Houston - EarthLink muni WiFi agreement

7/30/2019 Houston - EarthLink muni WiFi agreement

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WIRELESS SERVICE AGREEMENT

_______________________________________

This Wireless Services Agreement (Agreement) is entered, by and between the City ofHouston, Texas (the City), and EarthLink, Inc. (Provider), a Delaware corporation,authorized to transact business in the state of Texas.

R E C I T A L S

WHEREAS, pursuant to the Request for Proposal issued March 17, 2006 (the RFP),

the City has requested proposals for wireless broadband network financing and managementservices within the City of Houston; and

WHEREAS, Provider has submitted a proposal and, following evaluation andnegotiation, has been selected as the most qualified entity that responded to the RFP; and

WHEREAS, the City desires certain services to be provided to City offices andemployees, and for other services to be available to the public for free and/or at certain prices to

the user; and

WHEREAS, in addition to providing certain services to the City pursuant to the RFP andas further describe in this Agreement, Provider desires to make other services available to the

public on a commercial basis; and

WHEREAS, in exchange for the right to obtain certain services from the Provider, the

City is willing to serve as an anchor tenant upon the terms and conditions set forth herein.

A G R E E M E N T

Now, therefore, in consideration of good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties agree as follows:

1. PARTIES

1.1. Address

1.1.1 City of Houston, Texas

Information and Technology Department City of Houston611 Walker

8th FloorHouston, Texas 77002


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1.1.2 EarthLink, Inc.

1375 Peachtree StreetLevel AAtlanta, Georgia 30309

2. TABLE OF CONTENTS.

Page

1. PARTIES.............................................................................................................................11.1.......Address ....................................................................................................................1

2. TABLE OF CONTENTS...................................................................................................2

3. CONTROLLING PARTS..................................................................................................43.1.......The language of this document controls in the event of a conflict between theExhibits and this document......................................................................................4

4. CITY SERVICE COMMITMENT...................................................................................4

4.1.......City Commitment to Serve as Anchor Tenant.........................................................44.2.......Taxes........................................................................................................................44.3.......Method of Payment..................................................................................................4

4.4.......Limit of Appropriation.............................................................................................4

5. NETWORK SERVICES AND PRICING. .......................................................................55.1.......City Services and Equipment...................................................................................5

5.2.......Inter-Local Agreements ...........................................................................................75.3.......City Hyperlinks........................................................................................................7

5.4.......Parking Meter Transmission Network. ....................................................................75.5.......Service Level Agreement.........................................................................................85.6.......Acceptance Testing..................................................................................................9

5.7.......City Testing..............................................................................................................9

6. TERM..................................................................................................................................9

6.1.......Effective Date ..........................................................................................................96.2.......Term.........................................................................................................................96.3.......Renewal....................................................................................................................9

6.4.......Extension................................................................................................................10

7. ASSIGNMENT.................................................................................................................107.1.......Assignment by Provider.........................................................................................10

8. INSURANCE....................................................................................................................108.1.......Risks and Limits of Liability .................................................................................108.2.......Form of Policies.....................................................................................................11

8.3.......Issuers of Policies ................................ ..................................................................118.4.......Insured Parties........................................................................................................11


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8.5.......Deductibles ............................................................................................................118.6.......Cancellation ................................................................ ...........................................11

8.7.......Subrogation............................................................................................................118.8.......Endorsement of Primary Insurance........................................................................11

8.9.......Liability for Premium ............................................................................................118.10.....Subcontractors........................................................................................................118.11.....Proof of Insurance..................................................................................................11

8.12.....Other Insurance......................................................................................................12

9. TERMINATION AND REMEDIES. .............................................................................129.1.......Major Default by Provider; Remedies ................................................................ ...12

9.2.......Non-Termination Default by Provider; Remedies.................................................139.3.......Default by City; Remedies.....................................................................................13

9.4.......Dispute Escalation ................................ .................................................................14

10. MISCELLANEOUS ........................................................................................................1510.1.....Release and Indemnification..................................................................................15

10.2.....Drug Abuse Detection and Deterrence. .................................................................1710.3.....Sovereign Immunity...............................................................................................18

10.4.....Limitation on Citys Liability................................................................................1810.5.....Liability of Provider...............................................................................................1810.6.....Applicable Law and Venue....................................................................................19

10.7.....Force Majeure. ................................................................ .......................................1910.8.....Relationship of Parties ...........................................................................................19

10.9.....Third Party Rights..................................................................................................19

10.10...Approvals...............................................................................................................2010.11...Regulatory Compliance .........................................................................................2010.12...Headings ................................ ................................................................ ................2010.13...Integrated Document..............................................................................................20

10.14...Severability ............................................................................................................2010.15...Compliance With Equal Employment Ordinance..................................................20

10.16...Authority................................................................................................................2010.17...Recitals...................................................................................................................20

10.18...Amendments ................................................................ ..........................................2010.19...MW/DBE Participation..........................................................................................2010.20...Confidentiality ................................................................ .......................................21

10.21...Definitions..............................................................................................................2110.22...Signatures...............................................................................................................24

EXHIBITS

A. Notice of Supplemental Allocation of Funds

B. Drug Policy Compliance AgreementC. Certification of No Safety Impact Positions

D. Drug Policy Compliance DeclarationE. Equal Employment Opportunity Ordinance


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F. MWBE Subcontract Terms

3. CONTROLLING PARTS.

3.1. The language of this document controls in the event of a conflict between the Exhibitsand this document.

4. CITY SERVICE COMMITMENT.

4.1. City Commitment to Serve as Anchor Tenant. The City hereby commits to purchase

from Provider a minimum of Five Hundred Thousand Dollars ($500,000.00) per year of wirelessbroadband products and services (the Committed Amount) for each of the first five (5) years

after full Network Acceptance under the Network Agreement. Notwithstanding the foregoing, atthe Citys discretion, the City may choose to not purchase the full amount of products and

services. In such event, the Provider may reduce its payment of License Fees or such other sumspayable to the City pursuant to the Network Agreement by an amount equal to the difference

between Five Hundred Thousand Dollars ($500,000.00) and the amount of the City actually paidfor products and services for that year (the Offset Amount).

4.2. Taxes. The City represents and warrants that it is currently exempt from payment of

Federal Excise and Transportation Tax and Texas Limited Sales and Use Tax. So long as theCity is exempt from such taxes, Providers invoices to the City shall not contain assessments ofany of these taxes. The Director will furnish the Citys exemption certificate and federal tax

identification number to Provider if requested.

4.3. Method of Payment. The City shall make all payments due under this Agreement onlyafter having received an invoice from Provider for such payment. The Citys payments of such

invoices due under this Agreement shall be made within thirty (30) days of submission of theinvoice to the City, unless such invoice is disputed in good faith by the Director. The City shall

pay a late fee as provided by law.

4.4. Limit of Appropriation

4.4.1 In compliance with Section 4.1, the Citys duty to pay money to Provider under

this Agreement is limited in its entirety by the provisions of this Section.

4.4.1.1 In order to comply with Article II, Sections 19 and 19a of the

Citys Charter and Article XI, Section 5 of the Texas Constitution, the City hasappropriated and allocated the sum of zero ($0.00) to pay money due under

this Agreement (the Original Allocation). The executive and legislativeofficers of the City, in their discretion, may allocate supplemental funds for

this Agreement, but they are not obligated to do so. Therefore, the partieshave agreed to the following procedures and remedies:

4.4.1.1.1 The City makes a supplemental allocation by sending a


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notice signed by the Director and the City Controller to Provider insubstantially the form attached at Exhibit A.

4.4.2 The Original Allocation plus all supplemental allocations are the Allocated Funds.The City shall never be obligated to pay any money under this Agreement inexcess of the Allocated Funds. Provider must assure itself that sufficient

allocations have been made to pay for services it provides. If Allocated Funds areexhausted, Providers only remedy is suspension or termination of itsperformance under this Agreement, and it has no other remedy in law or in equity

against the City and no right to damages of any kind.

5. NETWORK SERVICES AND PRICING.

5.1. City Services and Equipment. Throughout the Term of this Agreement, Provider shall

provide the following services (City Services) and Equipment to the City:

5.1.1 Government Use Services. Provider will make available wireless broadbandInternet access services, subject to Providers standard terms and conditions for

such services, for use by City employees, City designated agents and elected andappointed City officials and the employees of City-related Agencies forGovernment-related activities (Government Use Services). The rate shall be

the lesser of $10.00/month/subscriber (that is, City or City-related individualuser) or the prevailing wholesale rate charged by Provider to its wholesale

customers for the same service per subscriber. Provider will use technicallyfeasible efforts to deliver connectivity to the City at the provisioned transmissions

speeds (currently up to 1 Mbps downstream / 1 Mbps upstream). The City shallbe responsible for providing Network compatible Customer Premises Equipment(CPE) to its users and for providing technical support for users of the

Government Use Services.

5.1.2 Fixed Wireless Services. Provider will make available to the City a symmetrical

fixed wireless data broadband access service with dynamic or static IP addresses.The service shall have technically feasible efforts transmission speed of at least1.5 Mbps and shall be subject to Providers standard terms and conditions for

such services. The rate for such service shall be the lesser of $150.00/month/connection or equal to the Providers prevailing wholesale rate

per connection.

5.1.3 Fixed Wireless 3 Mbps Services. Provider will make available to the City asymmetrical fixed wireless data broadband access service with dynamic or static

IP addresses. The service shall have a technically feasible efforts transmissionspeed of at least 3 Mbps and shall be subject to Providers standard terms andconditions for such services. The rate shall be the lesser of

$250.00/month/connection or equal to the Providers prevailing wholesale rateper connection.


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5.1.4 Wireless Mobile Services. Provider shall offer the City a symmetrical fixedwireless data broadband mobile (Tropos 4210 or a functional equivalent) access

service (subject to consumption limits). The service shall have a technicallyfeasible efforts transmission speed of up to 1 Mbps and shall be subject to

Providers standard terms and conditions for such services. The rate shall be theless of $35.00/month/mobile device or the prevailing market rate for this product.

5.1.5 Additional Products. To the extent Provider offers additional products,applications and services during the Term or any Renewal Term of this

Agreement, as the parties may agree, Provider may make such products,applications and services available to the City. The Director may add additional

products, applications, or services to this Agreement by incorporating acceptableappendices executed in writing by both parties via a mutually agreed change

order. The Director may obtain these products, applications, or services, subject

to the Citys allocation of funds to pay for them. For purposes of this Section, theEffective Date means the date on which both parties execute the acceptableappendices and Providers receipt of confirmation from the City of its allocationof funds to pay for the products, applications, and services. As of the Effective

Date, each additional product, application, or service is subject to this Agreement,as if it had originally been a part, but the charge for each additional product,

application, and service starts to accrue only on the Effective Date. The Directormay delete products, applications, and services that are no longer needed by the

City. The Director may request change orders to add or delete products,applications, or services in an aggregate amount not to exceed the maximumspending authority approved by the City Council for the products, applications, or

services.

5.1.6 Equipment, Setup, and Activation. Provider shall provide all equipment, setup,and activation services to the City as provided herein.

5.1.6.1 Equipment. Provider shall make available certain equipment to theCity. This equipment shall include:

5.1.6.1.1 Mobile Router (Tropos 4210 or a functional equivalent)

which will enable public safety vehicles to receive electronic informationand communications, including video, photography, maps, building plans

and similar types of data). The price shall be $1,125.00 per device(additional price reductions may be available for quantities greater than3,000).

5.1.6.1.2 Premise Equipment where the location is not conducive to

connections via external access points (e.g. Wireless Data T1 or greaterservices for a multistory building or any Wi-Fi access to a room deep

inside of building). Provider shall waive these charges in exchange for amulti-year services term commitment.


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5.1.6.2 Set up. Provider shall provide setup services to the City forPremise Equipment for a fee not to exceed eighty-five percent (85%) of the

Providers standard published charges for such services. This service may benecessary where the location is not conducive to connections via external

access points (e.g. Wireless Data T1 or greater services for a multistorybuilding or any Wi-Fi access to a room deep inside of building). Provider maywaive set up charges in exchange for a separate multi-year services

agreement, pursuant to normal City contracting procedures.

5.1.6.3 Activation. Provider shall perform activation services forGovernment accounts within the time frame as specified in the Network

Agreement. Provider shall waive the activation fees for Government UseServices.

5.2. Inter-Local Agreements. The City may enter into agreements with other politicalsubdivisions and agencies of the state within the Coverage Area to grant such public entities theright to obtain services from Provider at the rates and terms provided in Section 5.1.

Notwithstanding the foregoing, Provider is not required to provide Services in any ExcludedArea. Provider is not required, but may elect, to build-out the Network to cover any such

political subdivisions and agencies of the state outside the Coverage Area.

5.3. City Hyperlinks. Provider shall provide the City with up to six (6) hyperlinks within theCapture Portal. To the extent it is reasonable, mutually agreeable, and technically possible,Provider shall allow limited access from such links to the underlying Web sites to end users that

have not logged in or signed up for service. The user must agree to the terms and conditions of

use of the Network in order to access the Web sites, applications, and utilities in the CapturePortal.

5.4. Parking Meter Transmission Network.

5.4.1 The Parking Meter Transmission Network access services (Meter Services)

included under this provision shall be optional and may be accepted and approvedby both parties by written change order as provided below. The primary servicesunder this provision are services related to the Citys Parking Meter Transmission

Network. Provider shall assess the Citys Parking Meter Transmission Networkand the transmission service to interconnect the Parking Meter Transmission

Network kiosks with the Citys designated management facility for managing theparking meter functions. Based on this assessment, Provider and the Directormay agree to terms for Provider to assume support and operation of this network

including keeping facilities updated with industry standard technology. Inconsideration for the use of these City assets, if any, Provider shall provide the

maintenance and support for the Parking Meter Transmission Network for anumber of years at no cost to the City, but such number of years shall not be less

than five years. After the five (5) year no cost period, the City shall pay no morethan $2.00 per access node per month and $0.25 per Megabyte for aggregate

bandwidth in excess of forty (40) Megabytes in any given month.


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5.4.2 The Director may add the Meter Services to this Agreement by incorporatingacceptable appendices executed in writing by both parties via a mutually agreed

change order. The Director may obtain the Meter Services, subject to the Citysallocation of funds to pay for them. For purposes of this Section, the Effective

Date means the date on which both parties execute the acceptable appendices andProviders receipt of confirmation from the City of its allocation of funds to payfor the Meter Services. The Director may delete services that are no longer

needed by the City. The Director may request change orders to add or deleteMeter Services in an aggregate amount not to exceed the maximum spending

authority approved by City Council for the Meter Services.

5.5. Service Level Agreement. Provider shall meet or exceed the service levels required inthe Network Agreement, except as provided below. The service levels shall be measured based

on a monthly average and will exclude outages caused by third party circuit providers, the City

itself, or other failures not within the reasonable control of Provider. In no case will a failure tomeet these service levels constitute a Major Default. These service levels may be modified fromtime to time as mutually agreed by the Director and Provider.

5.5.1 Network Coverage. Provider shall provide Wireless Mobile Services coverage to

ninety-five percent (95%) of the Coverage Area except for Excluded Areas usinga standard Tropos 4210 or similar vehicle-mounted device with an exteriormounted antenna (or similar device as determined by Provider) having 36dBm

EIRP, as determined by sampling of the Coverage Area except for ExcludedAreas, which sample locations will be reasonably determined by Provider and the

Director.

5.5.2 Network Throughput. Provider shall provide throughput in accordance with thefollowing service levels:

5.5.2.1 Government Use Services: technically feasible efforts to achieve

data transmission rate at an average of 1 Mbps downstream and 1 Mbpsupstream.

5.5.2.2 Fixed Wireless Services: technically feasible efforts to achieve

data transmission rate at an average of 1.5 Mbps downstream and 1.5 Mbpsupstream.

5.5.2.3 Fixed Wireless 3 Mbps Services: technically feasible efforts to

achieve data transmission rate at an average of 3 Mbps downstream and 3 Mbpsupstream.

5.5.2.4 Wireless Mobile Services: technically feasible efforts to achieve

data transmission rate at an average of 1 Mbps downstream and 1 Mbpsupstream.

5.5.2.5 Additional Products: For additional products, applications and

services provided to the City, Provider will provide SLAs to Director as part of


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the delivery of that product to the City. For City specific products, Provider andCity may mutually agree on SLAs.

5.5.3 Customer Support. Provider will provide contact information, including names,email addresses, telephone numbers for use 24 hours a day, 7 days a week, whichmay be used by the Director to escalate or resolve issues that are attributable to

Provider and the Network. Providers Network Operations Center (NOC) willbe the Directors initial point of contact for the escalation of issues related toProviders provision of the City Services (e.g., service interruptions due to

network equipment outages or failures). Provider will use commerciallyreasonable efforts to cause the NOC to investigate and facilitate (e.g., through the

issuance and management of trouble tickets) the remediation of problemsreported to it by the Director. Provider shall create an integration protocol for the

City which will provide detailed information on communications and escalation

procedures with the NOC. Provider shall work in good faith to create andimplement policies, procedures, and technology that, subject to theConfidentiality provisions of Section 10.20, permit the Director visibility into theNOC and shall work in good faith to provide proactive communications to the

Director via emails and outage boards informing the Director of any plannedmaintenance, scheduled and unscheduled network outages.

5.5.4 Reports. On a monthly basis, Provider shall measure and report to the City on

performance metrics for the City Services, subject to the Confidentialityprovisions of Section 10.20.

5.6. Acceptance Testing. Provider shall meet the acceptance criteria required in the NetworkAgreement, except as provided herein. Acceptance Testing will be conducted according toSection 6.3 of the Network Agreement. For additional products provided to the City, Provider

will provide a test plan to Director as part of the delivery for that product.

5.7. City Testing. The City may at its sole expense periodically conduct proof of performancetests to confirm that the Services satisfy the relevant SLA.

6. TERM.

6.1. Effective Date. This Agreement shall become effective and binding on the date that this

Agreement is countersigned by the City Controller (Effective Date).

6.2. Term. The term of the Agreement shall be comprised of an initial term of ten (10) years(Term), commencing on the Effective Date.

6.3. Renewal. City shall renew this Agreement up to two (2) additional terms (RenewalTerm(s)) of five (5) years each, provided that Provider has complied with all materialconditions under the Agreement and has no uncured Major Defaults. In the event that City

chooses not to renew, City shall provide notice of such fact to the Provider at least six (6) monthsprior to the expiration of the Term or Renewal Term of Agreement.


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6.4. Extension. After the expiration of the second Renewal Term, the Parties may extend theterm by an amendment to the Agreement. In the event the City and Provider are unable after

good faith negotiations to reach agreement to the terms and conditions of an extension of thisAgreement, this Agreement shall terminate as of the original expiration date as stated herein.

7. ASSIGNMENT.

7.1. Assignment by Provider. Provider may assign the Agreement subject to the following

provisions:

(a) Provider may assign this Agreement pursuant to the sale of all or substantially all ofthe assets or stock of Provider (or managing Division of Provider) without the

consent of the City Council;

(b) Provider must obtain the prior written consent of the City Council before theProvider may assign the Agreement to an unaffiliated third party; and

(c) Provider shall provide the Cit y Council a reasonable period of time, not to exceed

thirty (30) business days, to consent to such transaction, such consent not to beunreasonably withheld.

8. INSURANCE.

Provider shall maintain in effect certain insurance coverage, which is described as follows:

8.1. Risks and Limits of Liability. Provider shall maintain the following coverages and limits

of liability:

Workers Compensation Statutory

Employers Liability Bodily Injury by accident $500,000 (eachaccident)

Bodily Injury by Disease $500,000 (policylimit)

Bodily Injury by Disease $500,000 (eachemployee)

Commercial General Liability: includingBroad Form coverage, Contractual Liability,Bodily and Personal Injury, and Completed

Operations

Bodily Injury and Property Damage,Combined Limits of $500,000 eachoccurrence, and $1,000,000 aggregate

Automobile Liability Insurance(for vehicles Provider

uses in performing under thisAgreement, including EmployersNon-Owned and Hired Auto

Coverage)

$1,000,000 Combined single limit


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Defense costs are excluded from the face amount of the policy. Aggregate Limits are per 12-

month policy period unless otherwise indicated.

8.2. Form of Policies. The Director may approve the form of the insurance policies, but

nothing the Director does or fails to do relieves Provider from its duties to provide the requiredcoverage under this Agreement. The Directors actions or inactions do not waive the Citys

rights under this Agreement.

8.3. Issuers of Policies. The issuer of any policy (1) shall have a Certificate of Authority totransact insurance business in Texas or (2) shall be an eligible non-admitted insurer in the State

of Texas and have a Bests rating of at least B+ and a Bests Financial Size Category of Class VIor better, according to the most current edition Bests Key Rating Guide.

8.4. Insured Parties. Each policy, except those for Workers Compensation and Employers

Liability, must include the City (and its officers, agents, and employees) as Additional Insuredparties on the original policy and all renewals or replacements

8.5. Deductibles. Provider shall be responsible for and pay any claims or losses to the extent

of any deductible amounts and waives any claim it may have for the same against the City, itsofficers, agents, or employees.

8.6. Cancellation. Each certificate must state that it may not be canceled or nonrenewed

unless the insurance company gives the Director thirty (30) days advance written notice.

8.7. Subrogation. Each policy must contain an endorsement to the effect that the issuerwaives any claim or right of subrogation to recover against the City, its officers, agents, or

employees.

8.8. Endorsement of Primary Insurance. Each policy, except Workers Compensation, mustcontain an endorsement that the policy is primary to any other insurance available to the

Additional Insured with respect to claims arising under this Agreement.

8.9. Liability for Premium. Provider shall pay all insurance premiums, and the City shall notbe obligated to pay any premiums.

8.10. Subcontractors. Provider shall require all subcontractors to carry insurance naming theCity as an additional insured and meeting all of the above requirements except amount. Theamount must be commensurate with the amount of the subcontract, but in no case less than

$500,000 per occurrence. Provider shall provide copies of insurance certificates to the Director.

8.11. Proof of Insurance.

8.11.1 On the Effective date and at any time during the term of this Agreement, Providershall furnish the Director with Certificates of Insurance.


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8.11.2 Provider shall continuously and without interruption, maintain in force therequired insurance coverages specified in this Section. If Provider does not

comply with this requirement, the Director, at his or her sole discretion, may

8.11.2.1 immediately suspend Provider from any further performance underthis Agreement and begin procedures to terminate for default, or

8.11.2.2 purchase the required insurance with City funds and deduct the

cost of the premiums from amounts due to Provider under this Agreement.

The City shall never waive or be estopped to assert its right to terminate this Agreement becauseof its acts or omissions regarding its review of insurance documents.

8.12. Other Insurance. If requested by the Director, Provider shall furnish adequate evidence

of Social Security and Unemployment Compensation Insurance, to the extent applicable toProviders operations under this Agreement.

9. TERMINATION AND REMEDIES.

9.1. Major Default by Provider; Remedies. Notwithstanding anything to the contrary, thisAgreement shall not be terminated by the City unless a Major Default (as defined below) hasoccurred and the following notice, cure period and dispute resolution process is followed.

Nothing in this Section shall prevent the City from terminating any Services or exercising itsother remedies set forth in other provisions of this Agreement or under applicable law or in

equity. In the event Provider commits any Major Default and does not cure such Major Defaultwithin ninety (90) days after a default notice is delivered to Provider, then the City shall first

engage in the dispute escalation and resolution processes described in Section 9.4 and thereafterbe entitled to exercise its rights to terminate this Agreement due to the Major Default and/orexercise all other remedies available to the City under this Agreement, at law or in equity. The

occurrence of any one or more of the following events constitutes an event of default and breachof this Agreement by Provider (Major Default):

9.1.1 Assignment for Benefit of Creditors. The making by Provider of any general

assignment or general arrangement for the benefit of creditors; or the filing by oragainst Provider of a petition to have Provider adjudged a bankrupt, or a petition

or reorganization or arrangement under any law relating to bankruptcy unless thesame is dismissed within sixty (60) days; or the appointment of a trustee or a

receiver to take possession of substantially all of Providers assets located atProviders facilities or of Providers interest in this Agreement, where possessionis not restored to Provider within thirty (30) days; or the attachment, execution or

other judicial seizure of substantially all of Providers assets located at Providersfacilities or of Providers interest in this Agreement, where that seizure is not

discharged within thirty (30) days.

9.1.2 Failure to Satisfy Wholesale Pricing and Open Network Requirements of theNetwork Agreement. The failure by Provider to satisfy Wholesale Pricing


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requirements at Section 4.4 of the Network Agreement and/or the Open Networkrequirements at Section 12.24 of the Network Agreement.

9.2. Non-Termination Default by Provider; Remedies. Should Provider fail to observe orperform any of the covenants, conditions or provisions of this Agreement required herein to beobserved or performed by Provider, other than those constituting a Major Default, the City has

no right to terminate this Agreement and the Citys remedies are limited as described in thisSection. The City will notify Provider of the Default and require its cure. Should that failurecontinue for a period of thirty (30) days after written notice thereof by the City to Provider, the

City may find Provider in default and shall be entitled to exercise all other remedies for breach ofthe Agreement, including the right to obtain specific performance, injunctive relief and money

damages, provided that none of these remedies shall prohibit the continued use of City facilitiesor order the removal of Providers Facilities and provided further that any order for specific

performance, injunction, and/or damages shall not require Provider to pay or expend any sums in

excess of the liability limitation set forth in this Agreement. If the nature of EarthLinks defaultis such that more than thirty (30) days are reasonably required for its cure, then Provider will notbe deemed to be in Default if Provider commences that cure within the thirty (30) day period andthereafter diligently prosecutes that cure to completion.

9.3. Default by City; Remedies. RF Interference shall be eliminated by the City as providedin Section 3.6 of the Network Agreement. In the event of RF Interference, the Provider shallhave the same rights with regard to the termination of this Agreement as it has for the

termination of the Network Agreement and shall, at the Providers option, have the right toterminate affected Services as a result of RF Interference. In all other circumstances, the

Provider shall be entitled to the following remedies:

A. Suspension of Services. If the City disputes, in good faith, any portion of aninvoice submitted by the Provider in accordance with this Agreement, the City shall,

within the time periods required for payment under Section 4.3, pay any portion notdisputed in good faith and shall advise the Provider in writing of the amount in dispute

and the grounds for such dispute. If the City fails to make such undisputed payment andprovide notice as required herein, the Provider may, upon ten (10) days written notice tothe City, suspend its Services hereunder until the City has cured such default.

B. Termination of Agreement for City Payment Default. If the City fails to makesuch payment not disputed by the City in good faith and provide the written notice as

required in this Section, the Provider may, upon thirty (30) days written notice to theCity, terminate this Agreement if the City has not cured such default within such period.In addition to termination, the Provider shall be entitled to exercise all other remedies

available under this Agreement, at law and/or in equity.

C. Termination of Agreement for City Default other than City Payment Default. Inthe event of a City Default other than a City Payment Default and the City does not cure

such City Default within ninety (90) days after a default notice is delivered to the City,then Provider shall first engage in the dispute escalation and resolution processes

described in Section 9.4 and thereafter be entitled to exercise all other remedies availableunder this Agreement, at law and/or in equity, including termination of this Agreement or


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any Services. In addition, Provider shall be entitled to terminate this Agreement if theNetwork Agreement is terminated or if the actions of third parties or applicable law make

it unfeasible for Provider to operate the Network.

9.3.1 Except for a City Payment Default, if the nature of the Citys obligation is suchthat more than thirty (30) days are required for performance, then the City will

not be in default if the City commences performance within that 30-day periodand thereafter diligently prosecutes the same to completion.

9.3.2 Except as provided in this Section and applicable Sections of this Agreement,

Provider has no right to terminate this Agreement as a result of a City Default,and Providers remedies are limited to termination of Services, damages, specific

performance and/or an injunction.

9.4. Dispute Escalation. Any dispute between the Parties or default by either Party whicharises during the Term of this Agreement, shall be subject to the following administrative

remedy prior to any action for damages, equitable remedies or specific performance ortermination by the City of the rights of Provider or this Agreement for a Major Default or for anyother dispute:

9.4.1 Internal Resolution. Both Parties shall attempt to resolve any controversy claim,

problem, default, or dispute (Dispute) arising out of, or related to, thisAgreement through good faith consultation in the ordinary course of business. In

the event that Dispute is not resolved by the project managers of each Party,either Party may upon written notice to the other request that the matter be

referred to senior management officials within each respective organization withexpress authority to resolve the Dispute (Request for Internal Resolution). Awritten Request for Internal Resolution shall be given by either Party within a

reasonable time of the Parties knowledge of the unresolved Dispute. Seniormanagement officials shall meet or confer at least once in good faith, to negotiate

a mutually acceptable resolution within a reasonable time of the Request forInternal Resolution. Senior management for each Party shall be the President,

Municipal Networks for EarthLink, and the Director or Directors designeerespectively, for the City, and their respective successors in office who possess

authority to resolve the dispute and agree to resolutions and compromises.

9.4.2 Notice. Senior management officials are required to meet only once, but maymutually agree to meet more than once if it appears that further meetings may

successfully resolve the Dispute. All of the requirements for the resolution of theDispute as described in this Section shall be referred to collectively as the

Resolution Process.

9.4.3 Condition Precedent to Termination of Providers Rights. Prior to the expirationof the Term, neither the rights of Provider hereunder nor this Agreement shall be

terminated by the City or any other party without the written consent signed onpaper by Provider unless: (a) the above dispute Resolution Process has been


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completed; and (b) the City has properly exercised its termination rights inaccordance with this Agreement and in accordance with applicable law. Full

completion of all of the applicable procedures of the Resolution Process thatProvider or the City has timely requested in the time provided under this Section

is a condition precedent to one Party terminating the rights of the other Party orfiling suit to enforce or terminate this Agreement or rights hereunder. NeitherParty shall terminate this Agreement or the rights of the other Party hereunder

until all of the applicable procedures of the Resolution Process that Provider orthe City has timely requested have been completed. In the event of litigation

arising out of any Dispute or default related to this Agreement, the Parties shalleach pay their respective attorneys fees, expert witness costs and cost of suit,

regardless of the outcome of the litigation.

10. MISCELLANEOUS

10.1. Release and Indemnification.

10.1.1 Release. Provider agrees to and shall release the City, its agents, employees,officers, and legal representatives (collectively the City) from all liability for

injury, death, damage, or loss to persons or property sustained in connection withor incidental to performance under this agreement, even if the injury, death,

damage, or loss is caused by the Citys sole or concurrent negligence and/or theCitys strict products liability or strict statutory liability.

10.1.2 Indemnification.

10.1.2.1 PROVIDER AGREES TO AND SHALL DEFEND,

INDEMNIFY, AND HOLD THE CITY, ITS AGENTS, EMPLOYEES,OFFICERS, AND LEGAL REPRESENTATIVES (COLLECTIVELY THE

CITY) HARMLESS FOR ALL CLAIMS, CAUSES OF ACTION,LIABILITIES, FINES, AND EXPENSES (INCLUDING, WITHOUT

LIMITATION, ATTORNEYS FEES, COURT COSTS, AND ALL OTHERDEFENSE COSTS AND INTEREST) FOR INJURY, DEATH, DAMAGE,OR LOSS TO PERSONS OR PROPERTY SUSTAINED IN CONNECTION

WITH OR INCIDENTAL TO PROVIDERS PERFORMANCE UNDERTHIS AGREEMENT INCLUDING, WITHOUT LIMITATION, THOSE

CAUSED BY:

A. PROVIDERS AND/OR ITS AGENTS, EMPLOYEES,OFFICERS, DIRECTORS, CONTRACTORS, OR

SUBCONTRACTORS ACTUAL OR ALLEGED NEGLIGENCE ORINTENTIONAL ACTS OR OMISSIONS;

B. THE CITYS AND PROVIDERS ACTUAL OR ALLEGED

CONCURRENT NEGLIGENCE, WHETHER PROVIDER IS IMMUNEFROM LIABILITY OR NOT; AND


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C. THE CITYS AND PROVIDERS ACTUAL OR ALLEGEDSTRICT PRODUCTS LIABILITY OR STRICT STATUTORY

LIABILITY, WHETHER PROVIDER IS IMMUNE FROM LIABILITYOR NOT.

10.1.2.2 Provider shall defend, indemnify, and hold the city harmless

during the term of this agreement and for four years after the agreementterminates. Providers indemnification is limited to $500,000 per occurrence.Provider shall not indemnify the city for the citys sole negligence.

10.1.2.3 Subcontractors indemnification. Provider shall require all of itssubcontractors (and their subcontractors) to release and indemnify the City to

the same extent and in substantially the same form as its release and indemnityto the City.

10.1.2.4 Indemnification procedures

A. Notice of Claims. If the City or Provider receives notice of any claim or

circumstances which could give rise to an indemnified loss, the receiving partyshall give written notice to the other party within 10 days. The notice mustinclude the following:

1. a description of the indemnification event in reasonable detail,

2. the basis on which indemnification may be due, and

3. the anticipated amount of the indemnified loss.

This notice does not estop or prevent the City from later asserting a differentbasis for indemnification or a different amount of indemnified loss than that

indicated in the initial notice. If the City does not provide this notice within the10-day period, it does not waive any right to indemnification except to the extent

that Provider is prejudiced, suffers loss, or incurs expense because of the delay.

B. Defense of Claim.

1. Assumption of Defense. Provider may assume the defense of the claim at its

own expense with counsel chosen by it that is reasonably satisfactory to the City.Provider shall then control the defense and any negotiations to settle the claim.Within 10 days after receiving written notice of the indemnification request,

Provider must advise the City as to whether or not it will defend the claim. IfProvider does not assume the defense, the City shall assume and control thedefense, and all defense expenses constitute an indemnification loss.

2. Continued Participation. If Provider elects to defend the claim, the City mayretain separate counsel to participate in (but not control) the defense and toparticipate in (but not control) any settlement negotiations. Provider may settle

the claim without the consent or agreement of the City, unless it (I) would result


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in injunctive relief or other equitable remedies or otherwise require the City tocomply with restrictions or limitations that adversely affect the City, (ii) would

require the City to pay amounts that Provider does not fund in full, (iii) would notresult in the Citys full and complete release from all liability to the plaintiffs or

claimants who are parties to or otherwise bound by the settlement.

10.1.3 Waiver and Limitation of Liability. Notwithstanding any provision of thisAgreement to the contrary:

A. NEITHER PROVIDER NOR THE CITY SHALL BE LIABLE

FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OREXEMPLARY DAMAGES, REGARDLESS OF WHETHER ADVISED

OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THEPOSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE

LEGAL THEORY OR BASIS FOR SUCH CLAIM; AND

B. THE PARTIES EXPRESSLY AGREE THAT PROVIDERSHALL NOT BE LIABLE FOR DIRECT DAMAGES IN ANYAMOUNT IN EXCESS OF THE AMOUNTS RECEIVED BY

PROVIDER FROM THE CITY FOR THE NETWORK DURING THEIMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD,

EXCEPT FOR DAMAGES CAUSED BY LOSS OF LIFE, BODILYINJURY, OR DAMAGE TO PROPERTY FOR WHICH PROVIDER,ITS EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS

OR SUBCONTRACTORS ARE RESPONSIBLE UNDER THIS

AGREEMENT.

10.2. Drug Abuse Detection and Deterrence.

10.2.1 It is the policy of the City to achieve a drug-free workforce and workplace. Themanufacture, distribution, dispensation, possession, sale, or use of illegal drugs or

alcohol by contractors while on City Property is prohibited. Provider shallcomply with all the requirements and procedures set forth in the Mayors DrugAbuse Detection and Deterrence Procedures for Contractors, Executive Order No.

1-31 (Executive Order No. 1-31), which is incorporated into this Agreementand is on file in the City Secretarys Office.

10.2.2 Before the City signs this Agreement, Provider shall file with the Contract

Compliance Officer for Drug Testing (CCODT):

(a) a copy of its drug-free workplace policy,

(b) the Drug Policy Compliance Agreement substantially in the form set forth in ExhibitB, together with a written designation of all safety impact positions for Providers

employees engaged in activities related to the Agreement on City Property and,


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10.2.2.1 if applicable (e.g. no safety impact positions), the Certification ofNo Safety Impact Positions, substantially in the form set forth in Exhibit C.

10.2.3 If Provider files a written designation of safety impact positions for Providersemployees engaged in activities related to the Agreement on City Property withits Drug Policy Compliance Agreement, it also shall file every 6 months during

the performance of this Agreement or on completion of this Agreement ifperformance is less than 6 months, a Drug Policy Compliance Declaration in aform substantially similar to Exhibit D. Provider shall submit the Drug Policy

Compliance Declaration to the CCODT within 30 days of the expiration of each6-month period of performance and within 30 days of completion of this

Agreement. The first 6-month period begins to run on the date the City issues itsNotice to Proceed or if no Notice to Proceed is issued, on the first day Provider

begins work under this Agreement.

10.2.4 Provider also shall file updated designations of safety impact positions forProviders employees engaged in activities related to the Agreement on City

Property with the CCODT if additional safety impact positions are added toProviders employee work force.

10.2.5 Providers subcontracts shall include a contractual requirement that its

subcontractors comply with the Executive Order No. 1-31, and Provider shallmake reasonable efforts to secure and maintain the required documents for Cityinspection.

10.3. Sovereign Immunity. Notwithstanding any other provisions of this Agreement to thecontrary, nothing in this Agreement nor any action taken by the City pursuant to this Agreement,nor any document which arises out of this Agreement shall constitute or be construed as a waiver

of either the sovereign immunity or governmental immunity of the City, or of its elected andappointed officials, officers and employees.

10.4. Limitation on Citys Liability. Provider acknowledges that the City has sovereignimmunity for any claims by any third party or entity for any interruption in the Providersservices or for any interference with the operation of the Providers Facilities arising from the

Citys use of City Property or the Public Rights-of-Way or from any other action of the City, itsofficers, agents, and employees. It is the intent of the parties that nothing in this Agreement shall

create any right or action by any third party against the City or any of its elected or appointedofficials, officers, or employees for any negligence or consequential, exemplary, or incidentaldamages, including but not limited to any lost profits, data, savings, or revenues, arising out of,

or in connection with, this Agreement or any other agreement the Provider may have with any ofits subscribers, whether under tort, contract, or other theories of recovery, even if the City or its

elected and appointed officials, officers, employees or agents have been advised of thepossibility of such negligence or damages. This Agreement is for the benefit of the Provider and

the City and not for the benefit of any other party.

10.5. Liability of Provider. Provider shall be liable to the City and to others for the acts andomissions of the Providers employees, agents, contractors and subcontractors, except where


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Providers liability, and that of its officers, employees, agents, contractors and subcontractorsmay be limited as provided in other parts of this Agreement.

10.6. Applicable Law and Venue. This Agreement shall be construed and enforced inaccordance with the laws of the state of Texas. The courts of Harris County shall be the properforum for any disputes arising hereunder.

10.7. Force Majeure.

10.7.1 Timely performance by both parties is essential to this Agreement. If either the

City or the Provider is delayed in or prevented from the performance of any actrequired hereunder by reason of an event of Force Majeure, then the performance

of that act will be excused for the period of the delay, and the period for theperformance of that act will be extended for a period equivalent to the period of

that delay. Nothing in this section will excuse the Provider or the City from theprompt payment of any license fees, taxes, insurance premiums, or any other

charges or sums that are required of the Provider or the City hereunder. ForceMajeure does not entitle Provider to extra Reimbursable Expenses or payment.

10.7.2 This relief is not applicable unless the affected party does the following:

10.7.2.1 uses due diligence to remove the effects of the Force Majeure as

quickly as possible and to continue performance notwithstanding the ForceMajeure; and

10.7.2.2 provides the other party with prompt written notice of the cause

and its anticipated effect.

10.7.3 If either the City or Provider is delayed in or prevented from the performance ofany act required hereunder by reason of the other partys failure to comply withthe requirements of this Agreement after written notice is given to the party

responsible for the delay, then the performance of that act will be excused for theperiod of the delay, and the period for the performance of that act will be

extended for a period equivalent to the period of that delay.

10.7.4 Provider is not relieved from performing its obligations under this Agreement dueto a strike or work slowdown of its employees. Provider shall employ only

qualified personnel during a strike.

10.8. Relationship of Parties. Nothing contained in this Agreement, nor any acts of the partieshereto, shall be deemed or construed to create the relationship of principal and agent, or of

partnership, or of joint-venture, or of any association whatsoever between the City and Provider.

10.9. Third Party Rights. No provision of this Agreement shall create, or be construed tocreate for the public or any member thereof, or any other person or business, rights as a third

party beneficiary hereunder, or to authorize any person not a party to this Agreement to maintaina suit for damages of any sort pursuant to the terms or provisions of this Agreement.


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10.10. Approvals. This Agreement shall not become effective unless and until the City approvesthis Agreement and it is executed on behalf of the City (Effective Date). If this Agreement is

not approved by the City and executed by an authorized person, then no liability whatsoevershall accrue to the City or Provider and the City and Provider shall have no obligations

whatsoever to each other.

10.11. Regulatory Compliance. In addition to all requirements contained herein, in the exerciseof the permission granted by this Agreement, the Provider shall comply with all applicablefederal, state and local laws, ordinances, permit requirements, regulations, orders, directives,

rules and policies now in force or as hereafter enacted, adopted or promulgated.

10.12. Headings. The headings of sections throughout this Agreement are intended solely to

facilitate reading. Such captions shall not affect the meaning or interpretation of this Agreement.

10.13. Integrated Document. This Agreement contains the entire understanding between theparties with respect to the subject matter hereof. There are no representations, agreements, or

understandings, whether oral or written, between the parties relating to the subject matter of thisAgreement, which are not fully expressed herein. The terms and conditions of this Agreementshall inure to the benefit of the City. All exhibits referred to in this Agreement are incorporated

into this Agreement and shall be deemed a part hereof.

10.14. Severability. If one or more of the provisions of this Agreement shall be held by a courtof competent jurisdiction in a final judicial decision to be void, voidable, or unenforceable, then

such provisions shall be deemed severable from the remaining provisions of this Agreement andshall in no way affect the validity of the remaining provisions of this Agreement.

10.15. Compliance With Equal Employment Ordinance. As a condition to selling products of

providing Services to the City after full Network Acceptance under the Network Agreement,Provider shall comply with Citys Equal Employment Opportunity clauses as set out in Exhibit

E.

10.16. Authority. The individuals executing this Agreement represent and warrant that theyhave the right, power, legal capacity and authority to enter into and to execute this Agreement on

behalf of the Provider and the City, respectively.

10.17. Recitals. The Recitals are incorporated into this Agreement by reference.

10.18. Amendments. This Agreement shall neither be amended nor modified except by awriting signed by authorized representatives of the City and the Provider.

10.19. MW/DBE Participation. Provider shall comply with the Citys Minority and Women

Business Enterprise (MW/DBE) programs as set out in Chapter 15, Article V of the City ofHouston Code of Ordinances with regard to Services provided to the City. Provider

acknowledges that it has reviewed the good faith requirements on file with the Citys AffirmativeAction Division and will comply with them. Provider agrees to enter into written contracts withall MW/DBE contractors used by Provider. MW/DBE contracts must contain the terms set out

in the MWBE Subcontract Terms attached hereto as Exhibit F. Provider agrees to submit all


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disputes with MW/DBE contractors to binding arbitration if directed to do so by the AffirmativeAction Division Director. Upon acceptance of the Network by City under Section 6.3.2.2 of the

Network under the Network License Agreement, Provider and the Director will meet to discusswhat, if any, MW/DBE capacity exists to perform Services under this Agreement. Based upon

the discussions, the Director will establish good faith participation goals for MW/DBEs relatedto the Network operation, maintenance, marketing, upgrades, and digital inclusion activities.

10.20. Confidentiality. To the extent permitted by Applicable Law, the City will not discloseany of the Confidential Information of Provider during the Term, and any Renewal Term, and for

a period of three (3) years after the Term ends. If Applicable Law requires disclosure ofProviders Confidential Information or any exhibits or attachments ancillary to or executed in

connection with this Agreement, then the City will promptly give Provider written notice andassist Provider in limiting the disclosure to only those portions of that Confidential Information

as is necessary to be disclosed according to Applicable Law. Confidential Information of

Provider means the business plans, financial information and technical information about theNetwork and the customers of Provider and its vendors that are confidential or otherwise tradesecrets under Applicable Law. In addition, the Citys obligations not to disclose the trade secretsof Provider will continue as long as they are trade secrets under Applicable Law.

10.21. Definitions. Except as otherwise defined herein, the following terms, phrases, words,abbreviations and their derivations, when capitalized, shall have the meanings given below. Anycapitalized terms used herein but not defined below or otherwise defined herein shall have the

meanings, if any, given to such terms in the Network Agreement. When not inconsistent withthe context, words used in the present tense include the future tense; words in the plural number

include the singular number; and words in the singular number include the plural number.

Applicable Law means all applicable federal, state, and City laws, ordinances,codes, rules, regulations and orders, as the same may be amended or adopted from

time to time.

Capture Portal means the Web pages, authentication, and order management system towhich browser requests are redirected when a wireless device first attaches to the

Network.

CCODT is defined at Section 10.2.2.

City means the City of Houston, Texas.

City Default means a failure to observe or perform any of the covenants, conditions orprovisions of this Agreement required herein to be observed or performed by the City.

City Payment Default means a default arising from the Citys failure to comply withits payment obligations under Section 4.3 and with its obligations to pay amounts not ingood faith disputed by the City and to notify the Provider in writing of the amounts in

dispute and the grounds for such dispute within the time periods required for payment.


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City Property means City Facilities, and all other real and personal property of the City,of whatever kind, whether occupied by the City as the owner, tenant, or permissive user

thereof.

City-related Agencies means all agencies, departments, boards, commissions, andauthorities of the City.

City Services is defined at Section 5.1.

CPE means Customer Premises Equipment.

Committed Amount is defined at Section 4.1.

Confidential Information is defined in Section 10.20.

Customer Premises Equipment or CPE means communications equipment used at theend users location to enable or improve the reception of a wireless radio signal.

Director means the Director or the Directors designee of the Information Technology

Department for the City of Houston, or any successor department.

Dispute is any controversy claim, problem, default, or dispute arising out of, or relatedto, this Agreement.

Effective Date is defined at Section 6.1.

Executive Order No. 1-31 is defined in Section 10.2.1 of the Agreement.

Force Majeure means fires, interruption of utility services, epidemics in the City,floods, hurricanes, tornadoes, ice storms and other natural disasters, explosions, war,

terrorist acts against the City or Provider, riots, labor disputes (not arising from the laborpractices of Provider or its subcontractors), court orders, and the acts of superiorgovernmental or military authority, and which the affected party is unable to prevent by

the exercise of reasonable diligence. The term does not include any changes in generaleconomic conditions such as inflation, interest rates, economic downturn or other factors

of general application; or an event that merely makes performance more difficult,expensive or impractical.

Government Use Services is defined at Section 5.1.1.

Major Default is a default by the Provider as defined at Section 9.1.

Mayor is the Mayor of the City of Houston.

Meter Services is defined in Section 5.4.1.

Network means the wireless broadband network to be installed, operated, maintainedand owned by Provider for the purpose of providing Services within the boundaries of the


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City.

Network Acceptance means Network Acceptance as defined in Section 6.3 of the

Network Agreement.

Network Agreement means the Wireless Broadband Network License Agreement

entered into by the Parties.

Non-Termination Default is a default by the Provider other than a Major Default.

Offset Amount is defined at Section 4.1.

Original Allocation is defined at Section 4.4.1.1.

Parking Meter Transmission Network is a network consisting of the 60 access nodes in

the Central Business District of Houston currently bounded by Ruiz (North), Hamilton(East), the Pierce Elevated (South) and Bagby, including City Hall Annex (West).

Person means an individual, partnership, association, joint stock company, joint

venture, non-stock corporation, limited liability company, professional limited liabilitycorporation, or other legal entity of any kind, or the lawful successor thereto or transferee

thereof.

Premise Equipment means a communications device typically located on a buildingthat is used to enable or provide a wireless signal to the end user located within the

building of a point to multi-point fixed wireless connection.

Provider means EarthLink, Inc., a corporation duly organized and existing under thelaws of the State of Delaware, registered to do business in the state of Texas.

Providers Facilities means Approved Equipment, and any other fiber optic cables,

wires and equipment that comprises the Network.

Renewal Term is defined at Section 6.3.

Request for Internal Resolution means that written request as provided in Section 9.4.1.

Resolution Process is defined in Section 9.4.2.

Third Party Service Provider means a third party with which Provider enters into a

written Agreement authorizing such third party to offer commercial services over theNetwork.

RF Interference means harmful radio frequency interference.

Term is defined at Section 6.2.


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10.22. Signatures.

IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed by

duly authorized representatives of the parties on the dates written below.

PROVIDER: EARTHLINK, INC.

By: ______________________________Name: Donald Berryman

Title: EVP and President, Municipal Networks

Date: ______________________________

CITY: CITY OF HOUSTON, TEXAS

Mayor

ATTEST:

City Secretary

COUNTERSIGNED: COUNTER SIGNATURE DATE:

___ day of _____________, 2007.City Controller


25/32

Exhibit A

EXHIBIT A

NOTICE OF SUPPLEMENTAL ALLOCATION OF FUNDS

TO: [Name of Provider]

FROM: City of Houston, Texas (the City)

DATE:[Date of notice]

SUBJECT: Supplemental allocation of funds for the purpose of the[title of this Agreement]

between the City and (name of Provider) countersigned by the City Controller on (Date ofCountersignature) (the Agreement).

I, ________(name of City Controller)________, City Controller of the City of Houston, certify

that the supplemental sum of $_____________, upon the request of the below-signed Director,has been allocated for the purposes of the Agreement out of funds appropriated for this purpose

by the City Council of the City of Houston. This supplemental allocation has been charged tosuch appropriation.

The aggregate of all sums allocated for the purpose of such Contract, including the Original

Allocation, and all supplemental allocations (including this one), as of the date of this notice, is$____________.

SIGNED:

(Signature of the City Controller)City Controller of the City

REQUESTED:

(Signature of the Director)Director


26/32

Exhibit B

EXHIBIT B

DRUG POLICY COMPLIANCE AGREEMENT (FORM)

I, as an owner or officer of (Name) (Print/Type) (Title)

(Contractor)(Name of Company)

have authority to bind Contractor with respect to its bid, offer or performance of any and allcontracts it may enter into with the City of Houston; and that by making this Agreement, I affirm

that the Contractor is aware of and by the time the contract is awarded will be bound by andagree to designate appropriate safety impact positions for company employee positions, and to

comply with the following requirements before the City issues a notice to proceed:

1. Develop and implement a written Drug Free Workplace Policy and related drugtesting procedures for the Contractor that meet the criteria and requirementsestablished by the Mayors Amended Policy on Drug Detection and Deterrence

(Mayors Drug Policy) and the Mayors Drug Detection and DeterrenceProcedures for Contractors (Executive Order No. 1-31).

2. Obtain a facility to collect urine samples consistent with Health and Human

Services (HHS) guidelines and a HHS certified drug testing laboratory to performthe drug tests.

3. Monitor and keep records of drug tests given and the results; and upon request

from the City of Houston, provide confirmation of such testing and results.

4. Submit semi-annual Drug Policy Compliance Declarations.

I affirm on behalf of the Contractor that full compliance with the Mayors Drug Policy andExecutive Order No. 1-31 is a material condition of the contract with the City of Houston.

I further acknowledge that falsification, failure to comply with or failure to timely submitdeclarations and/or documentation in compliance with the Mayors Drug Policy and/orExecutive Order No. 1-31 will be considered a breach of the contract with the City and may

result in non-award or termination of the contract by the City of Houston.

Date Contractor Name

Signature

Title


27/32

Exhibit C

EXHIBIT C

CERTIFICATION OF NO SAFETY IMPACT POSITIONS

I,(Name) (Title)

as an owner or officer of (Contractor)(Name of Company)

have authority to bind the Contractor with respect to its bid, and hereby certify that Contractorhas no employee safety impact positions, as defined in 5.18 of Executive Order No. 1-31, that

will be involved

in performing .(Project)

Contractor agrees and covenants that it shall immediately notify the City of Houston Director of

Personnel if any safety impact positions are established to provide services in performing thisCity Contract.

(Date) (Typed or Printed Name)

(Signature)

Title


28/32

Exhibit D

EXHIBIT D

DRUG POLICY COMPLIANCE DECLARATION

I, as an owner or officer of (Name) (Print/Type) (Title)

(Contractor)(Name of Company)

have personal knowledge and full authority to make the following declarations:

This reporting period covers the preceding 6 months from to to , 20 .

_______Initials

A written Drug Free Workplace Policy has been implemented and employees notified. The policymeets the criteria established by the Mayors Amended Policy on Drug Detection and Deterrence(Mayors Policy).

_______Initials

Written drug testing procedures have been implemented in conformity with the Mayors DrugDetection and Deterrence Procedures for Contractors, Executive Order No. 1-31. Employees havebeen notified of such procedures.

_______

Initials

Collection/testing has been conducted in compliance with federal Health and Human Initials

Services (HHS) guidelines.

_______Initials

Appropriate safety impact positions have been designated for employee positions Initials performingon the City of Houston contract. The number of employees in safety impact positions during thisreporting period is ___________________________.

_______Initials From __________________ to _________________ the following test has occurred(Start date) (End date)

Random ReasonableSuspicion

PostAccident Total

Number Employees Tested

Number Employees Tested

Percent Employees Positive

_______

Initials

Any employee who tested positive was immediately removed from the City worksite consistent with

the Mayors Policy and Executive Order No. 1-31.

_______

Initials

I affirm that falsification or failure to submit this declaration timely in accordance with established

guidelines will be considered a breach of contract.

I declare under penalty of perjury that the affirmations made herein and all information contained in this

declaration are within my personal knowledge and are true and correct.

______________________________(Date)

______________________________________(Typed or Printed Name)

______________________________________(Signature)

______________________________________

(Title)


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Exhibit E - 1

EXHIBIT E

EQUAL EMPLOYMENT OPPORTUNITY

1. The Provider will not discriminate against any employee or applicant for

employment because of race, religion, color, sex, national origin, or age. The Provider will takeaffirmative action to ensure that applicants are employed and that employees are treated duringemployment without regard to their race, religion, color, sex, national origin, or age. Such action

will include, but not be limited to, the following: employment; upgrading; demotion or transfer;recruitment advertising; layoff or termination; rates of pay or other forms of compensation and

selection for training, including apprenticeship. The contractor, subcontractor, vendor, supplieror lessee agrees to post in conspicuous places available to employees, and applicants foremployment, notices to be provided by the City setting forth the provisions of this Equal

Employment Opportunity Clause.

2. The Provider states that all qualified applicants will receive consideration for

employment without regard to race, religion, color, sex, national origin or age.

3. The Provider will send to each labor union or representatives of workers withwhich it has a collective bargaining agreement or other contract or understanding, a notice to be

provided by the agency contracting officer advising the said labor union or workersrepresentative of the Providers commitments under Section 202 of Executive Order No. 11246,and shall post copies of the notice in conspicuous places available to employees and applicants

for employment.

4. The Provider will comply with all provisions of Executive Order No. 11246 andthe rules, regulations, and relevant orders of the Secretary of Labor or other Federal Agency

responsible for enforcement of the equal employment opportunity and affirmative actionprovisions applicable and will likewise furnish all information and reports required by the Mayor

and/or Contractor Compliance Officer(s) for purposes of investigation to ascertain and effectcompliance with this program.

5. The Provider will furnish all information and reports required by Executive Order

No. 11246, and by the rules, regulations, and orders of the Secretary of Labor, or pursuantthereto, and will permit access to all books, records, and accounts by the appropriate City andFederal Officer for purposes of investigations to ascertain compliance with such rules,

regulations, and orders. Compliance reports filed at such times as directed shall containinformation as to the employment practice policies, program, and work force statistics of the

Provider.

6. In the event of the Providers non-compliance with the non-discrimination clauseof this contract or with any of such rules, regulations, or orders, this contract may be canceled,

terminated, or suspended in whole or in part, and the Provider may be declared ineligible forfurther City contracts in accordance with procedures provided in Executive Order No. 11246,

and such other sanctions may be imposed and remedies invoked as provided in the said


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Exhibit E - 2

Executive Order, or by rule, regulation, or order of the Secretary of Labor, or as may otherwisebe provided by law.

7. The Provider shall include the provisions of paragraphs 1-8 of this EqualEmployment Opportunity Clause in every subcontract or purchase order unless exempted byrules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of

Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding uponeach subcontractor or vendor. The Provider will take such action with respect to anysubcontractor or purchase order as the contracting agency may direct as a means of enforcing

such provisions including sanctions for noncompliance; provided, however, that in the event theProvider becomes involved in, or is threatened with litigation with a subcontractor or vendor as a

result of such direction by the contracting agency, the Provider may request the United States toenter into such litigation to protect the interests of the United States.

8. The Provider shall file and shall cause its subcontractors, if any, to filecompliance reports with the City in the form and to the extent as may be prescribed by theMayor. Compliance reports filed at such times as directed shall contain information as to the

practices, policies, programs, and employment policies and employment statistics of the Providerand each subcontractor.


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EXHIBIT F

MWBE SUBCONTRACT TERMS

The Provider shall ensure that all subcontracts with MWBE subcontractors and suppliers areclearly labeled THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION

ACCORDING TO THE TEXAS GENERAL ARBITRATION ACT and contain the followingterms:

1. PROVIDER shall not delegate or subcontract more than 21% of the work under

this subcontract to any other subcontractor or supplier without the express written consent of theCity of Houstons Affirmative Action Director (the Director).

2. PROVIDER shall permit representatives of the City of Houston, at all reasonable

times, to perform (1) audits of subcontractors books and records, and (2) inspections of allplaces where work is to be undertaken in connection with this subcontract. Subcontractor shall

keep its books and records available for inspection for at least 4 years after the end of itsperformance under this subcontract. Nothing in this provision shall change the time for bringing

a cause of action.

3. Within 5 business days of execution of this subcontract, PROVIDER andSubcontractor shall designate in writing to the Director an agent for receiving any notice required

or permitted to be given under Chapter 15 of the Houston City Code of Ordinances, along withthe street and mailing address and phone number of the agent.

4. Any controversy between the parties involving the construction or application of

any of the terms, covenants, or conditions of this subcontract must, upon the written request ofone party served upon the other or upon notice by the Director served on both parties, besubmitted to binding arbitration, under the Texas General Arbitration Act (Tex. Civ. Prac. &

Rem. Code Ann., Ch. 171 --the Act). Arbitration must be conducted according to thefollowing procedures:

a. Upon the decision of the Director or upon written notice to the Director

from either party that a dispute has arisen, the Director shall notify all parties thatthey must resolve the dispute within 30 days or the matter may be referred to

arbitration.

b. If the dispute is not resolved within the time specified, any party or theDirector may submit the matter to arbitration conducted by the American

Arbitration Association under the rules of the American Arbitration Association,except as otherwise required by the Citys contract with the American Arbitration

Association on file in the Citys Affirmative Action Division Office.

c. Each party shall pay all fees required by the American ArbitrationAssociation and sign a form releasing the American Arbitration Association andits arbitrators from liability for decisions reached in the arbitration.


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d. If the American Arbitration Association no longer administers AffirmativeAction arbitration for the City, the Director shall prescribe alternate procedures to

provide arbitration by neutrals in accordance with the requirements of Chapter 15of the Houston City Code of Ordinance.

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