WIRELESS SERVICE AGREEMENT _______________________________________ This Wireless Services Agreement (Agreement) is entered, by and between the City of Houston,

Texas (the City), and EarthLink, Inc. (Provider), a Delaware corporation, authorized to transact business in the state of Texas. RECITALS WHEREAS, pursuant to the Request for Proposal issued March 17, 2006 (the RFP), the City has requested proposals for wireless broadband network financing and management services within the City of Houston; and WHEREAS, Provider has submitted a proposal and, following evaluation and negotiation, 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 and employees, 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 and as 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. AGREEMENT Now, therefore, in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. PARTIES Address 1.1.1 City of Houston, Texas Information and Technology Department City of Houston 611 Walker 8th Floor Houston, Texas 77002 1 3-26-07 5:30 CST

1.1.

1.1.2 EarthLink, Inc. 1375 Peachtree Street Level A Atlanta, Georgia 30309 2. TABLE OF CONTENTS. Page 1. 2. 3. PARTIES.............................................................................................................................1 1.1.......Address ....................................................................................................................1 TABLE OF CONTENTS...................................................................................................2 CONTROLLING PARTS..................................................................................................4 3.1.......The language of this document controls in the event of a conflict between the Exhibits and this document......................................................................................4 CITY SERVICE COMMITMENT...................................................................................4 4.1.......City Commitment to Serve as Anchor Tenant.........................................................4 4.2.......Taxes........................................................................................................................4 4.3.......Method of Payment..................................................................................................4 4.4.......Limit of Appropriation.............................................................................................4 NETWORK SERVICES AND PRICING. .......................................................................5 5.1.......City Services and Equipment...................................................................................5 5.2.......Inter-Local Agreements ...........................................................................................7 5.3.......City Hyperlinks ........................................................................................................7 5.4.......Parking Meter Transmission Network. ....................................................................7 5.5.......Service Level Agreement.........................................................................................8 5.6.......Acceptance Testing..................................................................................................9 5.7.......City Testing..............................................................................................................9 TERM..................................................................................................................................9 6.1.......Effective Date ..........................................................................................................9 6.2.......Term.........................................................................................................................9 6.3.......Renewal....................................................................................................................9 6.4.......Extension................................................................................................................10 ASSIGNMENT.................................................................................................................10 7.1.......Assignment by Provider.........................................................................................10 INSURANCE....................................................................................................................10 8.1.......Risks and Limits of Liability .................................................................................10 8.2.......Form of Policies .....................................................................................................11 8.3.......Issuers of Policies ..................................................................................................11 8.4.......Insured Parties........................................................................................................11 2 3-26-07 5:30 CST

4.

5.

6.

7. 8.

8.5.......Deductibles ............................................................................................................11 8.6.......Cancellation ...........................................................................................................11 8.7.......Subrogation............................................................................................................11 8.8.......Endorsement of Primary Insurance........................................................................11 8.9.......Liability for Premium ............................................................................................11 8.10.....Subcontractors........................................................................................................11 8.11.....Proof of Insurance..................................................................................................11 8.12.....Other Insurance ......................................................................................................12 9. TERMINATION AND REMEDIES. .............................................................................12 9.1.......Major Default by Provider; Remedies ...................................................................12 9.2.......Non-Termination Default by Provider; Remedies.................................................13 9.3.......Default by City; Remedies.....................................................................................13 9.4.......Dispute Escalation .................................................................................................14 MISCELLANEOUS ........................................................................................................15 10.1.....Release and Indemnification..................................................................................15 10.2.....Drug Abuse Detection and Deterrence. .................................................................17 10.3.....Sovereign Immunity...............................................................................................18 10.4.....Limitation on Citys Liability ................................................................................18 10.5.....Liability of Provider...............................................................................................18 10.6.....Applicable Law and Venue....................................................................................19 10.7.....Force Majeure. .......................................................................................................19 10.8.....Relationship of Parties ...........................................................................................19 10.9.....Third Party Rights..................................................................................................19 10.10...Approvals...............................................................................................................20 10.11...Regulatory Compliance .........................................................................................20 10.12...Headings ................................................................................................................20 10.13...Integrated Document..............................................................................................20 10.14...Severability ............................................................................................................20 10.15...Compliance With Equal Employment Ordinance..................................................20 10.16...Authority................................................................................................................20 10.17...Recitals...................................................................................................................20 10.18...Amendments ..........................................................................................................20 10.19...MW/DBE Participation..........................................................................................20 10.20...Confidentiality .......................................................................................................21 10.21...Definitions..............................................................................................................21 10.22...Signatures...............................................................................................................24

10.

EXHIBITS A. B. C. D. E. Notice of Supplemental Allocation of Funds Drug Policy Compliance Agreement Certification of No Safety Impact Positions Drug Policy Compliance Declaration Equal Employment Opportunity Ordinance 3 3-26-07 5:30 CST

F.

MWBE Subcontract Terms

3.

CONTROLLING PARTS.

3.1. The language of this document controls in the event of a conflict between the Exhibits and 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 wireless broadband 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, at the 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 sums payable 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 paid for 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 the City is exempt from such taxes, Providers invoices to the City shall not contain assessments of any 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 only after 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 the invoice 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 has appropriated and allocated the sum of zero ($0.00) to pay money due under this Agreement (the Original Allocation). The executive and legislative officers of the City, in their discretion, may allocate supplemental funds for this Agreement, but they are not obligated to do so. Therefore, the parties have agreed to the following procedures and remedies: 4.4.1.1.1 3-26-07 5:30 CST The City makes a supplemental allocation by sending a 4

notice signed by the Director and the City Controller to Provider in substantially 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 in excess of the Allocated Funds. Provider must assure itself that sufficient allocations have been made to pay for services it provides. If Allocated Funds are exhausted, Providers only remedy is suspension or termination of its performance 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 broadband Internet access services, subject to Providers standard terms and conditions for such services, for use by City employees, City designated agents and elected and appointed City officials and the employees of City-related Agencies for Government-related activities (Government Use Services). The rate shall be the lesser of $10.00/month/subscriber (that is, City or City-related individual user) or the prevailing wholesale rate charged by Provider to its wholesale customers for the same service per subscriber. Provider will use technically feasible efforts to deliver connectivity to the City at the provisioned transmissions speeds (currently up to 1 Mbps downstream / 1 Mbps upstream). The City shall be 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 least 1.5 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 a symmetrical fixed wireless data broadband access service with dynamic or static IP addresses. The service shall have a technically feasible efforts transmission speed of at least 3 Mbps and shall be subject to Providers standard terms and conditions for such services. The rate shall be the lesser of $250.00/month/connection or equal to the Providers prevailing wholesale rate per connection.

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5.1.4 Wireless Mobile Services. Provider shall offer the City a symmetrical fixed wireless data broadband mobile (Tropos 4210 or a functional equivalent) access service (subject to consumption limits). The service shall have a technically feasible 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 the less 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 acceptable appendices 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, the Effective Date means the date on which both parties execute the acceptable appendices and Providers receipt of confirmation from the City of its allocation of 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 Director may 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 maximum spending 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 the City. 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 information and 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 than 3,000). 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 greater services for a multistory building or any Wi-Fi access to a room deep inside of building). Provider shall waive these charges in exchange for a multi-year services term commitment.

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5.1.6.2 Set up. Provider shall provide setup services to the City for Premise Equipment for a fee not to exceed eighty-five percent (85%) of the Providers standard published charges for such services. This service may be necessary where the location is not conducive to connections via external access points (e.g. Wireless Data T1 or greater services for a multistory building or any Wi-Fi access to a room deep inside of building). Provider may waive 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 for Government accounts within the time frame as specified in the Network Agreement. Provider shall waive the activation fees for Government Use Services. 5.2. Inter-Local Agreements. The City may enter into agreements with other political subdivisions and agencies of the state within the Coverage Area to grant such public entities the right 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 Excluded Area. 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 the Capture 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 Capture Portal. 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 approved by both parties by written change order as provided below. The primary services under this provision are services related to the Citys Parking Meter Transmission Network. Provider shall assess the Citys Parking Meter Transmission Network and the transmission service to interconnect the Parking Meter Transmission Network kiosks with the Citys designated management facility for managing the parking meter functions. Based on this assessment, Provider and the Director may agree to terms for Provider to assume support and operation of this network including keeping facilities updated with industry standard technology. In consideration for the use of these City assets, if any, Provider shall provide the maintenance and support for the Parking Meter Transmission Network for a number 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 more than $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. 7 3-26-07 5:30 CST

5.4.2 The Director may add the Meter Services to this Agreement by incorporating acceptable appendices executed in writing by both parties via a mutually agreed change order. The Director may obtain the Meter Services, subject to the Citys allocation 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 and Providers receipt of confirmation from the City of its allocation of funds to pay for 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 delete Meter 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 in the 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 to meet these service levels constitute a Major Default. These service levels may be modified from time 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 using a standard Tropos 4210 or similar vehicle-mounted device with an exterior mounted antenna (or similar device as determined by Provider) having 36dBm EIRP, as determined by sampling of the Coverage Area except for Excluded Areas, which sample locations will be reasonably determined by Provider and the Director. 5.5.2 Network Throughput. Provider shall provide throughput in accordance with the following 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 Mbps upstream. 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 Mbps upstream. 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 Mbps upstream. 5.5.2.4 Wireless Mobile Services: technically feasible efforts to achieve data transmission rate at an average of 1 Mbps downstream and 1 Mbps upstream. 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 8 3-26-07 5:30 CST

the delivery of that product to the City. For City specific products, Provider and City 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, which may be used by the Director to escalate or resolve issues that are attributable to Provider and the Network. Providers Network Operations Center (NOC) will be the Directors initial point of contact for the escalation of issues related to Providers provision of the City Services (e.g., service interruptions due to network equipment outages or failures). Provider will use commercially reasonable efforts to cause the NOC to investigate and facilitate (e.g., through the issuance and management of trouble tickets) the remediation of problems reported 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 and implement policies, procedures, and technology that, subject to the Confidentiality provisions of Section 10.20, permit the Director visibility into the NOC and shall work in good faith to provide proactive communications to the Director via emails and outage boards informing the Director of any planned maintenance, 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 Confidentiality provisions of Section 10.20. 5.6. Acceptance Testing. Provider shall meet the acceptance criteria required in the Network Agreement, except as provided herein. Acceptance Testing will be conducted according to Section 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 performance tests 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 (Renewal Term(s)) of five (5) years each, provided that Provider has complied with all material conditions 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) months prior to the expiration of the Term or Renewal Term of Agreement. 9 3-26-07 5:30 CST

6.4. Extension. After the expiration of the second Renewal Term, the Parties may extend the term 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 this Agreement, 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 of the 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 the Provider may assign the Agreement to an unaffiliated third party; and (c) Provider shall provide the City Council a reasonable period of time, not to exceed thirty (30) business days, to consent to such transaction, such consent not to be unreasonably 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 Employers Liability Statutory Bodily Injury by accident $500,000 (each accident) Bodily Injury by Disease $500,000 (policy limit) Bodily Injury by Disease $500,000 (each employee) Bodily Injury and Property Damage, Combined Limits of $500,000 each occurrence, and $1,000,000 aggregate $1,000,000 Combined single limit

Commercial General Liability: including Broad Form coverage, Contractual Liability, Bodily and Personal Injury, and Completed Operations Automobile Liability Insurance (for vehicles Provider uses in performing under this Agreement, including Employers Non-Owned and Hired Auto Coverage) 10 3-26-07 5:30 CST

Defense costs are excluded from the face amount of the policy. Aggregate Limits are per 12month 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 required coverage 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 to transact 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 VI or 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 Insured parties 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, its officers, 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 issuer waives 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, must contain 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 not be obligated to pay any premiums. 8.10. Subcontractors. Provider shall require all subcontractors to carry insurance naming the City as an additional insured and meeting all of the above requirements except amount. The amount 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, Provider shall furnish the Director with Certificates of Insurance.

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8.11.2 Provider shall continuously and without interruption, maintain in force the required 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 under this 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 because of 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 to Providers operations under this Agreement. 9. TERMINATION AND REMEDIES.

9.1. Major Default by Provider; Remedies. Notwithstanding anything to the contrary, this Agreement shall not be terminated by the City unless a Major Default (as defined below) has occurred 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 its other 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 Default within 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 thereafter be entitled to exercise its rights to terminate this Agreement due to the Major Default and/or exercise 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 breach of 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 or against Provider of a petition to have Provider adjudged a bankrupt, or a petition or reorganization or arrangement under any law relating to bankruptcy unless the same 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 at Providers facilities or of Providers interest in this Agreement, where possession is not restored to Provider within thirty (30) days; or the attachment, execution or other judicial seizure of substantially all of Providers assets located at Providers facilities 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 the Network Agreement. The failure by Provider to satisfy Wholesale Pricing 12 3-26-07 5:30 CST

requirements at Section 4.4 of the Network Agreement and/or the Open Network requirements at Section 12.24 of the Network Agreement. 9.2. Non-Termination Default by Provider; Remedies. Should Provider fail to observe or perform any of the covenants, conditions or provisions of this Agreement required herein to be observed 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 this Section. The City will notify Provider of the Default and require its cure. Should that failure continue 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 of the 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 facilities or 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 default is such that more than thirty (30) days are reasonably required for its cure, then Provider will not be deemed to be in Default if Provider commences that cure within the thirty (30) day period and thereafter diligently prosecutes that cure to completion. 9.3. Default by City; Remedies. RF Interference shall be eliminated by the City as provided in Section 3.6 of the Network Agreement. In the event of RF Interference, the Provider shall have 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 to terminate 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 an invoice 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 not disputed 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 and provide notice as required herein, the Provider may, upon ten (10) days written notice to the 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 make such 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 the City, 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. In the 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 available under this Agreement, at law and/or in equity, including termination of this Agreement or 13 3-26-07 5:30 CST

any Services. In addition, Provider shall be entitled to terminate this Agreement if the Network 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 such that 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 period and 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 which arises 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 or termination by the City of the rights of Provider or this Agreement for a Major Default or for any other 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, this Agreement 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 with express authority to resolve the Dispute (Request for Internal Resolution). A written Request for Internal Resolution shall be given by either Party within a reasonable time of the Parties knowledge of the unresolved Dispute. Senior management officials shall meet or confer at least once in good faith, to negotiate a mutually acceptable resolution within a reasonable time of the Request for Internal Resolution. Senior management for each Party shall be the President, Municipal Networks for EarthLink, and the Director or Directors designee respectively, 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 may mutually 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 the Dispute 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 expiration of 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 on paper by Provider unless: (a) the above dispute Resolution Process has been 14 3-26-07 5:30 CST

completed; and (b) the City has properly exercised its termination rights in accordance with this Agreement and in accordance with applicable law. Full completion of all of the applicable procedures of the Resolution Process that Provider 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 or filing suit to enforce or terminate this Agreement or rights hereunder. Neither Party shall terminate this Agreement or the rights of the other Party hereunder until all of the applicable procedures of the Resolution Process that Provider or the 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 shall each 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 with or 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 the Citys 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 OTHER DEFENSE COSTS AND INTEREST) FOR INJURY, DEATH, DAMAGE, OR LOSS TO PERSONS OR PROPERTY SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO PROVIDERS PERFORMANCE UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, THOSE CAUSED BY: A. PROVIDERS AND/OR ITS AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, OR SUBCONTRACTORS ACTUAL OR ALLEGED NEGLIGENCE OR INTENTIONAL ACTS OR OMISSIONS; B. THE CITYS AND PROVIDERS ACTUAL OR ALLEGED CONCURRENT NEGLIGENCE, WHETHER PROVIDER IS IMMUNE FROM LIABILITY OR NOT; AND 15 3-26-07 5:30 CST

C. THE CITYS AND PROVIDERS ACTUAL OR ALLEGED STRICT PRODUCTS LIABILITY OR STRICT STATUTORY LIABILITY, WHETHER PROVIDER IS IMMUNE FROM LIABILITY OR 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 agreement terminates. 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 its subcontractors (and their subcontractors) to release and indemnify the City to the same extent and in substantially the same form as its release and indemnity to 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 party shall give written notice to the other party within 10 days. The notice must include 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 different basis 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 the 10-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. If Provider does not assume the defense, the City shall assume and control the defense, and all defense expenses constitute an indemnification loss. 2. Continued Participation. If Provider elects to defend the claim, the City may retain separate counsel to participate in (but not control) the defense and to participate 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 16 3-26-07 5:30 CST

in injunctive relief or other equitable remedies or otherwise require the City to comply 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 not result 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. Agreement to the contrary: Notwithstanding any provision of this

A. NEITHER PROVIDER NOR THE CITY SHALL BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE LEGAL THEORY OR BASIS FOR SUCH CLAIM; AND B. THE PARTIES EXPRESSLY AGREE THAT PROVIDER SHALL NOT BE LIABLE FOR DIRECT DAMAGES IN ANY AMOUNT IN EXCESS OF THE AMOUNTS RECEIVED BY PROVIDER FROM THE CITY FOR THE NETWORK DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD, EXCEPT FOR DAMAGES CAUSED BY LOSS OF LIFE, BODILY INJURY, 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. The manufacture, distribution, dispensation, possession, sale, or use of illegal drugs or alcohol by contractors while on City Property is prohibited. Provider shall comply with all the requirements and procedures set forth in the Mayors Drug Abuse Detection and Deterrence Procedures for Contractors, Executive Order No. 1-31 (Executive Order No. 1-31), which is incorporated into this Agreement and 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 Exhibit B, 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 of No 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 Providers employees engaged in activities related to the Agreement on City Property with its Drug Policy Compliance Agreement, it also shall file every 6 months during the performance of this Agreement or on completion of this Agreement if performance is less than 6 months, a Drug Policy Compliance Declaration in a form substantially similar to Exhibit D. Provider shall submit the Drug Policy Compliance Declaration to the CCODT within 30 days of the expiration of each 6-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 its Notice 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 for Providers employees engaged in activities related to the Agreement on City Property with the CCODT if additional safety impact positions are added to Providers 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 shall make reasonable efforts to secure and maintain the required documents for City inspection. 10.3. Sovereign Immunity. Notwithstanding any other provisions of this Agreement to the contrary, 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 and appointed officials, officers and employees. 10.4. Limitation on Citys Liability. Provider acknowledges that the City has sovereign immunity for any claims by any third party or entity for any interruption in the Providers services 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, its officers, 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 appointed officials, officers, or employees for any negligence or consequential, exemplary, or incidental damages, 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 of its 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 the possibility 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 and omissions of the Providers employees, agents, contractors and subcontractors, except where 18 3-26-07 5:30 CST

Providers liability, and that of its officers, employees, agents, contractors and subcontractors may be limited as provided in other parts of this Agreement. 10.6. Applicable Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the state of Texas. The courts of Harris County shall be the proper forum 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 act required 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 the performance 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 the prompt payment of any license fees, taxes, insurance premiums, or any other charges or sums that are required of the Provider or the City hereunder. Force Majeure 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 Force Majeure; 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 of any act required hereunder by reason of the other partys failure to comply with the 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 the period 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 due to 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 parties hereto, 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 to create 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 maintain a suit for damages of any sort pursuant to the terms or provisions of this Agreement. 19 3-26-07 5:30 CST

10.10. Approvals. This Agreement shall not become effective unless and until the City approves this 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 whatsoever shall 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 exercise of the permission granted by this Agreement, the Provider shall comply with all applicable federal, 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 the parties 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 this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall 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 court of 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 and shall 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 they have 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 a writing 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 of Houston 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 Affirmative Action Division and will comply with them. Provider agrees to enter into written contracts with all 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 20 3-26-07 5:30 CST

disputes with MW/DBE contractors to binding arbitration if directed to do so by the Affirmative Action 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 discuss what, 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 related to the Network operation, maintenance, marketing, upgrades, and digital inclusion activities. 10.20. Confidentiality. To the extent permitted by Applicable Law, the City will not disclose any 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 of Providers 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 and assist 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 the Network and the customers of Provider and its vendors that are confidential or otherwise trade secrets under Applicable Law. In addition, the Citys obligations not to disclose the trade secrets of 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. Any capitalized 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 with the 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 to which 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 or provisions 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 with its payment obligations under Section 4.3 and with its obligations to pay amounts not in good 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, and authorities 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 the end 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 related to, 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 labor practices of Provider or its subcontractors), court orders, and the acts of superior governmental 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 general economic 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, maintained and owned by Provider for the purpose of providing Services within the boundaries of the 22 3-26-07 5:30 CST

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 liability corporation, 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 building that 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 the laws 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 the Network. 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

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EXHIBIT A NOTICE OF SUPPLEMENTAL ALLOCATION OF FUNDS TO: FROM: [Name of Provider] 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 of Countersignature) (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 to such 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

Exhibit A

EXHIBIT B DRUG POLICY COMPLIANCE AGREEMENT (FORM) I, (Name) (Name of Company) have authority to bind Contractor with respect to its bid, offer or performance of any and all contracts 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 and agree 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 drug testing procedures for the Contractor that meet the criteria and requirements established by the Mayors Amended Policy on Drug Detection and Deterrence (Mayors Drug Policy) and the Mayors Drug Detection and Deterrence Procedures for Contractors (Executive Order No. 1-31). Obtain a facility to collect urine samples consistent with Health and Human Services (HHS) guidelines and a HHS certified drug testing laboratory to perform the drug tests. 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. Submit semi-annual Drug Policy Compliance Declarations. (Print/Type) (Title) (Contractor) as an owner or officer of

2.

3. 4.

I affirm on behalf of the Contractor that full compliance with the Mayors Drug Policy and Executive 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 submit declarations and/or documentation in compliance with the Mayors Drug Policy and/or Executive 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

Exhibit B

EXHIBIT C CERTIFICATION OF NO SAFETY IMPACT POSITIONS I, (Name) as an owner or officer of (Name of Company) have authority to bind the Contractor with respect to its bid, and hereby certify that Contractor has 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 this City Contract. (Date) (Typed or Printed Name) (Signature) Title . (Title) (Contractor)

Exhibit C

EXHIBIT D DRUG POLICY COMPLIANCE DECLARATION I, (Name)

(Name of Company) have personal knowledge and full authority to make the following declarations: This reporting period covers the preceding 6 months from to
_______ Initials _______ Initials _______ Initials _______ Initials _______ Initials

as an owner or officer of (Print/Type) (Title) (Contractor)

to

, 20 .

A written Drug Free Workplace Policy has been implemented and employees notified. The policy meets the criteria established by the Mayors Amended Policy on Drug Detection and Deterrence (Mayors Policy). Written drug testing procedures have been implemented in conformity with the Mayors Drug Detection and Deterrence Procedures for Contractors, Executive Order No. 1-31. Employees have been notified of such procedures. Collection/testing has been conducted in compliance with federal Health and Human Initials Services (HHS) guidelines. Appropriate safety impact positions have been designated for employee positions Initials performing on the City of Houston contract. The number of employees in safety impact positions during this reporting period is ___________________________. From __________________ to _________________ the following test has occurred (Start date) (End date) Random Reasonable Suspicion Post Accident

Total

Number Employees Tested Number Employees Tested Percent Employees Positive _______ Initials _______ Initials Any employee who tested positive was immediately removed from the City worksite consistent with the Mayors Policy and Executive Order No. 1-31. 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)

Exhibit D

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 take affirmative action to ensure that applicants are employed and that employees are treated during employment 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, supplier or lessee agrees to post in conspicuous places available to employees, and applicants for employment, 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 with which 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 workers representative 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 and the rules, regulations, and relevant orders of the Secretary of Labor or other Federal Agency responsible for enforcement of the equal employment opportunity and affirmative action provisions 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 effect compliance 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 pursuant thereto, and will permit access to all books, records, and accounts by the appropriate City and Federal Officer for purposes of investigations to ascertain compliance with such rules, regulations, and orders. Compliance reports filed at such times as directed shall contain information 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 clause of 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 for further 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

Exhibit E - 1

Executive Order, or by rule, regulation, or order of the Secretary of Labor, or as may otherwise be provided by law. 7. The Provider shall include the provisions of paragraphs 1-8 of this Equal Employment Opportunity Clause in every subcontract or purchase order unless exempted by rules, 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 upon each subcontractor or vendor. The Provider will take such action with respect to any subcontractor 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 the Provider 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 to enter into such litigation to protect the interests of the United States. 8. The Provider shall file and shall cause its subcontractors, if any, to file compliance reports with the City in the form and to the extent as may be prescribed by the Mayor. 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 Provider and each subcontractor.

Exhibit E - 2

EXHIBIT F MWBE SUBCONTRACT TERMS The Provider shall ensure that all subcontracts with MWBE subcontractors and suppliers are clearly labeled THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION ACCORDING TO THE TEXAS GENERAL ARBITRATION ACT and contain the following terms: 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 the City 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 all places 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 its performance 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 and Subcontractor 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 with the 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 of one party served upon the other or upon notice by the Director served on both parties, be submitted 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 the following 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 that they 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 the Director 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 Arbitration Association and sign a form releasing the American Arbitration Association and its arbitrators from liability for decisions reached in the arbitration.

d. If the American Arbitration Association no longer administers Affirmative Action arbitration for the City, the Director shall prescribe alternate procedures to provide arbitration by neutrals in accordance with the requirements of Chapter 15 of the Houston City Code of Ordinance.