensee employees and subcontractors $46,900 268 hours n, $175/hour Activity Launch - 24 Hours 29 weeks of subscriber retuning activities @ 8 hours /week - 232 hours Activity reconciliation & user confirmation - 12 hours MB FRA 6-07-07 CLEAN.doc Page 15 of 26 CONFIDENTIAL Subscriber Services System Engineer (SE) 136 Hours (a~ $175/hour $23,800 Confum programming templates -12 hours 29 weeks providing support to sub- contractors @ 4 hours /week -116 hours User confirmations & ending reviews - 8 hours c. Travel Costs see details SOWp.15 4 trips PM - $7,052 $17,058 S trips SE - $10,006 Subscriber Unit Management, Coordination and Administration City of Miami Beach 103 Hours @ $36.80/hour 1100 Washington Ave. $3,790.40 1) 40 hours of template modification time, Miami Beach, FL 33139 this involves consulting with the user O: 305-673-7000 community well as the actual "paper" F: 876-394-5498 modification of approximately 29 master Attn: Steve Sawicki templates. IT Dept. (2) 15 Hours for template testing. (3) 40 hours of user education and implementation coordination. (4) 8 hours of general administrative time. II. Infrastructure Equipment Motorola, Inc. Reconfiguration Networks & Enterprise 1301 E. Algonquin Rd. a. Repeater Site Infrastructure Schaumburg, IL 60196 Modify Controllers 4 hours X $169/hour $676 Retune Repeaters 24 hours X $169/hour $4,056 Retune Combiners 28 hours X $169/hour $4,732 b. Miscellaneous Com op nents Combiner Directional Couplers $6,198 6 X $1,033 Codeplug files $4,672 2 X $2,336 Critical Length Cables $762 6X$127 c. Project Mana eg ment 16 hours X $175/hour $2,800 d. System En ig Weer 50 hours X $175/hour $8,750 e. Travel Costs see details SOWp.15 1 trip PM - $1,763 $5,766 2 tri s SE - $4,003 MB FRA 6-07-07 CLEAN.doc Page 16 of 26 CONFIDENTIAL III. Engineering and Verification/Testing Benchmark Testing 24 hours X $169/hour Functional Testing 16 hours X $169/hour Acceptance Testing 24 hours X $169/hour Testing Project Mana eg ment 20 hours X $175/hour Testing System En ig neer 24 hours X $175/hour Motorola, Inc. Networks & Enterprise 1301 E. Algonquin Rd. Schaumburg, IL 60196 $4,056 $2,704 $4,056 $3,500 $4,200 IV. Contracts and Legal Leibowitz & Assoc., PA One SE Third Ave. a. Legal Fees to Negotiate FRA Ste. 1450 70 Hours (a~ $325/hour Miami, FL 33131 O: 305-530-1322 Advice and updates to client re: 800 MHz F: 305-530-9417 reconfiguration and issues related thereto - Attn: Ila Feld 3 hours $22,750 Review, negotiation and support in connection with FRA with Sprint Nextel - 10 hours Provision of status reports and participation in status calls with client, Nextel and mediator in satisfaction of both City and TA deadlines - 13 hours Work in connection with review, drafting, negotiation, support, monitoring and attendance at meetings in connection with Motorola FRA and finalization of FRA submission - 24 hours Additional work in connection with analysis of final completion of contract deliverables and resolution of outstanding issues (exclusive of FCC license preparation) -12 hours Time and work in connection with status calls and monitoring of compliance -8 hours b. Miscellaneous Costs $500 V. Other Costs Motorola, Inc. a. Professional Services PM Networks & Enterprise 178 hours (a7 $175/hour 1301 E. Algonquin Rd. Activity Launch - 24 hours Schaumburg, IL 60196 38 weeks of retuning activities $31,150 @ 3 hours /week - 114 hours Final Reports - 40 hours MB FRA 6-07-07 CLEAN.doc Page 17 of 26 CONFIDENTIAL b. Professional Services SE 140 hours (a~ $175/hour $24,500 Activity Launch -16 hours 38 weeks of retuning activities @ 2 hours /week - 76 hours Final Reports - 48 hours c. Travel Costs see details SOW p.15 7 trips PM - $12,341 $24,349 6 trips SE - $12,008 d. Contingency Project Mana eg ment $14,000 80 hours X $175/hour Total Estimated Costs $411,601.40 Certification Pursuant to the Order, Incumbent hereby certifies to the Transition Administrator appointed pursuant to the Order that the funds requested above are the minimum necessary to provide Incumbent reconfigured facilities comparable to those presently in use. Incumbent further certifies, to the best of Incumbent's knowledge, that any vendor costs listed on Schedule C are comparable to costs that vendor previously charged Incumbent for similar work. Signature: Print Name: Title: Phone Number: E-mail Date: MB FRA 6-07-07 CLEAN.doc Page 18 of 26 CONFIDENTIAL SCHEDULE D 1) Replaced Equipment (to be delivered to Nextel prior to Closing) uanti Manufacturer Descri tion Model Number 6 Unknown Combiner Directional Cou lers Unknown 6 Unknown Combiner Critical Length Cables Unknown 2) Motorola Schedule D Equipment (to be provided by Motorola) -Motorola radios, flash- kits and accessories only a) Motorola Subscriber Services will be provided for the following Motorola Schedule D Equipment Quantity Description Radio Encryption Model Number Software 6 Motorola Rebanding Mobile 4martZone XTL2500RB 4 Motorola Rebanding Mobile SmartZone XTL1500RB 4.1 1562 Motorola Flashport Subscriber SmartZone Flashkit Software 4.1 b) Motorola Subscriber Services will not be provided for the following Motorola Schedule D Equipment Quantity Description Radio Software Encryption Model Number 6 Base Station Microphones NA NA HLN1457A 6 Mobile Microphones NA NA HMN1090 8 Mountin Brackets NA NA 8 Power Cables NA NA HKN6170 1 Mobile Desk Tray NA NA HLN6042 1 Power Supply NA NA HPN4007 3) Replaced Equipment (to be delivered to Motorola following receipt of replacement equipment from Motorola) Quantity Description Radio Software Encryption Mounting Model Number 6 Mobile Radios (w/ Micro hone SmartZone 4.1 Spectra 4 Mobile Radios (w/ Micro hone) SmartZone 4.1 Maxtrac 6 Micro hones HIVIN1050 6 Micro hones HMN1035 8 Mountin Brackets MB FRA 6-07-07 CLEAN.doc Page 19 of 26 CONFIDENTIAL 8 Power Cables SCHEDULE E MB FRA 6-07-07 CLEAN.doc Page 20 of 26 CONFIDENTIAL Motorola Equipment Product Typical Values tem Rebanding Product Typical Value (% are discount off list price Mobile, Hi h Spec XTL2500 RB $ 2,050 Accessories 8~ O tions SmartZone O eration $ 162 Di ital O eration $ 234 Siren $ 637 Consollette Power Kit $ 500 Consollette Tone Remote $ 475 DTMF Micro hone $ 180 DEK $ 475 Extra Loud S eaker $ 106 Dual Control Head $ 575 Dual Control Head Mic $ 80 Dual Control Head Cable $ 95 Dual Control Head S eaker $ 60 Multi-Radio SW Kit $ 750 Multi-Radio HW Kit $ 1,750 Emer enc foot edal $ 55 AUXILIARY SWITCH PANEL $ 165 Mobile UCM $ 750 Ke Lock Mountin $ 40 Rebanding Product Typical Value (% are discount off list Item rice Mobile, Low S ec XTL1500 RB $ 1,516 Accessories ~ O tions SmartZone O eration $ 58 Di ital O eration $ 72 Extra Loud S eaker $ 106 Emer enc foot edal $ 55 AUXILIARY SWITCH PANEL $ 165 Ke Lock Mountin $ 40 MB FRA 6-07-07 CLEAN.doc Page 21 of 26 CONFIDENTIAL Accessories 8~ O tions XTL5000 O tions 18% Motorc cle Mountin $ 400 Motorc cle Housin $ 900 Item Rebanding Product T ical Value Portable, Hi h S ec XTS2500 III RB $ 2,375.00 Accessories & O tions SmartZone O eration $ 200 Di ital O eration $ 400 U rade Both Kit Batteries to HICAP $ 140 S are Batte HICAP $ 145 Portable Cables $ 251 Car Case $ 60 Char er $ 165 PSM $ 150 RF Switch $ 140 RSM $ 97 Headset $ 439 Pro rammin Software $ 265 Vehicular Char er $ 95 Portable UCM $ 750 Multi-unit Char er $ 788 Item Rebanding Product T ical Value Portable, Low S ec XTS1500 I RB $ 1,120 Accessories & O tions SmartZone O eration $ 150 Di ital O eration $ 130 U rade Both Kit Batteries to HICAP $ 140 S are Batte HICAP $ 145 Portable Cables $ 251 Ca Case $ 60 Char er $ 165 RSM $ 97 Headset $ 439 Pro rammin Software $ 265 Vehicular Char er $ 95 Multi-unit Char er $ 788 Rebanding Product Typical Value (% are discount off list Item rice MB FRA 6-07-07 CLEAN.doc Page 22 of 26 CONFIDENTIAL Accessories 8 O tions All accessories not listed above 5% MB FRA 6-07-07 CLEAN.doc Page 23 of 26 Exhibit A Incumbent Information The following questions are required for processing Electronic Funds Transfers and if Incumbent wants Nextel to complete the FCC filings on its behalf. All information contained herein shall be kept strictly confidential and will be used only in completion of the Frequency Reconfiguration transaction. I. INCUMBENT INFORMATION Please provide the following information: Company/Name: Contact: Title: Address: City/State/Zip: Phone: Fax: If not identified in the contract, please provide the following: If Incumbent is a Partnership, please provide name, address and phone numbers of all other partners: Name: Address: City/State/Zip: Phone: Name• Address: City/State/Zip: Phone: II. BANK ACCOUNT INFORMATION (Required for payment via electronic funds transfer.) Name of Bank: Address of Bank: City/State/Zip: Bank Phone #: ABA (Routing #): Account #: Name on Account: Federal, State or Individual SS #: Name of Brokerage Firm (if applicable): Brokerage Account # (if applicable): In the event Incumbent will not provide information for electronic funds transfer, Incumbent acknowledges that all payments made by check will be mailed within thirty (30) days of the date of performance required by Incumbent (for each payment) as stipulated in the Agreement Acknowledged by Incumbent: required only if Incumbent does not want an electronic (signature MB FRA 6-07-07 CLEAN.doc Page 24 of 26 III. TAX INFORMATION The Internal Revenue Service and state tax authorities require Nextel to report all transactions, even if the transaction is exempt from taxation (if so, it will be reported to the IRS as a like-kind exchange). Therefore, it is necessary for Nextel to collect the information below. If you have specific questions about your tax implications in this transaction, you should consult your own accountant or fmancial advisor. Incumbent's Federal, State or Individual Tax ID #, FEIN (Federal) or SSN (individuals): State(s) -sales tax license, resale permit, employment, etc.): Local (if applicable): Current State and County location for your principal executive office: If there has been more than one location for the principal executive office within the past five (5) years, list each such City/County/State location: IV. REGULATORY INFORMATION Would you like Nextel's Regulatory department to prepare and file all necessary FCC paperwork on your behalf? Yes / No If yeS, please provide the following Universal Licensing System ("ULS") information for your licenses: FRN (FCC Registration Number): ULS PASSWORD: Contact Representative for any FCC related issues: Name: Phone Number: If no, please provide the following information regarding who will take care of the preparation and filing of all necessary FCC paperwork on your behalf: Contact Name: Organization: Address: City: State/Zip: Phone Number: Email Address: MB FRA 6-07-07 CLEAN.doc Page 25 of 26 I hereby acknowledge that all of the information provided herein is true and correct as of the date signed below Incumbent Signature:. Print Name: Title: Date: MB FRA 6-07-07 CLEAN.doc Page 26 of 26