HomeMy WebLinkAboutC2006-607 - 12/19/2006 - ApprovedN~`TV1~ORK SF,R~"IC'ES AGREEMENT
i-hts Net.~~~~rk ~er~~iccs A~~~een~~~nt (this a~;reement") is rnade this ~j day of March
'~)f)~' (th~~ "Effec~ive l}ate ) h~~ ancf bet~~~~r.n EarthLink, Inc., a Delaware corporation
~`~FarEhLink") anci tl~e (_~ Di~ital Co~~~inunit~~ llc~°eiopment Corporation, a not-for-profit local
~<~vernmen~ corpor~tion -.;reated ~~y thc~ Cit~ ~~f C'orpus Christi. ~I'exas under the provisions of
S~~bcha}~ter D, C}~~pter -:~1. Tea~is ~~ransporta~.io~~ Code ("Corporation") for the purpose of
operatin~ a wireless broa~~band nU!~~ork; each I~~et-ei~~after indi~•idually referred to as a"Party"
an~i c.ollectivel_y ref~r-red r~ herein ~i~ the ~'Parties' ~.
WHEREAS, Eartt-~Link installs. manage:; ana operates wireless broadband networks in
municipalities througlzout the United States in order to provide wireless broadband products and
~er-ti•~ces tr.~ governments, husiness~s an~i consum~;rs including without limitation Internet access;
and
VVHEREAS, the C~ity desir~;s EarthLink to provide a wireless broadband system in the
~'aty to spur economic de~~~elopment in Corpus ('hristi, Texas (the "City"); enhance community
neighborhoods of the Citt ; increase broadband penetration in the City, and reduce the cost of
govert~rnent services to th~~ City; aT~d
~VHEREAS, EarthLink desires to offer products and services enabled by a wireless
broadband internet network in the City to residential, business and municipal customers in and
around the geographic boundaries ~>f the City, ancl
WHEREAS, the C~ty, the Corporation, and EarthLink contemplate entering into an asset
sale and purchase with respect to certain assets necessary to operate the Network (as defined
belo~v) which as of the Effective Date have been owned by the City, and deployed by, the
Corporation ("Asset Purch<~se Agreement"); and
WHEREAS, F,arthLink has executed an agreement with AEP Texas Central ("AEP")
,~rantit~g EarthLink pole attachment rights to poles located in the City ("AEP Agreement")• and
,
WHEREAS. the f~arties acknowledge and agree that this Agreement, and the Asset
Purchase Agreement, are ~a.ch mutually conditioned upon, and conditional to, one another; and
that neither Party shall be deeme~l bo~ind by th~ obligations and liabilities of any one of the
foregoin~ agreements, nor- be enritled ta exercise the rights pursuant to any one of the foregoing
agreernents, unless and until each ~>t the foregoin~ agreements has l~een finalized, executed, aud
has b~eome binding accE~rding ~c~ its terms ~~ithout further conditions precedent to the
effectiveness thereof; and
l~4'HEREAS, the Parties contemplate that the afore-mentioned agreements will be entered
~nto a~cl made effective on or abo«t the Effecti~%e Date of this Agreement, provided the AEP
_~greement was executed priar to the Effective Date.
NOW, THFREFORE, in consideration of the premises and for other good and valuable
c:onsid~-ation, the receipt ~~nd sufficiency of which the Parties hereby acknowledge, the Parties
l~terehy a~ree as follou~5;
2006-607
1 ~/19i06 & 01/23/07 Page 1
Ord02~103 & Ord027129
Earthl.iak
VE"I't~'ORI~
^~etwork. ~ubjec t te> th~.~ te~7ns and conditions of tl~is Agreement, EarthLink ~~ill
cc>nstruct. ~nstall. mana~c and «perate a ~~~ireless broadband Internet aceess network in
t~~e Cit~~ (the "1~titv~~ork": during the ~T~erm of this Agreement in the geographic area
s~~bstantiailv as ;et fortl,~ on Schedule l.l EarthLink agrees to keep the Network
~~pdated ~~ ith ~r~dustrv ~;zandard tech~~olo~y, including without limitation updated
e~~uipment, sofh~ are. prc~tocols and other standards, provided that this obligation will
~~ot app1~ durin~~ the last thii-t~~-six (~6) mc~nths of the Terni unless the terms of the
:~ greement l~ave f~een i-en~°wed by EarthLink and the City so that the end of the Term is
niore than zhirt~~-~ix j~6) ~nonths away. Upgrades will be at parity with the upgades
performed ~n otl~~:r comparable cities ir~~ which EarthLink operates wireless broadband
l~etworks. ~ lis? of comparahle cities, w~hich tnay be similar in terms of geographic
sir_e, population. household c~ensity cr other such factors, shall be proposed by
FarthLink and s~ibject to approval by the City. EarthLink shal] be entitled to keep the
?tietwork updateii with ~le.~ technology, including without limitation new equipment,
s~~ftware, protocols and otller standards, subiect to complying with the other provisions
af this A~reemen:: _
_' Network Plans and Approval. Utilizing the Assets conveyed to it in the Asset Purchase
A~reement_ with such ~nodifications and additions as are approved through the
procedure set forth belo~~ in this paragraph, EarthLink anticipates and has a goal of
cc~mmencing commercial operation of the Network by May 31, 2007, including without
limitation the establishment ot~ the porta] landing page as described in this Agreement
and offering the products and services described in Section 1.4. Subject to and taking
i~~to consideratior the pra~~ision by the ~ity of the assets and descriptions of assets in
c«nnection with the A~set Purchase Agreement, EarthLink will submit to the
C orporation the pians and specifications for the Network prior to commencement of the
initial installation of additionai assets, facilities and equipment for the Network under
ihis Agreen7ent (the "Neh~ork Plans"). The same procedure shall apply to subsequent
installations of additionai assets, facilities and equipment to the extent subsequent
~nstallations have not been approved as standard installations as described in Exhibit C
a~ updated from t~me to tirne. E,arthLink may submit additional installation methods to
~he Corporation ~~vhich ~~ ill be deemec~ added to Exhibit C unless the Corparation
~~utifies EarthL:ink in writing a~isy reasonable objections to such installations within five
~~) busines~ day~ of the Corporation's receipt of the installation information from
EarthLink. The C~orporati~n shall appro~~e the Network Plans within thirty (30) days of
EarthLink'~ delivt~ry of th~; Network Plans to the Corporation, which approval shall not
t~~° unreasonably «~ithheld ~~r delayed, unless the Corporation objects to all or anypart of
~h~ Network Plans due to public: safety 4~r violation of applicable laws, and in making
~hjeetions the t~~~rporatior~ shall identi`y ~~~ith specificity the public safety or any
~e~~eral, state or local laws ~~r re~ulations or building code requirements with which the
'v'etwork Plans d~ not compl}~ ("Desi~n Approval"). T'he Corparation will notify
E~-irthLink in writing of such oh~ections, rr a~1y, to the Network Plans within thirty (30)
~._1~,vs u1 EarthLmk's del~ver~~ rhereof to the Corporation; provided that, if the
I'age ?
~ ?i~~tiG ~~'arthi ~n~.~ inc
~,~v ~= ! 17r~~i ~r,
~~orp~~r-;i=it~~~i ~io~~, n~~t de~~~~er ~uch obj~~ctions to EarthLink within thiriy (30) days of
?~it~thLir~k~~ cleli~ erti t~f t'1~ '~L?~~~ork Plans ro the Co-poration, the Network Plans shall
~~c decr~~~~,1 tr~ i~:~ve ~-ece=°.~e~f I)esi~n ^.ppro~~al and F~u~thLink may proceed with the
:~lstall~iti~~;~ [z~ tl~~.~ sco}~e :~.r thr Net~~~ork Plans requires material and significant ehanges
+>> the C~~~~r~~~munications ~ t~uiz~~i~ient sucli that the Net~~ork Plans include equipment that
~: Tlot s«hst~lnti<~;ly sirT~ii~Rr t~~~ tI~e Con~munications Equi~~ment, the Corporation may,
~-~.~ithin t~~r r 1~)) ~~ays vf 1-ai-th[ ink's ~3elivel-y notify EarthLink that it is extending the
[>esi~n ~ppru~ <,I deadli~~e <<~ a specified date not exceeding ninety (90) days of
~~~~rthLiilk~4 ci~i~~~-~el-~ ~~f ~~~e yet~~~ork }'lans to the Corporation. Upon correction or
~=~~~ithdra~~~~;i ~~i~ tl~;~? ob~ect~~~,ns t~~ the Network Plans, the revised Network Plans shall be
c~ie.emed t~:~ lia~; rec~i~~~~l Ges~~n Appro~~al and EarthLink may proceed with the
ia~stal(atiori ~~'itl~in ninetl (9C~) days afi~er commencement of full operations, EarthLink
~°~~ill pr~>~~~~de the Corporatio~~ ~vith an accurate description of all Communications
E quipment and ~ts locatrun ~~s built and all such location information regarding the
(~ommunications Equipment ~~ deemed a trade secret as described in Section 20 below.
~~~ithin 3f) davs ~ f the en~i of ~ach calendar quarter. EarthLink will update the as built
l~~cation i~~forma~ion w~t'~ the City to the extent impacting City Property or Public
R.ights of ~~a~~.
;.~~~ ;I ransition Services. "~he Corporation's assistance in transitioning the Network
operations in an urderly, professional and timely manner is vital to EarthLink's ability
t~~ attain the full operation goa! date. The Corporation will cooperate with EarthLink
pursuant to a trailsition project plan jo~ntl_y developed and approved by EarthLink to
transition to EarthLink the operations of the existing wi-fi network as purchased under
tl~e Asset Purchase Agreement to enable the operation of the Netwark to provide the
level of service ~n effeci as of the Effective Date. The City and the Corporation
accknowled~e and accept that certain outages or degradations in service may result from
tl~e transition of the net~~ ork operations and as the Network Plans are implemented.
FarthLink will reasonablv attempt to minimize the effect of these and provide
reasonable notic~ to the ~::'orporation to the extent practicable. During the transition
period and there<<fter, th~ Corporation will cooperate with Earthl,ink to enforce and
manage the warrant_y pro~~ss or similar remedies related to any damages, defects or
~ arranty issues arising iil connection ~vith the equipment purchased pursuant to the
Asset Ptirchase :~greement ui~til the expiration of the applicable warranty period. If
E~rthl.ink believ~•s that Corporation coc~peration is insufficient, EarthLink shall notify
the Corporation it~ writin~;.. specifying its requested cooperation. The Corporation will
c+>mply witl~ all license agreements ror any applicable software or products in
ct,nnection with the transition and other services under this Agreement.
7~ EarthLink Services. lnitially, EarthLink will market and make available to consumers
ir, the City the pr~~ducts and ser~~ices described on Schedule 1.4 (`BarthLink Services").
EzirthLink reserves the rigl~t to make changes to ar discor~tinue offering any products ar
services i~1 its soie discretion. H~wever, the overall quality and variety of services shall
nut be dim~nished as compared, in the a7gregate, to the standard products and services
~iescribed in Schedule 1.4 as it exists as of the Effective Date. From time to time, as
nc~~ products arc detern~ined. EarthLirik will provide tt--e Corporation information
Page 3
~ ~(~Ir6 k.arth~i_irs.. hu
„rii,~i . li'r:i~,;
~~egardir~~ 't~uture products for the Net~~or-k and will update Schedule 1.4 accordingly
~~~pon ~tinitt~n noT~ce tu tl~~° Cor~~oration_
~> !'ro~~~an~ .ti(ana~em~nt. EarthC ink will clesi~nate in writing to the Corporation, and once
~iesignate~l shall maintair a pro~ram manager knowled~eable about the implementation
1[~e ~iet«~~~~-k. I!~e Parti~s shtill meet ,it an agreed upon schedule to discuss on-going
t~peratic~;i c~f th~, I~~et~~,~rk. ~ncludin~~. on-going compliance with the Agreement.
!~:arthL.ink ~ind ti~e C'orpe>ratio~, shall n~aii~tain and update a list of all open issues and
~csolutic~l7~ thrc~ughoirt ~i,e "~~~rn~ of t~iis Agreement and may mutually agree upon
~~dditional ~~~eetin~s
:.!~ 1'ersonr~el and Rusources
1 6 1 Subject to the ternls and conditions of this Agreement, EarthLink will use
comm~;rciaily reasonable efforts t~~ employ within the market area served by the
Network thr-ae perso~Inel, on direct employment and independent contractual basis,
for at ieast tull-time employment to assist EarthLink in operating, maintaining and
upgrading the Net~ ork and to provide the Services using the Network. In its
discretion, F~arthLinl. mav offer employment to certain employees and contractors
of th~ Corparation or rhe (-"ity.
I.6.? During the "i erni, thz Corparation will dedicate on an in-kind basis bucket trucks
and assoeiated crews, for use by EarthLink or its contractars for ongoing network
maintenance and othc:r ser~ ices related to the Network as directed by EarthLink for
up to one-hundred ( l 00) hours per calendar month without cost to EarthLink, and
thereafter at a per hour rate of $20O per hour per bucket truck crew. Such bucket
truck crews will pertorn~ in accordance with the instructions of EarthLink and
adhere to tl~~ policies of EarthLink and the applicable property owner on whose
property services ar<~ performed in the activities related to the Netwark. The
Parties ma~ de~ eloi~ additional, mutually-ageed terms regarding the service
requirement~ for the bucket trucks and associated crews. The crews will be
employ~ees of the C~~~poraeion or the City, and it shall be the obligation of the
Corparation or the ( ity tc~ report as income all compensation received by each
cre~~ membe=- for pert-urn~ance of sen~ices in connection with this Agreement. The
cre~~ members will ~~ot be entitled to participate in any plans, arrangements or
distributions by Earti~Link pertaining to any bonus, stock option, profit sharing,
insurance, o: similar henetit. The Corporation agrees to defend, indemnify and
hold EarthLi~zlc, its c~fficers, directc~rs, employees, agents, successors and assigns
(`'EarthLink lndemni~ees"i from and against any and all claims, suits, causes of
action, liabilities, losses, damages, costs and expenses, ineluding without limitation
reasonable iittorne_ys' tees and accounting fees incurred or suffered by EarthLink
which t~esult tro~r~ or :~rise c~ut of (i } City's or Corporation's negligent performance
or nc~nperfon~nance o~~ the services under this Agreement (hereinafter referred to as
"claims~')_ e:~cept for an}~ ~laims arising from EarthLink's negligence or willful
misc~n~uct; (ii j ch~zrges ~~f discrimination, sexual harassment or any other
harassment hv any~ C ity ~~r Corporation employee, except for any claims which
res~tlt rrom t~~e ne~li~encc~ or intentional actions of any EarthLink employee or
!'age 4
?~~u(, I~:arih~ ~~ h. fnc
.~~s~~~;~ ~ 1/2r,~~r,
contractc?r; ~ iii 1 cla~i.~s ar~cl losses allegin~ fail~~re to comply with federal or state
«~a~~c ancl h~ ;u- I~~-~~~~ti. ~vro~i~-_~ful terniination, discrimination, denial of due proeess or
~~tht~r <<ihc~r ~elatecl <<~usc~ti o{' actio~i. ~~cept for anv claims which result from the
~~e~~li~,~ncc t~~;~ intc:nti~~nal ,it~tions ~~f an~ F,arthLink employee or contractor.
tietwork Revenuc~Share. tiub~ect to the ten»s and conditions of this Agreement and to
ti~e extent that f~~.,lrthLink ~Tontinues to I~ave the right to use the public rights-of-way of
ti~e Citti~ f~~l- its \et~~ ork ~}peratfons, EarthLink will pay to the Corporation five percent
(~°io) vf E-:arthL3nk'~ ~-e~c•nue Irom th~ i~etwork. (``Revenue Share"). EarthLink's
r~venue ti-csm Ch~ Net~~orl: sh<<Il be determined in one of~two ways which are as follows:
Cate~or~ f total ~r~~,s receipts collected and received by EarthLink from wireless
access reta~ i, ti~~hole~ale and occasional use services provided via the Network to
custoi~~ers ~~~ the Cit~~~ anc~ its extraterritorial jurisdiction ("Category 1"), or
Categorv ~ total ~ross receipts collected and received by EarthLink from
operation c~ i~ the Net~vork, except wireless access retail, wholesale and occasional
use service~, includ~ng but not lirriited to advertising revenues, content, bounties
and referrai fees, fees for sales through Internet commerce sites, VoIP or other
voice capahilities, ~~rovided by t}ie Network to eustomers in the City and its
extraterritor~al juriscliction whiche~er is greater (i) less any applicable sales taxes
or go~~ernm~nt requ~red fees, (ii) less refunds, credits and charge-backs, and (iii)
less any amounts pa~d b_y the City c~r the Corporation to EarthLink ("Category 2").
Cate~ory 1 and Cate~ory Z are collectively referred to as ("Gross Revenue").
lf the first and last mor~th of this Agreement are less than a full month, the
Revenue Share payment shall be pro-rated. Initially, payments shall be based on
the receipts in Categ~~rry 1, above. If at the end of the first year of this Agreement
commencin~; with the first day of the first full calendar quarter of this Agreement,
or at the enc3 of any ,ucceeding year, gross receipts under Category 2 are greater
than under ('ategory ~! , then a true-up payment will be made with the first payment
following the end ot the year, anci yuarterly payments thereafter shall be made
based on Category ' This method will be followed for future changes in the
method producin~ lie ~.~reatest gross receipts. Payments shall be made by
electronic ~~unds +ra~~sfer ~~ an account designated by the Corporation's chief
financ~al off?cer
Not later thail ninet~ (90) days after each anniversary of the Effective Date, when
required by~ the Cit~, EarthLink shall furnish to the City a report, certified by a
Certified Ptlblic ;~ciountant of t}te Revenue Share derived from EarthLink's
operations f=-om the 'vetwork with respect to the prior year. The report shall
pro~ ide ite~~~ization ~~* re~,~enues within Category 1 and Category 2, shall describe
the method ior alloc<<ting bundled revenues, if any, and shall respond to questions
reasonably submitte~~ by t}ie Corporation. Payment shall be accompanied by a
report itemi~in~ the t,ro~s Revent,e from the Network in both Category 1 and
Category ?_ if ser~~icc5 are bundled, EarthLink will allocate revenue to services in
a man~ier cc~nsistent ~.vith F:arthLir~k's standard revenue allocation. During the
?'.i~e ~
~ ~ ~OG6 t~:atihl iri~._ Lnc.
~ .i.,,~ ~~~ I/20r~,~
tcrn; ~f t1~is A~iet=~7en~ F~i~rthLi~~k shall pay the Revenue Share owed for each
~<ile:~dar ~~t;arter h~ ti~e :;~~t cla~ oft}~e next calendar quarter.
~~I~~ Lo-poration n~ay c~ius~~_ iip~~~i reason~~ble notice and n~t more than once in any twelve
! 1:' j con~ecuti~~e rnonths_ ~n a~iriit to he made of the books and records of EarthLink
r~iatin~; to the Re~ ~nue Sh~ire. [n the e~~c~nt the Corporation elects to exercise its right of
~~uciit, the C`orpor;~ti~n sh;tCl E~r~>vide to EarthLink written notice at least thirty (30)
'~u~lness da~~ in aclvance ui~ the~ ~~udit C'~tv shall select the auditor reasonably acceptable
t~~ EarthLinl: Dtu-in~ nor-~~;al husiness hours at the ilearest office of EarthLink, or at a
;~7~utuall~~ a~reeablr~ loeatic=ra «~fthin the C'it~~, EarthLink shall make available to the
t~r~rporati~n ~~o mc>r-e than ;~rlcc ;~~r conti»uous twelve month period data and information
~~::asonablti nccessary to mc~~nito~~ Lompliance with the Revenue Share, and the City shall
r~ceive stich data ~~nd info~~nat~<~n, in a~~Za~uler tliat preserves the confidentiality of any
~~~~~fident~al ilata, ~~nfona~at~on ~~~ trade secrets, subject to applicable public disclosure
ia~t s and c~rdinanc~s and i>> acr~:>rdance ~~,ith Section 20 of this Agreement. City shall
hear the cost of the audit; C~rovided that I:arthLink shall bear the reasonable costs of the
au~lit if the audit rcveals under~~aytnent ot more than ten (10%) percent during the audit
per~ad. C'itv and E arthLinl. shall ineet and attempt in good faith to resolve any disputed
~ss~les aris~ng fron. the auci~t report. Any underpayments discovered and verified as a
resa_ilt of the audit ~,hall be ~joci-mented to EarthLink and, to the extent correct, promptly
paid by EarthL~nk Any o~ erpa~~rnents discovered and verified as a result of the audit
shall be documented to EarthLink and pro~nptly paid to EarthLink.
If E~arthLink rs required to pay any amounts in connection with any sales tax liability as
described in Section 1.9 of the .Asset Purchase Agreement, then after EarthLink has paid
the Corporation a Revenue Share totaling Two Hundred and Seventy-Five Thousand
Dollars ($275,000). but in any event not before the twenty-fifth month after the Effective
Date of this Agreement, FarthL~nk will re entitled to retain fifty cents ($0.50) of each
dollar of the Revenue Share EarthLink owes to the Corporation until EarthLink retains an
amount equal to the sales tax liability EarthLink is required to pay in connection with
Section 1.9 of` the ;-'~sset Purchase ,~greement. After EarthLink retains Revenue Share in
s~rcl~ amotmts, EarthLink will reinitiatE the full Revenue Share payments to the
t'orporation pursuar~t to this Sectron 1.7.
Notwithstanding anything to the contrary in this Agreement ar any Exhibit or attachment
hereto, if the Corporation d~~es nat make payment of the Minimum Services Amount to
E~rthLink within ~~inety (9(~) days of the date of the initial monthly invoice to the
Corparation for the paymer~t oi the Miilimum Services Amount, EarthLink will be
relieved from payi~lg the fZevenue Share to the Corporation until such time as the
Corporation has pald al) outstanding and unpaid Minimum Services Amounts in full.
A~fter EarthLink receives al1 pre~~iously ~mpaid amounts (either by set-off against the
Hc~ldback in the Asset Purcl~ase .a~reement or payment by the Corporation or City), then
EarthLink's obligat~on to E~~ay the Reve~it~e Share to the Corporation will reinitiate
commencing ~n th~.: first c:~lendar dav oF the month after EarthLink's receipt of the
Cor~~oration's payment i~f the ~~Ii-iirnum Ser~~ices Amounts pursuant to the invoicing
procedures.
I'age 6
,(ir~r> t arth~ ;n'_ _ rnc.
~~~si•,:: ~ 1;20!~,,
II ~i~ie C~~~r~x~ration has iaileci to >>~iv the Minimum Services Amount resulting in EarthLink
I~~e~ng rel~e~~ed h-orn pavint- the k~tienue Share for twel~°e months or more, then in such
~~~~.~nt, E~u-th[,ink ~vill E~a~ th~ ~'=_~iporation ,_in annual amount of five hundred dollars
i`~~~)0} as ~onside~~ati<~a~ f~~~~ us~~ uf~ the puhiic rights-of-~t~ay, and such amount together
~d~:ith EarthLink's =>p~r~ition o1~ °~,u Net~~~~~rk and availability of wireless services to the
~~"~~rporat~on ~nd ~~~rson< ;i~ thc ~~itv will constitute adequate and sufficient consideration
~t>; EarthLink"s u~,e c~1~ th~~ E~uhlic ri~hts-of~ way. ln stich event, upon the reasonable
r~c~uest of cither ~~~ari~~. th~ (~~~rp~7ration ~u~d EarthLink ~~~ill meet to discuss any related
. o~ruerns at a mutuallv a~rc~ed ~~~~~~n time ~nd ~lace.
1.~ ~~overa~e iVla~, Prior tc, CIE~sin~, Eai-thLink will deliver a Coverage Map to the
C~~~~rporation identifying the areas of tE~e City ~vhere access to the Network will be enabled.
EarthLink will update such Coverage :`~~lap peric~dically to reflect updates and modifications to
the''~1et~~~ork, and will deli~~er the tr~~date~l Coverage Map to the Corporation. Any such Coverage
!Vlap describes service co~ erage area ~c~~erally. and specific coverage will be further detailed in
the seFViceability informat~on Earth Link anakes a~~ailable to subscribers.
l.~ Pr~ority of Public Safetv. Eartht,ink is developing a product that enables priority for
publ~c safety communications dur~ng emergencies impacting public safety. Once commercially
available, EarthLink will provide notice c~f such product availability to Corporation and will be
prc~vic~d tor terms of ser~-ice and pric~ng (ar w~thout charge) similar to those offered to other
simigar mtrnicipalities. In preparation ior launc~h of this product, EarthLink's project manager
tor the Network will attenc~ the Cit~- s annual Emergency Management Training program.
€. ~ 0 Coinpliance with Law. EarthLink shall carry out its Network operations in compliance
with all ~~alid federal, state. and local laws.
2 CITY BENEFITS
2. l Portal Landin Page.
2. ~.', Portal Landing Page Features. EarthLink will develop and maintain an EarthLink
branded Internet w~eb page where non-authenticated end users will be directed upon
the electronic ackno~r ledgement of the Network by the end user's device ("Portal
Landing Pag~") and ~vhich will present the end user with options to login to the
Network or ~o purchase retail products and/or services enabled by the Network.
All end users must a_~ree te~ the tenns and conditions of use for the Network. The
Portal Landing Page will feature a Corpus Christi theme, and will be within
EarthLink's ~ole control. Based on the user's selection, the user will be directed to
appropriate landing pages where options for EarthLink and other service providers
will be preseilted. l~~ EartliLink's discretion, EarthLink shall receive preferential
pvsition abc>> e other ~~er~ ice providers on all capture portal pages; however, all
servic~ provi~lers shall be clearly, resisonably, and equitably presented.
2.1.~' Cor~oration Desi~nated Linlcs/Community Portal. The Corparation shall be
entitled to designate up t~~ six (H) textual or geographical links for City or
Corporation ~~romoticFnal }~u~poses ("Designated Links") on the Portal Landing
~>~~e ~
~ ?Uli6 8arlhi_in~. ~nc.
rsrvn ' i/2(~uh
Pa~,e ?n its ~easonah~r~ ~1~~-cretion fi~r promotional li~lks to content and applications
hoste~- h~ t:~~e (~~~r~~:~ratiu~~ or C'it~~ for C'orporation or City purposes incl~iding,
~~~ith~~ut l~m~tation, a;•on~,~~~initv p~~rtal for tiree access content for domains such as
Ic~cal scllor~is, hi~,h~.~~- ~~,lucation i~~siitutions, ~o~~ernment entities, community
c~r~~~~ru~atic~~~~, he~ilth ;~r~~ar~izations. loc~ti business marketplace, syndicated content,
resource sitc _ subpoi~tu~ls ~~ich as cummiu~itv networks, and sponsors and affiliates
suc}1 as aff i ~ iate ~pc~nsor~, and market channel stores; announcements; municipal
pur~~c~ses; ~_~~~mmEin~~~-~ n~~~ices; and%~or advertisin~. EarthLink may limit high
bancl~~zdth ~-ites at i:> cli;~;retion_ Jn each of the web pages resulting from the
Ues7~nated ~.inks, u~~~~n FarthLink', reyuest the Co~poration will place EarthLink's
desi~nated l~~go. mai~k or ~rctive link ~~l such ~~eb pages for promotional purposes
with rr.ason,~ble pr~i~~insnce com~~arable to tl~e prominence of any Designated
t.inks ~~n th~~ Portal 1~L~Iding Pa~e. If requested by the Corporation, EarthLink will
place the C'~iv or ("or~~orat<<m brandin~ prominently on the Portal Landing Page.
2,.• Corporation, Desi~~ated 1_ ree Hot Zones. The Corporation with the City's consent
shall he entitfed to request up to ten (10) hot zones to provide residents and visitors
with imlim~ted, fre~ internet access in municipal buildings (excluding the
Convention ~"enter and the Corpus Christi airport) ar parks as such locations are
mutually agreed up~~n h~ the City and EarthLink, provided EarthLink will
reasonably agree to ?ocations to the extent technically feasible and financially
viable. The ~_'orporatian ~~i11 pay t;arthLink for any indoor network managed by
EarthLink other than the designated hot zone locations and the Corporation will be
responsible a-or the =~ost of equipment required to make such indoor networks
availabre.
2. ?..~ Walled Garden. To the extent reasonable, mutually agreeable, and technically
possible, EarthLink shall allow limited access to the end users from the
Corporation Designated Lii~ks and EarthLink Designated Links (including Digital
Future links) to the underlying site~ to end users that have not logged in or signed
up for service ("Walled Garden"). EarthLink may also make available additional
functionality at Eartl~Link'~~ sole discretion within the Walled Garden. The user
must a~ree tcs the tern~s and conditions of use of the Netwark in order to access the
Web sites, applicatiol~s an~, or utilities in the Walled Garden.
2.I.~ Liabilitv for Access. Eartk~Link shall create appropriate disclaimers, limitations,
and protections for the benetit of both Parties from any liability which could result
by providing Internet access to end users via the Network.
2. i.f~ SSIDs. The City and t~~orporation acknowledge that EarthLink may use service Set
Identiners (SSIDs) ~n its discret~on, including without limitation the SSID
MyCorpusCrristi.net
~.Z !Vlu.t~Clpal Services. EarthLink will provide to the Corporation certain wireless services
enabled by~ the Netw°ork iu be t~sed for Corporation and City purposes ("Municipal
Serviees") far the prices <ind ~u~der the terms and conditions described below and as
may be further described or~ Exhibit A. `.~se of the Municipal Services requires use of a
f'age ~
~~~ ?u1,6 liartht n;~:. fnc
~ rs:~iri i/21)~;t,
~~ertiiied (~,PE fc,~ the des~~~late~i ser~~ic~. EarthLink does not provide CPE as part of the
'vlunici}~al Servi~.~es described helo«~. al-hou~h as described in Exhibit A, EarthLink and
the C~ot-}~c~ratior~ ,nav iiiu.r~iall~~-~ a~ree ~>>~ tcni~s and conditions for EarthLink to provide
~`PE tu ih~~ ('u~-~~~~ration f.~r th~~ ('itv s h~.~nefit
?? 1 Go~ernmen~ Lise Services. EarthLinl. ~~~ill make available to the Corporation
~vireless bre~adband Internet acces~; services ("Government Use Services") at the
price on a>>er acco~mt hasis zs s~~t forth in Exhibit A, and any other mutually-
a~~eed ter~li~; as set tc>rth ,~~ Exhibit A. EarthLink will deliver the Government Use
Ser~~i;:es t~~ the Cti~rporation at average transmission speeds of lA Mbps
do~~~nstrea-~~ ' l.i) Mhps upstream and ~vith dynamic IP addresses.
?.' ~. i [n the Co~parat~on's sol~: and absolute discretion, the Corporation may
blcndle its ~~wn ~ervices, inctuding, but not limited to, email, software,
support. V~'eb pages, systems, VPN software, and other services selected
k~~ the (`orporation ~~ith the Government Use Services to the
(~~?rporatio~l's or City's employees at the Corporation's cost to the extent
included in the i;overnn~ent Worker Access Only Product (as described
in Section ~' on Fxhibit f~). The Corporation will be responsible for the
c~st of Customer Premises Equipment ("CPE"), if any, and installation
services for the ~sovernn~ent Use Services for the employees, and, in its
sofe discrc:tion. may provide and/or charge the employees far CPE
installatior~ serv~ces and ongoing support. The CPE shall be approved
and certifi~d h~ EarthLFnk to run on the Network and shall not be
detrimentai to the Network's performance. EarthLink and the
C"<~rporatior~ ma~ mutually agree to allow the Corporation to purchase
C'PE from EarthLink on a wholesale basis. EarthLink will not be
responsiblf: far~ any mair~tenance or customer support issues related to
anv CPF.
?.?,1.Z If~ EarthLinic discontinues and replaces the Government Use Services
with a prc~duct or serv~ce of the same or higher transmission rate,
EarthLink ~hall provide Government Use Services far such replacement
pr~~ducts or ser~~ices to the Corporation under the same then current
terms and c~~mdit~c~ns.
2.:'.~_' Fixed Wireless Service. EarthLink ~~ill make available to the Corporation a point-
to-multipoint fixed ~~vireless data transmission and Internet access service to
municipa] buildings <~nd municipal government locations (the "Fixed Wireless
Servtce") at lhe non-recurring and monthly recurring prices set forth on Exhibit A.
EarthLink w~ll use c~omm~rcially re~asonable efforts to deliver the Fixed Wireless
Service to the Corparatir~n at average transmission speeds of 1.5 Mbps
dow~istream ~ l.5 Mhps ~ipstream and with dynamic and static IP addresses (as
requested by the Co~~~ration).
2.'._~ The Governnlent Use Services and the Fixed Wireless Services shall be delivered
to the Corporation, suhject to the following additional terms and conditions:
~'age 9
2u~ib tiarthi_ir~k. Inc.
~ r<,~~~~~ ' U2~~~~~e,
~' =.~ I Si~all hc u~~lize~l sole(v ti~r m~u~icipa] go~~ernment activities and purposes,
ai~~tl shal] ~1ut l~c ~.ised For nor~-('it~,~ activities:
-'-~ -~ ' Sl;all I~c i,Eanr-~ed bv ,~ sin~~le c~esi~nated
_ . ~ point of contact within the
( ~,rporatir~i~;
-'. ~._~..~ Sl~all bc pruvisianed and «~aintained by the Corporation and only for use
b~ emplo~~~ees ot~ the Cor~~ol-ation or employees of City-Related Agencies
a~ refleeteci in appiicable Cit~ C'ode, ardinances, resolutions, and motions
ac~~pted b~ the t_~ity Council:
??. ~.-~ Shall receE~~e -iier 3 Network Operations Center (NOC) support via a
siirgle interiace t~-om the ~_'orporation's Tier 3 NOC to EarthLink's Tier 3
N~)C supp~_>rt center;
'.-' ~-~ Shall be billed to the Cor~~or-ation on a single invoice each month;
?' 1.F~ Shall not ~e resold, e~ccept to City-Related Agencies as reflected in
applicable t'ity~ c'ode, ordinances, resolutions, and motions adopted by
thc Citv Cotincil:
?.? ~.~` Shall include on(y one login name per account with no simultaneous
lo~ins of the same account allowed. EarthLink shall have the right to
prevent simultaneous logins or to assess reasonable charges to the
Corporation for shared account or simultaneous activity by multiple users
or ::ievices ~~sing a single account to access the Network.
2.e'.~ Di~ita] Community Services. During the Term, EarthLink will wark with the
Corporation to implement a program tailored to the specific needs and existing
programs of the Cor}~oration that is designed to primarily provide access to the
Network, equipment and education to certain persons and businesses qualified by
the Corporation (the "Digital Corr-munity Services"). The Corporation will be
exclusively r~esponsihle tor the atialification of the subscribers to the Digital
Community Services. and EarthLink shall have no obligations or liabilities arising
from the yualificaticm of the subscrihers to the Digital Community Services.
Earthl~ink shall have no responsib~lity to provide Customer Premise Equipment
("CPE"~) or ~nstallatic~n services for end users utilizing the Digital Community
S~:r-~~~ce~. T}~e subscr-iber~ to the Digital Community Services will be EarthLink
Subscribers far all >ther purpose:; under this Agreement. All users of the
Mwlicipal Services n~ust <~~n-ee to tl~te tzrms and conditions of use of the Network
in order to aceess and ~~se such ~erv~ces, including the terms of service and
acceptahle u~~ polic~
2.~_'.~ Custorner Su~port Res onsibilities.
'.?.~.] Online Su~port__,Aids. ~arthLink shall cooperate with Corparation
personnel and deliver t~ the Corporation all necessary information
Page 10
~ 'r~i_rb l:~tht ;n... tnc
, ., ~l2nr~r:
..,, ,~ „ ,~,, ~.~-
1~r~cludin;~. with~~~ut limitation, "Frequently Asked Questions"), to assist
tl~:~ Coi-porati~~n ~n the cr~~ation of end user support inaterials in the form
oi~ Freyue?irlv >sked Questions (FAQsI that are accessed via printed
i>>:~teT-ials ar~d th~~ fnternei
?.'.~ ~' C'~~ oration C'ust~~mer Su~ort. "The Corporation will provide custo~ner
sti,~port tc~ its own e~id users, ~vhich shall be available at the
C<~~rporatio~~~'s ~l7scretion and shall consist of one-to-one interaction
be~~ween ti~~; (~c~rporaCion"s Lnd users and Corporation help desk or
support re~~7~-est~n~atives ~ ia e~nail, chat or telephone. The Corporation
si-~a11 p1-o~~i~_ie suE~port ser~~ices for its o~~ri ~nd users, customized to the
specitic s~rei~~~ and applications provided by the Corporation,
~ncluding. ht~t not limit~:d to, service setup and provisioning issues,
C~:~~rporatio~~; application and services issues, connectivity issues and
ac~~ount an~1 authentication issues.
?. ~ ~. ~ EarthLink ~upport of Corporation Customer Support Staff. EarthLink's
Network Operations ('enter ("EarthLink NOC") will be the
Corporation's initial point of contact for the escalation of issues related
ta EarthLink's provision of the Government Use Services and/or the
Fi~.ed Wir~(ess Services (e.g., service interruptions due to network
eq ~ripment ~utages or failures). EarthLink shall use commercially
reasonable efforts to cause the EarthLink NOC to investigate and
fac•ilitate (e.g., through the issuance and management of trouble tickets)
thc remediation ~f problems reported to it by the Corparation NOC.
Problems v~ ill be warked ~n a peer level basis between the Corporation's
N(>C and the EarthLink NOC. EarthLink will provide detailed
int~~rmatior on :;ommunications and escalation procedures with the
Ear~hLink 'VOC_'. EarthL~nk shall work in good faith to create and
irr~~lement pol~cies, procedures and technology that permits the
Cc>rporatiol~ visihility into the EarthLink NOC and provide proactive
ca~~imunicat~ons to the Corparation via emails and outage boards
infi~rming t}~~e C~orporatio~ of' any planned maintenance and scheduled
Neiwork o~xtages and use good faith efforts to provide such notice
sut~~iciently in advance to allow the Corporation to minimize any
ne~;ative in~~~~acts to its operations. When unscheduled outages occur,
EarthLink ~;hall notify th~~ Corporation°s designated contact person by
telf~~hone a~~d ez71ai1 as so~~n as practical under the circumstances.
2.2.> ~ Availabilitti F=arthLink shall provide contact information, including
nar~res, email addresses, telephone numbers for use 24 hours a day, 7
;~a~~s a weeka which may be used by the Corporation NOC personnel and
~ecl~inical suppoT-t groups t~~ escalate or resolve issues that are attributable
~c~ ~:arthLink and the Network.
2.~ ~~ AMR Servic~s. EarthLink shall prc~vide services via the Network to enable 200
automated meter rea~tin~ devices used by the Citv as of the Effective Date and
Page 11
~,~oh ;:arth; ~,~~~.. [nc
~.~~r~~.,~ . i/?iii~r..
~~~<~n~l«ed b~ tht C or~~oi-ati<~i~ for lo~~ a~gregate data consumption on an intermittent
has~s. ~nd ~hall pro°~ ~de ~~i-~~ices ior additional AMR devices of a similar nature
~~r~~~~~i<~c:d tl~ it the~~ ~~_io r~~» si~-~ifi~~antlti~ ilnpact Net~vork bandwidth availability.
F:~rtLi ink ._~nd the (~~~rporaCion ~cil.l mutually agree to enable fi-ll-speed access to
th~~ ~~_h~orh at s~~ee Iie t~rnes of c~~iv or enable low~-speed access to the Network at
~in~~~ tiine. ~~; mav ht~ a c~~i7~binaticn ot features (time of access, speed of access,
amc,unt ot ~iata tr«nsm~tted, numbei~ of transm~ts per day or other features)
(cc~il~:~ti~~elti. thc "~iVIR Serviccs"). Tl1e City or the Corporation will provide
ii~f~rn~atac~n about ti~e location oi the data collection unit and issues related to
metes~ ~-eaciir:~ ser~~ic~.°~ as reasonahlv requested by EarthLink from time to time.
~~ Z' Inte«~iet Acczss into_~'i~_Hall. EarthLink shall provide internet service to be used
l~v ('it~~ Hall in accor~iance ~vith Exhibit A.
'..~ :'~'Iininlum__Servi~e Amount Paid bv Cc~rpc~ration as Anchar Tenant. The Corporation
~hall purchase, ~~r ~aeilitate purchase by the City or its Ciry-related Agencies, of
i~overnment Use Services, Di~ital Conimunity Services, Fixed Wireless Services, and
a~ny additional '~tunicipai Ser~~~ces and,-or other products and services purchased from
F:arthLink ~n thi annual minrmum service amount and at the prices as set forth in
E~xhibit A("Miiumum `~ervic~ Amount"j during each calendar year following the
E ffecti~ e Date as set forth in Exhibit A, if any. The Municipal Services and other
foregoing produ~:ts and senrices will be offered in EarthLink's sole and absolute
~iiscretion and rhe perfc~rmance and functions may be updated or modified in
~~arthLink'S soie and al~solute discret~on from time to time to reflect then-current
offerings ~~f~ EarthLink; provided, howe~ver, the overall quality and variety of standard
services offered shall not be diminished as compared, in the aggregate, to those listed in
F~:xhibit Ai A)j 1},~nd Exh~bit A( A)(2) as it exists as of the Effective Date.
3 USF, OF CITY ASSF;TS
~l'he Corporation represent~; ancf warrants it has all rights necessary or proper to grant
EarthLink the rights, authorizations and permits set forth in this Section 3. Pursuant to
C`ity Ordinance i~os. t)Z7~?99, O27100 and 027101 and as further described in this
:~greement, EarthC ink is authorized to attach its radios, antennae, gateways, wires, cables,
tibers, filters, amplifiers and c~ther equipment, and switching, processing, monitoring,
transmission and ciistribution components of its broadband wireless system, including,
~~~ithout limitatiot7. the ec~uipTnent described on Exhibit B, and including further,
up~rades and ne~~ and improved technology and devices as from time to time determined
i~y EarthLink (coll~ctively "Communications Equipment") to the City Poles (as defined
helow) in accordance with ~tandards and protocols established in this Agreement, for the
x~urpose ot; amon~ others, instal(ing, operating and maintaining a Network and providing
certain services to ,~he Cor~~uration and subscribers in the City. Without limitation of the
t~:~r~going, the ~~"orporation ~rants to EarthLink all necessary authorizations to acquire,
i~~stali, operate anc1 ma~ntam the Network., as set forth in those authorizations described
l~eiow. Thc: Corpuration ~~r~ants EarthLink access to certain City property as described
herein. EarthLink shali be responsible for procuring the right to use poles and premises
~~f ~hird part~es as ~~ecessar~~ ror tl~~ location oi~ its Communications Equipment.
~'age 12
; i,U~~. Eanhl ~;ik, inc
~i;inr (1;'=~~(1~
~'~ t_~ity L~ra1_tic Li~hts and P~-~les. ~l~~he Cih~ owns, operates and maintains the traffic lights,
.~nd all ,iss~_~c~at~~til suppo~i arm~ and cc~~nnectin~ hardw~are, at the locations in the City
~:~ted ~~~~ 5che~l~~le >_I_~~~~ an~i other ('it~ poles or ~tructures in the rights-of-way
f,~ollect~.t~l~~ '( °~~v Y~~le~~~}. ~I l~~e Cit~~ ~~.vill respond in a timel_y manner to EarthLink
r~:~yuest~ f<~a~ i~lii~~ ~~~ation <<i~out ~he Cit~~~, o~~~nership of other traffic lights, support anns,
~~~c~1es ~~~~ >rructw-r~s. Eartl;Link i~as been granted i~i Ordinances 027099 and 0270100 the
~~ight to instalL ~~perat~ a~itj m~3~rltain th~~ ~Network on the City Poles in accordance with
~~randar~j~ ;inei p.otoc~>1~ n t~~~s A~r-erment. Exhibit C is approved accordingly to
:~snstitute :~aicl standards .~nd protoc~(s. fn addition, the Ciry has granted a license to the
t`orporatiun to ~~lace :quip~~~~ent on (~'~ty Poles and the Corporation hereby grants a
~~<<blicen;~~ t~f sai~i ri~hts ~~~ E~~rthLink. The Corporation is authorized to manage and
~rant E:a~lhLink :~ccess ancl usc t~~ Citv F'oles.
3.._'. ~leneral Pei-mit. :~t direct~on u~ and with the approval and authorization of the City, the
~ "orporation here}~y
a) represents to EarthLink that the Assets conveyed by the City to EarthLink in
the Asset Purchase .~greement and physically placed in service as of the Effective
Date are legally lc~cated and require no further permitting or approval under
current law~ and re~ulations.
b) represents to EarthLink that to the extent EarthLink has, as of the Effective
Date, submitted plans and specifications identifying the location of new physical
assets or cf~anges in location of existing assets pursuant to Section 1.2 of this
Agreement. no furtl~er permitting ar approval is required under current laws and
regulations. other than have been identified by City or Corporation in writing to
EarthLink.
c) represents to EarthLink that with respect to approvals that are needed for future
installatlon5, such as engineeri~ig approvals, building permits, and zoning
changes, th~ Corporation will assist EarthLink in expediting the approval process,
provided f~~r short term lane closures, EarthLink will comply with the City's
manual regarding uniform traffic control devices and no other lane closure permit
w~ll be req~xired except as may be required by change in law.
~..~ Installation Authorizatior,. The Corporation has obtained all necessary and appropriate
r~gi~ts to ali of the City Poles fc~r EarthLink to install and maintain during the Term all
c}f the Communications ~;quiprnent on the City Poles without EarthLink having any
ubligation to: (i i pay any sums for such rights, except for the payments set forth herein;
c+r (ii) ass~~me, ~r a~ e~ to, any obl~gations in excess of those set forth in this
~~greement E~irthLink is entitled to install and maintain its Communications
f°:yuipment c7» t}7e City ~oles fi-om ti-ne to time during the Term consistently with
F:xhibit C~ (durit~~; the timEw Communications Equipment is attached to a City Pole, it and
tliey shall be c~~~~llectively ref~rred to as "Installed City Poles"). The Corporation
z,pproves ~he Cc~~nmunications Equipment described on Exhibit B, and will promptly
~~pprove all simtilar neu or substitute eqtiipment for installation, maintenance and
aperatioa7 ~~n the ~~_'itv Pol~~, along witll an_y necessary changes to Exhibits B and C. No
Page l3
<9 ?0(i=~ Earthl -i~k. In~
_.,~n, Il~ ~~~+
~_ 17an~~s ~ti =11 be rec~uireu to E~.~i~ibit (~' for equipment that would not burden facilities
„~ore than the c~~stin~, e-c~.~ipn,~•nt.
~--~ i°i~Nole~ Cern1~ and Co~~dit~uns. The installatio~l and maintenance of Communications
t y~ii~,ment on ('~ty P~~les is suhj~et to tl~c tern~s and conditions set forth in Exhibit C.
fZ~ ts ~f ~Vati~. r~)urin~ t~~e "[~~erm oftllis A~reement, EarthLink is authorized to use any
~~asements, ri~ht~, and~ri~~,~hts t~t~ ~~•a~~ of~~ the City and public rights of way for access to
~~it_y i'olcs and F'remises ?o ~~ }~tich Comn~l~nications Equipment is or will be attached
}~ursuant tc~ this .~tgreeme,~t. Such access shall be ttiventy-four (24) hours per day, every
~_;ay for ('it~~~ Polcs. F~r o;l~er t'~ty Premises. access sha(l be as provided in the terms of
ti~e applicable a~=ree~nent Tl~e Corporation will promptly inform all appropriate City
r:;presentatives ~~~ld empl,~yee~ about the easements, ri~llts, pernlits and approvals and
tile Ge~leral Pern~kit ~ranteci to EarthLink in this Agreemeut and the City Ordinance Nos.
{a?709~J arrd 02~~~10U and instri.ict and ciirect the City representatives and employees to
ireat those ~is ~-alid and h~ndin~~ on the City in all ways and will work with EarthLink
and appropriate Citv ot~fici~~ls to facilitate the rapid issuance of any additional
tasemeirts. ri~;hts. approvals and permits that might still be necessary or appropriate to
facilitate the rap~ci deploy~~ient ~~t the Network.
;.t= flntennae Site L~cense A~reements. 7'he City owns, operates and maintains certain
assets, such as building rooftops, radio towers, and data center or collocation facility
lt,cations as sp~;cificall~ listed on Schedule 3.6 (collectively, the "Premises").
~ arthLink and the Corporation shall execute a separate License with respect to each of
the Premises, each substantially rn the form attached as Exhibit D(each an "Antennae
Srte License A~eement"). Each Antennae Site License Agreement shall grant
EarthLink a license to ins~all, operate and maintain the Communications Equipment and
such other equipment as required to opei~ate the Netwark on such Premises. The rent for
et~ch of the Prem i ses shal l be ~et forth on Schedule 3.6. The rent, fees and charges for
s~ich license wil E be due and payable as provided on the applicable Antennae Site
I ~cense A~reement. During the Terrr~. the Corporation hereby grants a license to
FarthLink to install direLtly ~~nto or ~vithin any part of the structure, operate and
rr~aintain radios. ~ntennae and other devices in the number designated by EarthLink
(c~ol~ectivel~-~, t17~ "Ant~nnae~~') and to the co-location of equipment and
tc~fecommunicati~~ns iines ;~nd c:ircuits ("Ca-located Devices") on the Premises as set
fc?rth in Che applicable Aiatennae Site License Agreement. The City and all approving
h~~dies of the Cit~~ govern~r~ent have granted the Corporation the necessary rights for the
C~~rporation tc~ execute ~~he ~~~ntennae Site License Agreement in Exhibit D. The
C~~~rporation will promptl-u in~orm all appropriate City representatives and employees
~nd securit~ perscpnnel abe~ut the access rights necessary or appropriate to ensure timely
._3rcess to Antenna~. and C'~ ~ located Devices ~vhere it is installed.
- Backhaul Services. Duri1~~; the Term, tile Corporation hereby grants to EarthLink the
v~~ntinuing right ,~ connect to. transmit thr~ugh and use the fiber optic transmission
~~~stem described on Schedule 3.7 ("F~ber System") in the speed described on the
- ----
Schedule =~.7 ("L_ieensed F~iber"') for the charges set forth in Section 39(b) of this
~,reement Without limi~.ation ~f the fc7regoing, the Corporation will allow EarthLink
E'age 14
~~~~~r, ~:aTtf,: ;; :.:, ~~,~.
;;~,~~,; ~iz~~;~:~,
:t~ acce~s throu~~i~ ~:arthl_;>>k's connecti~~ns and use the City's fiber neri~ork for backhaul
~~urpc~scs ~~t E<ut=~Link`~ ~l~sc~~~tion in cunncction w~ith this Agreement at the charge in
`~ecti~~n ~~~(h) !~~,r th~ ~~ii:~~bcr of conr~ections and locations designated by EarthLink
~~om tune =~~ tin;~. ~[~h~ C'it~ has granteif the Corporation the necessary rights for the
i~arpor~ui~>>1 to i~~ake th~~ ,rant to Eart1~-~Link w~ithotit the necessity of further approvals
~~~' Citv ,~n~. ernn~..~~i~t. if~.i~ldit~c7nal fib~r is required by expanded needs of the Network,
f~arthLink ~ha(I notilv ti~e («rporation in writing of the need and shall offer the
(~orpurati~~~7 t}le ~ ight to ~~ro~i~l~~ the additional fiber on agreed terms, or, if terms cannot
he agreed the (~~,rporatic=n shall ha~~e the r2~ht to match the best proposal received by
~~.arthLink ancl pr,lvide tl~t~ fib~~i
~;.h Emer~ency__Contact Inforniatioii. Each Party shall provide the other a 24-hour contact
~~hone numbel- tc~~ enable ~'arties to repc~rt any concerns regarding the Communications
Fquipment or tht Citv Pc~les, the Premises or the Fiber System. In the event that either
Yarty reports such concerr~s to the other, the other Party shall promptly respond to such
call(sl and perf~~rm accoi-din~; to this Agreement the required repair or correet any
adverse impact r~~ operations ~~t no cost to the reporting Party unless caused by the
r~porting Part~v
~.`~ Minimum Service Amount Paid bv EarthLink as Anchor Tenant EarthLink shall
purchase from the Corporation in the annual minimum amount of $200,000 during each
calendar year follt~wing the Effective Date Corporation services for the following fees:
a) ~ 1,400 per month per tower for all necessary backhaul equipment on the tower
and "doghouse" at the base of the tower.
b} $ i ti per mesh gateway connection per month with 20MB burstable to 45 MB.
c j AP Connections i Tow ers) -$4`~0 per tower 120 MB connection per month -
burstable to 240.
d) ,4ny such additional ~ervices mutually agreed upon by the Corporation and
EarthLink fr-om tilne to t~n~e.
The ar~ual minimum amo~int of $200,000 shall be paid even if less than that amount of services
is utili2ed. EarthLink may purchasc any amount of the services in excess of the annual minimum
amoun# at the prices stated abovt. F.~irthLink will pay the annual minimum amount to the
Corpo~'ation in twelve equai monthly payments by the tenth (10`h) of each month. EarthLink will
pay th+e Corporat~on all amount~ o~~~ed for aily services ordered by EarthLink from the
Corporatao~i whose aggregate value exceeds the annual minimum amount within 30 days of
Tz~onthly ~nvoiee. The C'or}~~oration ;hall bill account charges, if any, and the cost of Corporation
prc~vided s~apport, ~f any, directl~ tc= Eart}~Link. Ii~ the Corporation's provision of the services to
EarthLink r~esults in a sale~ tax, us~~ tax. ~r similar charge to EarthLink, EarthLink will pay the
a~nount <:~f such tax or ch..irge to ~f~~e C~orporation for remittance to appropriate governmental
auttlorities. EarthLink may ofCset and ~-educe any unpaid and past due amounts due by the
~'~orpi~ratior~ or the City to E arthLinl.
Page 15
~~: 2~!~~G ;~~thl.ii~k. Inc.
~~ tY'S?t~r1 : 1 /21l~ ifi
'~Ic~t~vith~t~lrldi~l~ a~~ytl~ul_~ to the~ c~~,~tral-~~ in this 4~r~ement or any Exhibit ar attachment hereto,
~fth~ Ct_~~r~~orati<~n rc~es n~>~- mai:~ t:inel~ .~ayment oftl~e Minimum Services Amount to EarthLink
,~'!'~hin e~:iT?~.ty (~)~)> ~1a~~s ~,f th~~ ~l~~.tc c~i~~the initia) rt~onthly in~~oice to the Corporation for the
~?<~~,~i~~ent :~f the '~1i«~11~~u?~~~~ Ser~~ic~~~ ,-~i>>c~unt. th~.n (~) Eai-thLink w~ill be entitled to reduce the
Rt°n~aincle~~ Amount t as cie!ineci ii~ ~~~ li~ ,-~,~~t Pu1~cl~ase .A~reement) o~~ed by EarthLink to the City,
f any, hv ;i~e amc>~mt c>t~ a;~y ur~ptu~~ an~i u~~~in~ Mini~uum Services Amount as further described
~n ~r~cti~~n 1.3 of thc Asse~ Purcha~;c A~~reement, (iii) EarthLink will be relieved from paying the
R~~~t~nuc tihare tu the- i~'c~~por-atioi~. an~~ (i~~~) the ~~rices for the services purchased by EarthLink
~`rk~n~ the (~rporat~cr~ shai, be as fc~ilo~~~~
al ~~'e~~~ er r-ent ~~ ill ~~o from $!,40O.00 to $350.00 per month per tower for all
necessarv hackhaul equi~ment on tfle tower and "doghouse" at the base of the
to~~~er
b) Fiber nodes (gateways) wiil go from $75.00 to $18.75 per mesh gateway
connection ~~er month witll 20MB I~urstable to 45 MB.
c) AP t'onnecti c~ns i"I'owers )-Tower fiber wi 11 go from $450.00 to $112.50
per toi~er 1~'0 MB c~~nnection per rnonth - burstable to 240.
This reduced pricing will apply tor any failure of the Corporation to remit timely payment of the
Minimt~tn Service Amount, even if EarthLink has received such amounts pursuant to Section 1.3
of the Asset Purchase Agreement. ln such event, upon the reasonable request of either party, the
C`orpor~ttian and EarthLink will meet to discuss any related concerns at a mutually agreed upon
time and place.
4 U~E OF ELECTRICITY
4.l Allowed Use. If~ EarthLink does not have a contract with a retail service provider for
the provision of electricity, tl~en the Corporation or the City will pass through to
EarthLink any applicable electricity charges with no markup with respect to the poles
referenced in Section 3.9(d) and with respect to other facilities such as Antennae Sites
u here the existin~; network purchased under the Asset Purchase Agreement are installed
as of the Effecti~ e Date, to the extent ~~llowed under contracts with the retail service
provider Otherw ise, EarthLink ~~~ill secure electric service from an available provider.
Tl~e Corporation and the Cit~ will caoperate with the applicable retail electricity
provider and EartliLink t~ ~~pen an acco~~nt for the provision of electricity to EarthLink
for the Network. "The Corporation ackn~~wledges that, if EarthLink is required to enter
Into an electr~icit~~ servic:_s ccmtract directly with an electricity provider, then the
a~~ailability ~f ele<<tricity ±i-om the electriciry provider and the execution by EarthLink
ar~d such provide~ of a m~_ltuall~~ acceptable agreement for the provision of electricity
services upoa~ rat~:s, tern~~ and ec~nditions lawful for regulated ar competitive providers
a~~erseen by~ the Public i~tilii~J Commission of Texas, is a condition precedent to
E~rthLink's obligations and perl'ormance of this Agreement, notwithstanding anything
~ulse to the contr~~ry in th~s ,4gr-eement or otherwise. Electrical power to operate
`'i,mmunications ~,quipmtnt ma~~ be taken from the power sources connected to the
:_'~ty Poles l~y F~~rthL ink The Cor~~oration and the Citv will cooperate to obtain
Page 16
2vo~, ;.~n~ ;,,~:. tp~_
.;~~,,, ~~ ii2~~~~r,
~=trm~ss~o1~ fi-om an appr:3pr~at~~ electncity provider if and as required for EarthLink to
t~~e the electr~cil°. from the t-~it~ Poles.
-~._' .'zvailabilit~. ThG• Corpor,~,tion tickno~~l~~d~es that any City Poles which are not supplied
c lectricai poti~e~~ ?4 hour~; ptr ~lay or ~~~ hic~h are otherw~ise not suitable for EarthLink's
rse under this .a~ree~~~eni (cr~llecti~~elv "Unsuitable Poles") and EarthLink will not be
r::quired to offe~ servic~ co~, Lrage in areas containing such Unsuitable Poles. The
(~orporatic~n cani~ot and ~~~~~11 n,~t ~~uaran~_ee an uninterrupted supply of power, nor can it
~ ~~aranteL ihe ~~ualit~~ ot po~,~~r~ pru~~i~led by the Electnc Utility. Notwithstanding
~~~~yth~n~ tc the :~antrar~~_ Ear~l~Link's ~~erforma~lce under this Agreement requires an
<«lequate ;uppl~ of elecs~~icit~ ?4 hours per day every day. EarthLink shall not be
~3eemed to l~e in ttefault oi~ rec~~iired to p~-ovide Network service during such time and in
~~~ch areati as are direct~~~ aff~~~cted b}~ the lack of electrical power. If continuous
electricitv is not availabi~~ foi ~~ mater~al nuinber of the available City Poles for the
( ommuni~ations Equipment tt~1- more than ~0 days, EarthLink shall be entitled, but not
t~i~ligated, ti> tzrn~inate thu A~reement and all EarthLink obligations hereunder.
-~ ° ~.lectricity _Costs The t'orpc~ration shall not be responsible for any payment or
payments to the Electric ~~tilitti~ z~r any c~ther electricity provider for electrical usage by
E.arthLink. except to the c~tent an agreeinent to supply the necessary electrical power is
exeeuted betweer the Corporatian and t}ie Electric Utility or to the extent the obligation
t« pay is passed through the t'<~rporation to EarthLink through an agreement between
the City ~r the C`orporati~~n and the Electric Utility, as in Section 3.9(d) or otherwise.
EarthLink shall he respor7sible for all payments for use of electrical power, including
but not limited to power t~sage, meterin~; and any other electric utility services required
for the operation of the I~ztw~rk, except as provided otherwise in a written agreement
s~gned by the Corporatioi~ and EarthLink. The obligations of EarthLink hereunder are
conditioned on EarthLink ~~btai~iing continuous electrical service in sufficient capacity
and qualit~~. If the Corporation ur EarthI,ink does not obtain from the Electric Utility an
a~reement to pr~~vide such ~lectrica] Service during the term of this Agreement,
EarthLink is entitled at ar~~~ tirr~~e prior to obtaining such an agreement to terminate this
Agreement ~nd dil obligations t~~ continue providing the implementation of Network
hereunder. EarthLink m~~~~ c~~ntinue to implement the Network without waiving this
~«ndition and the right to ;ermir~ate as provided above.
5 OTH~;R AUTHORI7ATIONS
The authorizations granted in this Agreement shall be non-exclusive and nothing
contained in this A~reement shalr be con5trued to limit, alter, or waive the right of the
C~tti~ or the Corporation to enter into agreernents authorizing persons or entities other than
EarthLink to access and use (~'itv Poles to anstall any form of communications equipment
or for any other pu~pose, e~cept as specificall_y set forth herein. Such authorizations by
th~ Ciry or the Coiporatior~ shall be made on a non-discriminatory and competitively
neutral basis, taking into ~~ccour~t mater~al differences in the circumstances of each
applicant for such a~.~tharizatic~n. Z~he City and the Corporation shall consider the value of
the free and disco~~nted ser~~~icew and the other benefits made available by EarthLink
par~uant to this A~reetnent. sf an~~, when ~ieternlining a competitively neutral amount to
Page 17
'l,1ib ;:arthl ina. Inc.
r;i~~~i ~ I/~(rl~r,
~.h,~rge others for ~he use ~~t~ Cit~~~ Poles. ~~ht Corporation shall give EarthLink prompt
~~ri~_~r v~ritte« nut~~~ «f an~~ appli~ati~~ns recei~ed by the City or the Corporation from
~~~tl~,crs requestin,~ p~n~~is~ic~~; to ~i~stall de~~ices similar to the C'ommunications Equipment
~-~~i~ ~he (`it~ ('~~les ~~, ~ P~-emi~es.
{~ COVDITIOi~1S
~~`r ~ C onditions of Perfornlancc;. Th~ obligat~ons of EarthLink hereunder shall be subject to,
and conditioned upon, thc fol(owin~ conditions ("Conditions"), without limitation or
eYClusion of an~~ ~ther conditi~7is or reyuirements described in this Agreement as being
ct~nditio-ls to EarthLink's obli~ations and~~or performance of this Ageement. The
f~~llowin~ C~ondit~ons musi be s~~tisfied prior to Closing:
6:= This _4greement, the Asset Purchase Agreement, the Franchise Agreement, the
Agreement heriveen ti}~ie ~`ity and tl~e Corporation and the City Guarantee have all
been appro~~d and fi,ll_y executed b~,~ all Parties by fully authorized representatives.
6. +._' All of the rec~uired authorities and governing bodies have approved this Agreement
and those co~ltemplaled by this Agceement by ordinance or otherwise authorizing
the C~rporation to enter into this Agreement and grant to EarthLink the rights to
use the City Poles and Cit} propem~ that are provided in this Agreement, and such
ordinance has becom~ law
6~ :.:j The applicab(e electnc providers have agreed they will furnish electricity service to
the Co~nmunications Equipment installed on City Poles, City property and other
locations w~ithin the Citv in a rr~anner that the Parties agree complies with
applicable laws and r4gulatrons.
6. i.-~ The owners ,~r authorized representatives of the poles, street lights, traffic lights,
and all associated support arms in the City that are not City Poles ("Not Owned
Poles") have granted Earthl,ink the right to attach the Communications Equipment
on Not Own~d Poles in a rnanner that the Parties agree complies with applicable
laws and re~tilations ~cnd upon commercially reasonable rates.
6. :~ The ~'orporation and zhe City have executed an agreement granting the Corporation
a]1 autharity and rights to grant EarthLink all rights, licenses, permits and
authorirations set forth in this Agreement.
f.? I'}~e obligations of EarthLink hereunder shall be subject to, and conditioned upon, the
following conditions ("C~nditions"), ~ithout limitation or exclusion of any other
t-onditions or requireme~~ts described in this Agreement as being conditions to
~arthLink's obligations and/or performance of this Agreement. If the following
;~~~nditions have not been satistied by a~iate that is one hundred and eighty (180) days
~-fter the F.ffective Date oF this Agreement, at any time thereafter EarthLink is entitled to
~er~minate this Agreement hy g~ving ten (10) days prior written notice, if the Conditions
i1~~ve not been satisfied h~~ the date th~~t n~~tice is sent by EarthLink, provided that
Page 18
?r;(;b ;~.arl'hl ~n~,.. M,c
~~;i"~:; ~ il2(ii F,
l~arthLink'~ operation. m,_i~nttnance or lip~ra~ie of the l~etwork or provision of Services
~~, ad~~erse[~~ im}~~rct~~3 in ~, mat:rial manner.
~~ -' ~ E:arthLink s1~a11 r~c~t !~~ pr~hibited from constructin~ and operating the Network, or
}~eriormin~ >ubstant~allv al( of tht ser~~ices or exet-cising substantially all of the
r~ghts set f«, th in ih~~, rlgrtement.
(~._' ' F:art}~L~nk's applicar~le ptrmits, licenses, and authorizations from the City, State,
and th~ feclecal ~o~~er-~~ment for the installation and operation of the Network have
not t~een tenllinated ~~~~ re~ ~~ked and are no longer subject to appeal.
6'~ The applicat~le electric providers have r~ot ternlinated or revoked electricity service
to the Comr~lunicati~~ns Fc~uipment installed on City Poles, City property or other
locations in the C'it~ in a manner E_hat the Parties agree complies with applicable
la~~~s and re~alations_
6'.-~ EarthL~ink is able to obtai~l signed leases for all of the towers and rooftop lease
sites to i~~stall all of the t~ackhaul antennae, radio and fiber optic and broadband
service necessary to ~~perate the Neiwork and such leases have not been revoked or
terminated.
6. ~_'. ~ EarthLink has obtaine~ all applicable permits, licenses, and authorizations from the
City_ State, and the federal government for the installation and operation of the
Network an~l such permits, licenses and authorizations have not been revoked or
terminated.
6.~.t~ The o~vners or authorized representatives of the Not Owned Poles have not
terminated or- revoked EarthLink's ~ight to attach the Communications Equipment
on Not Owned Poles.
'' NO PARTNERSHIP
Nothing contained herein shall be deemed or construed by the parties hereto or by any
thirc~ person to create the relationship of principal and agent, partnership, joint venture or
a-~y association bet«een the City and EarthLink.
8 T~IRD PARTY RIGHTS
The Corporation shall be responsible for identifying and notifying holders of third party
rights on designated City Poles of E.arthLink's use thereof.
9 D~PIJTE RESOLUTION
An~ dispute between the Parties or default by either Party which arises during the Term
of this Agreement and which the Parties cannot then resolve, shall be subject to the
following administrative remedy prior to <iny termination by either party of the other's
ri~hts of EarthLink or this A~reement for a Major Default:
Page l9
~hi,6 iarthl in!:. lnc.
,~~,~~ ~ ~/20r~~
i:ltemal_ Resolutton. ~3~~~ih I'<<rties sh~all attempt to r~solve any controversy claim,
a~~~robl~r~~. def~iult or dis~~~te r~~Dispute") arisin~ oi~t oi~, or related to, this Agreernent
t=irou,h ~o~~d ta~th consl~ltati~~ii in the _~rdinary course of business. In the event that
!~~spute 3~ !~ot r,~sol~~ed ht the project managers of each Party, either Party may upon
~-~~ i-itten n~~tice t~~~ the othtr reyuest tha~ the ~~~atter be reierred to senior managelr~ent
~~i~ficials ~~~~thin ,~ach re~.~~ect~~~~ organization ~ith express authority to resolve the
I>zspute ~"Rec~ue>t for Inttirnal Resolliti~~n"). ,A w~rittzn ReqLiest for Internal Resoh~tion
t{~all be ~~~~~e~1 h~, eithcr P:~rty ~.~~ithin thi~-ty (~0) calendar days of the Parties' knowledge
c~t the ~uiresol~~e~l Dispute. Se~~ior management officials shall meet or confer at least
~~~d~ce in ~ooci 1i,ith, to ~~e~~?~ate a il7utually acceptable resolution within ten (10)
f~~_~siness ~iay~s ~,~~ the Recr~ues~ tor [ntenlal Resolution. Project managers and senior
~~~ia~la~ement toi ~~acll Party shall be the Geileral Market Manager and Vice President,
'~iunicipal 1~1et~~~orks re~~E~ect!~:ely, fo~- EarthLink, and the Corporation's Project
~'11anager ~;nd thc {"o~poratic~i~'; chief executive officer or designee respectively, far the
C~orporati«n, an~3 their res~?ecti~~e successors in office. The project managers and senior
i~~~anagerr~e~~t ma~ be chan~,ed hv notice ~;iven by the Party changing its personnel.
`> :' I~otice. Senior n~anagem~:nt ofticials are required to meet only once, but may mutually
a:;ree to meet ~1~ore thar~ once if it appears that further meetings may successfully
rc~solve the Dispute. If tf~e Parties do not successfully resolve the Dispute by senior
i~ianagement, the~1 the Party fir~ding the seniar management resolution unsatisfactory
s}~all provide wntten notice to the other Party, demanding mediation ("Request for
'~(ediation"). The Request for Mediation may not be given prior to the first meeting of
senior managen»nt, c~r fifleen (15) business days after the request for Internal
Resolution, whicl~ever is earlrer, and shall not be given any later than ninety (90)
crilendar davs foliowing the completion of the first senior management meeting. The
Request tor Mediation shall set forth all of the issues that Party deems outstanding that
ntust be submitte~i to med~ation, The Party in receipt of the Request for Mediation shall
respond within t~~ent_y (2t~} business days listing any ~ssues it deems appropriate for
s~~bmissior, to the Mediator. All of the requirements of Dispute Resolution and
!~lediation as de~cribed ~~~ this Articl~~ 9 shall be referred to collectively as the
`Kesolution Pracc:dures'"
~~-3 N(ediation. Any C>isputes shall be mediated in Corpus Christi within sixty (60) calendar
~ays of the date o~z the written Request f~~r Mediation, or the soonest date thereafter that
the mediator is a~~~ailable~ except those for which the remedy requested is injunetive
,-elief or other equitable re~riedies shall be mediated within ten (10) business days.
}.4 'Vlediator. Mediatc~rs shouid not have any employment, engagement or other interest in
~ither Part~~ and ii~the Parties cannot agree upon the mediatars within five (5) business
4l<~ys, the mediators shall he appointed by the local office of the American Arbitration
~;sociation ser~~i-~g the C~~rpus C'hristi area upon request of either Party.
~-~ Costs, The costs ~~f inediation shall be bc~rne by the Parties equally.
~3.6 C~~ndition Precedent to Termination of BarthLink's Ri~ Prior to the expiration of
~ht: Tern~. the ri~hts of a part~~ 1o this flgreement shall not be terminated by the one
Page 20
, ?t~l~b t'arthl in;;. Mc
;~,~~,~,~ 112(!i'~',
~'artti~ ~~~~thout thc~ prior ~~~=-}tten t~onsent signeci on paper by the other party unless a court
~~!~ compctent jur.sdictioi; has urdered tllat: (a) a Major Default (as defined in Section
~ 1.31 of tl~i~ A,r:~ement Itas hccn committecl a~1d was not cured within the time periods
~.~t f~rtl~~ i~~~rein anel ~h) ~he t~~rminatiii~ party has properly exercised its termination
~~~~~hts in accorda;lee ~~~itl~ this .~\greement and in accordance with applicable law. Full
:~.:~mpletioTt c~1~~ al~ ol~ the Resu}t~tion Pr~~cedures that EarthLink or the Corparation has
~~Tnel~~ r~c~uestecl ;n the ti;ne ~:~ruvided under~ this .Article is a condition precedent to the
~~~~~e part~~ ~~~~7nin~~tin~ thc right~ of the o~her or ti(ing suit tc terminate this Agreement ar
t~ie ri~Ilts E_~f~ th~ other ;?art~~~ =~ereundc~r. ~~nless the other party has agreed to such
~~~rmi~latioi7 m~i signed ~~~aper ~~~riting One party is not entitled to terminate this
'~greement or tl~;e ri~ht~ of t11e other party }~ereunder until all of the Resolution
Procedure~ that E arthLi~~k. or the Corporation has timely requested have been completed
z3~ld tlle ~<~~irt ha; ordere~~ as E~rovided in subsections (a} and (b) of this Section 9.6
~~~ove_ In the e.~ent of~ ii~igati~~n arising out of any dispute or default related to this
-~greement. the i'arties shall ~ach pay their respective attorneys fees, expert witness
c~>sts and cc~st of ~,uit, reg~xrdles~ of the outcome of the litigation.
10 ~SSIGNMENTS
Thc Corporation shall not assign this Agi-eement, or any portion of it, without the prior
~~°r~tten permission of EarthLink, which shall not be unreasonably withheld or delayed.
l~otwithstanding the foregoing, the Corporation may assign this Agreement, or any
portion of it, to the City ar another entity created by the City or the Corporation, provided
any assignment of this Agreement in part wil] require EarthLink's priar written consent.
EarthLink shall not assign this A~reement, or any portion of it, without the prior written
perrnission of~ the ~'orporation, which shall not be unreasonably withheld or delayed.
Notwithstanding the foregoiiig, EarthLink can assign this Agreement pursuant to the sale
oi' all ar substantially all of the assets or stock of EarthLink or pursuant to the sale of all
o! ~ubstantially a14 of the assets or operations of the division of EarthLink that is
operating the l~tetw+~rk. EarthLink may enter into one or more agreements for installation
ot~ ~ommunications Equiprnent, operation of the Network, or both with one or more
erlt~ties. Commumcations ~quipment may be leased by EarthLink and/or be subject to
sec~irity interests ai vendor~; or lenders, and the Corparation shall have no rights in or to
(~~~oi~7munications Equipmem. EarthLink tnay assign, mortgage, pledge, hypothecate or
otherwise transfer .vithout c onsent its interest in this Agreement to any financing entity,
o~~ ~gent on behalf ~~f any fi~~ancing entity to secure loans to EarthLink. In the event that
ihe business divis~on of r~arthLink tha? is operating the Netwark transfers all or
sub~tantially all ~I~ the assets related tc the business division of EarthLink that is
operating the '~Ien~~ork to ~~ third party, F,arthLink will transfer this Agreement to such
thir:i party as well EarthLi:~k shall not assign or purport to assign, encumber or purport
2~~ ~~ncumb~;r (except as ex~resslv permitted by this Agreement), any property of the
C"4>>poration ~r the ('itv.
Page 21
. ~,~n(, ~:arth:.;i~;;. }nc-
~rr~ r~n ' 1i2(,~~6
1 I CEIZ~'l, RI+:NF:VV.~I._ AND T~ERIVIINATI(IN
' R 1 l~,ffect~~~c; ~)ate a~~ed ~Tern~_ Tl~i~ .~~reem;.nt shall become effective on the Effective Date
t:nd sha(1 ~~~»itin~,~ in eff~et:t f~~~~ ten ( IO) years after the Effective Date (collectively with
}~ti.ene~~ als ~1 ern~s _`T~17i~~~ ~
? 1 2 [:ene~~~al. Upon the en~~ ol~ the tirst ~en ( 10) years of tlle Term, the Tern1 may be
r::~~ew~ed f~r twro (2) succtssirt: five (tii year per-iods of time upon twelve (12) months
~~r~or ~~ s-itten not;ce by F~rthLink to the Corporation, provided that EarthLink has not
r~~~mnlitteci a Ma;or Defat~lt un~let~ this ~greement that is continuing during the six (6)
i.~ontlls pr~or to ~rny 1-ene~~-~1 ternl, and after such two (2) five (5) yearrenewal terms the
}~ti~rties i7~~a~~ exte~~:~ the Tc~rm ~~r~ a written m~itual agreement signed on paper ("Renewal
! ~rm;" ~
i. 1 3 :~~Ta~jor Default. [n the ~~vent that EarthLink fails to pay undisputed sums due and
payable tlereunder ("Monetary llefault"~~n within thirty (30) days after a default notice of
r~~~~ripaymerit is ._ielivere~i to EarthLink then the Corporation may terminate this
~~~-eement upor7 providing EarthLink sixty (60) days prior written notice of the
( orporation's intent to terniinaCe this Agreement. If EarthLink pays the sum or disputes
tl~~e amount. due, within such sixty (60) day period, then such termination notice shall
nut be ettective and this Agreement ~~ill not terminate. In the event that EarthLink
cs.:rmmits a Major Default hereunder that is not a Monetary Default and does not cure
s~ich Major Default withiT~ ninet_y (90) clays after a default notice describing the Major
C~efault is deliveled to EarthLink then ~he Corporation may terminate this Agreement
upon prov~ding EarthLink ~ixtv (60) days prior written notice of the Corporation's intent
tc~ terminate this Agreement. tf EarthLink cures the Major Default, within such sixty
{t,~J) day period, ,uch tern~iinati~n notice shall not be effective and this Agreement will
n~.,t tern~inate. tit'hen use~.i hei-ein "Major Default" shall mean that EarthLink has
~~ 3olated an obligation under this Agreement, xhat is not a Monetary Default, that has
rc~sulted in actual direct damages to the Corporation and City (expressly not including
~amages ui an} other tlurd }~arties) in excess of $100,000.00 that has not been
r~•imbuz-seci by EarthLink _~r bti insurance proceeds of some Party. If there is a dispute
::~ ~7icernin~ whettjer a Mo~~etarti Default exists or whether EarthLink has committed a
~~lajor Default then in either case this A~;reeinent, the Term and the rights of EarthLink
sl~all not :~t terniinated ~ntil a court of eompetent jurisdiction has ordered that a
~tilonetary Defaui~_ has oc~urr~~d and continued past all applicable notice and cure
p~~riods or that I~arthLink has eommitted a Major Default that has continued past all
a~~plicable notice and c~~re periods, as applicable, and EarthLink has not paid such sums
~c, cure the Monetary Deiault ~~r cured ~he Major Default, as applicable, within thirty
t:x~)) days after su~ h order ~~as been signed and issued by such court.
l~.~ R~moval Obl_i~a_ti~ns. Ear-tllLink, at its own expense, shall remove the Communications
Et~uipment from the Cit~~ Poles within twelve (12) months of the expiration or
te~~nination of this Agreement, ~~nd repa~r any resulting damage to Corporation ar City
tac~ilities thc exte.~t cause~ by EarthLink or its contractors, reasonable wear and tear
v:~cepted. It Eart~~Link fails to ~-emove ihe Communications Equipment from the City
P~rles witl~in that sime penod, ihe Corporation ma_y re~nove any of the Communications
F'age ?2
,a~~~t; ?,arth~ n~a. Inc.
~,~. I(2i< <
t-quipment s~:~ r~~main~n~~ ancl ~hall be re~mbursed for the equipment and labor costs
~~~;tuall~~ ir2currc~l in connLeti~~n with remo~~in~ the Comtnunications Equipment within
tr~i~rty (;E~1 ~_la~.°s ~~~f return?r~g ~.u.~h Com~~nunicatior~s Equipment to EarthLink or making
ti~~ch C'~~nui~~linic<<tions Ey~iip~i~ent a~ ailablr ~o EarthLink for pickup at a safe storage
1,~c~lit~ l~~iil~in th~ Cit~. li~;~its.
~ 1~ ( o oration Delault I-~ th~ event ~h~ C'orporation violates any of its material
----- -
~~hligations here~lnder ("+;'or}~oration Default") and does not cure such Corparation
[~~efatilt ~~ithin n;net~~ (9~!i da~~~ after a default notice is delivered to the Corporation
tl~en EarthLink s~lall be ~~ntitle~i, after exhausting the dispute escalation and resolution
E~rocess in Section t). to: :.i) tcril~inate tilis A~reement upon providing the Corporation
ttn (10) c1a~.s pr~r~~r ~~ritte~z notice of the EarthLink's intent to terminate this Agreement;
a~idloe (ii) eYerc~~e all oth~r re~~~edies a~~ailable at law or in equity.
' 1 6 I ermination of Citv Poles and Other Assets. In addition to any termination rights
~ranted hereunder to EarthLink, EarthLink, and subject to its Anchor Tenancy
commirn~~ei~t ~n >ection :~1.9 ~rld the l~ackhaul commitment in Section 3.7 of this
Agreement, shall be entitled to terminat:e this Agreement with respect to any or all of
tl~e City Poles in the Net~~ork, any or all of the Antennae or Co-located Devices in the
Premises and/or ~iny or all of the Backhaul Services and the sums owed hereunder for
[nstalled City Poles, Premises and/or Backhaul Services, as applicable, shall be reduced
proportionately a5 of the effective date of such termination. In such case EarthLink
sha11 disconnect and rerr~ove trom the Installed City Poles that are terminated the
C ommunications Equipment, the Antennae and Co-located Devices from the Premises
andlor the backhaul connections, within twelve (12) months thereafter or the
C_~c~rporation will be entitled to remove them as described above.
12 NOTICE
l?.l Addresses. Except as otl~erw~~se set forth herein, all notices given or which may be
given pursuant to this Agr-eement must be in writing and transmitted by (i) facsimile
and, on the same day, first class United States mail or (ii) nationally recognized over
mght delivery ser-ti ice postage pre-paid as follows:
To the Corporation at CC Digital Community Development Corporation
1201 Leopard
Corpus Christi, Texas 78401
Attention: President
Facsimile: 361-826-3239
With a cop~ to: City;~ttorney
1201 Leopard
Corpl-s Christi, Texas 78402
Facsimile: 361-826-3239
Page 23
zuuh F~ci,~ ~~~, ~~~.
~, ~~, ~~<„~ ~~ vzo~,~,
anci to Ear13~Link at_ EarthLink, Inc.
137~ Peachtree Street, Level A
Atlanta, Georgia 30~09
Atteiition: General Counsel
Facsimile: 404-287-=~905
With a cop~ to: Eartl~~Link, Inc.
1~ 75 Peachtree Street, Level A
Atla»ta, Ueorgia 30309
Atterition: President, Municipal Wireless
Eacs~mile: 404-892-7616
Either Part~ may change its addre~s b_y written notice to the other Party. Notice
mav also bt provideci to such other address as either Party may from time to time
designate in ~~vriting
: 2.2 Effeetive Date of_Notice. Notic~ shall be deemed received on the next business day if it
i~ sent by facsimile and first class mail, or the date of delivery or refusal of delivery if it
is sent by over ni~ht detiv~~ry service.
13 INSURANCE
13. I~eneral Insurance Requirements EarthLink shall, at its sole cost and expense, procure and
mainta~n in full force and effect, ::overing risks associated with the construction, installation,
placernent, operation, maintenance. use, renewal, replacement, relocation, repair and removal of
C'omrr~unications Equipment placed or to be placed on City property or in the public rights-of-
way, tl~e types and minimum limits +~f liability insurance specified below. All insurance shall be
procur+cd from insurers (i) licensed and authorized to write insurance in Texas, (ii) acceptable to
the Carparation's Risk Manager, wiiich acceptance will not be unreasonably withheld or delayed,
and (iii) w~th an A.M. Best rating ~~f A-V[I or higher, unless agreed otherwise in writing by the
(:.orpo~atlon's Risk 'Vianager. All ~nsurance requ~red herein shall be written on an "occurrence"
hasis, or if any policy is wr?tten on .~ claims made basis, the retroactive date may not be advanced
heyond the date of this agreement and coverage shall be maintained in full force and effect for
tw~ (2) vears after termination of this Agreement, which coverage may be in the form of tail
eoverage or extended repc~rting p~~riod coverage if agreed by the parties. The certificate of
insurar~ce shall provide for at least thirt~~ (30) days prior written notice to be given to President,
C'C" Di~ital Communit_y De~~elopmeE7t Corporation, P.O. Box 9277, Corpus Christi, Texas 78469-
t~27? in thc event covera~e is cancelle~i or non-~~renewed. In the event coverage is materially
chang~i, EarthLink or its insurer shall pr<~vide at least thirty (30) days prior written notice to the
t'orporat~o~7.
13.? Additional lnsureds. Earthi:~nk shall require that the Corporation and City, and their
respect~ve ~offcers, directors, and zmployees, shall be named as additional insureds on each
insurar~ce policy r-equired of EarthLink by this Agreement, except policies for Workers'
(-~omp~sat~on, and on am~ insural7ce ~~arthLink requires of any person, agent , or employee
~ngaged ~~r employed in ahout or u~on tl~e work by, at the instance of, or with the approval or
Page 24
~ ,~~un .:~tni ~~~~~,_ in~_
~,:_,:_,~: ti2oi~~:
_o~r~ent ,~~ EarthL~nk. as rtspects t~u~ ar~~;, omissi~ms, operations and activities of, or on behalf of,
tl~e ~;dditi~>~ial ins~~rc~3. ~n r~gard to Err~~cl~i~ts supplie~l, or ~~~ork or services performed for, or under
ar; a,reem~~nt ~~~itl~~ 11,e (`orE~oratior~G
1:'_ ~ C'trtificate ot~ (nsurance. ~~~w-rtifi~~ate ~f ~~is~n-ance shall be provided to the Cozporation's
R~sk Man~ager. ~~ set fortl~ belo~~ ~l~at ~: idences the coverage afforded the Corporation and the
~_'zt~~ an~? their ofiicers an~.~ einplo~,~ees. _i; additional insureds for the negligence of EarthLink.
~I'h~ certiiicate of insurance shall stat~_~ that su<:h coverage wil) be primary to any coverage
a~ailable tc~ Chem and w~ill ~~e nonc~~ntril-~E~torv.
i;~.4 TvUes and Minimum Liinits ~~f lnsurance. EarthLink shall furnish the following types and
.~~~n~mui~~ limits of insuran~e:
l~~4 1 Wc~rkers' Compensation an~i ~_n~~loyers' Liabilitv Insurance.
( 1) Workers' Compensatioi7: 7~~~> meet Texas statutory requirements.
(_') Emplo_yers' l,iability $~t?0,000 each Accident Bodily Injury by Accident;
~St)0,000 Each Employee Bodii~,~ Injury by Disease; and $500,000 Policy Limit Bodily
Inj ury by Disease.
? 3.4.2 Commercial General Liabillty_Insurance
(1) Limit of liability: The Commercial General Liability Insurance Policy in an amount
not less than One Million I)ollar~ ($1,000,000) per occurrence, and Ten Million Dollars
(~10,000,000) Umbrella or }~xcess Liability coverage.
13.4=3 Commercial Automabile Liability Insurance.
(1 } Limit of liability: One Million Dollars ($1,000,000) per occurrence combined single
limit for bodily injury (including death) and property damage liability, provided this
coverage may be maintainecl by EarthLink combining primary and excess policies to meet
these requirements.
(~) Coverage; Owned, non-owned and hired vehicles.
13 4.~ Reduction in Requirement~. The Corporation's Risk Manager is hereby authorized to
reduce the requirements set forth herein in the event he determines that such reduction is in the
C'orporation's best interest_
( 3 4.~ Evidence of' Insurance Co~ era~e. Prior to commencing any work under an agreement
with tl~e Corporation or accessing or using any City property, EarthLink shall deliver to the
t'orporation certificates of insurance e~idencing the required coverages and additional insureds,
whicll tnust: specifically re~-erence ~n the description sections of the certificates such agreement
betwee~ the Corporation arid E.arthl.ink and this Agreement. Qriginal certificates of insurance
must be submitted tc~ the Curporation at the following address:
CC Digital Commli2iity Dev~_(opment Corporat~ion
c.~`~ President
P. C3. Box 9277
C~rpus Christi, Text~s 7FS46~~-92~~'
Yage 25
~~ 2UUU 6aithl.in;.. [nc.
~~rs~~~m ' I12rin(,
~~7r ~tiler a~ldress as ti~e C'urporatior ma~ desi~nat~~ i~l ~~~riting. The Corporation reserves the right
'c7 ii~spect ~.~n the citt oi~ E,~rthLink copl~, of poli~~ies of all insurance required in this Section 13,
~~t~~l ~o reqsure E:arthLink ~~::r deman~f th~it its auth~~riz~d insurance representatives furnish written
f~e~;p~~ns~s ~o all inytt~rits ~~~ade hv ~)le (~~c~~rporation pertaining to the insurance required under this
a:,rcemc~r~! at a~n time u~~on ten f 10) ~1~i~~s ~~~ritt~~n notice by the Corporation to such insurance
~~e~~rt~sen!a~ives_ .~~ls«, in ~`~e ~~~ent that i:1 a clain~ i~ tiled against the Corporation ar the City, or
~heia offi~rrs, empl~>~~ees. :~gents, c~~ representati~ ~s, for which the C'orporation believes, in good
?aEth th~~rc mav bc co~~era~~e ~~nde~ an ir~surance policy i-equired by this Agreement, and (ii) the
~'~~~-~orati~n has ten~iered ~uch clain~ tc~ the insur~~r that issued such policy, and (iii) such insurer
~1a4 ~7ot <~~reed, w~tltin nir7et~° (901 ~iavs, io co~~ei~ such claim, including defense and indemnity,
~-~~~t~uut ~~e~ervatio~~. then ~l~e Cc~rp~~rat~~~ri has th~~ i-ight to demand of EarthLink, and to receive
~~rrth;n thirr~-~ (3t)1 da~,s. a ~;,py of s~~~~~h iE~surance policd.
} 3.4.6 Se1t=Insurance. Th~ Corporation'~ Risk Nlanager may accept a plan of self-insurance as a
substitutc ror such insurance, if the Risk '~lanager determines that such self-insurance adequately
pr~~tects the Corporation, the City, and the publiL. In the event that EarthLink desires to self-
insure airy of the coverages listed above, it shall submit to the Risk Manager a certified copy of
EarthLink's most recent audited financial statement, and such other evidence of its qualifications
7~~ act a< <3 self-insurer (e.g., state approval of' self-insurance for workers compensation and
aut~inob7le liability or, for self-insurance of general liability, a confirming letter from a corporate
risk rnanager ar other corporate officerl as may be requested by the Risk Manager. In the event
~ueh approval is granted, it is understoad and agreed that the Corporation and the City, their
~~fticers, and employees shall be entitled to receive the same coverages and benefits under
":arthLink'; self-insuranc~~ program that they~ would have received had the insurance
rec~uirements been satisfiec~ by an insurance camer with an A.M. Best rating of A-VII which is
authorized to do business an a direct~ basis in the State of Texas or which is otherwise acceptable
tn the Ct~rporation. If EarthLink self ~insures its workers' compensation coverage, EarthLink
mav_ in lie~~ of the foregoing, furnish to the Risk Manager a current copy of the state certification
t~or-rn for self-insurance c~=~ a current copy of the ~State Insurance Commissioner's letter of
apprc~val. tivhichever ls ap~ropriate The insl~rance ( including self-insurance) requirements set
~orth hereirl are not intended ant~ shal( not be construed to modify, limit, or reduce the
indemnificakions made by EarthLir~k tc~ the Corp~~rat~on or the City pursuant to any agreement
?~ncl~udin~, without fimitation, this ~greement) entered into by EarthLink and the Corpararion or
~he City. or to limit F~arthL~nk's liabilit~ under such indemnification to the limits of the policies
{.~f insurancc; (or self-insurance) reqt.ired to maintarned by EarthLink hereunder.
14 WA1~'ER AND REMEDIES
Failure of either Parry to enforce any provi~ion of this Agreement or the waiver thereof in
a~~y instance shall r;ot be cc~nstrued as a general waiver or relinquishment on its part of
any such pro~~ision hut the same .shall nevertheless be and remain in full force and effect.
The remedies expressly prc~vided in this A~reement shall be in addition to any other
remedies available ift law or ir~ ec~~city.
~U06 iartLl ir~., Inc.
,t~~3~ ~ I12~1~~r~,
Page 26
.. . ~ . ~ . a, ~
l~ FONCE ~1AJEURI~.
l~h~_~ tim~ t<~r perli~~rmance h~~ [i~e Co~por-ation or EarthLink of any term, provision, or
~~~~~ enant of~ 1(~is A~ree~~~en~, ex~ept for th~~ pa~~ment of rent, shall be deemed extended by
t~i~~oe lost duc tc~ ciclays res~~ltin~ from ac~.s «f~ God. acts of terrorism, strikes, civil riots,
iaot~ds, material or labor rc~tricti~ms by ~~~1~eiz~mental autharity, and any other cause not
~<~~tl~in the =-eason~~ble control ~~t the C'~_~rporation or EarthLink, as the case mav be
<<.~c~llect~ve~~~. "Forci Majeu~-~ E~er~ts"). ~
16 TITLE AND QUIE'I ENJOY~V[F:NT
Suhjeet to the express ri~l~ts ot~ the Corpor-ation in this Agreement, the Corporation
«ai-rants that EarthLink shall have quiet ei~joyment of the Installed City Poles designated
bv FartliLink du1-iog the T~=rm for the C'~muniinications Equipment, quiet enjoyment of
the Premises and y~iiet enjo~ment of the F3ackhaul Services. The Corporation represents
a~~c1 warrants that: E a) the (~orporation and ti~e individuals executing this Agreement are
authorizeci to grant to EarthLink all of the rights granted herein; (b) all necessary and
appropriate authori.cations and approvals have been obtained by the Corporation and the
individuals ~signin~. this A~reement; (c) as of the Effective Date, there is not any
r~~gulation, ordinarn~e or la« known to the Corporation that would permit the Corporation
or the City to terminate this ~geement except as is expressly stated herein; and (d) as of
the Effective Date, this Agreement does not conflict with or violate any other agreement,
r~ gulation, ordinanc,e or law that is binding upon the Corporation or the City to the
knowledge of the C: orporatiun. EarthLink represents and warrants that: (a) EarthLink and
the individuals executing th~s Agreement ~ire authorized to grant to the Corporation all of
the rights granted herein; (h i all riecessan~ and appropriate authorizations and approvals
ha~ e been obtained by EarthLink and the individuals signing this Agreement; (c} as of the
E ffe~ctive Date, ther-e is nol anv regulation, ordinance or law known to EarthLink that
~~or~ld perniit Earthl,ink to rerminate this ;~greement except as is expressly stated herein;
and (d) as ot' the ~:ffective Date, this Agreeinent does not violate any other agreement,
regulation, or la~v t1~at is bindin~ upon EarthLink to the knowledge of EarthLink.
17 PART[ES BEAR THEIR OWN COSTS
E.KCept as expressl~ set forth herein, each Party shall pay their own costs of performing
hereunder. This agreement and the Ea_hibits state the only charges and sums that
EarthLink is required to pati~ duriug the Term for installation, attachment, maintenance,
a~;d use of the City ~'oles, the Premises and the Backhaul Services and Electrical Services,
a~~d state the only t:harges arid sums that the Corporation is required to pay during the
tern7 for the sen~ices set forth on Exhibit A under this Agreement. EarthLink shall not
o~ve the Corporatiori or the (`ity for any se~vices of City or Corporation employees unless
the ;ervices descriptions ancl char~es are mutually agreed upon in writing by EarthLink or
otlleru%ise ordered an behalf of EarthLink through any electronic ardering process made
a~~a~lable b~~ the Colporatio~~, The Corporation will not owe EarthLink for any services
ur~less the ser~~ices descriptiuns a~id charges a--e mutually agreed upon in writing by the
C'orporation ~~r otht~rwise orciered on behalf of the Corporation through any electronic
or~ic~ring process made available l~~ EarthL~nk.
Page 27
,(!U~~ !:arthl m~~, h~ic
~,~ ,.~ 1%2~r .,
l~ I.II~~II"TATION OF I.IABI1.1 1'l~'
'`~t~fTHER I-~ARI~~HLINK 'VOR THE ('ORPORATIOI~ SHALL BE LIABLE FOR
IV~'fDEN"1-_~L, t~~.JNSEQI!E~il~[AL. PUNIT[VE, OR EXEMPLARY DAMAGES,
1?f CiARD[~ESS U}~ WHE-1 FIER IHEl' HAVE BEEN ADVISED OF, OR OTHERWISE
~HOULD H~~~r QEE:'~~ ~~VARF. OF~, THIF~ POSSIBILITY OF SUCH DAMAGES,
F~E Cr~RD[ t-~S (~~= THE: I.EGAL THEORI~ OR BASIS FOR SUCH CLAIM. The
['arties expr~~sly~ a~ree thaa neither Earth(_ink nor the C~rparation and the City shall be
l~ahle fur c3irect da~l~ages i~~ an ~mo~mt ii~ ex~ess of the amounts received by EarthLink
~~~ c~~~~ the t=~or~~orati.~n and s~lbscr-~bers fior the Netwrork during the immediately preceding
t.vt~fve t I~ i~nontl~~., except For ~iama~es ~,aused bv loss of life, bodily injury, or damage
t~ ~~ z~ropert~
19 ~O V~`ARRANTIES
[ HE ONL~' w~RRAN 1'lES CONCERNING ~I'HE MUNICIPAL SERVICES,
NE rWORK AND OTH:ER DELI`'ERABLES PROVIDED UNDER THIS
AGREEMENT ARE THOSE CONTAINED HEREIN, AND ARE MADE FOR THE
BENEFIT OF TI-~E CORPCaRAT10N ONLY IN LIEU OF ALL OTHER WARRANTIES
~I~D REPRESEl~'~I'ATIONS, FXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, A~TY IMPLIED WARRANTIES OF MERCHANTABILITY AND
FI7~NESS FOR A PARTICLit,f1R PURPOSE, TITLE, NON-INFRINGEMENT OR
(:~THERWIS~. EARTHLP,~1K ALSO SPECIFICALLY DISCLAIMS ANY
`'~'ARRANTIES <)R REPRESENTATiONS RELATED TO THE INTERNET;
SE('URITY-RELA I'ED FF:AT[JRES OF THE NETWORK AND/OR MUNICIPAL
SERVICES. EARTHLINK DOES NOT GUARANTEE COMPLETE SECURITY VIA
THE P~ITERNET OR ~'HE NETWORK OR MUNICII'AL SERVICES AND
EARTHLINK SHALL NOT B~: I,IABLE FOR BREACHES OF SUCH SECURITY OR
A 1~ ~' OTHER RF LATED W~RRANT [ES, EITHER EXPRESSED OR IMPLIED,
IN(`LUDING W(THOli7 LIMITATION, INTERNET FUNCTION AND/OR
PEEZFORMANCE VVARRANTIES. EARTHLINK SHALL HAVE NO LIABILITY FOR
"f~HE CONDUCT (>F SUB~CRIBERS US[NG OR ACCESSING THE NETWORK OR
1~1L'~NICIP~L SER~~ICES.
7~HE ONl_~" w'ARRANTIES ('ONCER'V[NG THE SERVICES, FACILITIES AND
OTl-~ER DE1.IVERABLES PRQVIDED BY THE CORPORATION UNDER THIS
.~~GREEMENT ARE THOSE CONTAINED HEREIN, AND ARE MADE FOR THE
BENEFIT OF EARTHLINK ONLY 1N I.IEU OF ALL OTHER WARRANTIES AND
RE~pRESEN"TATIONS, EXPRESS OR IMPL[ED, INCLUDING, BUT NOT LIMITED
7~:J ANY IMPLIED WARI~ANTIES OF MERCHANTABILITY AND FITNESS FOR
A F'ARTI(:'~'I:AR PURPOSF., Tl~'LE, vON-INFRINGEMENT OR OTHERWISE. THE
C`ORPORAT(ON ~LSO 5PEC7FICALL Y DISCLAIMS ANY WARRANTIES OR
REPRESEN'i~ATIUNS R~LAT'ED TO THE 1NTERNET; SECURITY-RELATED
F~::~~TURF,S OF THE NE'~`WORK AND!OR INTENET SERVICES PROVIDED BY
THF: CORPORA"~~[ON. 'I'Ht= CORPORATION DOES NOT GUARANTEE
C`OYTPLETF SECIJRIT~~ VI.a THE INTERNET OR THE NETWORK OR
'~![ ~'~IIC[PAI_ SER~~'ICE~ ~ND ~I~HE COkPOR.ATION SHALL NOT BE LIABLE FOR
I'age 28
,,;;~~, ~;a~t;,: ,~ ~ in~
,_~ ~., ,;,i ~„~..
FiR.f~.A('HE~ OF ~UC'H ~E;C~~ IZ1TY C)IZ ANY OTHER RELATED WARRANTIES,
!~~I~a~HEK E?~PREtiSED i~R Iti1PLlEL:~. t'vCLUDING WITHOUT L[MITATION,
I~';~ER'~F~~[~ FLJ'~C~7'ION A'~`DiOR PERFORMANt'E WARRANTIES. THE
i~( tRP(~R.~~~i.~10'~I SI-~fALI H~~"~~ E v(i LC.~BILITY FC)R THE CONDUCT OF
~t (3SCR[BERS ~.~xfZ O"1'HE~R~ E~~S1NG OR ACCESSING THE NETWORK OR [TS
`E-tl~'1t'Fti
20 CONFIDF:NTIAIII~~'Y
?t) 1 ~1 ~.~ th~ extent perrnitted hv appiicable law the Corporation will not disclose any of the
(~~~nfidential Information ~~f EarthLink during the Term and for a period of three (3)
~~_~ars after the Te;-m ends "Cc~nfidential Information" of EarthLink means the business
p!ans. finaricial :nformat~on and technical information about the Network and the
customers of EarrhLink and its vendors that are confidential or otherwise trade secrets
in~der applicable law The Corporation~s obligation not to disclose the trade secrets of
FarthLink ~~ill cc~ntinue t~~r as long as the_y remain trade secrets under applicable law.
Should the City ~~r Corparation receive a request under the Texas Public Information
.~ct for infiormation that inav be Confidential Information of Purchaser, the City or
( orporat~oi? will refer the request to the Texas Attorney General, and will provide a
r~~py of the reyuest and referra( to Purchaser so that Purchaser may raise its appropriate
legal defenses to disclosure. EarthLink is referred to the current edition of the Public
Inforniation Act Handbook puhlished b~~ the Attorney General of Texas for background
i~~forn~ation_
21 REASONABLE TRF.ATMENT
Notwithstanding anything to the contrary, the Corporation agrees not to withhold
unreasonably or delay any approvals or other actions or approvals necessary ar
appropriate for EarthLink to eYercise the rights and to perform as permitted herein.
EarthLink shall be entitled t~ a reasonable extension of the time for performing any action
required of EarthLink under this Agreement if its failure to perform such action is caused
bv ~lnreasonable Corporation delay. The C'ity agrees that EarthLink will only be obligated
t~~ ~.omply w~th ordinances and ~~ther reyuirements of the City to the extent they are
applied in reasonahie and n~mdiscriminatory manner of general application.
22 '.V~ISCELLANEOUS
'2-1 Applicable Law and Vertt~e. Chis Agreement shall be governed by, construed and
enforced in accordance w~th the laws of the State in which the City is located, without
regard ta t}~e contlict c~f 1<iw pravisions thereof, and venue far disputes hereunder shall
b~ exclusiv~ly ir~ the Llnited States District Court far the Southern District of Texas,
Cc~rpus Christi Division, c~r in a Texas state court sitting in Nueces County.
'?,? Headin.~s. T'he heading r~ferences herein are for convenience purposes only, do not
c«nstitute ~~ part ctf this A~;reel~lent and shall not be deemed to limit or affect any of the
provisions l~ereof~
E'age 29
~~ ~v~.~, ~ ~~<<,~_~~~~~~. in~
~t,tr,~n ! 1/~,,~i(
:'? 3 Ente rateci_~)oc~iment. ~[ his ,A~~reemen~°. coi~stitutes the entire agreement between the
E'arties. F~:~~~~:pi as ~,et fi>rth here~n. there are no promises, representations or
~~nderst~in~hn~s h<~t~~een t?ie ~arlies of ar:~~ kind or nature whatsoever.
'::.' 4 =~mendn~ents. T'his ~~~reem•:nt ma~~ l~c amended from time to time only by
a~nendn~ents that ~~re ~~ rit~c~n an~i exec~rt~~d on paper by both Parties to this Agreement.
Z~~ S (~ounterparts. ~C}i~s A~ree~l~en< <~~ay be e~cecuted in duplicate counterparts, each ofwhich
sliall he ~iee~l~e~ ~~i~ origin,il.
'2 6 ~ ulq ~table Reliei~ Each Yarty agrees that any threatened or actual failure of the other
Party to comply ~vith its obligations hereunder may cause immediate irreparable harm to
tf~e non-~iefaultin~ Party tor ~~~hich there is no adequate remedy at law. Accordingly,
each Party ag--ee~ that the~ non-defaulting Party will be entitled to an order for specific
p~rformanc~~ and to in~wlctiv~e relief from a court of competent jurisdiction as remedy
f~~~r anv such threatened r~r actual default. Nothing in this Agreement will prevent or
pr~ohibit eithel- Party fron~ ~btaining an urder of specific performance and an injunction
fi-om a cot~rt of c~~mpetent jurisdiction re~quiring the defaulting Party to comply with the
provisions of thi~. Agreenaent. and not to take actions that violate its obligations under
this Agreement; ,~rovided, that such order shall not prevent EarthLink from operating
the Network and maintaining the Communications Equipment on the City Poles, except
on aecount of ex~~~iration uf the Term or in the event of termination in compliance with
this A~-ee~inent f3nd appli~able law for a Major Default after full completion of all
Resolution Procedures and a court order is issued as provided herein; and provided
fiirther that such order for specific performance and injunction shall not require either
Party tc~ pay oT- expend anv sums in excess of the liability limitation set forth herein.
:~2 7 Public Announcements. ~'he C'orporation agrees, subject to any public disclosure law
requiremznts, no~ to make puhlic statements, press releases, publications, or claims
ahout the Network's status, c~mpletion, future plans, performance ar pricing that
c~~nstitutes or includes provisions E-arthLink's Confidential Information. The
C orporation shall give EarthLink a reasc~nable opportunity to review and provide input
ar7 all written press releases praposed to be issued by the Corparation with respect to
the Network. Ear-~hLink ~,hall ~ive the ('orporation a reasonable opportunity to review
aE~d provide input on all ~~ritten press releases proposed to be issued by EarthLink that
is primarily regarding the i~letwork in Corpus Christi. The Corporation will not host or
arrange foi- visits to the facilitizs of EarihLink or its contractors without first obtaining
the prior v~ritten c°onsent o(~EarthLink.
'~'Z.8 Nlarketin~ S~port. The (`orporation sh~ll assist EarthLink in marketing subscriptions
tc= the Net~~~ork to the employees and contractors of the City and the Corporation and to
facilitate, ~ssist atld cooperate ~~~ith the marketing of EarthLink's services to citizens of
the City_ including, u-ithout linlitation, the marketing assistance described in Section
2 I.l. During the first ~~.~~el~-c months after EarthLink's purchase of the Netwark
piirsuant to the Asset Pi~rchase Agreement, the Corporation and EarthLink will
participate in a ~~~int pubi~c information campaign to edueate the citizens of Corpus
Christi oi~ issues surrounciang rt~e transition of ownership of the Network. EarthLink
f'age 30
2;i~~G~ 1i81'tlii i-=K.lnc.
. „ ~- ° 1!~~ 1f.
~,~~ ill de~~elop th~~ ~ontent ~~~r tl~~ public awareness campaign, and will include a strategy
t~~ address hoth !!~e Net~~:~rk transition to ~~arthLink and the benefits of the EarthLink
~ervices ~[~he t~~rpc~rati~~n ~t.~iil pro~~id; inkind a numher of resources for this effort.
~' l~ese ~~~<<~~urce~ incluci~ . h~it are not limited to, ~a) public service information
~z~lno~mcements {~~~~n the ('i~~.-c~>ritrolled c:able channel regarding the Network, which will
l,~c coriip~u-able ~u slmil.~r ~~~~~.~emmen~° information announcements and subject to
~~pplicable ~a~~s <~nd rt~~ulations, (a) yuarterly mailings included in utility bills, (c) joint
c~iscussions ~~~~tl~ ~he Re<<i~.~~nal I 1-a~ISit A:_ithority a~ld the Tourist and Convention Bureau
la~r messa~in~ «r~ tlieir r~~~pect~~~e assets, including w~ithout limitation the convention
~~nter, (d; si~ n~~unths ~~~ placement ori Citv-owned billboards. The resources will be
a~~ailable :nkinc~ (and ~~~i?hout ~harge t~> EarthLink) for the first twelve months after
f arthLink's purcl~las~ r~f tl3e Network. ~fter this time, the Corporation and EarthLink
~~ ill negotiate pr<cin~ anrl pl;icement oi~ these resources as needed. The Corporation
ri~present and ~~~arrants +i ha~: all authoritv and approval required to provide these
r~sources ±or the~e pur7~o~~~s,
'2 9 No Third Part~__Beneficiaries. -I'his A~reement shall not create far, nor give to, any
third party any claim or a-ight of actiori against either Parties to this Agreement that
~~°ould not arise ii~ the absence of this Agreernent.
?~ 10 Successors. Thrs Agreement shall be binding on and inure to the benefit of the
s~zccessors and permitted assignees of the respective parties.
?2 11 Parties. The Co~poratio~i and EarthLink may be referred to herein individually as a
"Party", and collectively as the "Parties.'~
?2 12 Futwe Citv Networks. Because of the significant investment by EarthLink in the
present wireless Network, EarthLink desires the opportunity to provide additional
wrireless broadband services to the City and the Corporation. Therefore, if during the
Term of this A~reement~ the City or ihe Corporation desires from time to time to
consider additional wireiess [nternet protocol (IP) applications to serve municipal
aperations only (-`New S~rvices") then before the City or the Corporation enters with
any provider into any bids ar contract(s) related to such New Service, the Corporation
s11alL• (1) give EarthLink noticc of such desire to implement a New Service and provide
all relevant detaiis and ~inswer all reasonable questions of EarthLink; and (2) give
EarthLink the opportunit~ to propose solutions and terms that build on EarthLink's
Netwark. and (3 ) evaluat:,~ the modification/inclusion within this Agreement of the
EarthLink solut~f.~n(s) a: the preferred approach to meeting the City's or the
(~orporation's service delilery objective The Corporation is under no obligation to use
an EarthLink proposed sc~lution and retains the sole right to evaluate its offering with
other solutions. '~oh~-ithstandin~ the above, EarthLink is under no obligation to propose
or provide an EarthLink sc~lut~on and EarthLink retains the option to decide whether to
~ropose other solFltions.
??.13 Beta Testin~ Site EarthL ink ~~-~11 use the Network as its "test bed" site for government
and utility-relate~.l devic~~s a»~1 applications. EarthLink will cooperate with the
C~orporatiot~ to te~t other technalogies via the Network as mutually agreed upon. The
I'age 31
~ ~. :,~~~~, ~art~,i ~•,~. i»~
~~r~,.,~~ i~~~~~~,~~~ ~
(~orporati~,n ~z~ili coopera~e t~n~i make available to E.artllLink resources reasonably
r~~.~queste~l h~~ EarthLink Irom tilne to tim~ for a beta testing site for government and
k~lilit~-rciated deeti~ices ~tnta ap~~;ications ar~~1 other technologies, with cost sharing as
n~utuall~ ~~~reed .As a p~~~-~. ol~~his effort, the Coiporation will cooperate with EarthLink
t.~ e~~aluate ~o~~t~rnment _ind ;it~litv-rel~ited de~~ices and applications provided on an
t ~~~alua~ion i~asis
?Z 14 C1pen Access. Ir~ operatin~~ the ~etwork. Ear-thLink is comrnitted to using commercially
rt~asonable efforts to prc~~ide ..~ systen: on wi~ich third parties can provide services
e~labled bv the VetwoT-k that ~nay b~ competitive ~~~ith each other and EarthLinlc.
FarthLink~ ~vill i~iaintain :~ prc~~ram tc offer access to services on the Network to
n~ultiple unaffili~ited ser~ ~ce p~o~~iders to provide their own services via a Netwark,
subject to ~~easo~~able tecl~nica~ requirerr~ents established by EarthLink, provided the
f,~ilure ot arry th~r-d part}~~ ser~~~ce providers to offer services via the Netwark will not,
~iandin~ a[one, h~~ deeme~l a breach of this Agreement by EarthLink.
?? i5 lildemnitv by EarthLink: As respects bodily injury~, death, personal injury, ar third-
party property damage, FarthI,ink agrees to indemnify, defend with counsel to whom
(ity does not ha~~e reasor~able c~bjections, and hold harmless Corporation and the City,
its appointed and elected ~~fficials, officers, employees, agents, and representatives from
ar~d against any and all claims_ losses, damages, defense costs, or liability, of any kind
c~r nature teolleetively referrec! to hereiT~iafter as "Claims"), resulting from EarthLink's
(«r EarthLink's c~~ntractoa-~' or ~t~bcontractors', if any) work performed by, or on behalf
~1; EarthLink, reiative tc~ ?his Agreement, except to the extent those Claims that arise
o~zt of the negligence >r ~tillful misconduct of the Corporation and the City.
EarthLink~s obligations under this Section are conditioned upon: 1) that EarthLink shall
have been promptly inforned :~f an actl~al Claim or written notice of a potential Claim
a~1d shall have bzen furn~sheci a copy of each communication, notice or other action
r~lated to the alleged Cla~m, ?) that the City shall cooperate with EarthLink to provide
ii~iformation and assistanc~ necessary to defend or settle the suit or proceeding , and 3)
that EarthLink shall be g,ven ~~le control of the defense (including the right to select
eounsel), at its sole expei~se, and the sE~le right to compromise and settle any suit or
proceedin~, pro~-ided EartliLink will not compromise or settle any suit that admits the
liability of the C'~Aty with~~szt t1~e City's prior approval. EarthLink shall be responsible
fi~fr all attornev's fees and ~~th~r costs of defending against any alleged Claim, and shall
have the right t~~~ select ~,ourisel. The obligations set forth in this Indemnification
provision (~i} shala be in e=~l'ect wrthout regard to whether or not City, EarthLink, or any
acher person maintains, ~+3- fails to ma~ntain, insurance coverage, or a self-insurance
program. for an~ such Cl~t~ms; and (ii) shall survive the termination of this Agreement.
'~~othing herein shali p~~event EarthLink's insurer(s) from satisfying EarthLink's
oi~ligations under this Sec~ron
i'age 32
~`iii~, h~rtF.l.i~~k. Jnc
~,;~~~~• 1112~~~i~_
1?~I WITNESS ~VHEREOH, tf~e P<~rties ackno~~~ledge and accept the terms, conditions and
r~bli~~atic>»s of this ~~,reen~~ent as et iden~~ed bv tl~~e tollo~~ving si~nah~res of their duly authorized
ae~~r~-sentatives. ft i~ the ii~rent ~~f tF~e P~~rtics that thi~ A~reement shall become operative on the
~- I t~v~ ti~ ~ i?ate.
~`~:~ !~IGI"I AL C~~O'~1'V1LI "1TY I)E:~~ ELOPMEN~I~ C'(~RPORATION
EART'H1.[NK, IN('
~,.~ r; / .
>> ned: ~,~..,.,,,,~,.~~-= -
~_ _ ---
, ~1) ~
Name: .%~ ~ U ,; L ,`C. ~. ) ; -~~~ ._t
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, r: ,
Tltle: c--_~~~ - i~. Y ~i ~: ; ' ~-__ -/`y ~ ~_._
~3`~ned: f~
,
'vame: ~ , . , „ ,r' ~i~4:~f
_ ~ _____
~I`it1E°_ r
_ __-~t ~ ., t- ~,,. _ _ -- -
- 1
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Dat~ : ~ ~ ~ ~
~~~ ' ` "a
Date: ~, -_ 4,~ ~ . ~ ~,-
~ ~ ~ ' ~ ~ ~ ~ j /`t ~ ~~' ~ -= k ;'a ~? ~ l ~ Z `~ A17~'S7: ._.._..______- ~ -
`:~ l~,~j~. \ AU l hUi„L~.. "_'"'"
+4RMANDO CHqpp
_ .. i ~tiY SECRET,qF~y --"'°""
iY ~1tiYGlL ! ~~_t~~~_~_,_,_ } I Z ~' ~`` 7 .. .. ~.
~ ~~':
~......~
SF~E7A~
~'age ~ ~
~OOt, ~&rrhL~r~h. inc
er~~~,>>~~~ Ili?h,-~~
List of H;~hibits and Schedules
EYhibit~:
(-;~hibit ~~ Pav~nent an~~ Priciil~ for Municipal Services Provided by EarthLink to
~'ot ,~oration
r ~h~bit I3 ~pproved Communication°~ Ec~uipment
E~h~bit t' ('it~~ Poles T~rn~s and C'onclitions
E~I~~bit I) F~orm of Antennae Site Lic~;nse Agreement
Schedules:
Sclied~zle ~ .4 Init~al EarthLink Services
~chedule ~ .8 Co~ erage Map
Schedule _~.l List of Citv t~wned Poles
Schedule ?.6 List of Premises
Schedule ~~7 Description ~~f Fiher System
Page 3~t
_~(r{lt~ Eart!,I.i~;k. Inc
~~ cr~,~;~r ~~ ~~~~~~,
EXHIBI"I~ ~
Pavment and Pricing for ]~~lunicipal Services Provided by EarthLink to Corporation
1. Ancl~c-r TenantlNIunicipal Services. ~l-i~e ('orporation has elected to be an Anchar
'~~e«a~1t in ~_~•xchan~e 1or pa~~rnent ~~~~ an annual Minimum Ser~~ice Amount (the "MSA") equal to
'o~a~~ 4iun~fi-ed fiftv t~~ousantj clollar~ (~4~t),OOO.OU) for each t~velve (12j month period following
=i~~~° E ffeeti~~e Date, a~ desrribed in subsection Z._~ ot~ the Agreement. Payments during the first
Fi~t~r~e~ year~ of this Agl-eer~ient tha~ exceed the amount of~ Offered Services aetually used in a
Laiendar v~~ar mav be carr~ed o~~er hy thc Colporation as a credit to purchase Offered Services
~~nt~l the a~7d of the tllirtv-~~x~h mo~~th ~f the Ten~n of~this .Agreement; provided that the MSA is
F~ai~l tor ail years, ln e~change lor tult paylne~lt of the N1SA, EarthLink will provide the
fnllo~-vin~, :utunicipai Serv~~:es and P~oducts (the "~)ffer-ed Services) at the prices stated:
1. Fixed ~'~'ireless ~ervices. T~~o Hundred Dollars ($200) per month for each
account
?. C:overnment Use.
"Government W"orker Access Only ProducY' is Twelve Dollars ($12.00) per
rnonth tor each account withot~t CPE. As described in Section 2.2.1, the City
rna_y purchase CPE from EarthE,ink in bulk.
"Government Worker Full Sf~rvice Product" is Sixteen Dollars and 95/00
($16.95 ) per month for each account. EarthLink will obtain CPE upon City's
request and invoice the CPE cost to the City pursuant to EarthLink's standard
business practices for its municipal retail accounts.
3 CPE Fulf~llment, Except as expressly set forth in this Agreement, EarthLink
will provide CPF. fulfillment to the Corporation pursuant to mutually ageed
upon terrns and conditions for F-;arthLink's actual cost.
4. City Hall Connectivitv. For a price of Thirty Thousand Dollars ($30,000)
per year. EarthLink will provid~~ the City dedicated 20mb connectivity
hurstable to 30mh from City Hall to the EarthLink point of presence (`Base
Service ~~~ee'"). I?~burstable traf~fic exceeds 30 megabytes, the City will be
eharged `~30,000 ~,er year for each 20-megabyte increment (burstable by an
addition~l 10 me~abytes) over the Base Service Fee ("Supplemental Service
Fee"), By way oi' exarnple only, if Internet traffic bursts to 35 megabytes, the
C'ity will have to pay ai~ additio~ial ~30,000 per year for a 40 megabyte
(burstable to 50 r~egahvtes) circUit. In connection with the City Hall
{~'onnectivity, the responsibilities of EarthLink and the City or Corporation
shal] be z~s follo~~ ~:
EL,~iK Responsibilities~
1'age 1
'(~i!6 ~~:arth, nu,. lnc.
.,,. ... 1/?U~ ,
i) Pro~~l:ie Dedi<<ite~i l~~ternet Access service, ~~~ith minimum of20mb
c.~o~mitted }~ro~~i,ionE~cl service Ser~~ice is burstable to 30mb (at a per mb
chat-~e t;~ the Cit~ ab~~~~e 3Qmb committed level).
_'! Pro~ !~ie Publi~ IP sE~ace, needed for City Fire~,vall and DMZ hardware.
'~etbloci< is -~~~. t~~hich allo~vs tor 4 untrusted [P hosts.
;! !vledi~.i type (pl~ysic~il interfa~:e type) handoff to the city is I OOmb Full
D~~ple~ r~ast Eth~~r-ne~.
~1) Pro~~ i~e ?4-~7 monitc~ring anci capacity measw-ement of service
~) Earth Link ti~~il l pro ~ rde custemer public registered ARIN net block.
C~1T1~~ R~tisponsibalitie~~
1}~Tern~~nation e1~ lOUmb Full Dup(ex Fast Ethernet from ELNK
Zl Configuration of Firewall and DMZ hardware on city network, facing the
ELNK I~~IA (Dedicated [nternet Access) service.
3? Provi<je Colocation for ELNK network hardw~are used to deliver this service
(any routing and switching)
4) Client and server IP addressing
51 Normal acceptable use of service
6) T'he ( ity will ~~rovide a registered ARIN AS number.
71 The City is responsible for any costs (services or hardware) far them to
bring Internet traffic back to Ciry Ha11.
If EarthLink is respunsible for the sales tax payment as set forth in Section 14 of
the .Asset Purchase ~greement, then the City will not be responsible for payment
of the Base Service Fee to EarthLink, but will remain responsible for payment of
the Supplen~iental Service Fee, to the extent applicable.
5. Digital ('ommunity and Development.
I'he Corporation or the Citv and its City-Related Agencies and schools may purchase any mix of
the Offered Services, and may change the mix of services by 30 days written notice to EarthLink.
The (,orporation will coordinate ali purchases. L~pgrades to Offered Services will be offered at
the same prices listed abo~~e. Ne~ Offered Sen ices will be offered at volume rates generally
l7ffered for government ser~~ices of ~imilar volumf~ and comparable markets. The Corparation or
the City and its City-Relate~i Agenc~es may purchase any amount of Offered Services in excess of
the MSA at the prices state~i above.
B. Boun .
EarthLink will pay the C'urporation a bounty i11 an amount of thirty dollars ($30) for each
EarthLink Subscriber that contacts EarthLink regarding the Network and becomes an EarthLink
Subscr~ber for the unlimited monthly access product through the EarthLink Municipality Website
if such EarthLink Subscriber was r-edirected from a Corporation owned website to the EarthLink
Munic~a(it_y Website. Sucii bount~~ will be due tc~ the Corporation sixty (60) days following the
;~nc~ ~~f tl,e rnonth in whicll the EarthL~ink Subscriber becomes an EarthLink Subscriber. An
Page ?
~ ~i~l~(~ ?~.arEhl u,~._ lnc
~~-<-rc-•~,~~ ~ Il~(;ch
~ndiE idu~il that ~ubscnbc~ for th~~ ~miin~ited ~~iontllly access product offered by EarthLink
~r..:~~ ~dec~ t~ursuant ~u the Net~~~ori~. ~~~1~c~ pays E~arthLink for two eonsecutive months will be
~~ez~z~~d a~~ Ear-th[.i~~k S~irsciiber_ Eartl~Link m~v ~ffset and reduce any unpaid and past due
ar~~~~nnt~ c+~~e b~ th~ i~~orpciG~ation tc7 E;artl~l_ank.
(', Billin~ and I'axes
~l~h~~ Co~puration «ill pay the Minirnum Services Amount to EarthLink in twelve equal
:ufmthly p.~yments i~;~ the tenth ( I~}'~'j c,f~ each month. T~he Corporation will pay EarthLink all
an~ounts <<wed tor an~r products ur sea~~-ices ordered by the Corporation or the City from
EarthL,ink ~-vhose a~~regate ~~alue ~xceeds the Minimum Service Amount payment within 30
days of mr.~nth1~ ~n~~oice T11e t.~rpor~ition may offset and reduce any unpaid and past due
an~ounts d~ie b~ EarthL~nk to the. C~c~rpor~ition for services as described in Section 3.9. EarthLink
4nav ~ffsct and reduc~ an~ unpaid and ~~ast due amc~unts due by the Corporation as described in
~ections ! ' and _, ~~
_' F arthLink sha11 bill account charges, if an~~, and the cost of EarthLink provided support, if
an~, dire.ctiy to the C'or}~oration. If~ EarthLink's provision of Municipal Services to the
('~rparat~on results i~z a sales tax, use tax, or similar charge to EarthLink, the Corporation will
pay the amount of~ such tax or charge to EarthLink for remittance to appropriate governmental
autharities
. ~~-ith respect to Network upgrades and expansion, EarthLink may apply for tax
abatements from local and state taxing authorities that are available under law, and the
C'orporatlotl will assist EarthLink in identifying abatements, if any, that apply.
Page 3
~~ ?[~U6 i_:~'th! i,~,_ [nc
~~ra~un '~ U211t~(,
,,,.. ._..,~ .x_ _ ~ :„~,, .,, ..~,.
EXHIBIT B
Appro~~ed C'ommunication Equipment
Devic+~ Power Consumption Profiles
Tropo~ 5210
_ _ _ _ _ __ __ ---
--- _
Norm Voits Amp Rating ' Rating °/a Op. Hrs
-_ __ __ ~ _ _
110V ~ 0. ^ 3 100% ^ 731
_ _ - _ _-- ,
220V` ; 0.08 ' 100% ~ 731
- _ - _ _- _ _ . _ _ ~ --
4~OV ; O.C14 100% 731
Devic~ lma~es and Install~tion Methods
KW h/Mo
Biiling
10.60
12.43
13.52
Images, Diagrams and Specifications for the Tropos 5210 Outdoor MetroMesh Router
"I'ropos 5210 Wi-Fi Node with Attached Alvarion Subscriber Unit
~ ~ ~unE, 1-:arYhi irl;. Inc-
~~~:~rs,r;n ~ 112ttn6
Page 2
~ ZUUh Earth[.ii~l~_ Inc.
r. . . ~ UZt~'~G
Ima~es, Diagrams and Specifications for the Alvarion Breeze Access VL AP Antenna
Antef~n~ ?~;chr~~r~.~i4 S~~:Lrf :;ati,.}~is
_ _ __
BASE STAT~~N ANTE~iNA
5.15-5.875Ci~-tt 120° VERTtGAL
-
'~GULA~~~Y ~E7iMt*^L~1NCE ,-
i ES3'1 EN 3J2 ~J85'J.?.1.2 t2001-240E;I CS3. ~
; ~ioWS Com~li~ne~.
f]UENCY l~1ti1GE
~ _ _y_ ~ . _.,.._- - ----
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_.i..~__. ~ _.. ___. ~ _. ._.._ .....---- _____ _ _ _.--
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BASE STATlON ANTEI+INA
5.15~-5.875t~H~ 9t1° 1f~RTICA~
_-. ~~_ _. ~-
~~eULA~`JRY C£]MPLI/WCE ESTI EN 3~~ OB5 V.?.12 ;2003-2QU~'~ iCS3.
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____ _ _ . .
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Page 4
?rii)t, Ear~hi =~,k. Inc
cr.~~~r; ll~~;~~r)~
Exhibit C'
(~ih Polc:s Terms and Conditions
i. General Pe~>cedures C'~msistent with Desi~n Approval in Section l.l of the
Agreement. EarthLink ~~~ill install, maintain, and use C'ommunications Equipment
on City Pal~s and e~ercist its rig}~ts in the succeeding paragraphs in accordance
~~ith the following p~-ocedures:
ai (~or standard installations as approved by the City Engineer and
attaclled to ~l~is Exhibit C or such installations which are approved in
~~riting b~~ t~he ('ity Engineer and reference this Agreement, no further
apprti~val ~s required. Maintenance or upgrades that comply with the
appr~ved installations in this Exhibit C', as it may be amended, require no
furtf~er apprc~val. Revisions to the approved standard installations in
Exhibit C will be approvec~ as described in Section 1.2 of the Agreement
~~here the ne~~ sp~cificatiori or new installation method does not affect the
strt~cture or- }~t.iblic safety to a materially greater extent than the old. If the
Cor~~oration z~r the Gity Engineer does not notify EarthLink in writing of a
reast>nable ol~jecti~n ro the installation detailing the reason the installation
affects the structure or public safety, then such installation method will be
deemed appr~ved and added to this Exhibit C.
b) E~or non-standard instailations, the specification will be submitted to
the City Engineer for approval as described in Section 1.2 of the
Agreement, :.ind installation shall be conducted in accordance with the
apprt~val.
c) EarthLink shall conduct, or cause to be conducted, installations,
mair~tenance. and use, in accordance with good safety practices and
appl~cable l~iws and regulations. EarthLink acknowledges that pole
attachment locations may be hazardous due to traffic, proximity of electric
u~ire~, or othel- factors, and will manage the work accardingly.
d> Upon ~jamage to City Poles by EarthLink during installation,
maintenance or use (other than reasonable wear and tear), EarthLink shall
n~ti f~y the C~~rporation and either repair the damage or reimburse the
Corporation ~or repair, as directed by the Corporation.
'_ Substitution At ar~~ tin~e during the Term, EarthLink shall have the right to
install, maintain and use C'ommunications Equipment described in Exhibit B and
the right to upgrade and later install new Communications Equipment added to
E~chihit B and later ~nstailed on such C'ity Poles. If EarthLink determines that a
desi~nated ~~itv P~~le i: ~insuitahle for Network use, during installation or
~'age 1
;? ?OO~ ~~;al-thLink. Inc,
~'ersion 10 ?00~~
tl~e~e~i(ter, EarthLi~E~: ~,~ay inst~~ll ( omi~~unications Equipment on another
;uhstiiute ( ity Pc+le In ~~_lch e~~er~t, EarthLink shall notify the Corporation in an
updatrd as-+~uilt not~~~e ~~~ ~-equired b~ Section 1.Z c~f the Agreement.
~. ~ctciit~on ~~~~ Cit~~ I'~~les At an~ time during the Term of this Agreement,
Eartl~[_ink shall ~~e cntitled ~~o place additional and/or replacement
C`oinmunic~~tions Ec~uipT»ent, and make up~l-ades tl~at EarthLink so chooses in the
?~~ut~lt-~.° 017 a~~~v City Pule~. and to n=odify the location of existing Communications
Ec~uipment and t~} dc;igilate additional Cit~° Poles for installation of
(,c7mn~unic<~~ions Ec}l~ipn~~nt by fc~llo~tiing the notification procedure set forth in
this agreen~ent. Tlte a~~regate total -l~unber of~ Installed Ciry Poles shall be
adi~.isted ac~~ordin~l~ witl~~ each addition, modification or upgrade.
4. Reduction _c~f City Noles At ar~y tiT11e during the Term of this Agreement,
Earthl._ink ~hall be entitied to ~emove any of EarthLink's Communications
Equipment ~rom am or all of the Installed City Poles (except as may be otherwise
pr-ovided irf the Network Services Agreement) and the aggregate number of
Installed Crty Pole~ and the appiicable Installed City Pole Use Fees shall be
reduced acc}~rdingly If EarthLink removes any Communications Equipment from
anv ~f the Iristalled ~:~'ity Poles, then EarthLink shall, within ninety (90) days after
such remo~ al, give written notice thereof to the Corporation, specifying the
Installed C`i~y Poles ~~acated, the location thereof, as well as the date of removal.
Such remo~ al by Earthl..~nk or a r~,moval by the Corporation as permitted herein
shall terminate EarthLink~s obligat.ion for payment of the Installed City Pole Use
Fee upon ~iotificat~c~n tc~ the C~~rporation and other rental charges for the
applicable lristalled City Poles after the removal occurred and the sums due for
such previo~isly [nstalle~ City Poles will be pro-rated through the date of such
removal. L:pon remuval by Earthl,ink, EarthLink, as directed by the Corporation,
shall return The City Pole tU the condition in which it existed immediately prior to
FarthL,ink's installation to the extf~nt damaged by EarthLink's negligence, taking
inta account normal ~vear and tear, or reimburse the Corporation for so doing.
?. Replacement. In the everlt any Installed City Poles are planned to be replaced,
repaired, alt~red ar ;nade .ncapacitated by power interruption ar other reasons by
the Corpor<~tion, th~~ Corporation shall give EarthLink at least thirty (30) days
advance wr~tten notECe of such planned activity. If the City removes, repairs or
alters [nstalied Cit~~ Poles in sucrc a way that EarthLink is required to remove
and.'c~r reinstall the ~'omn~unications Equipment on such Installed City Poles as
contemplated in thi~. Agreement, ~arthLink shall be entitled to reinstall on any
c~ther Citv Pole choseri by EarthLink as soon as EarthLink elects and the
(`orp~-~ratio~~ shall n~~t char~e EarthLink any fees for obtaining approval of any
suhstitute li~stalled ('Ity Po1es. EarthL~nk may elect to relocate, replace or transfer
its C~~mmur~ications Equlpment from all, some or none of the affected Installed
('it~~ Poles t<~ replacement C'ity Po1es. 1 f EarthLink elects not to replace ar relocate
the t°ommui~ication~. Equipment from any Installed City Poles, the Installed City
Pulc lJse F~~e for t1~~se lnstalled Citv Poles ~vill terminate effective upon the
Page ?
~~ ?006 E~arthLink. lnc-
~~ers~on (~'?OOfi
~arii~~r oi~ r~mo~~a~ c,t the ('om~~~unications Equipment or removal of the Installed
( ~i? ~.~ Pnl~'
!~~. L:mcr~~~enc~ In case~ ~~f~ ~:3~~ergencv, the Coiporation or the City may relocate the
~~om~iiunications Ec;~iipm~.nt, or ti~ailsYer it to replaceTnent City Poles only if it is
i~~c~s~arv t~~~ pr~otect ~~ubllc safet~~ ~>r public property fi-om imminent danger. The
t,`orporatio~7 shall n~~tifti~ t~:arthLink. if reasonably practicable, in the event of an
~mer~~enc~~. prior tc7 ihe ~~t~location o1 that eyuiprnent, and explain to what extent
thc r~focati~~n of Conimun~cations Equipment is necessary.
Dama~ed P~~le. I1 a~ ~ Iiistalled Cit}~ Pole is fillly or partially destroyed or damaged,
and :.~~ a r<-sult thereof EarthLink is unab~e to conduct its operations on such
lnstalled City Pole in a manner that is functionally equivalent to EarthLink's
~~perations l~efore si~~:h e~~~nt, the Corporation shall notify EarthLink, within ten
~]f)1 days a4ter st~ch even~, wheth~r or not the City intends to repair, rebuild or
restore the applicabi~; Installed Ci~y Pole. If the City removes an Installed City
Pole on wllich EaT-thLink has i~tstalled Gommunications Equipment for any
reasorl, the ~~'ozporation shall give EarthLink at least ten (10} days advance notice
and protect and return tc~ EarthLink the Communications Equipment installed on
those lnstal:ed City Poles. In either event Earthl,ink shall be entitled to install
~'ommunications Ec~uipment on a substitute Installed City Pole determined by
EarthLink. }~:arthLink shall be entitled to a pro-rata abatement of the Installed City
Pole Use Fee for the affected Installed City Pole(s) for the number of twenty-four
(24t hour p~riods it is unable to conduct its normal operations from the affected
Installed Ci~v Pole or the substitute Installed City Pole.
~. Removal of Previous Installations. EarthLink shall be entitled to but not obligated,
during instaIlation and thereafter, to remove previously installed third party
equipment E~n City Yoles designated by EarthLink, if that previously installed
equipment }~as been abandoned or is no longer entitled to be installed on that City
Pole. `'1'hird party .~quipment" includes equipment owned by a party other than
EarthLink, the City c~r the ~'orporation.
9. Right to Inspect, The Corparation shall have the right to make periodic
inspections at the Corporation's discretion and cost as conditions may warrant.
Such inspections shall not be charged to EarthLink. Failure of the Corporation to
rnake such tnspecti+~ns shall not delay EarthLink or the Network installation.
EarthLink is not obiigateci to obtain any such inspections before proceeding as
provided her-eunder.
I0. lnterterence ~The ('orporation will not cause or allow any subsequently-attaching
third partie~ to cau>e radio frequency interference ("RF Interference") with the
('~ommunicat}~ns Eaur~3ment and/or tlie Network. Subsequent to the installation of the
(,ommunicataons Equ~pment by EarthLink, the Corporation shall not permit itself ar its
licensees to ;nstall nc~,v eyuipment ~>n the City Poles or property contiguous thereto
~~vne~j or cor~trolled b~ the ('~ty or the Corporation, if such equipment is likely to cause
RF [nterfiere~~ice ~,r p~iysica~ blockin~~~ interference ~vith EarthLink's Communications
'<; ?(~{)6 EarthLink, Inc.
~'ersion ? i~~~~?pQ(~
Page 3
~.. ,~ ~ _ ,,a. ... .,,~. _ ~~.
1-.c7i~~~~ment I~hc C~~t~~ .ind ti~~ ('oi~oration shall obligate each new licensee in its license
t~+ c>~~~~rat~ r: cy~npn~a~nt ~~iir~su~nt tu obligations that ai-e substantially similar to this
~rr?iun. I~.ai~~ilL~nk sh.~ll deeii~ such KF Interference or physica] blocking interference to
~~~ .; ma~_cri,sl hrcacL ~1 t'7:; _~greem~n; by the C orporation. In the event such RF
lnt~~~-'~~ren~~ ,7r ph~~s~~ ul bi~~.~king int~~rfercnce occurs, the Corporation agrees to take al]
i~~i~~;~ nc~r~~~;ar~ to ~~~imiri~~tc such ~I~ Interference or physical blocking interference
~~,~ ith~n ?hrt~~ ~>) ~alentiar ~la~,~~. Not~~ ithstanding the toregoing, in the event that the RF
(nter~.~ren~c ~~oritinue, for ~~~~,re tllan ten (10) days, fees and charges for the City Poles
°;h~i;E .~~t~ate ,~ro~~ortic~.~.atel~ ;~n a per d~em basis for each day after such ten (10) day
period 1~_l~~itionall~_ iC ~~~:ch KF ]ilteT-f`erence continues for a period of thirty (30)
~aienciar da~_~ anc~ at~~ects .i material port~on of the Network, the interference shall be
~_un;,~l~red ~,- vic~lan~~~t ot~ ?he ('orpo~ation~s material obligations under Section 11.5 of
rhi; -~~_reem~~nt.
11. Lnstallation of~ L~p~;r~aded Comrnunications Equipment. EarthLink is hereby
auth~~rized ~o replacc° the Communications Equipment on an Installed City Pole
~.tith updatr.d or ii,~graded Cominunications Equipment. The installation of
appru~ ed updated C~~mn~unications Equipment in substitution of Communications
Equipmen~t which ~rie C`orporation has previously approved shall not require
fiarther appr~~val or t4~e issuance of any permits.
12. Removal Obligations. l.!nless Corporation and EarthLink enter into an agreement
that provides othervt ise, upon the ~;xpiration, completion or earlier termination of
the Term ~f this .Agreement, EarthLink shall be entitled to remove the
Communications EcE~xiprr~ent from the Installed City Poles. The removal shall be
according tc> a scheciule determined by EarthLink. Upon removal, EarthLink, as
directed by the Corporation, shall return the City Pole to the condition in which it
existed immediately prior to EarthLink's installation to the extent damaged by
Earthl,ink'~ installatlon, taking into account normal wear and tear, or reimburse
the C'orporation for ~:~~ doing.
13. Compensation for Installed Citv Poles. As compensation for the right to access
and use C'~ty Pole~; in .~hich the traffic light and the installation pole are
completely ~~wned b~ the City as cuntemplated by this Agreement, EarthLink shall
pay in arrea~-s to the ('orparation a fee ("Installed City Pole Use Fee") for the right
to access ar~~d use the Installed City Poles for a flat rate of $1.00 per Installed City
Pole per ~~lonth c~>mrr~encing otl the Closing Date of the Asset Purchase
A~reement. The Installed City Pole Use Fee shall be calculated based on the
number of Installed Citv Poles determined as of the date that is thirty (30) days
pri~r to eac11 payment datr: so the ~mount owed will increase and decrease as the
~lumber ~f I~lstalled ~:"itv Poles increases and decreases. The parties recognize that
the conside~~ation paid bti~ EarthLir~k f~r use of the lnstalled City Poles includes
~1ot ~~nl_y th~ $1.00 p~~r- poie, but alsa the other benefits provided to the Corporation
as part o f t~i ~ s~~greer»erlt
14. Payment Tcrms for lnstalled Citv Poles. EarthLink shall pay to the Corporation
the [nstalle~ Citv Pole t~se Fee in arrears for each previous month, and shall make
Page 4
<~ ?(_i~ t~,arthLink. lnc.
Versron i (t'2(~O6
~uch pa~~~~~~nts. ~~~~~hout ~nvoice, by the end of~ tlle succeeding month. For
crample. }~~tyment t~.~r .lanuarv 2t)~17 ~~~ill be due bv February 28, 2007. Payment
sl~ali he ii;.~~~omE~~ini,~~,l h~~ ~~ listin~~ of the number of Installed City Poles ai~d an
c~}~l~s~atio~~~~ of ;in~~ ~, han_~.-~s in ~~umber fro~n the previous month. The Installed
(`it~~ Poie i~se }~~c ~hall >>nly be due for the Installed City Poles for which the
C~~l~oratic~~~~ i~~~~ tl,~ r~~i?~pletc ~-i~ht to ~rant all of the attachment rights to
E~irthl_ink :.s pr~i~~icj,~d hcrein w~ithout ±he need for EarthLink to pay another party
i~or ~uch r-i~. ilts ti~r :.~~~~ r-;:.ison inc udin~ without limitation the fact that the third
partt~ c~~~~n~ th~ pu~~~ ur °ti~~hich ~he traffic light or other facility is installed.
H~~~~ ever, ~~~~ the ~~~~f-~orat~on does noi obtain all of the attachment rights for the
streei li~ht: traftic li,ilt a~~~:3 the installation pole For EarthLink as provided herein
~~~ithout th~ need foi Farth Link to E~ay another partv for such rights far some of the
C`itv Poles ~hen iC E~,rth[.~nk is ab~e, and elects, to obtain such rights by agreeing
to pa~.~ a tl~ird }~art~. for ;ts right~ in the pole, street light or traffic light, or if
EarthLink ~; reyuire~l tc~ }~ay such third party for such rights, EarthLink shall be
entitled to ~ieduct th.~ tot~~l amount of such payments to third parties from the total
pay~ments ci~.~e hereur~der. rtot excee~ding $1.00 per pole.
O 20(~6 EarthLink, Inc.
Vf~~-sian l (~!2006
Page 5
Schedule C-1
lnstallatir-n for Communications Equipment
1 ~~'iFi Mountin~;
a. Vtetal Mast .~~1~
Use tw~~ stainle~s steel hands ~]/2 in. x 0?8 300 grade minimum)
b. Metal Mast
Use two stainle~s stee] hands (1/2 in. x 0.28 300 grade minimum)
Page 1
~~ 2(-(~6 Earth~.ink, Inc.
~'c~rsion 1 t;;~?006
num)
?. W'iMax Mountin~r
a. Metal Mas?
Page 2
~> 20f)6 EarthLink. lnc.
~~~ersion l i).12006
c. Metal Luminary Arm
~ lse h.~t~ ~tainle,s stecl hands (1 i? in. ~ U.'8. 300 ~rad~ minimum)
~. Electrical Connection
a. Luminary Pjug
Page ~
O ?O(i6 EarthLink, Inc.
Ver~ian I!?-2006
_~ ~ . ~,,,,:_ ~, ~ ___ _ .. _ __ . ~..,,,
,~~... . ...m _ .a ~. ..~,,. a., __ ~. . _._.., _..~ ,_,~. _.. .~ ~
Page 4
i? 20~6 EarthLink, lnc.
~~ersic~n 1 ~/2006
b. City provisioned
EXHIBIT D
Horm of _~ntennae Site License Agreement
CITY:
SITE:
ANTENNAE SITE LICENSE AGREEMENT
THIS ANTENNAE SITE LICENSE :~GREEMENT ("Agreement") is entered into
th~s day at~ _ , Z00 , between EARTHLINK, INC., a Delaware
- _- - --- -- - --
corporation ("~Licensee"}, and the i~C Digital Cummunity Development Corporation, a not-for-
proflt locai government cc~rporation created by the City of Corpus Christi under the provisions of
Subchapter D, Chapter 43 (, Texas ~~fransportation Code("Licensor").
For good and valuable cc~nsideration, the receipt and sufficiency of which is hereby
acknawle~iged. the parties hereto agree as follow~~.:
l, Premises. Licens~:~r has a license trom the fee simple owner of certain real
property described in Attachment A("Property") located in the City of Corpus Christi, County of
Nueces, State uf Tex~s, on which is located a structure commonly known as
and located at the street address of
- _ ___ _ _-- - - _ ___ __ ___---
-- -
______ ("Structure"). Licensor
-- - -- ------ - _ _ _ _
hereby licenses to Licensee and grants Licensee the right to attach, erect, install, maintain and
operate antennae, mounting and attachment hardware, and masts ("Antennae"), communications,
netwarking, internet, computer, and radio equipment ("Equipment") and certain personal
propert~ of Licensee, including, without limitation, equipment panels, cabling, cabinets,
emergency power systenls and ~ther persona~. property as Licensee so desires ("Personal
Prope~t~". collectively, the Antennae, F,quipment and Personal Property are referred to herein as
the ``Liuensee Facilities") in the nun~l~er, configuration, size, and location(s) described on
Attac~ment B(the roof and any <,~ther space occupied by Licensee in or on the Structure or
Prope~rtt~ •are hereinafter collectively ref~rred to as the "Sites"). Licensar has or will obtain all
appro~ais of third parties that are requi2-ed for lacensor to grant the License rights as provided
herein.
'_. Use. "I'h~ Sites ~7~ay be used by Licensee for the attachment, installation,
rnaint~nance and operatii~n of th~ Licensee Fa~~ilities for any activity in connection with the
pro~~ision of wired and w~reless cc~mmtiTiications, computer, internet, broadband, networking and
other ser~ ices and business activities 1"Network '). Licensor agrees to cooperate with Licensee,
at L.icensee's expe-1se, in making application for and obtaining all licenses, permits and any and
a;l f~t~er- i~eeessar~~ appr«vals that mav be reqt~ired for Licensee's intended uses of the Sites
('°_~pprc,v,~ls")-
?. Term. The tern~ c~i th~> ~ntennae Site License Agreement shall be the same as
t}~e T'ern~ ~nd Renewal Terms under the ?~letwork Services Agreement between EarthLink and the
t~~orporati<.an and eYpires or ternlinates on the same date as that Services Agreement. The
C~~ummen~ement Date of this Antenna~ Agreement shall be the Effective Date of the Services
Page 1
~ ~ ?~)06 EarthLink, [nc.
~~ erion 1 ~ 1!20t)6
~~~rcem~,~,~. Thc~ term shall rene~~~ to the e~tent the T'ern~ ~f the Services Agreement renews.
I~~~~c'~~ R~~~ii~~~al T<~rnti sh~ia' be ~~n the ~~~me tern-:s and conditions as set forth in this Antennae
~~~i-~~en~~~.:~ t
-t. License Payment and ~1'axes. 'JVithin thirtv (3O) days of the Commencement
L~at~, antl t~n the first da~ of eacl, month thereafter, Licei~see shall pay to Licensor, as license
{~a~~~nen~. _ __ _ _ _-- - _ a~lc; O0~`1O(~~ DOLLARS (~- .00) per month
dEZnrlg the "Term ~mtil e~}~iration +~r ear~l~er tenn~nation of the Ternl ("Rent"), adjusted on every
o~her annl~~ersarv~ ciate o(~ ~~he C'om~~E~encr~ment Date by two (2%) percent. License payments and
~~~i~~r pa~~ne~its due hereunder shall be mailed to:
The parties 1-ecognize that the consideration
_- __ __ __ _ _ - -- _ ____
p~~c= b~ E,irthl,ink li~r~ use of~ the `~tructure incluE~ies ~~ot only the License Payment stated herein,
h,.~t als~} ~he ~~tl~e~~ bencdits pro~~~~ed ~o the ('o~poration as described in Section 2 of this
a~r~err~ent. If ~ersonal E~roperty taxes are applicable to the Licensee Facilities, Lieensee shall
rencier such propertti~ and }~~ay tlle t~ixes tc~ the taxing authority.
~. Facilities. License~ has the right to erect, maintain and operate the Licensee
F~e7lities usin~ existing utility lin~s, transmission lines, electronic equipment, radio transmitting
alid recei~~~ing antennae and supporting equipment and structures thereto consistent with and as
~et ~orth ~n Attachment B In conrlectic~n therewith, Licensee and its contractors have the right to
cii~ all ~~ork necessary to prepare, install, erect, ~ind maintain the Licensee Facilities and to alter
the Sites 1or the [.icensee Facilitie~. including without limitation core drilling and the installation
oE~ conduits for electrical power lij~es and data cables, and to install or improve existing utilities
cc~nziect~n~ to the Lrcensee Facilities. ,~ll of Licensee's construction and installation work shall
be performed at Licensee~s sole cost and expense and in a good and workmanlike manner. In
p~rforming work pursuant to thi~ Agreement, Licensee shall be entitled to use any labor and
other ser~ ice providers and contractors it deterrnines without restriction. Title to the Licensee
Fac~lities shall be held ~y Licensee. All of the l.icensee Facilities shall remain Licensee's
personal property and nat be deetned tc~ be fixt~zres. Licensee shall remove all of the Licensee
Fac7lities at its sole expense on or befor~ the expiration or earlier termination of the Term of this
,A~reemeilt; provided, ho~~~ever, that L~censee shall repair any damage to the Sites caused by such
rem~va~, ~~xcept +~c~i- norn~al wear and ?ear. Licensee shall coordinate with Licensar and conduct
t17~_ ~eti~ it~es in suc(~ a marmer as t~? prevent physscal ~nterference with the primary functions of the
StnECture. Licensze shall temporan ly or permaneirtly relocate the Licensee Facilities or part thereof
as ~leen~ed necessarv by the Structure `s management to carry out the primary function of the
Str~acture where I_icensee ~ ec~uipnlent is matena~ly interfering with such primary function and as
dee~ned appropriate by th~~ City Manager. provided the Licensor and the Structure's management
v+~ili notitv Ear[hLmk in ~vriting as soon as feasible of any project or pnmary function of the
Strt,cture that mav result in Licensee's relocation of its equipment.
~~. Utilities. t~icensee shall have the right to draw electricity and other utilities from
the existing utilities on The Property or- in the Structure and/or to obtain separate utility service
fi~o~~l any utility companti~ that wiL provide servi~e to the Property and the Structure (including a
standby power generator. ~if any) and to abtain installation of a separate meter for such electricity
t}~at wili he billed c~irectl~~ to Licensee. Licensor agrees to sign such doeuments or easements as
n~aa~~ be~ r~:quired by~ said uiility c~~mpanies to provide such services to the Sites, including the
~1ant tr~ l~censee ~r to tf~~; servic~-~g ut~lity company, at no costs to Licensee or Licensor, of an
Page _'
'~> ?046 Eart~iLink. lnc.
~~~~~r>io~1 1')/2006
~~a~~r,~ent i n, o~ cr, acros;. 4,r throu~;h th~~ Propertti~ as required by such servicing utility company
~-~~ }~rtiv~~le ~itilitv s~r-~ ices .is pro~~i~i~d herein. .1ilv easenzent necessary for such power or other
~.ztilit~es ~.ti~~11 l~c ~~~~:r a i~>cation ~~asc~n~~bly~ acceptable to Licensor and the servicing utility
~~o+~i}~an~ ~ icenscc >> tnt~tled tc~ u~~~ th~° ~lectrical connections }~r~esently located in the Structure
,.nti~ tElost~ ~~~~ the Pr~~~~~erty Lice~lsc~~ ma~ utilize .~xisting panels and connections within or upon
~he ~tnzc,i_~-e for the ~_onne~:,tion ot~ ~.tiliti~~s to ser~~ice the Licensee Facilities. Licensee may also
~nsta;l ar~ eiectr~cal ~:;rounding syste~n or irnpro~~e any txisting electrical grounding system located
~~m tl7e ~t~ ~~ctur~ <<_ ~~ro~ ifie the ,~~-eat~~~t possit~le protection from lightening damage to the
f,i~:~r~se~~ 1 acilities, [_icen~5ee shal( be responsible to assure that all such utility-related work is
~,ione in ~~ ~~~od ~nd ~~~~rk~Y~~inlike manne~~ at -lo co~t to Licensor.
If' [,~~.enset elects tu use tf~e electr~~.itv~ supplied and billed to Licensor then Licensee shall pay
~ i~ei~sor~ f~~r the electricit~, consumed h~•r the Licensee Facilities in its operations on the Sites
hase~l o~l the mutuallv ~xgreed upon 11at rate estimated electrical consumption charge of
`~ _ per Tnontl~ ~3urin~ th~ Term ("Electric Charge"). T11e Electric Charge will be
~d~~usted a~lnuail~~ on eacll anniversar} date of the Commencement Date by the percentage
increase ~n the actual proportional increase in tht: electric charges then being paid by Licensar.
~_icensee sllall pa~~ ~I~~e monthly Electric Charge to Licensor at the same time and in the same
manner as Rent payments are made ~lurin~ the Term.
7. Movement a~d Replacement. Licensee is entitled to move any of the Licensee
Facilitie~ io other locations on the Property or the Structure without any additional charge by
Licensor atter obtaining the approval of Licensor, which approval will not be delayed or withheld
unless the new location ~~~ould interfere with a then-existing use of the Structure or it would
consti~tzte ;i structural support problem or otherwise rnaterially interfere with the function of the
Structt~re. Licensee is entitled to remove Licensee Facilities from the Sites and replace them with
replacement, new or upgraded equipment and/or antennae, with conforming amendment to
~ttacl~ment B, without additional charge or approval by Licensor as long as the replacement, new
~r upg~aded et~uipment is rot substantially heavier or larger.
8, Conditions Precedent. ;~icensee`s obligation to perform under this Agreement
~hall be subject to and conditioned upon t"Conditions"'):
(a} Licensee securing appropriate approvals for Licensee's intended use of the
Sites fr~m any federal, state or local regulaton~ authority having jurisdiction over Licensee's
prop~sed L~se of the Sites ("Govern~t~ental Approval"} and all other Approvals.
ib) L:icensee ma~ conduct radio frequency propagation studies ("RF Studies")
on the Yropert_y. If the RF Stu~iies do not provide results which meet with the personal
satisfaction of I~icensee, [:~censee shall have no ohligation to perform under this Agreement.
ic} Licensee seciirin~; consistent and reliable services at regulated or market
r~ates ancf ~n sufficient capacities ±or electricity, broadband telecommunications data lines and
~~tl~e~ se1~~~ces required i~~~- appro~~riate for the operation of the Licensee Facilities ("Utility
~er~ ?ce~ ';
~di Liccnsee being able to interconnect the Equipment with the Antennae and
ti,onneEt the Licensee Facil~ties to tl?e LJtility Services at the Sites.
7 20(~6 EarthLink, [nc.
~'~.rsior~ 1(?;2006
Page 3
r__i~ensee's ~nab~lit :~ to succ~.~ssful Iv satisfy anv of these conditions or the occurrence of anv
o?E~~~r e~er~t wllicl~ t~l~fect~~ely ~~roh~bits l icensec'~; i~ltended use ofthe Sites shall relieve Licensee
fr~7~~~ anv .~bli~~atioi~ to p~~~~form tuzder this A~reement and shall entitle Licensee to terminate this
?~1-Len~elit and ~~h?~iin re~?itution ~~f an~ Re~1t wl~ich may have been paid in advance to Licensor
~t~ Lice~i~sc~e gives r~t~tlc~ i_, 1 icr;ns~~r ~~1~ ~uch failui-e to satisfy the Conditions ~vithin ninety (90)
dav~ alte~~ th~ C'c~r~lt7ieu,_ement t)ate ?~icense~~ ic not obligated to commence commercial
upera~iun on ihe Structur~.~ iu~til a:! ('ons3itions have been satisfied.
"). Emer~ener~. Licensoi- shall notifv Licensee and Licensee shall notify Licensor as
s~~o~~ a~ ;~easonabl~~ prac~icable atter E°ither becomes aware of an emergency that adversely
ifnpacts tlle use ~~f the Li~~~Unsee FaL~iliU~:~~
i(1, Disconnection. 1.ECensor shall not remove or disconnect the Antennae or
Equigme~~t ar other Licellsee Fac~lities in any ~~~~ay unless: (1) it is necessary to prevent bodily
injury e>r material propet-tv dama~~; or r?) reasonable prior written notice, if feasible under the
c~rcutnstanees. is ~~~~en to License~: and ~.icensee approves such disconnection.
t i , Access.
(a:} LicLnsee, ;. icensee's eniployees, agents, contractors, subcontractors,
lenders, guests and invitees shall have unescorted access through the Property and the Structure
tc~ th~ Sites, without notic:e to Licensor, twenty-four (24) hours a day, seven (7) days a week, at
n~i :,harg~;, except as follc~ws: [procedures required by nature of facility]. Licensor grants to
I_icentsee, and its employees, agents, contractors, subcontractors, lenders, guests and invitees, a
n~n-exclusive right and license fc~r pedestrian and vehicular (as appropriate) ingress and egress
acrc>ss the Property and a licen~e for pedestrian ingress and egress through the Structure.
Notwithstanding the foregoing, ;~i the event that Licensee's access or access of any of its
contr~ctors to the Sites is prevented for more than seven (7) days, the Rent shall abate
proportionately on a per diem basis for each day after such seven (7) day period access is
prevented. Additionally, if such access is prevented for a period of thirty (30) days, Licensee
shall have the right to tern~inate thi~ Agreement immediately upon written notice to Licensor.
(b) Licensor sliall maintain all access roadways from the nearest public
roadwav to the Str~~cture in a marner sufficient to allow pedestrian and vehicular access at all
timzs ~tnder norrnal we~zther conditi~~ns. Licensor shall be responsible for maintaining and
repairing such roadwa_ys, at its solc expense, exc:ept for any damage caused by Licensee's use of
sucli roadways.
1?. Interference.
(ai Lic~nsee shall inspect, construet, and maintain the Licensee Faeilities in a
manner that will not caus~ unreasi~mable interference to Licensor and other Lieensees or licensees
of the Structure. (lpon written ~equest, Licensee will provide to Licensor copies of any RF
Inte_r~'erence studies or test results that Licensee, at its option, decides to obtain. Licensee is not
oblig~ted to eonduct al~y tests, studies or investi~ations.
(b) Licensee sh~~ll operate the Licensee Facilities in a manner that will not
caus~ radio frequency interferenc~ (as cieternlined by Lieensee) ("RF Interference") to Licensor
and c~her l~censees or tenants of tl~e Property, p~~ovided that their installations predate that of the
Licer~see Facilitie5. A1, operat~~~ns t~v Licensee shall be in compliance with all Federal
C~ 2~?6 ~arthLink. lnc_
~'ersian 1 r)/200(~
Page 4
., ~ ~ ,.,. ~. ~„~,~ _ ~
~ _. ...M . .~, .~....,,.
.. __~__._.._ .~.~. __.__.___..... _,_.~. ..... .......,.
~.~c~~~~~nunications C'~~mm~~~.,ion ("}~('C"; requirem~;nts and all other applicable laws, codes, rules
;~n~l r;;guiations
(c) I~~ l ~;:ens~~r r:~~cei~e~ anv nc•~ti~ RF Interference stlidies ar test results from
~il~er Licensees or ~>>3~~ otl~~er ~ourc~, Li~:Lnsor ~~~~11 promptly deliver such studies and results to
i.i~~c~~see Subseyue>>t to ?he inst~~ilati~~ii of the Licensee Facilities, Licensor shall not permit
:ts~ls~_ its l~censee~ ~_~r t~~nu~~ts to install i,ew eqwpment on the Property ar property contiguous
thereto ow~rled or- cc~ntrollr~tl b~~ LicLnsor. if such ~.quipment is likely to cause RF Interference or
~~hti~s~cal blockin~ ~~~terferv~ncc ~~i~_l~ L~censee's Antennae. Licensor shall obligate each new
i_i~_ensee o~ tenant to o~~er~ite its ey~~ipment purstiant to obligations that are substantially similar
~~> >~~bsect~on (b) i~1~7mcdizatel~~ Gihc~~~~e. `~uch RF Inte--ference or physical blocking interference
-;hali be ~eemed a~i~aten~; breach '~y [ ~censor. In the e~~ent such RF Interference or physical
~l<~ckin~ iriterference oceu~-s, Licei~~or ~r~rees to take all action necessary to eliminate such RF
Inter~ereric~ or phy~lcal bitackir~g i.lterterence within three (3) calendar days. Notwithstanding
tht~ ~~~re~o~ng, in the e~~er~; that th~~ RF (nterference continues for more than ten (10) calendar
~tays. Rent shall abate proportionatcly on a per die,m basis for each day after such ten day period.
~dditionally, if such RF Interference coritinues for a period of thirty (30) calendar days, Licensee
>hall have the right tr> tern~°~nate thi~ Antennae A~-eement immediately upon notice to Licensor.
l3. No Liens. 6licensee will not perniit any mechanics' or materialmen's or other
iiens on the Structure or the propert~ surrounding the Structure for any labor or material
tunlished at Licensee's request pursuant to this A~,Jreement ("Licensee Lien"). If a Licensee Lien
has t~cen tiled against the Structure and a final judgment on the Licensee Lien is adverse to
Li~ensee_ i,icensee shall pay the deternl~ned amount of Licensee Lien with all costs, fees and
c.harge~, thereby releasing such L~censee Lien. Licensee shall have the right to contest the
~~alidity, nature or amount of any such I_.icensee Lien, but upon the final determination of such
~uestions, shall immediately pay any adverse ~udgment rendered with all proper costs and
charges and shall have the iien rele~sed at its own expense.
l4. Waiver of Lieensor"s Lien.
(a) Lice~isor wa~ves any lien rights it may have concerning the Licensee
Facil~ties, and Licensee ha5 the right to remove the same at any time without Licensor's consent
except as ~nay be provided in the Network Services Agreement. The Licensee Facilities shall not
t~e considered fixture~.
(b) Lice~lsor acknowiedges that Licensee may enter into financing
arrangements, including ~~romissory notes and financial and security agreements, far the
finanei~g of the Licensee t=acilitie~ ("Collateral" 1 with a third party financing entity. Licensor
di) con~ent~ to the installation of tlie C'~~lateral; (ii) disclaims any interest in the Collateral, as
fixturee~ or otherwise, an~l (iii) a~rees that the Collateral shall be exempt from execution,
tor•~clasurE~. sale, le~~v, r:ittachment, c~r distress for any Rent due or to become due, and that such
Cc~llat~ral rnay be removed at anv tirne ~~ithout recourse to legal proceedings.
l 5. Termination. This ,~greement may be terminated without further liability to the
terminatin~ party as follo«s: (i) b~~ Licensor if Licensee does not pay any undisputed sums due
hereut~der w-ithin thi time require~i herein and such failure continues for ten (10) days after
w~ritten notice of no~1-payment default is delivered to Licensee; or (ii) by a party upon a material
defa~~lt of ~ny covenant or ~erm hereof bv the other party, which default is not cured within ninety
Page ~
'~ 2006 EarthLink. Inc.
~'ersion 1 C) ~2006
;~~~>> da~~ ,~f receipt taf ti~~r~~tten i~ot~~e c~t ~lefault (~>r, il~~tlle default is not susceptible to cure within
i1~tlet_y (~a(~~) days, the failure of thc -_Ief~au?ting party to commence a cure within the ninety (90) day
~~~_~rr~~d ,in~l diliger~tly~ pr~.orecdin~~, ~o ~.~~_~mplete the cure). Licensee may, for any reason at its
~l~sc.~eti~~~n. tenl~ina~e thi~ ~gr~~n~~•ut ai ~ny tim<~ by ~ivin~ a~~ritten termination notice at least
~~ne hundr~ed and e~~~htv t~8(~) ~ia~~ prior to the ~_iesi~nated termination date, in which event the
L~cense Pa_yment and ~~th~r sum, ~~,iue ht~reunder shall be paid iintil that termination date and no
~i~~-tl~er ~~~i~~ls ~~ill l~e ~.~~~~-~~e~i thc~~-~aft~~ Licen~oT- may tern~inate this Agreement upon the
.i~:ter-mination of thc~ Stru~~turt~~, i~~;ana~~ement tc~ --aie or ~iiscontinue use of the Structure or to
c-1~~~1~e tl~~~ use ~~1 thc ~tn~cture to :~n activitv inconsistent ~~ith this Agreement such that
[_.:~:~:nse~~'~; equipnient ~~«~_ild ~~late~~~all~ _~nd advt~rselv interfere ~~~ith the use of the Structure and
a~, ~ieen~ecl approp~~iat~ ~~y the t'it~,~~ Manage~, ~rovided the Licensor and the Structure's
~ranage~t7~nt ~~ill i~~7tifv F.~~rthLink ~n ~~riting as suon as feasible of any project or primary function
~~+ tlte Str~.icture that ma} ~~~esult in l:ice~~see's renioval of its equipment. Neither termination nor
e~:parati~~r~ of this .~green~znt oi- a~~y authorization granted hereunder shall be deemed to relieve
e~ther partv of anv ~~~ligat~ons that t~y thcir nature survive such termination or cancellation.
16. Removal. linless Licensor and Licensee enter ~nto an agreement that provides
otherwise~ upon the expir~~tion ~r earlier termination of this Agreement, Licensee shall remove all
L~c.ensee T=acilities u°ithin sia (6) r~ftontlls of any ~Lich expiration or earlier termination and return
th~ Structure and Propert~v to the ~ondition in w~hich it existed immediately priar to Licensee's
installation, taking ~nt~ account nc~r-maJ ~~ear anci tear over the Term and damage and alterations
ca~sed E~~ Licensor c~r t~=thers. i he ~emoval shall be according to a mutually agreed upon
sc~hedul~,. Upon I.~censee s failure to remove the equipment by the deadline, Licensor shall have
the right, at its option, to rLmo~ e and dispose of the equipment at Licensee's expense.
1?. Condemnapon. [f Licensor receives notification of any condemnation
proceedings affecting the Structurc~ or Property, Licensor will provide notice of such proceedings
to Lieensee within ten { 1 ~~) days o3~ Licer~sor rece~pt of notice. If a condemning authority takes all
o~~ the Strueture. or a portion sufficient, in Licensee's reasonable determination, to render the
Sites unstaitable for Licensee, this Agreement will terminate as of the date the title vests in the
eondemning authority. ~T!~e partie~ w7il each be entitled to pursue their own separate awards in
the ~:ondemnation proceecls. Licensor ~.~~ill refund to Licensee any Rent paid for any period after
si.ich terrnination,
1$, Destruetion. Licensor ~vill provide notiee to Licensee of any casualty affecting
tl~e Property within ten (10) days of such casualty_ Licensor will notify Licensee as soon as
p~~ssible of any casualty ~~r other ~~vent that damages the Sites or the Licensee Facilities or, to
Lieertsor'~ knowledge. prvvents the Licensee Facilities from operating properly. If any part of
the Licensee Facilities or Structur~.~ is damaged hy casualty so that the Licensee Facilities cannot
c~perate properly ("Destruction"j, and repair is delayed by damage to Licensor's Premises, the
C.icense Payment shall ahate untz! Licensee's repairs are no longer delayed by such damage.
Neither Licensor nor L~censee is obligated to re-build and repair the damages of such
Destruc~icm. If either party elect4 not t~~ repair the damages of Destruction then that party may
terrriinate this Agr~;ement by pro~ idin~ ~~~7itten riotice, which termination will be effective as of
the date of such rlotice. i~pon siich ter-mination. Licensor will refund to Licensee any Rent paid
fc~r the period after Dest~-uction, If Dk~structioi~ occurs, Licensor agrees to use its reasonable
~~ 2i)pfi EarthLink. Inc.
~~ ersion 1 +)l2006
Page (~
et~torts to ~erniit I~~censec: to place tem~~~~ral-y tra~~ismission and reception facilities on the Property
arld Struczure ~~~iti~ ct~ntint~ed licei~tie ~~~~i ments in~til the Sites and Licensee Facilities are repaired.
I~, :~ssi~nment and Sublettin~. I.~censee sl~all not assign this Agreement without
t}l~ pricr- ~ti~~ritten consent of Lice~~sor ~~.chich ~~~ill ~~ot be unreasonably conditioned, delayed or
v+ ~thhel~i, except tl~at L~c ensee n~av ~.~~>>~n, sul~let, or otherwise assign and transfer all of its
i~~t;erest ir~ this A~;1e~men! to a suh~idiar~~~ or par~~i~t corporation or pursuant to a merger or sale of
ail ~~r ~u~~stant~ixll~ alf ~~t the a~.ets ~~~r stc~ck of Licensee or pursuant to the sale of all or
sF_~bstantially all ot~ the assrts or ~>pcr~at~ons ol the division ot Licensee that is operating the
~riunieipaE wireless net~~t~rks r~~itllout tl~e co~~sent ti~f Licensor by providing written notice to
Licensor. Licensor sha(I assign tl~~is ,~~~reemen~. to any purchaser(s) of the Structure. Licensee
ma~~ as~i~,n, nlort~a~e, pledge, h}~oth~cate or c,tl-~er~~~ise transfer without consent its interest in
this Agre~=ment t<~ anv tinancing eo~tit~. ~~r a~ent on hehalf of any financing entity to secure loans
ti ~ 1_ icensee.
20. Warrantv af Title and Quiet Enioyment. Each party represents and warrants to
the o~her ~hat: (i) s~ich party has fi~ll right to make and perform this Agreement; (ii) the making of
this Agreement anc~ the ~~erformnxice t}~iereof will not violate any laws, ordinances, restrictive
c~~4?nants or ather a~-eements iulder which such party is bound; (iii) such party is a duly
~rgan~zed and existing cc~rporation or iimited ]iability company; (iv) the party is qualified to do
bus~ness in the state in which the Structure is located; and (v} all persons signing on behalf of
sucf7 partv were authorized to da so hv appropriate corporate or partnership action. Licensar
represents and warrants that Licer~sor uwns the Property and Structure in fee simple or has the
r7ght to grant the rights granted to (,icensee here~n. Licensor covenants and agees with Licensee
that upc~n Licensee's pay~ng the Frent and observing and performing all of the terms, covenants
and conditions on Licensee's pan to be observed and performed, Licensee may peacefully and
quietly ~njoy the Sites and maintain the Licensee Facilities on the Site. Licensor covenants that
Licer~see shall have the quiet enjoyment of the Sites during the term of this Agreement. Licensor
w~arr~ts and represents that Licensor will protect, defend and indemnify Licensee against any
interference with I.icensee's use and quiet enjoyrnent of the Sites. Lessor shall indemnify Tenant
fr~m and against any los4, cost or expense or damage associated with a breach of the foregoing
c~venants of quiet znjoym~nt.
? 1. Repairs. Licensee ~hai I not be required to make any repairs to the Property ar the
Stn~cture uniess such repairs shall be necessitate~d by some fault of the Licensee. Licensor shall
rriaintain and repair all portions of the Property and Structure other than the Licensee Facilities in
a proper operating and reasonabl} safe conditio~2 insofar as necessary for Licensee to operate as
permitted by this AgreeTnent. Aoy maintenance or repair work to or near the Sites shall be
c~aor~inated with Licensee and sha(1 be c~nductec~ in such a manner as to prevent interference with
the Licensee Facilit~ies.
Z2. Hazardous Substances. Lice~see shall comply with all laws related to
I-~aza~'dous Materials that are ap~?licabl~ to Licensee and Licensar shall comply with all laws
related to Hazardous Materials that are applicable to Licensor. Lieensor represents and warrants
that neither the Property nor the Stnicture is used to generate, store or dispose of Hazardous
Material rn violatic~n of~ applieable law. l~icensor will notify Licensee in writing of any
Haza~dous l~laterial generated, stc~red c~~~ disposed of on the Property or in the Structure. This
Agreement shall, at the o~tion of 1_icensee, be ~~c~id and of no further force ar effect if Hazardous
Pa~e
C~ 2006 EarthLink, Inc,
~~ersion ]i)/2006
~t~tte~-ials ,ire cliscovered Eo exist ~ipon, about or beneath the Structure, Property and any
~~n~~r~~~vements thereun in ~ iolation f~f l~~~ti~ after 1.iccnsee takes possession of the Sites and the
.K~Gtt~nce c7! the Hazar-dous Vlaterials mat~rial(~,~_ acl~~ersely affects Licensee's operations under this
~ ic~r.~e_ .~~ use~l in this S~-ctio~~. "~ laz~ir~3~~us Ma~ci-ial" shall mean substances that are identified
,~ ;f~a~at~do~:s, toxic ~~r ~lan~~~rous in ~iny ~~p}~licable f~d~ral, state or local law or regulation.
23. Liability and Indemnitti. Licens~~e shall indemnify and hold Licensor harmless
ti-ot~~ all cl~ims (includin« reasonahle attoi-nevs~ fees, costs and expenses of defending against
~uc~t~ clai~~~s} ar~sinU ti-om ~he ~ros~ ne~li~ence c~r ~~illful misconduct of Licensee or Licensee's
.~g~;s~ts or ~•mployees in o1 about !l~E Structure f_icensor shall indemnify and hold Licensee
~baral~(ess fi-,~m all claims (i~lcl~idin~ attorr~eys' fee~>, costs and expenses of defending against such
~~iain~~s) arising or alieged t~~ arise frc~m the gross ~.egli~ence or wiliful misconduct of Licensor or
i icer~sot-~"s agents c~r ~mpto~~~~~ees in c~r about the Str~_icture.
2d. lnsurance. Licenser~ wii~ rnaintain inslirance as provided in the Network Services
.~~~re~metit~.
25. Building and Safetv Requirements. During the Term of this Agreement,
~,icensor sl~all maintain the Property and Licensee shall conduct its operations in compliance
l+~itl~ all applicable state an~l federal building code~, statutes, orders, ordinances and regulations.
26. Markin~ and Lightin~ Requirements. Licensor shall cooperate with Licensee
.~~ith respect to compliance with all marking and lighting requirements of the Federal Aviation
=~dmTnistration ("FAA") and the F('C. Provided, however, any marking or lighting requirements
necessitated by Licensee's operatic,ns on the Premises and the maintenance thereof shall be at
E~icensee~s expense and included in the specification agreed to in Attachment B. Should
C,ic,ensee be. cited because the Property is not in a~mpliance due to the Licensor's operations and
actions c,r inactions on the Property, and should Licensor fail to cure the conditions of
~~oncompliance, Licensee may, invoke its remedies under this Agreement.
2?. Parties Bear their Own Costs. Except as expressly set forth herein, each party
shall pa_y its own costs of ~ierforming hereunder. This Agreement and the Exhibits hereto state
!~he only charges and sums that Licensee is reqi~ired to pay during the Term for installation,
attachment, maintenance o"~~the Lirensee Facilities and for electricity usage. Licensee shall not
t?v~~e ~icensor far the services of employees or contractors of Licensor unless described expressly
x~n an attached Exhibit ar Licenser~ has ~xecuted on paper a written agreement specifying the
charges l.i~ensee agrees to pay and ±he ~ti~ork to be performed by such employees or contractars.
28. Limitation of Liabilit~ . THE PARTIES EXPRESSLY AGREE THAT
~_IC~FNS~K AND LICENSEE SH,aLL ?~OT BE LIABLE FOR 1NCIDENTAL,
~`C)NSEQI)ENTIAL, PLI'~IITIVE. OR EXEMPLARY DAMAGES, REGARDLESS OF
l~H F:TH ER THEY WER~= ADVIS FD C>E~. OR O"CHERWISE SHOULD HAVE BEEN AWARE
~JF. ~~ HE POSSIBILITY (~-F S~~C;N DAMAGES. REGARDLESS OF THE LEGAL THEORY
t;)R BASI~ FOR SU~H ('[~AIM. The parties expressly agree that Licensee and Licensar shall
r~o~~ be li~~~?e for direct dan~iages in ~in airount in ~:xcess of the amount of Rent paid by Licensee
izei-eunder :iuring thz immediately ~~recedijlg twel~~e (12) months, except for damages caused by
foss <:~f lite. bodil_y injurv, ~~~- dan~ag~. to property.
`~ 'OO6 FarthLink, Inc.
1 ers~on ? Ci ?006
Page 8
'9. iVliseellaneous.
(a) Ent;re .~e~.:~~~ent This A~reement and the Exhibits hereto constitute the
~~it~ e a,;r~~ement an~i und~~rstar~din~ bc•t~~~een the parties ~vitlz res~~ect to the subject matter hereof,
aTi~l sur~c:~~sedes all offei-~, ne~ot~atior?~ and ott~er agreements concerning the subject matter
cE>nfaincd l~erein_ :~n~~ an~endr»enh t~ this Agre~~ment must be in writing and executed on paper
~~,~ hoCh n~trties. ~~ f~l~sim~ ie shall h~~ cc~~a~idered pap~i~.
(bj Se~~~rabilit~ If ~~ir~y pro~~isio~~ of this .~greement is determined by a court
~~~ c~_~m~~e~ent juris~iiction to be in~ ~.~lid t,r unenforceable with respect to any party, the remainder
~~~~ ti~is ~~~~reement or the <<pplicatiE~n ol~ ~~uch procision to persons other than those as to whom it
is l~~ld in~.~alid or u~~enforreable, sd~all n~~t be affected and each provision of this Agreement shall
b:: ~. alid a~~d enforceable tt~ the ful;c~st extent pernlitted by la~v.
(cj Successors. Thi~ .agreement shall be binding on and inure to the benefit
~~t the si~c~:essors and pen~litted as~~gnees of the T~espective parties.
(dj No_Third Pa~Beneficiaries. This Agreement shall not create for, nor
g~ve to, any third party a~iy clailr or right of action against either party to this Agreement that
~~o~cld not arise in the absence of tliis Agreement
(ej Headin~s. Section headings of this Agreement are inserted only for
reterence and shall in no ~vay define, limit, or describe the scope or intent of this Agreement nor
affect it, terms or provisions.
( fl No Parniership. Nothing in this Agreement is intended to, or shall be
deeined tc~, constitute a joint venture, partnership or agency between the Licensor and Licensee.
(g) Notice. Anv notice or demand permitted or required to be given herein
shall be made by certified or registered mail return receipt requested, or reliable national
overnigM courier to the address of the respective parties set forth below:
Licerisor:
CC I~igital Commanity Development
Corp~ration
1 ? (i 1 Leopard Street
C'orpus C[~risti, Texas 78401
Attn: President
Licensee:
EARTHLINK, INC.
1375 Peachtree Street
Atlanta, Georgia 30309
Attn: General Counsel
Licensor or Licensee may from time to time ciesignate any other address for this purpose by
written notice to the other party. Notice shall be deemed received on the third business day if it is
sent by first class mail, or the dat~ of deliveryo ur refusal of delivery if it is sent by over night
deli ver~~~ service.
(hl Governin~ Law This A~reement shall be governed by the laws of the
State oi Z exas, without regard to the conflict of law provisions thereof, and venue far any action
here~nder shall be exclusively in the l_lnited St.ates District Court for the Southern District of
Texas, C~>rpus Christi Di~~ision_ o~ in a"!'exas State Court sitting in Nueces County, Texas.
(i j Vlr'aiver and_Remedies. Failure of either Party to enforce any provision of
t~~~~ A~~~e~ment or the waiver ther~~f~f ir~ ~ny inst~~nce shall not be construed as a general waiver or
Page 9
C;~ =t10(~ E~rthLink Inc.
V'~rsiori ! ~)/20~)6
rcl~nc~uisl~nient on its paxt ~~f anv su~_h prc~~~ision b~_~t the san~e shall nevertheless be and remain in
?~t~if t~~rce ~~~~d effect The r~,~mcdies ~~xprc~sly pro~~ided in ttiis A~reement shall be in addition to
~in~.~ ~,ther r;~meclies ~~~ ailahl~ at la~~~ ~~r in <~quity~.
(~ ~ Offsct. 1_icen~ee n~<iv offset and reduce Rerlt and other sums due to Lessor
~~v ~i~v a~~~csunts o~ti~e~j bv L~censor t~~ Licc~isee.
(k) E~i~able Rel~ef. ~~ach pa~~~ty agrees that any threatened or actual default
!i~av c,au~e ~mmediate irreparable h~~rm t+~ the non-defaultin~ party for which there is no adequate
~~einedy ~it i;~w. Accc~rdinglv, each ~~arty a~rees th<~t the non-defaulting party will be entitled to an
t~rder for s~~ecific pert~ormance a~1d to injunctive r~elief~ from a court of competent jurisdiction as
~-em~-dy it~r ~ny threaten~d :~r actuai defa~ult. Nothing in this Agreement, will prevent or prohibit
t~it~et- part~~ from ~~btainin~~~ an ard~•r oi~ specific ~~erformance and an injunction from a court of
~ompete~7t jurisciict3~~n 1-ec;uiring t~~e c~eFaulting party to comply with the provisions of the
-~~;reement and not tr~ take actions !}iat ~ iolate its abligations under the Agreement.
(l} Reasonable Z~reatment It~ any case where the approval or consent of one
part~ hei-ett~ is required, requested or otherwise to be given under this Agreement, such party
~hall nat ~zilreasonabiy conelition, delay or withhold its approval or consent. Each party agrees to
furnish t<~ rhe other, withi~~ ten (10? davs after rec~uest, such truthful estoppel information as the
other rnav Teeasonablv request.
(n~ ) Counterparts This Agreerr~ent may be executed in duplicate counterparts,
each af ~~~h~ch shall be deemed an oraginai~
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above wntten.
L1CE~SOR:
a
~~.. - -
Name:
lts:
_
Date
Tax II)#:
LICENSEE:
FARTHLINK, INC.,
a Delaware corporation
~y' -
~1ame:
(ts:
Jate:
I'age IO
~~ 2~(~i F:arthLink, lnc.
`~'rxsion ~ fi'200F
A~1"TACHMENT A
LEGAL Dr'.SCKIPTION OF THE PROPERTY
Page 1
~> 2046 EarthLink. Inc.
~~ er~;ion 1 +)/2~06
:~ CTACHMENT B
DESCRIPTION OF SI1'ES, ANTENNAE, AND EQUIPMENT
Page I
`) ?OQ6 Earthl.ink. ]nc.
~-`ei-sion 101~00f~
Schedule l.4
EarthLink Services
_a. EarthLink W'i-Fi Standard Internet Access Product. EarthLink will make
ati ailable to subsrribers a~~ intemet access product for usage of the Network. Access
~:~utside of the ~~~vera~e areas in the C'itv is not included. EarthLink will use
~c~mmerciallti~ rea~;onahle ~~ffort, to deliver the EarthLink Wi-Fi Standard Unlimited
~~~cess Product t~= subscril~~~rs at transmissior~ speeds of up to 1.0 Mbps downstream % 1.0
'Vlhps upstream. t~ach sub<criber account is permitted up to a designated number of log in
~la~nes that can h~~ us~cl t~~ ~ lo~ ~n. How~;.~~er. only one login at a time is permitted per
iccount_ A~rar,° perio~~ ot~ "simultaneous usage" may be allowed, after which
~imultan~;ous usa~~e char~e~ wil~ apply.
B. Fixed Wireless Service. EarthLink will make available to business subscribers a
~oint-to-multipoint fixed ~,~~ireless data transmission and Internet access service to
htiildings and municipal g~~vernment locations (the "Fixed Wireless Service") at the non-
~-ecurring and manthly re~~urriti~ prices determined by EarthLink. EarthLink will use
vommercially reasonable c~tforts to deliver the Fixed Wireless Service to subscribers at
~xansmiss~on speeds of u~, to 1 5 Mbps downstream / 1.5 Mbps upstream. The Fixed
'vtiireless Services shall bti~ del~~~ered to subscribers subject to the following additional
~:errris and canditic.>ns:
Shall be utilized solelv for the subscriber's business activities and
purposes, ~~~d shall not be used for non-subscriber activities, such as
recreational use,
'. Shalt be managed by a single designated point of contact within the
subscriber organrzation;
~. Shall acces, the Network through subscriber specific non-broadcast
Service Set ldentifiers (SSIDs);
~. Sh~ill be r~~uted by EarthLink proxy RADNS server to a designated
subscriber R.ADII JS server for authentication;
~ Shall be prc~visioned and ~naintained by the subscriber and only for use by
enlployees <, f the subscriber;
E~, Shall be accounts associated with the subscriber's primary Internet domain
nan~e, or such other domains that as a matter of regular practice are
n~anaged b~- the subscriber's IT departments;
Sh~sl1 recei~ ~ Z'ier 3 Network Operations Center (NOC) support via a
sin~~le interrace from the subscriber's Tier ~ NOC to EarthLink's Tier 3
N(~C support center;
Pa~e 1
C~ 2(~6 EarthLink, lnc. ~
version 8. ?(}Of~
~ Sh<<ll be l~il!~~d t~~~ ~hc subsc~riber on a single invoice each Inonth;
`' Shr~ll not hc~ esr,l~I
i ~). Sh<~11 inclu~lc o~~~~~ one lo~in name per account with no simultaneous
lo~!iis ot tl~~e s~~nle account allowed. EarthLink shall have the right to
pre-,~ent sir,lult~n~eous lo:;ins or to assess reasonable charges to the
suhseriber I~~~r shar-ed acco~~nt ur simuitaneous activity by multiple use~-s ar
de~ Ices tisn~,~r a.i~l,le acc~~unt to access the Network.
(`. Generall~~. Use ot~ the 1~arthLink Wi-Fi Standard Unlimited Access Product and
E~~itied Wireless S~;rvices F~v si~hscribers will be subject to the then-current EarthLink
~ervice agreement, Accc~~table Use P~>licv and Privacy Policy governing access by
~,u~~scribers to the Vetwork
G 20(~6 EarthLink. Inc.
~~~rsian 8-?006
Page ?
,.. ~ ~ _ „~.. ~. .
,...... ~.
. n ~ ,. _..LL _ _. __ ... ~. . _..~
.._.. .~.., .~. ._ m_ ..~,,~
Schedule 1.8
~¢
~ ~~
C'overa~e l~Iap
Page 1
~~ ZO~J6 E~,arthLink. lnc.
ti ersi~ ~n R'? 006
Schedule 3.1
Lacation of Cih Poles
[See attached ~t~le]
~? '(1~6 E-arthLink. lnc.
ver~ion ~ ?006
Page ?
~ ,~. .~ ~ 4.,~_
~.,
__. __..,~
~ ,e. _ ._,~.._ y.,_ __.~ Y.. .._.... _,.. _..,.._ _.. ._.
Schedule 3.6
List of Premises
T1~e t~'it~ ~~=~~~ns. operates, a~~d main~ains ~~rtain assets. such as bt~ilding rooftops, radio towers
~rr~l ~_Iata c~°nter or e~~llecti~~~n 1,acilit~~. loc~~tions, as ~pecifically listed on Schedule 3.6 below:
l. ka~l~o l~o~a er locat~~d next t~~ Sa~ ~c~e Lane Pump Station ,~02 N. Navigation Blvd.,
~'~?r~~us t'l~rrsti. ti~«ces C~~unty_ Tc~as.
?. f?a~lic~ T~o~~er locatcd next t~~ Fleet Mainte~lan~e Building ~B, 5352 Ayers, Corpus Christi,
~I~_~e~~es ~-~~~unty, 7~exas.
~. Kaciio To~~er locatc~d next t~~ Holly Road Pump Station, 4800 Holly Road, Corpus Christi,
~I~ec~es ('~~i~mty, T~x<ts.
-~. Ra~iio Tower locat~d next t~> Flour Bluff Water Tower, 2029 Division Road, Corpus
Christi `TX 78418, (:`orpus Christi, Nueces County, ~I`exas.
~. Radio Tower located next to O. '~. Stevens Water Treatment Plant, 13101 Leopard Street,
Corp~s C:hristi, Nueces County, Texas.
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~~ ?(}Q6 EarthLink, Inc.
~~erc~on ~i-?O06
Schedule 3.7
1)escription of Fiber Svstem
i Description of CitY's Fiber s~~stem. ( Inr.l~ides a GIS map graphically depicting the City
~~il~er Netti~~c~~-k .in~i a list of t}le actual pair listings.
,'~ _ ~~tttl ?i~y~ _~~~~ ~ra~~~; t~~~z~
CITY DARK FIBERS
__
.
Fiber
~ -_ -
Dark
Fibers
Fiber
Trurt~dDro _ Point 1 ~, Point 2 ~Count
' P
:_. ~ - t -- --
___
-- Re .
'
'
~ __ _ . _ _ __
r _ _ , - Multimode Sin lemode
' ayers _ Saratoga_ +
_ . . _-- - _Nol~ . I 16
, _ ----- 8
-
- 4 2
Nol~_ ;
, _ _ __ _ _ _ _ - Civitan t 16
-- -- -
--- - -
6
-- 4 2
~leet via SR ~ ~
~
a~rs ; 60 12 46 4
ivitan ~
_ ~ _ . _ - lohanna + 60
- -- - 12 46 0
McArdle
, _ _ _ -- --
Horne ~ 60
-~- -----
10
46
2
~iorne +
_ Roosevelt ~ 60
- - - - - -- 10 44 2
~ Rooseve4t '
_ _ _ _ - ---- -
Del Mar ~ 32
--- - -
6
2~
2
Del Mar
_ _ - _ - -- ~- - ---- __
-} -~"'enth 32
. _ -}- _---
-- -- 6
- 16 ?
`Trans. To Ala. } Tenth Ala./Mor a~ n_ 32
---- -- 6
- 16 ?
; Morgan _
--- - _ _,__ ~- ": ~~/Sta les 32
-- 8 14 0
~Cit~ Hall Dro~__ }Lipan Panel
- TR Room ~ 32
- -- - - -
- 8 10 0
; Kost~'z __-___ Staples _. _
~-- ~ -
-
NoIIY-- - ~ 32
-- -
6
-
22
2
Ho~_
~ _ - _ ----- ~- -- Sarato~a _ ~
-~ --- 32
~
6 24 2
Web~er ' Gollihar
`._-- - --- ~-
- - - - McArdle ~ 32
+- _ _ --- -- _--- 6 24 2
' McArdie
_-
_ _- _ .-- __ ~ - --_ .__
- Holl 32
_Y
- ---
~ ----- 6
--- 22 2
o
~-
__- __ ~
--
- ±
~ t-.arave e i
---- -- 32
--
6
-
24
?
_
_ve_art _ Alameda
_. +
~ __~ _ _~
Sta le
32
s '
8 22 2
_ ~
Sta les _
__
,_ _ __ _ _ _
_
--
~ ~'orona
+_ - 32
~:_ ~_ _ _ -
6
---
20
2
Uorona -_ ~ Hol~ ' 32
--- - _ .} ____._
-- __ -_ _ __---- 6
__ 18 2
- -_
Holl~ ~~ara~o_~a ', 32
- _ __ _- -- __. 6 22 2
Sarato~a ~ ~:~edar
Pass ~ 16 6 $ 2
_
__ _- - --- ---
StapleslCarm ~ --_ __
~arkdaMe Lib. _ Librar le~ ': 32
-- ~ --
- - - - - -~' -
8 20
~
'
~
fi
Sta s ~ Carmel __ t Everhart 16
_ . ___~_ _ _-_ _ -- ---- -:
--- -- -
6
6
2
,
-
Everhart +McArdle
' 16 -----
6
6
0
_
_ __.. _ _ ~ ____ - _ - -____
fi ---
McArdle ; SS-SPID ; 32
~ + -- - -t _ _--
---
6
--- -
2
2
,,
, SS-SPID ~ Nilliams--- , 16
_ __ ---- - ~ ----_ -
._~~ ~- ~-
-----~ 6
-----
- 6 ?
r
Williams I Holl~y ' 16
._. . ..__. -__.._.._ ~.. ._.._..... . .__ _ ..4'.. -_ . . _+ _..._."_- -
6
-.-__._
. 4 2
I -
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C~) 204)6 EarthLink, Inc_
~~rsion ~ ?00(~ iboao~ovoz
TrunklDrop_ , Point 1
_ _ _ Ho, Y_
Sar ato~a
~~Jso Dr~~~~~ -- ~ Wl%JTP
G~~f Course
AlameGa Ma~:nt. Drop
,air~ine + Alameda
__ _ _ Hol~
. Y_-- _ _
^~oii~ _ Rocidfield
' Airi~ne
Staples
; Everhart
W e~er
,_ _ __ _-__ ~ .-__ _
_ _
_ KostorYz
_
_ _ ~_ __ _ __ ___
~Saratoga __ Ayers
`Gre~'twood
- I TXDOT
-t---- ~--
_ -_ _ _----- SS-SPID
---.+- __
vollihar
_ - -- _ - - Greenwood
-~- __ _.
tiorrte !~ Greenwood
' Por~
._ - -- _ _ ----- __ _- __ -
Baldr~vin
;`--____ _. -- _ Greenwood
__-}- -. _
G.L G.
'
i _Morc~n~66_ 5~__ _
Course
. ~ -_ ._ __
+A~ort Rd.
Bear Lane
~ I Enterprise
_ _ .-- - __ _ __
F_
- - -- - ~RTA Drop_
L~eo~rd _ _ i Nueces Bay
1-- ----
, _ _ _ ____ _ . i Kerned
_ _ _ ~ -_ _Y_ _---
_
__ _-__ i Tuloso
_ ~ - . _-
~ Steuens WP
~ Horseshoe
i McKenzie
____~_- ----- Dr.
_ _ __ ~__ __. _
~ _iJpriver
_- _ _ ' McKenzie
~- __ -__ __
:-3' t Mesc1uite
' Mesguite
- - __ __ , Museum
+---_ -_ __
4_Hentac,~e Par~
Power Street
I-3I
Arens Drop ; I-37/MesquitF,
!~~• 2~'1{~ E~~rthLink, Inc
~ {~i-~~an ~; ?~06
~ , -
Fiber
Dark --- --
~ Point 2 ~
_ Count
_ . --- Fibers
~ --- Fiber R eq.
-- ----
- __
-
Sarato~a _ 16 6
•
6 - --
2
Y'orktown 32
6 22 4
Golf Course 32 • 8
. _---
, ___ ~ --- 22 ?
Aia.iMaint
22
~
Dro~ 32 6
--
Airiine ' 32
8 22 4
Hoily __ ~ 32 y 6 22 2
Saratoga _ 32 Y 6
~
;--- ----
- -- 24 2
~
Airline 32
~_ . _ -_ .._ _
~ - -+ ' 6
-- 24 2
y Staples__ _ ' 32
f- ------~ 6
-- 22 0
Everhart ', 32 6 10 0
-~- - -- ~-_
+W eber ~ 32
_ __
~- ~ 6
- 8 2
Kostoryz _ _
32
-+- - - 6
-- 8 0
a Fleet Maint. 32 __ 8 4 0
; Greenwood ', , 22 2
fW W TP 32
~ ~ 8
~SS _SPID _ ~ 32 6 22 0
~ Gollihar ' 16
SH286 A ersZ ~ 16 6
6 22
8 0
2
Port ' 16 6 6 2
~ A~ers -- ~ 16 i
-
-j- __ 6
-- 4 0
~
,
~A~ers-- _- j 36 ~ _ 12 24 2
,
,~
~Aiport Rd. 32 ~
--- g
. - 20 0
;
,
Staples ~ 16 ! .
6
2
2
~
RTA Dro ~ 32
_-~-- -- - ~
~ 8 20 0
Joe Mireau Rd.
2 8 18 0
_
~
Kenn~ 32 6 24 2
City Hall ~ 32 6
- 12 4
~
McKenzie ! 32
__ ._ _~- 4 12 2
McKenzie ' 60
_ _ _ ~ --
12
48
0
_
UpRiver Rd. + 32 _-
_ 4
12
0
Deer Run 32 4 12 0
Shoreline _ 60 _ 10 46 4
Heritage Park ' 32 8 ~ 6 ?
Power Street 32 8 ~ 8 ?
I-3;° 32 8 12 0
John Sartain
12
~
~Cab 32
_ ~---- 8
-
Arena _ _ 72 ~ _ _ 24 46 0
Page ~'
IbOx09n ~~p2
. ~..~,... . ...: .d.. . . . . „e~,.. _. ~,r,,,, . _. _. . . ...~... . . .. _.. . .. .. _ < ..<.. , ,. .~,:. .....», .. .. .., ....... ._..~..,. . ....... ..~..~. . ........ _... ... ..._.. . ,......,,~,
Power St~eet
__ _ _ , Mesguite P+amp Station
, 32 ,
,_
------ - 8
_ _ _ - 22 ?
OnE ~ _ _
~ CPD Radio Shoreline I.a' 12S
- - 0
- _ _ 8 ~
'3horeline
_ _ Peopie
_ __ L~:~vrence
- --- _ ~
32
_- 4
_ _ 24 0
-
~ Fiber
Dark _
Trurtlc/Drop Point 1 Point 2 ICount _ i Fibers Fiber Re .
~ --- ~ _ _. _.
Marina ~,~op_
-
Shoreline
__ _ _
' Marina
_ _ ___ _
' 32
_----- -
6
_ _
24 ---
0
Ca~ ancahua __
~~pan
, City Hall
__
Vault
, _ _ ___ _
32
t------
8
- - 7 ~
Jar?n Sartair
_. _ _ _ Carancahua
, _ - - iCab
+-- - ---. _ 32
,-- -- 8
.- ~4 ~
Jahn Sartair
`;pan
; CitL Hail
',Cab
' 24M '
18 ~ ~
'
?. Equipment Throughput t)verview
all riher is terminated to Ciscc> Smart switches or routers capable of gigabit ethernet speeds
~ar core equipment, or, fast ethernet speeds fc~r end-point terminations. VLANs are used for
~Iet~ ork separation and QoS is ~m~lemented ¢or VoIP traffic only at this time.
Page ~
.~ ~ 2046 EarthLink, Inc,
vcrsion ~,2006
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