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NON TERMINATION DEFAULTS

VIEWS: 3 PAGES: 41

									                                      EarthLink Network Agreement Matrix

     Title/Status    Provision

1.   Introduction    This Agreement is made this _____ day of December, 2006, in the City and County of San
                     Francisco, State of California, by and between: EarthLink, Inc., a Delaware corporation (hereinafter
     AGREED          referred to as "EarthLink") and the City and County of San Francisco, a municipal corporation,
                     (hereinafter referred to as "City") acting by and through its Director of the Office of Contract
     MOVED TO        Administration or the Director's designated agent, (hereinafter referred to as "Purchasing").
     FINAL

2.   Recitals                WHEREAS, EarthLink installs, manages and operates wireless broadband
                     Internet access networks in municipalities throughout the United States in order
     OPEN
                     to provide wireless broadband products and services to governments, businesses
     CHANGED         and consumers; and

                             WHEREAS, the City desires EarthLink to provide a wireless broadband
                     Internet access system in the City to spur economic development in the City;
                     enhance community neighborhoods of the City; increase broadband penetration in
                     the City, and reduce the cost of government services to the City; and

                            WHEREAS, EarthLink desires to offer products and services enabled by a
                     wireless broadband internet network in the City to residential, business and
                     municipal customers in and around the geographic boundaries of the City and
                     County of San Francisco.


3.   Agreement       Now, THEREFORE, the parties agree as follows:

     AGREED
     MOVED TO
     FINAL

4.   Certification          INTENTIONALLY DELETED

     AGREED


5.   TermOPEN        Term. The term and duration of this Agreement (“Term”) shall commence on the Effective Date and shall
                     expire on the later of: (i) the date that is four (4) years after the satisfaction of the Implementation Conditions
                     (“Initial Term”); or (ii) the end of the last Renewal Term to occur. The Agreement Term will automatically
                     renew at the end of the Initial Term and the end of each Renewal Term that occurs for a total of three
                     successive four (4) year renewal terms after the end of the Initial Term (“Renewal Terms”) on the same
                     terms and conditions, provided that: (1) if either Party gives a Proposed Renewal Changes Notice, as defined
                     below, and the Parties agree to modified terms and conditions prior to the end of the Transition Period, the
                     Agreement Term will renew for a Renewal Term in accordance with the modified terms and conditions, with
                     each such Renewal Term to commence at the later of the end of the Initial Term or the end of the most recent
                     Renewal Term that has occurred, even if the modified terms are agreed upon during the Transition Period;
                     (2) if either Party gives a Proposed Renewal Changes Notice, and the other party does not accept those
                     Proposed Renewal Changes and the parties do not agree to other modified terms and conditions prior to the
                     end of the Transition Period, the Agreement Term will not renew. If all of the Parties that have received a
                     Proposed Renewal Changes Notice accept the Proposed Renewal Changes in those notices by the end of the
                     then current Term (i.e. the later of the end of Initial Term or the end of most recent Renewal Term to have
                     occurred), then the Agreement Term shall renew automatically for a Renewal Term commencing at the end
of the then current Term (i.e. the later of the end of the Initial Term or the end of the most recent Renewal
Term to have occurred) on the same terms as the current Agreement as modified by the accepted Proposed
Renewal Changes. If the Term is not renewed by a Renewal Term at the end of the Initial Term or any of the
Renewal Terms then this Agreement shall continue in full force and effect for a transition period of eighteen
(18) months after the end of the Term (“Transition Period”) until the end of that Transition Period or the
earlier occurrence of a Renewal Term as provided above.

Definitions. The term “Proposed Renewal Changes Notice” means a notice given as required herein that
contains one or more Proposed Renewal Changes and states that the Term of the Agreement will not
automatically renew unless the parties agree to those Proposed Renewal Changes or some mutually agreed
upon modifications to the current Agreement. The term “Proposed Renewal Changes” means a modification
to the current agreement that a Party offers in Good Faith. If such a modification is not offered in Good
Faith, the modification shall not constitute a valid Proposed Renewal Change. The term “Good Faith” means
that a Party acts without the ulterior motive to terminate the Agreement. The term "Proposed Renewal
Change Window" means the period that is not more than 12 months and not less than 7 months before the
end of the then current four-year term.


Renewal Process. During the Proposed Renewal Change Window, either Party may give the other Party a
Proposed Renewal Changes Notice. Neither Party is entitled to give more than one Proposed Renewal
Changes Notice in each Initial Term and each Renewal Term. In order to submit a Proposed Renewal
Changes Notice, the City must obtain during the Proposed Renewal Change Window the prior consent to the
Proposed Renewal Changes and the giving of the Proposed Renewal Changes Notice by its Board of
Supervisors by ordinance or resolution (to which EarthLink has received, to the extent feasible in the
circumstances, at least seven (7) days prior written notice that such issue is being proposed to the Board and
at least forty-eight (48) hours prior written notice specifying the hearing date and time), and EarthLink must
obtain during the Proposed Renewal Change Window the prior consent of its Board of Directors (to which
the City has received, to the extent feasible in the circumstances, at least seven (7) days prior written notice
that such issue is being proposed to the Board of Directors). Any Proposed Renewal Changes Notice that is
not approved by the applicable Board or is not timely sent as described above shall not be effective to stop
automatic renewal of the Term for another four (4) year Renewal Term. A Party receiving a Proposed
Renewal Changes Notice shall accept or reject the proposed Proposed Renewal Changes modification(s) or
attempt to negotiate a mutually acceptable alternative. If the Parties do not reach agreement on the Proposed
Renewal Changes or some mutually acceptable alternatives within thirty (30) days of the last-submitted
Proposed Renewal Changes Notice, the Parties shall enter into an internal escalation process as described in
Section __ for thirty (30) days, and, if agreement is not reached, the Parties shall enter into a mediation
process during the period before the end of the then current four (4) year term. Such mediator will be
empowered to require the parties to meet during such time and discuss the Proposed Renewal Changes in
Good Faith. The mediator will be chosen by both parties or by the San Francisco office of JAMS
(________________) if the parties cannot agree. Such mediator shall be an individual who has experience
serving in both the wireless industry and the public sector, and who does not have any conflict of interest.
The Parties shall negotiate in Good Faith until the end of the then current Term in an attempt to reach
agreement on the Proposed Renewal Changes or other mutually agreeable modifications to this Agreement.

After the exchange of Proposed Renewal Changes Notices, if the Parties agree to modified terms and
conditions, the modified terms and conditions shall apply during the next four (4) year Renewal Term and
any successive terms, or as agreed to by the Parties in writing.

Effect of Non-agreement on Proposed Renewal Changes. After the giving of a Proposed Renewal Changes
Notice by either or both Parties, if the Parties do not accept the Proposed Renewal Changes of the other Party
or otherwise do not agree to modified terms and conditions by the date of the expiration of the then-current
Term, the Agreement shall continue in effect for an additional 18-month Transition Period, during which
time the Parties shall have the same rights and duties as under the Agreement. The Transition Period shall
only come into effect as described in this Section and shall not otherwise come into effect. At the
conclusion of the Transition Period, the Agreement shall terminate unless the parties have reached agreement
on modifications of the Agreement prior to the end of the Transition Period, in which case the Term shall
renew for a Renewal Term commencing upon the expiration date of the Term (i.e. the end of the later of the
Initial Term or the most recent Renewal Term to have occurred) in accordance with the modified terms and
conditions.
6.    Effective Date
                              This Agreement shall become effective when the parties have both executed this Agreement and
                       the City Board of Supervisors Approval has occurred (“Effective Date”).
      AGREED
                       MOVE TO DEFINITION SECTION: “City Board of Supervisors Approval” shall mean that the City’s
                       Board of Supervisors has enacted an ordinance approving this Agreement and the Pole Use Agreement
                       in the form in which it is signed by EarthLink and such ordinance has become law.

7.    Services
      Contractor       INTENTIONALLY BLANK
      Agrees to
      Perform

      AGREED


8.    Compensatio
      n                     Sums owed by EarthLink as provided herein shall be paid when due and payable according to this
                       Agreement.
      AGREED
                               If EarthLink fails to pay any payment required to be made by EarthLink, as and when due, and
                       that failure continues for a period of ten (10) business days after written notice is given by the City to
                       EarthLink, then interest shall accrue on the past due amount from the date of such non-payment notice at
                       the rate of twelve (12%) per annum.

9.    Guaranteed
      Maximum          INTENTIONALLY BLANK
      Costs

      AGREED


10.   Payment;                INTENTIONALLY BLANK
      Invoice
      Format

      AGREED


11.   Submitting
      False Claims;    INTENTIONALLY BLANK
      Monetary
      Penalties

      AGREED


12.   Disallowance            INTENTIONALLY BLANK

      AGREED
13.   Taxes                   a.      Payment of any applicable taxes, shall be the obligation of EarthLink.

      AGREED                   h.      EarthLink recognizes and understands that this Agreement may create a "possessory interest"
                       for property tax purposes for which EarthLink would be responsible to the extent such tax is applicable to
                       EarthLink. Generally, such a possessory interest is not created unless the Agreement entitles the EarthLink to
      MOVED TO         possession, occupancy, or use of City property for private gain. If such a possessory interest is created, then
      FINAL            the following shall apply:

                                      (1)     EarthLink, on behalf of itself and any permitted successors and assigns,
                       recognizes and understands that EarthLink, and any permitted successors and assigns, may be
                       subject to real property tax assessments on the possessory interest.

                                      (2)     EarthLink, on behalf of itself and any permitted successors and assigns,
                       recognizes and understands that the creation, extension, renewal, or assignment of this Agreement
                       may result in a "change in ownership" for purposes of real property taxes, and therefore may result
                       in a revaluation of any possessory interest created by this Agreement. EarthLink accordingly agrees
                       on behalf of itself and its permitted successors and assigns to report on behalf of the City to the
                       County Assessor the information required by Revenue and Taxation Code section 480.5, as amended
                       from time to time, and any successor provision.


                                       (3)      EarthLink, on behalf of itself and any permitted successors and assigns,
                       recognizes and understands that other events also may cause a change of ownership of the possessory
                       interest and result in the revaluation of the possessory interest. (see, e.g., Rev. & Tax. Code section 64,
                       as amended from time to time). EarthLink accordingly agrees on behalf of itself and its permitted
                       successors and assigns to report any change in ownership to the County Assessor, the State Board of
                       Equalization or other public agency as required by law.

                                      (4)      EarthLink further agrees to provide such other information as may he requested by
                       the City to enable the City to comply with any reporting requirements for possessory interests that are
                       imposed by applicable law.


14.   Payment
      Does Not         INTENTIONALLY BLANK
      Imply
      Acceptance of
      Work

      AGREED


15.   Qualified               Work under this Agreement by EarthLink shall be performed only by competent personnel under
      Personnel        the supervision of and in the employment of EarthLink. EarthLink will comply with City's reasonable
                       requests regarding assignment of personnel, but all personnel, including those assigned at City's request,
                       must be supervised by EarthLink. EarthLink shall commit adequate resources to complete the project
      AGREED
                       within the project schedule specified in this Agreement.
      MOVED TO
      FINAL
16.   Responsibility          Except as otherwise provided herein, City shall not be responsible for any damage to persons or
      for Equipment    property as a result of the use, misuse or failure of any equipment used by EarthLink, or by any of its
                       employees, even though such equipment be furnished, rented or loaned to EarthLink by City.
      AGREED

      MOVED TO
      FINAL
17.   Independent            Independent Contractor. EarthLink or any agent or employee of EarthLink shall be deemed at all
      Contracto     times to be an independent contractor and is wholly responsible for the manner in which it performs the
                    services and work requested by City under this Agreement. EarthLink or any agent or employee of
                    EarthLink shall not have employee status with City, nor be entitled to participate in any plans,
      AGREED
                    arrangements, or distributions by City pertaining to or in connection with any retirement, health or other
                    benefits that City may offer its employees. EarthLink or any agent is liable for the acts and omissions of
                    itself, its employees and its agents. EarthLink shall be responsible for all obligations and payments, whether
                    imposed by federal, state or local law, including, but not limited to, FICA, income tax withholdings,
                    unemployment compensation, insurance, and other similar responsibilities related to EarthLink 's performing
                    services and work, or any agent or employee of EarthLink providing same. Nothing in this Agreement shall
                    be construed as creating an employment or agency relationship between City and EarthLink or any agent or
                    employee of EarthLink.




18.   Insurance
                            a. Without in any way limiting EarthLink's liability pursuant to the "Indemnification" section of
                    this Agreement, EarthLink must maintain in force, during the full term of the Agreement, insurance in
      OPEN
                    the following amounts and coverages:

                                   (1)    Workers' Compensation, in statutory amounts, with Employers' Liability Limits not
                    less than $1,000,000 each accident; and

                                    (2)    Commercial General Liability Insurance with limits not less than $1,000,000 each
                    occurrence Combined Single Limit for Bodily Injury and Property Damage, including Contractual
                    Liability, Personal Injury, Products and Completed Operations; and

                                  (3)  Commercial Automobile Liability Insurance with limits not less than $1,000,000
                    each occurrence Combined Single Limit for Bodily Injury and Property Damage, including Owned,
                    Non-Owned and Hired auto coverage, as applicable.


                          b.       Commercial General Liability and Commercial Automobile Liability Insurance policies
                    must provide the following:

                                 (1)    Name as Additional Insured the City and County of San Francisco, its Officers,
                    Agents, and Employees as respects the negligence of the EarthLink.

                                    (2)    That such policies as respects the negligence of the EarthLink are primary
                    insurance to any other insurance available to the Additional Insureds, with respect to any claims arising
                    out of this Agreement, and that insurance applies separately to each insured against whom claim is
                    made or suit is brought.

                           c.       EarthLink shall provide thirty days' advance written notice to City of cancellation and
                    the policies certifications shall require the insurer to endeavor to mail thirty (30) days notice of
                    cancellation, but failure by the insurance carrier will not impose any liability on the insurance
                    company, mailed to the following address:

                          DTIS
                          Contract Administration
                          875 Stevenson St., 5th
                          Floor San Francisco,
                          CA 94103-0948

                            d.      Should any of the required insurance be provided under a claims-made form, EarthLink
                    shall maintain such coverage continuously throughout the term of this Agreement and, without lapse, for a
                    period of three years beyond the expiration of this Agreement, to the effect that, should occurrences during
                    the contract term give rise to claims made after expiration of the Agreement, such claims shall be covered
                    by such claims-made policies.
                               e.      Should any of the required insurance be provided under a form of coverage that includes a
                       general annual aggregate limit or provides that claims investigation or legal defense costs be included in
                       such general annual aggregate limit, such general annual aggregate limit shall be double the occurrence or
                       claims limits specified above.

                                f.      Should any required insurance lapse during the term of this Agreement, requests for
                       payments originating after such lapse shall not be processed until the City receives satisfactory evidence of
                       reinstated coverage as required by this Agreement, effective as of the lapse date. If insurance is not
                       reinstated, the City may, at its sole option, terminate this Agreement effective on the date of such lapse of
                       insurance.

                               g.       Before commencing any operations under this Agreement, EarthLink shall do the
                       following: (a) furnish to City certificates of insurance including status as an additional insured with
                       insurers with ratings comparable to A- VII or higher, that are authorized to do business in the State of
                       California, and that are satisfactory to City, in form evidencing all coverages set forth above, and (b)
                       furnish complete copies of policies promptly within ninety (90) days after a covered claim being denied
                       coverage of the City as an additional insured upon City request. Failure to maintain insurance shall
                       constitute a material breach of this Agreement, but shall not be a Termination Default.

                               h.      Approval of the insurance by City shall not relieve or decrease the liability of EarthLink

                       hereunder.

                               i.      Any of the terms or conditions of this Section may be waived by the City's Risk Manager in
                       writing, signed by the Risk Manager. Such waiver is fully incorporated herein. The waiver shall waive only
                       the requirements that are expressly identified and waived, and under such terms and conditions as stated in
                       the waiver.

                                j.      If a Subcontractor will be used to complete any portion of this Agreement, the EarthLink
                       shall ensure that the Subcontractor is covered by insurance that complies with the above requirements and
                       shall name the City and County of San Francisco, its officers, agents and employees and the EarthLink
                       listed as additional insureds.



19.   Indemnificatio
      n                         EarthLink agrees to indemnify, defend, protect, and hold harmless the City, its Board of Supervisors,
                       Mayor, and officers and employees from and against any and all claims, demands, losses, damages,
                       liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, and all
      OPEN             costs and expenses incurred in connection therewith, including reasonable attorneys' fees and costs of
                       defense (collectively, the "Losses") directly or proximately resulting from: (i) EarthLink's negligence or
                       willful misconduct in the performance of this Agreement or (ii) violations of this Agreement or applicable
                       law; except to the extent that any such Losses directly or proximately resulting from the negligence, willful
                       misconduct, or violations of this Agreement by the City, its Board of Supervisors, Mayor, officers, or
                       employees. In addition to EarthLink's obligation to indemnify City, EarthLink specifically acknowledges
                       and agrees that it has an immediate and independent obligation to defend City from any claim to the extent
                       the City is actually or potentially entitled to indemnification under this provision, even if the allegations are
                       or may be groundless, false, or fraudulent, which obligation arises at the time such claim is tendered to
                       EarthLink by City and continues thereafter. If it is later finally determined by a court of competent
                       jurisdiction in a non-appealable final judgment that the City was not (at the time the City requested a
                       defense) potentially entitled to indemnification pursuant to this Section, then the City shall reimburse
                       EarthLink the amount of attorney fees, expenses and costs incurred by EarthLink in providing a defense for
                       the City and the indemnified parties and EarthLink shall be entitled to cease defending the City and all
                       indemnified parties for all claims for which indemnification hereunder is not actually or potentially required
                       pursuant to this Section. Neither Party shall be obligated pursuant to the above provisions to pay to,
                       indemnify or reimburse the other Party more than the attorney fees and other defense expenses or costs that
                       are reasonable in the circumstances.

                               EarthLink shall indemnify and hold City harmless from all loss and liability, including attorneys'
                       fees, court costs and all other litigation expenses for any infringement of patent rights, copyright, trade
                       secret or any other proprietary right or trademark, and all other intellectual property claims of any person or
                         persons in consequence of the use by City, or any of its officers or agents, of services enabled by the
                         Network that are offered for sale to the public by EarthLink or are provided to the City by EarthLink
                         pursuant to this Agreement.


20.   Incidental and            INTENTIONALLY BLANK
      Consequentia
      l Damages

      AGREED


21.   Liability Limits        A. THE PARTIES EXPRESSLY AGREE THAT EARTHLINK AND THE CITY SHALL NOT BE
                         LIABLE TO THE OTHER FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY
                         DAMAGES, REGARDLESS OF WHETHER ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN
                         AWARE OF, THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE LEGAL THEORY
      OPEN
                         OR BASIS FOR SUCH CLAIM.

                                B. The Parties expressly agree that neither party’s liability to the other for direct damages under this
                         Agreement shall exceed One Million ($1,000,000.00) Dollars. This Subsection __. B shall not apply to
                         damages relating to or arising from loss of life, bodily injury, or damage to property. This Subsection __. B
                         shall not reduce the insurance proceeds otherwise owed by insurance companies to either Party.



22.   Liquidated
      Damages            INTENTIONALLY BLANK

      AGREED


23.   Default;           Notwithstanding anything to the contrary, except as provided in Sections ___, this Agreement and the rights       (
      Termination &      granted to EarthLink hereunder shall not be terminated or Communications Equipment removed from, or               D
      Remedies           refused installation on, (except as permitted by the Pole Use Agreement) poles and street lights in the City,     )
                         except as otherwise provided in Sections ___, unless a Termination Default defined below has occurred and
                         the following notice, cure period and dispute resolution process is followed or.
      OPEN
                                       A. The occurrence of any one or more of the following events constitutes an event of default
                         and breach of this Agreement by EarthLink that justifies termination of this Agreement by the City
                         (“Termination Default”):

                                       (i) Failure to Accomplish Network Acceptance. Deployment of EarthLink’s wireless
                         Network does not achieve Network Acceptance (as defined in Section [M101] by the date eighteen (18)
                         months after satisfaction of the Network Implementation Conditions. This time for completion will be
                         extended for Force Majeure Events.

                                         (ii) Failure to Pay CityFees. The failure by EarthLink to make any payment required by this
                         Agreement to be made by EarthLink, as and when due, where that failure continues for a period of ninety
                         (90) days after written notice is sent by the City to EarthLink;

                                        (iii) System Outage. In the event that, after System Acceptance, less then 20% of the
                         receiving/transmitting nodes in the wireless system are capable of connecting Subscribers or Free Tier Users
                         to the Internet for an entire calendar day, the system will be considered "Dark" and that day will be
                         considered a “Dark Day” provided that such day will not be considered a Dark Day if the failure to satisfy
                         the above test was caused by the City, or by Force Majeure Events. If the Network is continuously Dark for
                         a period of thirty (30) or more days, City may send a notice of termination, which shall be effective upon
                         sixty (60) days from receipt by EarthLink if such default has not been cured by the system operating without
                         any Dark Days for thirty (30) days continuously. If EarthLink does cure the default by the system operating
                         without any Dark Days for thirty (30) days continuously prior to the end of such sixty (60) day cure period
                         then the termination shall not be effective and the defaults shall be cured. If EarthLink is unable to cure the
default within said sixty (60) days by the Network operating without any Dark Days for thirty (30) days
continuously, then the Term of this Agreement shall terminate twelve (12) months after the end of said sixty
(60) day cure period and during such twelve (12) months EarthLink will be entitled to continue operating the
Network and EarthLink’s facilities will not be removed during that time.

                (iv) Intentional Abandonment of the Free Tier. (i) EarthLink publicly announces its intention
to cease providing the Free Tier of service; and (ii) EarthLink does in fact cease providing the Free Tier
service, pursuant to such public announcement; and (iii) the Free Teir service is ceased for twenty-four (24)
hours; (iv) the City gives EarthLink written notice of defaulting demanding that the Free Teir service must be
continued; and (v) Earthlink does not restart the Free Teir service within ten (10) days of recept of such
written default notice from the City; and (vi) the cessation and/or failure to restart the Free Teir service are
not caused by a Force Majeure Event.

                (v) Exempted Transfer. If an Exempted Transfer has occurred as provided in Section __
then, and only then, Termination Defaults shall include a material failure by the Assignee to comply with the
Assignment Open Access Requirements set forth in Section __ that continues for a period of ninety (90) days
after written notice from the City specifying that such material failure shall constitute a Termination Default.

                B. Upon any of EarthLink’s Termination Defaults noted in Section ____ above, the City may
at any time thereafter that the Termination Default still continues, in its sole discretion, with or without
notice or demand and without limiting the City in the exercise of a right or remedy that the City may have by
reason of that default or breach:

                (1) Terminate EarthLink’s rights under this Agreement, including without limitation the
rights to use City facilities for operation of the Network; and/or

              (2) Pursue any other remedy now or hereafter available to the City under federal or state
laws, provided further that any order for specific performance and injunction shall not require EarthLink to
pay or expend any sums in excess of the liability limitation set forth herein.

          NON-TERMINATION DEFAULTS

                Should EarthLink fail to observe or perform any of the covenants, conditions or provisions of
this Agreement required herein to be observed or performed by EarthLink, other than those Termination
Defaults described in Section ___, the City will notify EarthLink of the default and require its cure. Should
that failure continue for a period of sixty (60) days after written notice thereof by the City to EarthLink) the
City may find EarthLink 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
EarthLink facilities and provided further that any order for specific performance and injunction shall not
require EarthLink to pay or expend any sums in excess of the liability limitation set forth herein. If such
default cannot reasonably be cured in that sixty (60) day period and if EarthLink is taking reasonable steps to
begin curing such default, then the cure period will be extended past sixty (60) days for a period that is a
reasonable period of time to cure such default, provided that this extension shall not exceed sixty (60)
additional days.

          EARTHLINK’S REMEDIES

In the event the City violates any of its material obligations hereunder (“City Default”) and does not cure
such City Default within sixty (60) days after a default notice is delivered to the City then EarthLink shall be
entitled to exercise all remedies available at law or in equity. If such City Default cannot reasonably be cured
in that sixty (60) day period and if City is taking reasonable steps to begin curing such default, then the cure
period will be extended past sixty (60) days for a period that is a reasonable period of time to cure such
default, provided that this extension shall not exceed sixty (60) additional days.
24.   Termination      INTENTIONALLY BLANK
      for
      Convenience

      AGREED


25.   Rights and              a.       This Section and the following Sections of this Agreement shall survive termination or
      Duties Upon      expiration of this Agreement:TBA ________ .
      Termination
      or Expiration
                             b.       After the end of the Term of this Agreement this Agreement shall terminate except the
                       Agreement shall be extended for the Transition Period only as set forth in Section __ herein. . This
      AGREED           subsection shall survive termination of this Agreement.

      CHANGED

      MOVED TO
      FINAL
26.   Conflict of
      Interest                Through its execution of this Agreement, EarthLink acknowledges that it is familiar with the
                       provision of Section 15.103 of the City's Charter, Article III, Chapter 2 of City's Campaign and
                       Governmental Conduct Code, and Section 87100 et seq. and Section 1090 et seq. of the Government Code
      AGREED           of the State of California, and certifies that it does not know of any facts which constitutes a violation of
                       said provisions and agrees that it will immediately notify the City if it becomes aware of any such fact
      MOVED TO         during the term of this Agreement.
      FINAL
27.   Proprietary or           Definitions: "Exempt information" means information that has been marked "Trade Secret",
      Confidential     "Proprietary" or "Confidential" and that either: (i) meets the definition of a trade secret as that term is defined
      Information of   in federal or California law; or (ii) is otherwise exempt by law from the disclosure requirements of the San
      City             Francisco Sunshine Ordinance and California Public Records Act. "Process" means a requirement to
                       disclose information issued by a court or other governmental entity, other than a requirement pursuant to the
                       San Francisco Sunshine Ordinance or the California Public Records Act.
      AGREED                   EarthLink understands and agrees that, in the performance of the work or services under this
                       Agreement or in contemplation thereof, EarthLink may receive from the City information that the City owns
      MOVED TO         or controls that may contain proprietary or confidential details, the disclosure of which to third parties may
      FINAL            be damaging to City. City shall prominently mark such information as "Proprietary" or "Confidential."
                       EarthLink agrees that all such information disclosed by City to EarthLink that is so marked “Proprietary” or
                       “Confidential” shall be held in confidence and used only in performance of the Agreement. EarthLink shall
                       exercise the same standard of care to protect such information as a reasonably prudent contractor would use
                       to protect its own proprietary data. EarthLink shall not in any way be liable or responsible for the disclosure
                       of any confidential information provided by City if EarthLink reasonably determines that disclosure is
                       required by law or court order and EarthLink has acted in accord with the provisions set forth below
                       regarding responding to Process.

                                      If EarthLink shares any information with the City that EarthLink wishes to have held in
                       confidence, EarthLink shall prominently mark such information as “Trade Secret”, “Proprietary,” or
                       “Confidential”. City shall not disclose such confidential information that is so marked “Trade Secret”,
                       “Proprietary” or “Confidential” to any third party except as may be required by law. In accordance with
                       Chapter 67 of the San Francisco Administrative Code ("San Francisco Sunshine Ordinance") and California
                       Government Code Section 6254(k), City shall not disclose to the public such confidential information if
                       City reasonably determines, after consultation with EarthLink, that the confidential information is Exempt
                       Information. If the City reasonably determines that such confidential information is Exempt Information
                       and if an action is brought against the City under the San Francisco Sunshine Ordinance or the California
                       Public Records Act seeking disclosure of such information, the City will oppose such action if EarthLink so
                       requests. In the event that EarthLink requests the City to oppose such an action, EarthLink agrees to defend
                       and indemnify the City from all costs and expenses, including attorneys’ fees, in any such action or liability
                       arising under the San Francisco Sunshine Ordinance or California Public Records Act, provided that, if
                       EarthLink provides a defense as described above, then no further sums will be due to the City for legal fees
                       or costs that are incurred by the City in addition to the defense provided by Earthlink. City shall not in any
                       way be liable or responsible for the disclosure of any confidential information provided by EarthLink if City
                       reasonably determines that disclosure is required by law or court order and City has acted in accord with the
                       provisions of the San Francisco Sunshine Ordinance and California Public Records Act and as set forth
                       below regarding responding to Process.

                                  This Section imposes no obligation upon a recipient with respect to confidential information that:
                       (a) was known to the recipient before receipt from the discloser; (b) is or becomes publicly available through
                       no fault of the recipient; (c) is rightfully received by the recipient from a third party without a duty of
                       confidentiality; (d) is independently developed by the recipient without a breach of this Agreement; (e) is
                       disclosed by the recipient with the discloser’s prior written approval; or (f) is required to be disclosed by
                       Process; provided that (i) the recipient shall promptly notify the discloser of such Process; (ii) the recipient
                       shall not produce or disclose confidential information in response to the Process unless the discloser has: (a)
                       been given a reasonable opportunity based on the circumstances, and to the extent allowed, to request
                       protection from the legal or governmental authority requiring the Process and such request has been denied,
                       (b) consented in writing to the production or disclosure of the Confidential Information in response to the
                       Process, or (c) taken no action to protect its interest in the confidential information within fourteen (14)
                       business days after receipt of notice from the recipient of its obligation to produce or disclose confidential
                       information in response to the Process; and (iii) notwithstanding any disclosure in connection with the
                       Process, the restrictions of this Agreement shall otherwise continue to apply to the confidential information
                       except for matters relating to the Process.




28.   Notices to the
      Parties                  Unless otherwise indicated elsewhere in this Agreement, all written communications sent by the
                       parties on paper, which shall include facsimile transmissions, may be by U.S. mail or by fax, and shall be
                       addressed as follows:
      AGREED
                             To City:              Department of Telecommunications and Information Services
                                                   City and County of San Francisco
                                                   875 Stevenson St., 5th Fl.
                                                   San Francisco, CA
                                                   94103-0948
                                                   Fax: (415) 554-0854

                             With Copy to:         Telecommunications and Energy Team Leader
                                                   Office of the City Attorney
                                                   Room 234
                                                   City Hall
                                                   San Francisco California 94102
                                                   Fax: (415)_554-4763
                                                   To EarthLink:            EarthLink, INC.
                                                   1375 Peachtree Street Level A
                                                   Atlanta, Georgia 30309
                                                   Attn: General Counsel
                                                   Fax: 404-287-4905

                             With Copy to:         EARTHLINK, INC.
                                                   1375 Peachtree Street Level A
                                                   Atlanta, Georgia 30309
                                                   Attn: President, Municipal Wireless Division
                                                   Fax: 404-287-1059

                              Any notice of default must be sent by registered mail.
                       Notices shall be deemed given hereunder on the next business day if the notice is sent by facsimile or regular
                       mail. Either Party may change its address by written notice to the other Party. Notice may also be provided
                       to such other address as either Party may from time to time designate in writing.
29.   Ownership of
      Results                Notwithstanding anything to the contrary, nothing in this Agreement shall be construed as a transfer
                      or assignment of ownership in any intellectual property of a Party to the other Party. Any interest of
                      EarthLink or its Subcontractors, in drawings, plans, specifications, blueprints, studies, reports, memoranda,
      AGREED          computation sheets, computer files and media or other documents prepared by EarthLink or its
                      subcontractors in connection with services to be performed under this Agreement, shall remain the property
      CHANGED         of EarthLink and its suppliers and subcontractors as applicable and will not be assigned or transmitted to the
                      City. At the end of the Term of this Agreement and the Transition Period, EarthLink shall continue to own
                      the Network and all Communications Equipment and all related intellectual property of EarthLink.


30.   Works for
      Hire
                      INTENTIONALLY BLANK
      AGREED


31.   Information     EarthLink will provide to representatives of the City, who have signed nondisclosure agreements in a manner
      Requests        that will be most likely to preserve the confidentiality of the marked confidential information and trade
                      secrets, information and answers to questions, certified by officers of EarthLink to be accurate, that is
      OPEN            relevant to explaining and verifying that EarthLink has complied with the provisions of this Agreement.
                      Each party is obligated to bear its own cost and expense incurred in complying with the above procedure.


32.   Subcontractin          TOM TO CHECK ON OTHER SUBCONTRACTOR PROVISION. EarthLink is permitted to
      g               subcontract this Agreement or any part of it and such subcontracting does not require approved by City.
                      Neither party shall, on the basis of this Agreement, contract on behalf of or in the name of the other
      OPEN            party. An agreement made in violation of this provision shall confer no rights on any party and shall be
                      null and void. EARTHLINK AND ITS SUBS SHALL COMPLY WITH APPLICABLE LAW.

33.   Assignment      Definitions:

      AGREED          "Assignment Open Access Requirements" means the following: In addition to the Open Access provisions
                      in section [____] of this Agreement, the Assignee agrees as follows with respect to any Fee Services that
                      Assignee offers to the public: (a) Assignee shall make such services available on a wholesale basis to other
                      service providers on nondiscriminatory terms and conditions; (b) Assignee shall enter into contracts with at
                      least three (3) Service Providers for the provision by Service Providers of one or more services over the
                      Network, and, at any given time, at least three (3) Service Providers shall be offering to the public one or
                      more services over the Network; and (c) Failure by Assignee to meet these requirements shall constitute a
                      Termination Default, as specified in Section [ ] of this Agreement.

                      "Service Provider" means a provider of retail services that is not owned, controlled by or affiliated with
                      EarthLink or any Assignee.

                      "Assignee" means any entity to which the rights and obligations of this Agreement have been lawfully
                      assigned in accordance with the Agreement.

                      Neither this Agreement nor any rights conferred by this Agreement shall be assigned by EarthLink in whole
                      or in part without the prior written consent of the City, including its Board of Supervisors if the Board of
                      Supervisors so requires, which consent shall not be unreasonably withheld, conditioned, or delayed.
                      Notwithstanding the foregoing, the transfer of the rights and obligations of EarthLink to a parent, subsidiary,
                      or other affiliate of EarthLink or to any successor in interest or entity acquiring all or substantially all of
                      EarthLink’s stock or assets or acquiring all or substantially all of the assets of the division of EarthLink that
                      is operating the Network (collectively “Exempted Transfers”) shall not be deemed an assignment for the
                      purposes of this Agreement and therefore shall not require the consent of the City, so long as any such
                      transferee assumes by a written instrument all of EarthLink’s obligations under the Agreement. EarthLink
                      shall give written notice to the City within thirty (30) days’ of the public announcement of any such proposed
                      Exempted Transfer.

                      Upon consummation of any Exempted Transfer, the Assignment Open Access Requirements shall become
                      part of the Agreement assumed by the transferee.
                      Communications Equipment may be leased by EarthLink from third parties and/or be subject to
                      security interests of vendors or lenders, and the City shall have no rights in or to Communications
                      Equipment. EarthLink may assign, mortgage, pledge, hypothecate or otherwise transfer without
                      consent its interest in this Agreement to any financing entity, or agent on behalf of any financing entity
                      to secure loans to EarthLink.
34.   Non-Waiver
                      The omission by either party at any time to enforce any default or right reserved to it, or to require
      of Rights       performance of any of the terms, covenants, or provisions hereof by the other party at the time designated,
                      shall not be a waiver of any such default or right to which the party is entitled, nor shall it in any way
      AGREED          affect the right of the party to enforce such provisions thereafter.
      MOVED TO
      FINAL

35.   Earned
      Income Credit   INTENTIONALLY BLANK
      (EIC) Forms


      AGREED

36.   Disadvantage          a.           The DBE Ordinance
      d Business
      Enterprise                      EarthLink, shall use good faith efforts to comply with all the requirements of the
      Utilization;    Disadvantaged Business Enterprise Ordinance set forth in Chapter I4A of the San Francisco Administrative
      Liquidated      Code as it now exists (collectively the "DBE Ordinance"), provided such amendments do not materially
      Damages         increase EarthLink's obligations or liabilities, or materially diminish EarthLink's rights, under this
                      Agreement. Such provisions of the DBE Ordinance are incorporated by reference and made a part of this
      OPEN            Agreement as though fully set forth in this section. EarthLink's willful failure to use good faith efforts to
                      comply with any applicable provision of the DBE Ordinance is a material breach of EarthLink's obligations
                      under this Agreement and shall entitle City, subject to any applicable notice and cure provisions set forth in
                      this Agreement, to exercise any of the remedies provided for under this Agreement, except termination or
                      restricting the attachment of the Communications Equipment and other rights granted herein, under the DBE
                      Ordinance or otherwise available at law or in equity, which remedies shall be cumulative unless this
                      Agreement expressly provides that any remedy is exclusive. In addition, EarthLink shall comply fully with
                      all other applicable local, state and federal laws prohibiting discrimination and requiring equal opportunity in
                      contracting, including subcontracting.

                            b.       Compliance and Enforcement

                                    1.        Enforcement

                                             . The Director of the City's Human Rights Commission or any other public official
                      authorized to enforce the DBE Ordinance (separately and collectively, the "Director of HRC") may also
                      impose other sanctions against EarthLink authorized in the DBE Ordinance, including declaring the
                      EarthLink to be irresponsible and ineligible to contract with the City for a period of up to five years or
                      revocation of the EarthLink's DBE certification, which shall not affect this Agreement. The Director of
                      HRC will determine the sanctions to be imposed, including the amount of liquidated damages, after
                      investigation pursuant to Administrative Code §14A.13(B).


                                             EarthLink agrees to maintain records necessary for monitoring its compliance
                      with the DBE Ordinance for a period of ____ years after such records are created, and shall make such
                      records available for audit and inspection by the Director of HRC or the Controller upon request as
                      provided in the audit provision is Section ___.

                                    2.        Subcontracting Goals


                                           The DBE subcontracting participation goal for this contract is ______________[fill
                      in number] %. Each invoice submitted to City for payment shall include the information required in HRC
                        Form 7 and Form 9. Failure to provide HRC Form 7 and Form 9 with each invoice submitted by EarthLink
                        shall entitle City to withhold 20% of the amount of that invoice until HRC Form 7 and Form 9 is provided
                        by EarthLink.

                                               EarthLink shall not participate in any back contracting to the EarthLink or
                        lower-tier subcontractors, as defined in the DBE Ordinance, for any purpose inconsistent with the
                        provisions of the DBE Ordinance, its implementing rules and regulations, or this Section.

                                      3.        Subcontract Language Requirements

                                              EarthLink shall incorporate the DBE Ordinance into each subcontract made in the
                        fulfillment of EarthLink's obligations under this Agreement and require each subcontractor to agree and
                        comply with provisions of the ordinance applicable to subcontractors.


                                             Subcontracts shall require the subcontractor to maintain records necessary for
                        monitoring its compliance with the DBE Ordinance for a period of three years after such records are
                        created and to make such records available for audit and inspection by the Director of HRC or the
                        Controller upon request as provided in the audit provision in Section ___.




37.   Nondiscrimina            a.       EarthLink Shall Not Discriminate
      tion; Penalties
                                          In the performance of this Agreement, EarthLink agrees not to discriminate against any
      AGREED            employee, City and County employee working with such contractor or subcontractor, applicant for
                        employment with such contractor or subcontractor, or against any person seeking accommodations,
                        advantages, facilities, privileges, services, or membership in all business, social, or other establishments or
                        organizations, on the basis of the fact or perception of a person's race, color, creed, religion, national origin,
                        ancestry, age, height, weight, sex, sexual orientation, gender identity, domestic partner status, marital
                        status, disability or Acquired Immune Deficiency Syndrome or HIV status (AIDS/HIV status), or
                        association with members of such protected classes, or in retaliation for opposition to discrimination
                        against such classes.

                               b.       Subcontracts

                                        EarthLink shall incorporate by reference in all subcontracts the provisions of §§ I2B.2(a),
                        I2B.2(c)-(k), and 12C.3 of the S.F. Administrative Code (copies of which are available from Purchasing)
                        and shall require all subcontractors to comply with such provisions. EarthLink's failure to comply with the
                        obligations in this subsection shall constitute a material breach of this Agreement.

                               c.       Nondiscrimination in Benefits

                                        EarthLink does not as of the date of this Agreement and will not during the term of this
                        Agreement, in any of its operations in San Francisco, on real property owned by San Francisco, or where
                        work is being performed for the City elsewhere in the United States, discriminate in the provision of
                        bereavement leave, family medical leave, health benefits, membership or membership discounts, moving
                        expenses, pension and retirement benefits or travel benefits, as well as any benefits other than the benefits
                        specified above, between employees with domestic partners and employees with spouses, and/or between
                        the domestic partners and spouses of such employees, where the domestic partnership has been registered
                        with a governmental entity pursuant to state or local law authorizing such registration, subject to the
                        conditions set forth in §12B.2(b) of the S.F. Administrative Code.

                                d.      Condition to Contract

                                       As a condition to this Agreement, EarthLink shall execute the "Chapter 12B Declaration:
                        Nondiscrimination in Contracts and Benefits" form (form HRC-12B-101) with supporting documentation
                        and secure the approval of the form by the San Francisco Human Rights Commission.

                              e.        Incorporation of Administrative Code Provisions by Reference
                                        The provisions of Chapters 12B and 12C of the S.F. Administrative Code are incorporated in
                         this Section by reference and made a part of this Agreement as though fully set forth herein. EarthLink shall
                         comply fully with and be bound by all of the provisions that apply to this Agreement under such Chapters,
                         including but not limited to the remedies provided in such Chapters. Without limiting the foregoing,
                         EarthLink understands that pursuant to § 12B.2(h) of the S.F. Administrative Code, a penalty of $50 for each
                         person for each calendar day during which such person was discriminated against in violation of the
                         provisions of this Agreement may be assessed against EarthLink and/or deducted from any payments due
                         EarthLink.


38.   MacBride                    Pursuant to S.F. Administrative Code §12.F.5, the City and County of San Francisco urges
      Principles—        companies doing business in Northern Ireland to move towards resolving employment inequities, and
      Northern Ireland   encourages such companies to abide by the MacBride Principles. The City and County of San Francisco
                         urges San Francisco companies to do business with corporations that abide by the MacBride Principles.
      AGREED             By signing below, the person executing this agreement on behalf of EarthLink acknowledges and agrees
      MOVED TO           that he or she has read and understood this section.
      FINAL

39.   Tropical                   Pursuant to §804(b) of the S.F. Environment Code, the City and County of San Francisco urges
      Hardwood           contractors not to import, purchase, obtain, or use for any purpose, any tropical hardwood, tropical
      and Virgin         hardwood wood product, virgin redwood or virgin redwood wood product.
      Redwood Ban

      AGREED
      MOVED TO
      FINAL

40.   Drug-Free
      Workplace                  INTENTIONALLY BLANK
      Policy

      AGREED


41.   Resource                   Chapter 5 of the S.F. Environment Code ("Resource Conservation") is incorporated herein by
      Conservation       reference. Failure by EarthLink to comply with any of the applicable requirements of Chapter 5 will be
                         deemed a material breach of contract.
      AGREED
      MOVED TO
      FINAL

42.   Sunshine                    In accordance with S.F. Administrative Code §67.24(e), contracts, contractors' bids, responses to
      Ordinance          solicitations and all other records of communications between City and persons or firms seeking contracts,
                         shall be open to inspection immediately after a contract has been awarded. Nothing in this provision requires
                         the disclosure of a private person or organization's net worth or other proprietary financial data submitted for
      AGREED
                         qualification for a contract or other benefit until and unless that person or organization is awarded the
      MOVED TO           contract or benefit. Information provided which is covered by this paragraph will be made available to the
      FINAL              public upon request.

43.   Public Access
      to Meetings        INTENTIONALLY BLANK
      and Records

      AGREED
44.   Limitations on          Through execution of this Agreement, EarthLink acknowledges that it is familiar with section 1.126
      Contributions    of the City's Campaign and Governmental Conduct Code, which prohibits any person who contracts with
                       the City for the rendition of personal services or for the furnishing of any material, supplies or equipment to
                       the City, whenever such transaction would require approval by a City elective officer of the board on which
      AGREED
                       that City elective officer serves, from making any campaign contribution to the officer at any time from the
                       commencement of negotiations for the contract until the later of either (1) the termination of negotiations
      MOVED TO         for such contract or (2) three months after the date the contract is approved by the City elective officer or
      FINAL            the board on which that City elective officer serves.

45.   Requiring
      Minimum
      Compensatio
      n for Covered    INTENTIONALLY BLANK
      Employees

      AGREED


46.   Requiring
      Health           INTENTIONALLY BLANK
      Benefits for
      Covered
      Employees


      AGREED

47.   First Source            a.      Incorporation of Administrative Code Provisions by Reference
      Hiring
      Program                         The provisions of Chapter 83 of the San Francisco Administrative Code are incorporated in
                       this Section by reference and made a part of this Agreement as though fully set forth herein. EarthLink
                       shall comply fully with, and be bound by, all of the provisions that apply to this Agreement under such
                       Chapter, including but not limited to the remedies provided therein. Capitalized terms used in this Section
      AGREED           and not defined in this Agreement shall have the meanings assigned to such terms in Chapter 83.

      MOVED TO                b.      First Source Hiring Agreement
      FINAL
                                      (1)       EarthLink will comply with First Source interviewing, recruitment and hiring
                       requirements, which will provide the San Francisco Workforce Development System with the exclusive
                       opportunity to initially provide Qualified Economically Disadvantaged Individuals for consideration for
                       employment for Entry Level Positions. The duration of the First Source interviewing requirement shall be ten
                       (10) days, unless business necessity requires a shorter period of time.

                                      (2)     EarthLink will comply with requirements for providing timely, appropriate
                       notification of available Entry Level Positions to the San Francisco Workforce Development System so
                       that the System may train and refer an adequate pool of Qualified Economically Disadvantaged
                       Individuals to participating Employers.

                                     (3)      EarthLink agrees to use good faith efforts to comply with the First Source hiring
                       requirements. EarthLink may establish its good faith efforts by filling: 1) its first available Entry Level
                       Position with a job applicant referred through the First Source Program; and, 2) fifty percent (50%) of its
                       subsequent available Entry level Positions with job applicants referred through the San Francisco
                       Workforce Development System. Failure to meet this target, while not imputing bad faith, may result in a
                       review of EarthLink's employment records.

                             c.       Hiring Decisions

                                     EarthLink shall make the final determination of whether an Economically Disadvantaged
                       Individual referred by the System is "qualified" for the position.
                             d.      Exceptions

                                    Upon application by Employer, the First Source Hiring Administration may grant an
                       exception to any or all of the requirements of Chapter 83 in any situation where it concludes that
                       compliance with this Chapter would cause economic hardship.

                             e.      Liquidated Damages

                                     Violation of the requirements of Chapter 83 is subject to an assessment of liquidated
                       damages in the amount of $2,070 for every new hire for an Entry Level Position improperly withheld
                       from the first source hiring process. The assessment of liquidated damages and the evaluation of any
                       defenses or mitigating factors shall be made by the FSHA,

                             f.      Subcontracts

                                      Any subcontract entered into by EarthLink shall require the subcontractor to comply with the
                       requirements of Chapter 83 and shall contain contractual obligations substantially the same as those set
                       forth in this Section.

48.   Prohibition on          In accordance with San Francisco. Administrative Code Chapter 12.G, EarthLink may not participate
      Political        in, support, or attempt to influence any political campaign for a candidate or for a ballot measure
      Activity with    (collectively, "Political Activity") in the performance of the services provided under this Agreement.
                       EarthLink agrees to comply with San Francisco Administrative Code Chapter 12.G and any implementing
      City Funds
                       rules and regulations promulgated by the City's Controller. The terms and provisions of Chapter 12.G are
                       incorporated herein by this reference. In the event EarthLink violates the provisions of this section, the City
      AGREED           may, in addition to any other rights or remedies available hereunder, (i) terminate this Agreement, and (ii)
                       prohibit EarthLink from bidding on or receiving any new City contract for a period of two (2) years. The
      MOVED TO         Controller will not consider EarthLink's use of profit as a violation of this section.
      FINAL

49.   Preservative-            To the extent such laws are applicable to EarthLink and this Agreement, EarthLink may not purchase
      treated Wood     preservative-treated wood products containing arsenic in the performance of this Agreement unless an
      Containing       exemption from the requirements of Chapter 13 of the San Francisco Environment Code is obtained from the
      Arsenic          Department of the Environment under Section 1304 of the Code. The term "preservative-treated wood
                       containing arsenic" shall mean wood treated with a preservative that contains arsenic, elemental arsenic, or
                       an arsenic copper combination, including, but not limited to, chromated copper arsenate preservative,
      AGREED           ammoniacal copper zinc arsenate preservative, or ammoniacal copper arsenate preservative. EarthLink may
                       purchase preservative-treated wood products on the list of environmentally preferable alternatives prepared
      MOVED TO         and adopted by the Department of the Environment. This provision does not preclude EarthLink from
      FINAL            purchasing preservative-treated wood containing arsenic for saltwater immersion. The term "saltwater
                       immersion" shall mean a pressure-treated wood that is used for construction purposes or facilities that are
                       partially or totally immersed in saltwater.

50.   Modification     This Agreement may be amended from time to time only by amendments that are written and executed on
      of Agreement     paper by both Parties to this Agreement.

      AGREED


51.   Administrative
      Remedy for              INTENTIONALLY BLANK
      Agreement
      Interpretation

      AGREED


52.   Agreement
      Made in                 The formation, interpretation and performance of this Agreement shall be governed by the laws of the
                       State of California. Venue for all litigation relative to the formation, interpretation and performance of this
      California;
      Venue            Agreement shall be in San Francisco.

      AGREED
      MOVED TO
      FINAL

53.   Construction           All paragraph captions are for reference only and shall not be considered in construing this
                       Agreement.
      AGREED
      MOVED TO
      FINAL

54.   Entire
      Agreement               This Agreement and the Pole Use Agreement constitute the entire agreement between the Parties
                       and the provisions of these Agreements shall not be altered by any provisions contained in City
                       standard form permit or approval applications. Except as set forth herein, there are no promises,
      AGREED           representations or understandings between the parties of any kind or nature whatsoever.




55.   Compliance              The Parties will comply with all applicable laws as they currently exist and as they may be amended
      with Laws        from time to time.

      AGREED
      MOVED TO
      FINAL

56.   Services                INTENTIONALLY BLANK
      Provided by
      Attorneys

      AGREED


57.   Supervision of
      Minors
                       INTENTIONALLY BLANK
      AGREED


58.   Severability
                              Should the application of any provision of this Agreement to any particular facts or circumstances be
                       found by a court of competent jurisdiction to be invalid or unenforceable, then (a) the validity of other
      AGREED
                       provisions of this Agreement shall not be affected or impaired thereby, and (b) such provision shall be
                       enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed
      MOVED TO         without further action by the parties to the extent necessary to make such provision valid and enforceable.
      FINAL
59.   Nondisclosure
      of Private               As of March 5, 2005, EarthLink agrees to comply fully with and be bound in the performance of this
                       Agreement by all of the provisions of Chapter 12M of the San Francisco Administrative Code to the extent it
      Information
                       is applicable to this Agreement.
      AGREED
      MOVED TO
      FINAL
60.   Graffiti
      Removal                Graffiti is detrimental to the health, safety and welfare of the community in that it promotes a
                      perception in the community that the laws protecting public and private property can be disregarded with
                      impunity. This perception fosters a sense of disrespect of the law that results in an increase in crime;
      AGREED          degrades the community and leads to urban blight; is detrimental to property values, business opportunities
                      and the enjoyment of life; is inconsistent with the City's property maintenance goals and aesthetic standards:
      MOVED TO        and results in additional graffiti and in other properties becoming the target of graffiti unless it is quickly
      FINAL           removed from public and private property. Graffiti results in visual pollution and is a public nuisance.
                      Graffiti must be abated as quickly as possible to avoid detrimental impacts on the City and County and its
                      residents, and to prevent the further spread of graffiti.

                              EarthLink shall remove all graffiti from any real property owned or leased by EarthLink in the City
                      and County of San Francisco within forty eight (48) hours of the earlier of EarthLink's (a) discovery or
                      notification of the graffiti or (b) receipt of notification of the graffiti from the Department of Public Works.
                      This section is not intended to require a EarthLink to breach any lease or other agreement that it may have
                      concerning its use of the real property. The term "graffiti" means any inscription, word, figure, marking or
                      design that is affixed, marked, etched, scratched, drawn or painted on any building, structure, fixture or other
                      improvement, whether permanent or temporary, including by way of example only and without limitation,
                      signs, banners, billboards and fencing surrounding construction sites, whether public or private, without the
                      consent of the owner of the property or the owner's authorized agent, and which is visible from the public
                      right-of-way. "Graffiti" shall not include: (1) any sign or banner that is authorized by, and in compliance
                      with, the applicable requirements of the San Francisco Public Works Code, the San Francisco Planning Code
                      or the San Francisco Building Code; or (2) any mural or other painting or marking on the property that is
                      protected as a work of fine art under the California Art Preservation Act (California Civil Code Sections 987
                      et seq.) or as a work of visual art under the Federal Visual Artists Rights Act of 1990 (17 U.S.C. §§ 101 et
                      seq.).

                            Any failure of EarthLink to comply with this section of this Agreement shall constitute an Event of
                      Default of this Agreement.

61.   Future
      Expansion       EarthLink agrees to keep the Network updated with industry standard technology, including without
                      limitation updated equipment, software, protocols and other standards, provided that this obligation will not
                      apply during the last 18 months of the Term unless the terms of the Agreement have been renewed by
                      EarthLink and the City so that the end of the Term is more than 18 months away. Upgrades will be at parity
      AGREED
                      with the upgrades performed in other comparable cities in which EarthLink operates wireless broadband
                      networks. A list of comparable cities, which may be similar in terms of geographic size, population,
      MOVED TO        household density or other such factors, shall be proposed by EarthLink and subject to approval by the City.
      FINAL           EarthLink shall be entitled to keep the Network updated with new technology, including without limitation
                      new equipment, software, protocols and other standards, subject to complying with the other provisions of
                      this Agreement.

62.   Conditions of               The obligations of EarthLink hereunder shall be subject to, and conditioned upon, the following
      Performance     conditions (“Conditions”). If the following Conditions have not been satisfied by a date that is one hundred
                      and eighty (180) days after the Effective Date of this Agreement, at any time thereafter Earthlink is entitled
                      to terminate this Agreement by giving ten (10) days prior written notice, if the Conditions have not been
                      satisfied by the date that notice is sent by EarthLink.
      OPEN
                      This Agreement has been approved and fully executed by all Parties by fully authorized representatives.

                      All of the required authorities and governing bodies have approved this Agreement, and is fully approved by
                      the San Francisco Board of Supervisors and those contemplated by this Agreement by ordinance and it has
                      become law or otherwise authorizing the City to enter into this Agreement and grant to EarthLink the rights
                      to use the City Poles that are provided in this Agreement, and such ordinance has become law.

                      The applicable electric providers have agreed they will furnish electricity service to the Communications
                      Equipment installed on City Poles and to the towers and rooftop lease sites to install all of the backhaul
                      antennae, radio and fiber optic and broadband service necessary to operate the Network upon commercially
                      reasonable rates (not exceeding $___ per street light per month), terms and conditions and in a manner that
                      the Parties agree complies with applicable laws and regulations.
                   An Agreement between PG&E and EarthLink is fully executed and is fully approved and signed by
                   authorized officers of PG&E and EarthLink permitting use of all poles and street lights necessary to operate
                   the Network.

                   EarthLink is able to obtain signed leases for all of the towers and rooftop lease sites to install all of the
                   backhaul antennae, radio and fiber optic and broadband service necessary to operate the Network.

                   The owners or authorized representatives of the Streetlights and Poles have granted EarthLink the right to
                   attach the Communications Equipment on Streetlights and Poles sufficient to operate the Network in a
                   manner that the Parties agree complies with applicable laws and regulations and upon commercially
                   reasonable rates.

                   EarthLink shall not be prohibited from constructing and operating the Network, or performing substantially
                   all of the services or exercising substantially all of the rights set forth in this Agreement.

                   No challenge or claim has been asserted claiming that the City Agreement or PG&E Agreement is not
                   properly authorized, violates applicable laws, regulations or requirements or is not binding

                   EarthLink has obtained all applicable permits, licenses, and authorizations from the City, State, and the
                   federal government for the installation, maintenance and operation of the Network, and all of the required
                   authorities and governing bodies have approved all aspects of the Network and the installation work, and
                   such authorizations have not been terminated or revoked and are no longer subject to appeal.


                   The Proof of Concept Acceptance by the City is obtained.

                   The Acceptance of the complete implementation of the EarthLink Network by the City and all other required
                   parties is obtained.

                   The City Agreement has not been terminated pursuant to any provision of the City Agreement or applicable
                   law.


63.   Dispute                Any dispute between the Parties or default by either Party which arises during the Term of this
      Resolution             Agreement and which the Parties cannot then resolve, shall be subject to the following
                             administrative remedy and if the City believes that a Termination Default has occurred then prior
                             to any termination by the City of the rights of EarthLink or this Agreement for a Termination
      OPEN
                             Default then the City must comply with the following administrative remedy:

                                 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"). Any
                                  applicable cure periods shall run at the same time as the period of Internal Resolution. Senior
                                  management officials shall meet or confer at least once in good faith, to negotiate a mutually
                                  acceptable resolution . Project managers and senior management for each Party shall be the
                                  General Market Manager and Vice President, Municipal Networks respectively, for
                                  EarthLink, and the City Project Manager and the City Administrator or City Administrator’s
                                  designee respectively, for the City, and their respective successors in office. The project
                                  managers and senior management may be changed by notice given by the Party changing its
                                  personnel.

                        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.

                        OPEN - Condition Precedent to Termination of EarthLink’s Rights. Prior to the expiration of the Term,
                                neither the rights of EarthLink hereunder nor this Agreement shall be terminated by the City
                                or any other Party without the prior completion of all of the Resolution Procedures that
                                EarthLink or the City has timely requested in the time provided under this Article is a
                                   condition precedent to the City terminating the rights of EarthLink or filing suit to terminate
                                   this Agreement or the rights of EarthLink hereunder, unless EarthLink has agreed to such
                                   termination in a signed paper writing. The City is not entitled to terminate this Agreement or
                                   the rights of EarthLink hereunder until all of the Resolution Procedures that EarthLink 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.


64.   Non-          The authorizations granted in this Agreement shall be non-exclusive and nothing contained in this
      Exclusive     Agreement shall be construed to limit, alter, or waive the right of the City to enter into agreements
                    authorizing persons or entities other than EarthLink to access and use City Poles to install any form of
                    communications equipment or for any other purpose, except as specifically set forth herein. Such
      AGREED
                    authorizations by the City shall be made on a non-discriminatory and competitively neutral basis, taking into
                    account material differences in the circumstances of each applicant for such authorization. The City shall
      MOVED TO      give EarthLink prompt prior written notice of any applications received by the City from others requesting
      FINAL         permission to install a substantial number of devices similar to the Communications Equipment on the City
                    Poles or Premises.
65.   Removal       BOTH AGREEMENTSUpon termination of this Agreement as provided herein or upon expiration of the
                    Term, EarthLink, at its own expense, shall remove the Communications Equipment from the City Poles
      OPEN          within eighteen (18) months of said date of termination or expiration. If EarthLink fails to remove the
                    Communications Equipment from the City Poles within eighteen (18) months thereafter, the City may
                    remove any of the Communications Equipment so remaining, and shall be reimbursed for the equipment and
                    labor costs actually incurred in connection with removing the Communications Equipment within thirty (30)
                    days of returning such Communications Equipment to EarthLink or making such Communications
                    Equipment available to EarthLink for pickup at a safe storage facility within the City limits.

                    Notwithstanding anything to the contrary, EarthLink shall be entitled to remove and disconnect its
                    Communications Equipment from any of the City Poles in the Network or other leased facilities and the
                    sums owed hereunder for Installed City Poles, premises and/or leased fiber, as applicable, shall be reduced
                    proportionately as of the effective date of such removal.
66.   Force         Neither party shall be deemed in default of a provision of this Agreement where performance was rendered
      Majeure       impossible or delayed by causes beyond the party's reasonable control, including, but not limited to wars or
                    riots, labor strikes or civil disturbances, floods, earthquakes, fire, explosions, or epidemics, or other acts of
                    God, ISSUE:UNFORESEEABLE DELAYS BY THE CITY, or failures of providers of electricity,
      AGREED
                    telecommunications and other necessary services (other than services provided by Subcontractors)
                    (collectively, “Force Majeure Events”), and this Agreement shall not be terminated or the party penalized for
      MOVED TO      such noncompliance, provided that it takes immediate and diligent steps to bring itself back into compliance
      FINAL         with this Agreement and to comply as soon as possible under the circumstances without unduly endangering
                    the health, safety, and integrity of the party’s employees or property, or the health, safety, and integrity of the
                    public, Public Rights-of-Way, public property, or private property. Acts beyond EarthLink's reasonable
                    control shall not include (i) failure to obtain financing or have adequate funds, (ii) work shortages when
                    qualified workers are available, or (iii) the reasonably foreseeable period of time necessary to obtain
                    agreements or approvals from the City or third parties. A delay shall not be excused to the extent that the
                    party could reasonably have avoided or mitigated the delay by altering its conduct. The provisions of this
                    Section shall have no application unless a party seeking an extension of time for performance under this
                    Agreement shall have first notified the other party in writing of the cause or causes thereof within thirty (30)
                    days after its reasonable determination that an event may constitute a Force Majeure delay under this
                    Section.

                    The time for performance by the City or EarthLink of any term, provision, or covenant of this Agreement,
                    except for payments, shall be deemed extended by time lost due to delays resulting from any Force Majeure
                    Event.
67.   Quiet Title   POLE USE AGREEMENT. Subject to the express rights of the City in this Agreement, the City warrants
                    that EarthLink shall have quiet enjoyment of the Installed City Poles designated by EarthLink during the
      AGREED        Term for the Communications Equipment.

                    BOTH AGREEMENTS. The City represents and warrants that: (a) the City and the officials of the City
                    executing this Agreement are authorized to grant to EarthLink all of the rights granted herein; and (b) all
                    necessary and appropriate authorizations and approvals have been obtained by the City and the officials of
                    the City signing this Agreement.
68.   Parties Bear
      Their Own      Except as expressly set forth herein, each Party shall pay their own costs of performing hereunder. This
      Costs          Agreement and the Exhibits state the only charges and sums that EarthLink is required to pay during the
                     Term for installation, attachment, maintenance, and use of the City Poles and Electrical Services.
      AGREED


69.   No             THE ONLY WARRANTIES CONCERNING THE MUNICIPAL SERVICES, NETWORK AND OTHER
      Warranties     DELIVERABLES PROVIDED UNDER THIS AGREEMENT ARE THOSE CONTAINED HEREIN, AND
                     ARE MADE FOR THE BENEFIT OF THE CITY ONLY IN LIEU OF ALL OTHER WARRANTIES AND
                     REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
      OPEN
                     WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE,
                     NON-INFRINGEMENT OR OTHERWISE. EARTHLINK ALSO SPECIFICALLY DISCLAIMS ANY
                     WARRANTIES OR REPRESENTATIONS RELATED TO THE INTERNET OR SECURITY-RELATED
                     FEATURES OF THE NETWORK AND/OR MUNICIPAL SERVICES, EXCEPT FOR ANY EXPRESS
                     WARRANTIES OR REPRESENTATIONS MADE BY EARTHLINK. EARTHLINK DOES NOT
                     GUARANTEE COMPLETE SECURITY VIA THE INTERNET OR THE NETWORK OR MUNICIPAL
                     SERVICES. EARTHLINK DOES NOT AGREE TO BE LIABLE FOR BREACHES OF SUCH
                     SECURITY OR ANY OTHER RELATED WARRANTIES, EITHER EXPRESSED OR IMPLIED,
                     INCLUDING WITHOUT LIMITATION, INTERNET FUNCTION AND/OR PERFORMANCE
                     WARRANTIES. EARTHLINK SHALL HAVE NO LIABILITY FOR THE CONDUCT OF
                     SUBSCRIBERS USING OR ACCESSING THE NETWORK OR MUNICIPAL SERVICES.
70.   Reasonable
      Treatment      Notwithstanding anything to the contrary, the City agrees not to withhold unreasonably or delay any
                     approvals or other actions or approvals necessary or appropriate for EarthLink to exercise the rights and to
                     perform as specified herein. Notwithstanding anything to the contrary, EarthLink agrees not to withhold
      OPEN
                     unreasonably or delay any approvals or other actions or approvals necessary or appropriate for City to
                     exercise the rights and to perform as specified herein. ISSUE:MOVEFORCEMAJEURE EarthLink shall be
                     entitled to a reasonable extension of the time for performing any action required of EarthLink under this
                     Agreement if its failure to perform such action is caused by a City delay.
71.   Headings       The heading references herein are for convenience purposes only, do not constitute a part of this Agreement
                     and shall not be deemed to limit or affect any of the provisions hereof.
      AGREED
      MOVED TO
      THE FINAL

72.   Amendment      INTENTIONALLY BLANK

      AGREED


73.   Counterparts   This Agreement may be executed in duplicate counterparts, each of which shall be deemed an original.

      AGREED
      MOVED TO
      FINAL

74.   Equitable      Each Party agrees that any threatened or actual failure of the other Party to comply with its obligations
      Relief         hereunder may cause immediate irreparable harm to the non-defaulting Party for which there is no adequate
                     remedy at law. Accordingly, each Party agrees that the non-defaulting Party will be entitled to an order for
      OPEN           specific performance and to injunctive relief from a court of competent jurisdiction as remedy for any such
                     threatened or actual default. Nothing in this Agreement will prevent or prohibit either Party from obtaining
                     an order of specific performance and an injunction from a court of competent jurisdiction requiring the
                     defaulting Party to comply with the provisions of this Agreement, and not to take actions that violate its
                     obligations under this Agreement; provided, that such order shall not prevent EarthLink from operating the
                     Network and maintaining the Communications Equipment on the City Poles, except on account of expiration
                     of the Term or in the event of termination in compliance with this Agreement and applicable law for a Major
                     Default after full completion of all Resolution Procedures and a court order is issued as provided herein; and
                     provided further that such order for specific performance and injunction shall not require either Party to pay
                      or expend any sums in excess of the liability limitation set forth herein.


75.   Public          The City and EarthLink agree, subject to any public disclosure law requirements, to consult each other on
      Announceme      public statements, press releases, publications, or claims about the Network’s status. The City shall give
      nts             EarthLink a reasonable opportunity to review and approve all written press releases proposed to be issued by
                      the City with respect to the Network. The City will not host or arrange for visits to the facilities of EarthLink
                      or its contractors without first obtaining the prior written consent of EarthLink.
      OPEN


76.   Marketing
      Assistance

      AGREED


77.   Third Parties   This Agreement shall not create for, nor give to, any third party any claim or right of action against either
                      Parties to this Agreement that would not arise in the absence of this Agreement.
      OPEN


78.   Successors      This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the
                      respective parties.
      AGREED
      MOVED TO
      FINAL

79.   Parties         The City and EarthLink may be referred to herein individually as a "Party", and collectively as the "Parties."

      AGREED
      MOVED TO
      FINAL

80.   Future City
      Services        City will consider EarthLink for the provision of certain services for which EarthLink has qualified as a sole
                      source provider through the City’s established policies. EarthLink may also bid on any projects the City
                      makes available through its competitive solicitation process. The City and EarthLink will negotiate mutually
      AGREED
                      agreeable terms and written agreements for such services as appropriate.
      MOVED TO
      FINAL

81.   Billing City    INTENTIONALLY BLANK

      AGREED


82.   Tax
      Abatement

      AGREED


83.   Pole            POLE AGREEMENT PROVISIONS
      Procedure       The installation and maintenance of Communications Equipment on City Poles is subject to the terms and
      Exhibit         conditions set forth in Exhibit ___.

                      Exhibit __
      OPEN            Substitution. At any time during the Term, EarthLink shall have the right to install, maintain and use
Communications Equipment described in its Placement Notice and the right to upgrade and later install new
Communications Equipment later installed on such City Poles. If EarthLink determines that a designated
City Pole is unsuitable for Network use, during installation or thereafter, EarthLink may install
Communications Equipment on another substitute City Pole. In such event, EarthLink shall notify the City,
by an amended Placement Notice (“Amended Placement Notice”), within ninety (90) days after the
installation of Communications Equipment on the substitute City Pole. The City will not object to an
Amended Placement Notice.

Addition of City Poles. At any time during the Term of this Agreement, EarthLink shall be entitled to place
additional and/or replacement Communications Equipment, and make upgrades that EarthLink so chooses in
the future on any City Poles, and to modify the location of existing Communications Equipment and to
designate additional City Poles for installation of Communications Equipment by following the notification
procedure set forth in this Agreement. The aggregate total number of Installed City Poles shall be adjusted
accordingly with each addition, modification or upgrade.

Reduction of City Poles. At any time during the Term of this Agreement, EarthLink shall be entitled to
remove any of EarthLink’s Communications Equipment from any or all of the Installed City Poles and the
aggregate number of Installed City Poles and the applicable Installed City Pole Use Fees shall be reduced
accordingly. If EarthLink removes any Communications Equipment from any of the Installed City Poles,
then EarthLink shall, within ninety (90) days after such removal, give notice thereof to the City, specifying
the Installed City Poles vacated, the location thereof, as well as the date of removal. Such removal by
EarthLink or a removal by the City as permitted herein shall immediately terminate EarthLink’s obligation
for payment of the Installed City Pole Use Fee and other rental charges for the applicable Installed City Poles
after the removal occurred and the sums due for such previously Installed City Poles will be pro-rated
through the date of such removal.

Replacement. In the event any Installed City Poles are to be replaced, repaired, altered or made incapacitated
by power interruption or other reasons by the City, the City shall give EarthLink at least thirty (30) days
advance written notice of such planned activity. If the City removes, repairs or alters Installed City Poles in
such a way that EarthLink is required to remove and/or reinstall the Communications Equipment on such
Installed City Poles as contemplated in this Agreement, EarthLink shall be entitled to reinstall on any other
City Pole chosen by EarthLink as soon as EarthLink elects and the City shall not charge EarthLink any fees
for obtaining approval of any substitute Installed City Poles and the sums, if any, owed by EarthLink to the
City hereunder will be reduced to the extent necessary to compensate EarthLink for the actual cost of such
removal and reinstallation. EarthLink may elect to relocate, replace or transfer its Communications
Equipment from all, some or none of the affected Installed City Poles to replacement City Poles. If
EarthLink elects not to replace or relocate the Communications Equipment from any Installed City Poles, the
Installed City Pole Use Fee for those Installed City Poles will terminate effective upon the earlier of removal
of the Communications Equipment or removal of the Installed City Pole.

Emergency. In cases of emergency, the City may relocate the Communications Equipment, or transfer it to
replacement City Poles only if it is necessary to protect public safety or public property from imminent
danger. The City shall notify EarthLink as soon as reasonably practicable in the event of an emergency,
prior to the relocation of that equipment, and explain to what extent the relocation of Communications
Equipment is necessary.

Damaged Pole. If an Installed City Pole is fully or partially destroyed or damaged, and as a result thereof
EarthLink is unable to conduct its operations on such Installed City Pole in a manner that is functionally
equivalent to EarthLink’s operations before such event, the City shall notify EarthLink, within ten (10) days
after such event, whether or not the City intends to repair, rebuild or restore the applicable Installed City
Pole. If the City removes an Installed City Pole on which EarthLink has installed Communications
Equipment for any reason, the City shall give EarthLink at least ten (10) days advance notice and protect and
return to EarthLink the Communications Equipment installed on those Installed City Poles. In either event
EarthLink shall be entitled to install Communications Equipment on a substitute Installed City Pole
determined by EarthLink. The City shall permit the substitute City Pole installation. EarthLink shall be
entitled to a pro-rata abatement of the Installed City Pole Use Fee for the affected Installed City Pole(s) for
the number of twenty-four (24) hour periods it is unable to conduct its normal operations from the affected
Installed City Pole or the substitute Installed City Pole.

Removal of Previous Installations. EarthLink shall be entitled, but not obligated, during installation and
thereafter, to remove previously installed equipment on City Poles designated by EarthLink in a Placement
Notice or an Amended Placement Notice, if that previously installed equipment is not operating properly, has
                     been abandoned or is no longer entitled to be installed on that City Pole.

                     Right to Inspect. The City shall have the right to make periodic inspections at the City's discretion and cost
                     as conditions may warrant. Such inspections shall not be charged to EarthLink. Failure of the City to make
                     any inspections shall not delay EarthLink or the Network installation. EarthLink is not obligated to obtain
                     any inspections before proceeding as provided hereunder.

                     Interference. The City will not cause or allow any third parties to cause radio frequency interference (“RF
                     Interference”) with the Communications Equipment and/or the Network. Subsequent to the installation of
                     the Communications Equipment by EarthLink, the City shall not permit itself or its licensees to install new
                     equipment on the City Poles or property contiguous thereto owned or controlled by the City, if such
                     equipment is likely to cause RF Interference or physical blocking interference with EarthLink’s
                     Communications Equipment. The City shall obligate each new licensee in its lease or license to operate its
                     equipment pursuant to obligations that are substantially similar to this section. EarthLink shall deem such RF
                     Interference or physical blocking interference to be a material breach of this Agreement by the City. In the
                     event such RF Interference or physical blocking interference occurs, the City agrees to take all action
                     necessary to eliminate such RF Interference or physical blocking interference within three (3) calendar days.
                     Notwithstanding the foregoing, in the event that the RF Interference continues for more than ten (10) days,
                     fees and charges for the City Poles shall abate proportionately on a per diem basis for each day after such ten
                     (10) day period. Additionally, if such RF Interference continues for a period of thirty (30) calendar days and
                     affects a material portion of the Network, EarthLink shall have the right to terminate this Agreement
                     immediately upon notice to the City.

                     Installation of Upgraded Communications Equipment. EarthLink is hereby authorized to replace the
                     Communications Equipment on an Installed City Pole with updated or upgraded Communications
                     Equipment. The installation of approved updated Communications Equipment in substitution of
                     Communications Equipment which the City has previously approved shall not require further approval or the
                     issuance of any permits.




84.   Electricity    POLE AGREEMENT PROVISION
                     EarthLink shall bear the cost of city supplied electricity at cost or most favorable
                     appropriate unmetered tariffed rate. As necessary, EarthLink will provide notice to
      OPEN           support recalculation of electricity consumption. The City receives Electrical Service (as defined
                     below) from the electric utilities serving the City Poles (collectively “Electric Utility”). Electrical power to
                     operate Communications Equipment may be taken from the power sources connected to the City Poles by
                     EarthLink. The City will obtain permission from the Electric Utility for EarthLink to use the electricity from
                     the City Poles. The City shall be responsible for any payment or payments to the Electric Utility or any other
                     electricity provider for electrical usage by EarthLink to the extent EarthLink pays the City for such service
                     and to the extent an agreement to supply the necessary electrical power is executed between the City and the
                     Electric Utility or to the extent the obligation to pay is passed through the City to EarthLink through an
                     agreement between the City and the Electric Utility. EarthLink shall be responsible for all payments for use
                     of electrical power, including but not limited to power usage, metering and any other electric utility services
                     required for the operation of the Network, except as provided otherwise in a written agreement signed by the
                     City and EarthLink. The obligations of EarthLink hereunder are conditioned on EarthLink obtaining
                     continuous electrical service in sufficient capacity and quality and upon terms and electrical rates that are
                     reasonably satisfactory to EarthLink or, at the option of EarthLink, the City agreeing to provide electricity
                     through the City for sums equal to a flat rate negotiated between EarthLink and the City for the cost of the
                     electrical consumption of EarthLink’s Communications Equipment being served that is in an amount that is
                     acceptable to EarthLink (“Electrical Service”). If the City or EarthLink does not obtain from the Electric
                     Utility an agreement to provide such Electrical Service during the term of this Agreement, EarthLink is
                     entitled at any time prior to obtaining such an agreement to terminate this Agreement and all obligations to
                     continue providing the implementation of Network hereunder. EarthLink may continue to implement the
                     Network without waiving this condition and the right to terminate as provided above.
85.   Availability   The City acknowledges that any City Poles which are not supplied electrical power 24 hours per day or
                     which are otherwise not suitable for EarthLink’s use under this Agreement or the owner does not grant
      OPEN           sufficient rights to EarthLink (collectively “Unsuitable Poles”) and EarthLink will not be required to offer
                     service coverage in areas containing such Unsuitable Poles. EarthLink’s performance under this Agreement
                     requires an adequate supply of electricity 24 hours per day every day. EarthLink shall not be deemed to be in
                     default or required to provide Network service during such time and in such areas as are directly affected by
                     the lack of electrical power. If continuous electricity is not available for a material number of the Installed
                      City Poles and/or those that are designated as potential Installed City Poles for the Communications
                      Equipment, EarthLink shall be entitled, but not obligated, to terminate this Agreement and all payment
                      obligations hereunder.
86.   Right of Way    During the Term of this Agreement, EarthLink is authorized to use any easements, rights, and rights of way
      Grant           of the City and public rights of way for access to City Poles and Premises to which Communications
                      Equipment is or will be attached pursuant to this Agreement. Such access shall be twenty-four (24) hours
                      per day, every day. The City will promptly inform all appropriate City representatives and employees about
      OPEN
                      the easements, rights, permits and approvals granted to EarthLink herein and the City shall instruct and direct
                      the City representatives and employees to treat those as valid and binding on the City in all ways and to act
                      promptly to facilitate the rapid issuance of any additional easements, rights, approvals and permits that might
                      still be necessary or appropriate to facilitate the rapid deployment of the Network.
87.   Installation    POLE AGREEMENT.
      authorization   The City has, or will within thirty (30) days of the Effective Date, obtain all necessary and appropriate rights
                      to all of the City Poles for EarthLink to install and maintain during the Term all of the Communications
                      Equipment on the City Poles without EarthLink having any obligation to: (i) pay any sums for such rights,
      OPEN
                      except for the payments set forth herein; or (ii) assume, or agree to, any obligations in excess of those set
                      forth in this Agreement. EarthLink is entitled to install and maintain its Communications Equipment on the
                      City Poles from time to time during the Term (during the time Communications Equipment is attached to a
                      City Pole, it and they shall be collectively referred to as “Installed City Poles”). The City approves the
                      Communications Equipment described on Exhibit B and all similar equipment for installation, maintenance
                      and operation on the City Poles.
88.   General
      Permit

      DELETE

89.   City Poles      MOVE TO DEFINITION SECTION OR THE POLE AGREEMENT The City owns, operates and
                      maintains the street lights and traffic lights, and all associated support arms and connecting hardware, in the
      OPEN            City listed on Schedule 3.1(a) (collectively “City Owned Street Lights”). The City owns, operates and
                      maintains all of the poles on which the City Owned Street Lights in the City are mounted, and land rights
                      (including rights of way) under such poles listed on Schedule 3.1(b) (collectively “City Owned Poles"). Any
                      street lights and traffic lights, and associated support arms and connecting hardware, in the City that are not
                      owned by the City shall be referred to herein as “Not Owned Street Lights”. Any poles in the City that are
                      not owned by the City shall be referred to herein as “Not Owned Poles”. The City Owned Street Lights and
                      the City Owned Poles shall be collectively referred to herein as “City Poles”.
90.   Authorization   Subject to the terms and conditions of this Agreement, EarthLink will construct, install, manage and operate
                      a wireless broadband Internet access network in the City (“Network”) during the Term of this Agreement and
      OPEN            the Transition Period.
                      As further described in this Agreement, EarthLink is hereby authorized to attach its radios, antennae,
                      gateways, wires, cables, fibers, filters, amplifiers and other equipment, and switching, processing,
                      monitoring, transmission and distribution components of its broadband wireless system, including, without
                      limitation, the equipment described on Exhibit B, and, including further, upgrades and new and improved
                      technology and devices as from time to time determined by EarthLink (collectively “Communications
                      Equipment”) to the City Poles (as defined herein), for the purpose of, among others, installing, operating and
                      maintaining a Network and providing certain services to the City. The City grants EarthLink access to the
                      City rights of way for the installation and maitenance of the Communications Equipment and to other certain
                      City property as described herein.
91.   Network          EarthLink will submit to the City the plans and specifications for the Network prior to commencement of the
      Plans and       initial installation of the Proof of Concept of theNetwork under this Agreement that include a schedule of the
      Approval        implementation and the duration of the implementation until final completion (“Network Plans”). The City
                      shall approve the Network Plans within thirty (30) days of EarthLink’s delivery of the Network Plans to the
                      City, which approval shall not be unreasonably withheld or delayed, unless the City can establish with
      OPEN            specificity that the Network Plans violate public safety or any federal, state of local laws or regulations or
                      building code requirements (“Design Approval”). The City will notify EarthLink in writing of such
                      objections, if any, to the Network Plans within thirty (30) days of EarthLink’s delivery thereof to the City;
                      provided that, if the City does not deliver such objections to EarthLink within thirty (30) days of EarthLink’s
                      delivery of the Network Plans to the City, the Network Plans shall be deemed to have received Design
                      Approval and EarthLink may proceed with the installation. Upon correction or withdraw of the objections to
                      the Network Plans, the revised Network Plans shall be deemed to have received Design Approval and
                      EarthLink may proceed with the installation. The Network Plan will contain mutually agreed upon
                      performance criteria and service level requirements that will be revised based on the Proof of Concept
                      performance. These revised service level requirements will be used as the SLA for purposes of determining
                  if the Network is operating properly (“SLA” and “Service Level Agreement”)


92.                                                                                                                                 .




93.   Privacy     For services other than the Free Tier that are provided by EarthLink, but not those provided by third party
                  ISPs, EarthLink will adhere to a privacy policy that meets the following minimum requirements (“Minimum
      OPEN        Requirements”). EarthLink can have additional provisions in the privacy policies in addition to the
                  Minimum Requirements. EarthLink would also expect its ISPs to comply with similar policies that meet
                  the Minimum Requirements.
      Insert on
      Exhibit?    EarthLink is entitled to modify these Minimum Requirements at any time in order to comply with applicable
                  law, to protect the security of the Network, or to provide further assurances of protection. If EarthLink
                  wishes to change these Minimum Requirements in a manner that reduces or may reduce the level of privacy
                  protection of the Minimum Requirements for the individual customers and if that change is not required to
                  comply with applicable law or to protect the security of the Network, then EarthLink will give the City a
                  copy of the proposed changes at least thirty (30) days before the changes are to become effective. If the City
                  does not object to such changes within such thirty (30) day period then EarthLink shall be entitled to make
                  such changes to the Minimum Requirements with respect to the services of EarthLink and/or the Free Tier.
                  If the City objects to a proposed change within such thirty (30) days then the parties shall meet within thirty
                  days and reach a mutual agreement concerning such changes before the changes objected to become
                  effective. If the City refuses to meet within such thirty (30) days then EarthLink shall be entitled to make
                  such proposed changes in spite of the objection of the City. The City shall not unreasonably object to any
                  proposed changes and the City shall not unreasonably withhold, delay or condition its approval of changes or
                  modified changes once an objection is made.

                  1. Anonymity on Free Tier: users are able to use Free Tier without providing personally identifiable
                  information, except for machine codes and information otherwise described in this Section or as may be
                  required to comply with applicable law or to protect the security of the Network.

                  2. EarthLink will not share personal information without voluntary, affirmative consent from the user,
                  subject to exceptions noted in the Privacy Policy of EarthLink and the letter dated June 14, 2006 attached
                  hereto as Exhibit ___ (“June 14 Letter”).

                  3. EarthLink will notify users of legal requests for personal data to the extent permitted by law, as reflected
                  in the June 14 Letter, and require court-supported documentation before releasing information to law
                  enforcement authorities in a criminal case and that in such cases EarthLink is not required to provide notice
                  to the customer.

                  4. EarthLink will adhere to a 60-day retention period for non-aggregated location information, but EarthLink
                  can retain aggregated location information as long as it does not contain personally identifiable information
                  other than information required to comply with applicable law or to protect the security or the Network.
                  EarthLink will provide mechanisms for users to opt-out of collection of location data.

                  The Free Tier will meet the following Minimum Requirements with respect to information obtained from
                  Free Tier users as a result of administering the Free Tier or EarthLink will provide an alternative that will
                  meet these Minimum Requirements.

                  1. Anonymity on free tier: users are able to use Free Tier without providing personally identifiable
                  information, except for machine codes and information otherwise described in this Section or as may be
                  required to comply with applicable law or to protect the security of the Network.

                  2. The provider of the Free Tier will not share personal information without voluntary, affirmative consent
                  from the user, subject to exceptions noted in the Privacy Policy and the letter dated June 20, 2006 attached as
                  Exhibit ___ (“June 20 Letter”).

                  3. EarthLink will notify users of legal requests for personal data to the extent permitted by law, as reflected
                  in the June 20 Letter, and require court-supported documentation before releasing information to law
                       enforcement authorities in a criminal case and that in such cases EarthLink is not required to provide notice
                       to the customer.

                       4. The Free Tier provider will adhere to a 60-day retention period for non-aggregated location information,
                       but it can retain aggregated location information as long as it does not contain personally identifiable
                       information other than information required to comply with applicable law or to protect the security or the
                       Network. EarthLink will provide mechanisms for users to opt-out of collection of location data.

94.   Non-             EarthLink will promote the open and interconnected nature of the public Internet and the neutral and non-
      discrimination   discriminatory treatment of consumers with respect to the following:

      OPEN             1. Run applications and use services of their choice, subject to the needs of law enforcement.

                       2. Access the lawful Internet content of their choice.
      Insert on
      Exhibit?         3.Connect their choice of legal devices that do not harm the network.

                       4. Competition among network providers, application and service providers, and content providers.

                       The Parties encourage all similarly-situated providers of broadband services to also abide by these principles.
                       More specific standards may be established by a separate ordinance of general applicability, which would
                       apply to all providers.

95.   Open Access      EarthLink will provide Open Access to its wireless broadband Internet access transport
                       services to multiple unaffiliated Service Providers.
      OPEN
                       Access transport service will be offered in a non-discriminatory manner.
      Insert on        Access transport services will mirror EarthLink's retail transport services.
      Exhibit?
                       When any unauthenticated user is redirected to a Capture Portal on the Network, the
                       user shall have an option to choose between multiple Service Providers and service
                       plans.

                       The Network shall support unilateral, inbound and outbound roaming relationships
                       whereby subscribers to other fee-based Wi-Fi services may gain access to Premium
                       Services provided over the Network and vice versa.

96.   Minimum          EarthLink will offer the following Minimum List of Initial Products throughout the term or
      Initial          substitute products with equal or more capability in lieu of each such products:
      Products
                       Wi-Fi Products
      OPEN                     - Basic (minimum average 300kbps)
                               - Premium (minimum average 1mbps)
      Insert on                - Digital Inclusion Product (minimum average 1mbps)
      Exhibit?                 - Occasional Use (minimum average 1mbps)
                               - Wholesale (minimum average1mbps)
                               - Roaming (minimum average 1mbps).

97.   Future           EarthLink will give the City ten (10) days written notice (electronic or hard copy) of all
      Products         future products to be offered by EarthLink, but not ISPs or the Free Tier Provider,
                       including the anticipated date of offering and type and parameters of such products,
      OPEN             provided this shall not apply to changes in then existing products, promotions or price
                       changes.

                       EarthLink will use commercially reasonable efforts to offer (no guaranteed rate of speed)
                       T-1 product (3mbps) to be available approximately at time of Final Acceptance.
98.   Digital
      Inclusion
                     During the Term, EarthLink will work with the City to develop a program tailored to the
      OPEN           specific needs and existing programs of the City that is designed to primarily provide
                     access to the Network, equipment and education to certain low income and
      Insert on      disadvantaged persons at discounted rates and/or extending the Parks and Public
      Exhibit?       Spaces Broadband Services (as defined below) (the “Digital Inclusion Program”).
                     EarthLink will make available 3,200 discounted digital inclusion accounts that are
      CHANGED        described on Exhibit ___ and are subject to the limitations set forth on that Exhibit. The
                     City will be responsible for the qualification of the subscribers to the Digital Inclusion
                     Program. The subscribers to the Digital Inclusion Program will be EarthLink Subscribers
                     for all purposes under this Agreement.

99.   Digital        EarthLink will provide payment options to EarthLink’s subscribers, but not ISP or Free
      Inclusion      Tier customers, for credit card and debit card (banking or prepaid) for premium service
      Payment        and any other payment options EarthLink determines. Cash payment options will be
      Options        available for Discounted Lifeline products.

      OPEN

      Insert on
      Exhibit?


100. Speed of        The initial speed of Free Tier Basic Wi-Fi product will be commercially reasonable effort
     Service         300Kbps symmetric. Upon the request of the City at the end of each year of the Term
                     throughout the Term of this Agreement, EarthLink will determine which of EarthLink’s
      OPEN           internet access products was EarthLink's Best-Selling Wi-Fi Product during the previous
                     six (6) months prior to the end of the applicable year. If the annual determination of
      Insert on      EarthLink concludes that the stated speed (initially 300Kbps) of the Free Tier Basic Wi-Fi
      Exhibit?       product is less than fifteen (15%) percent of the stated speed of EarthLink's Best-Selling
                     Wi-Fi Product during such six (6) month period of that preceding year then EarthLink will
                     during the next three (3) months implement a speed increase in the Free Tier Basic Wi-Fi
                     product, to the extent it is technically feasible to do so, so that the stated speed of the
                     Free Tier Basic Wi-Fi product is equal to or greater than fifteen (15%) percent of the
                     stated speed of the applicable EarthLink’s Best-Selling Wi-Fi Product. When used
                     herein, “EarthLink's Best-Selling Wi-Fi Product” shall be the Wi-Fi internet access
                     product offered by EarthLink that is sold to the most EarthLink subscribers as determined
                     by EarthLink using measurements of the combined total number of wholesale and retail
                     subscribers for a six (6) month period immediately preceding the end of the applicable
                     Term year using statistics and other estimates made in good faith so that EarthLink can
                     minimize the effort and cost of such determination.

101. Service Level
                     Certain Performance Criteria will be mutually agreed to in the Design Control Documents
      OPEN           and will be used to determine Proof of Concept Acceptance (e.g. Zone 1 deployed).
                     Performance Criteria that may be specified in the Design Documents may include, based
      Insert on      on the mutual agreement of the parties:
      Exhibit?
                         -   Outdoor coverage
      CHANGED            -   Indoor coverage up to 40 feet
                         -   Network performance/throughput
                         -   Network availability, reliability
                         -   Prioritized traffic for municipal use

                     Final Acceptance (e.g. all zones deployed) criteria will be solely based on non-
                 discriminatory coverage of the Network, which shall be determined by reference to the
                 performance and quality of service. Evaluation of quality of service would be based upon
                 performance measurements described in the Design Documents and shall be subject to
                 availability of required assets.

                 EarthLink will use commercially reasonable efforts to complete the Proof of Concept
                 deployment within six (6) months of full satisfaction of the Proof of Concept Conditions.
                 Proof of Concept Acceptance will be determined by whether the Proof of Concept
                 complies with the Performance Criteria set forth in the Design Documents based on the
                 testing procedure set forth in the Design Document.

                 EarthLink will use commercially reasonable efforts to complete the full deployment and
                 obtain Final Acceptance of the Network within eighteen (18) months of Proof of Concept
                 Acceptance, including any evaluations of coverage, performance and quality of service
                 based upon performance measurements in the Design Documents.

                 Following Final Acceptance and throughout the Term of this Agreement, EarthLink will
                 report annually on monthly or quarterly Performance Measurements in a form and
                 content mutually agreed upon from time to time by both Parties.

                 Service Level Agreement

                 After POC Acceptance, the Administration Group will mutually develop
                 performance criteria and Service Level Agreements (“SLAs”) for the Network
                 services. These SLAs will specify the reporting interval (i.e. quarterly or
                 annually), the measurement period and other elements of the measurement
                 method (e.g., number of measurements, geographic granularity of measurements)
                 and other criterial mutually agreeable to EarthLink and the City. Initial reporting
                 shall commence for information only after the POC Acceptance when the SLAs
                 are agreed upon however the Network is not required to perform according to the
                 SLAs until after completion of the Network and Network Acceptance occurs.
                 Reporting begins after POC acceptance. Failure of the Networkto satisfy the
                 SLAs shall not be a Termination Default. EarthLink agrees to use commercially
                 reasonable efforts to operate the Network in a manner that satisfies the SLAs.

102. Customer    EarthLink, but not ISPs or the Free Tier provider, will offer Tier 1 and Tier 2 Customer
     Service     Service 24x362 for premium service and EarthLink will provide Tier 3 support 24x365 for
                 all products as described on Exhibit ___. Qualified wholesale ISPs may offer Tier 1 and
     OPEN        Tier 2 customer service, but may choose to package services in different ways (e.g.
                 discounted service with limited/no customer service). The Free Tier provider and
     Insert on   EarthLink are not obligated to provide any voice or email support to users of the Free
     Exhibit?    Tier. EarthLink will provide phone and email support in English and Spanish for its own
                 subscribers, but not for Free Tier users or any ISP’s subscribers. EarthLink agrees to
                 make good faith commercially reasonable efforts to secure wholesale arrangements with
                 ISPs focused on serving other non-English speaking customers. EarthLink will provide
                 customer service in any language in which EarthLink conducts a marketing program for
                 EarthLink retail products, unless the marketing program is isolated advertisements or is
                 requested by members or advocates of the public to inform the public.

103. Capture
     Portal
                 SEE ITEM 104
    OPEN

     Insert on
     Exhibit?
     CHANGED
104. Capture     Non-authenticated users shall be directed to a City and EarthLink Branded Capture
     Portal      Portal landing page where they shall be presented with options to login to the network
     Premium     using their existing username and password, or to purchase EarthLink Retail Wi-Fi
     Service     Broadband Products, Open Access Wi-Fi Broadband Products or Occasional Use Wi-Fi
                 Broadband Products and they shall be presented with options to login to the
    OPEN         Network Free Tier at no charge using the Free Login Method, or other options as
    Insert on
                 may be made available from time to time. All Service Subscribersend users must
    Exhibit?     agree to the terms and conditions of use for the Network.

    CHANGED      When used herein “Free Login Method” shall mean that users are able to use the
                 Free Tier without providing personally identifiable information, except for
                 machine codes and information as may be required to comply with applicable law
                 or to protect the security of the Network.

                 When used herein “Free Tier” shall mean an Internet access service that does not
                 require the user to pay a subscription fee that is accessed using the Free Login
                 Method and that EarthLink uses commercially reasonable efforts to provide at an
                 initial speed of 300Kbps symmetric, provided that such speed will be adjusted as
                 expressly provided in Section ___ herein.


                 Based on the Service Subscriber’s selection of EarthLink Retail Wi-Fi Broadband
                 Products or Open Access Wi-Fi Broadband Products, the Service Subscriber will
                 be directed to appropriate landing pages where options for EarthLink and all
                 Service Providers will be presented. EarthLink shall receive preferential position
                 above other Service Providers on all Capture Portal pages, however all Service
                 Providers shall be clearly and reasonably presented in the Open Access Service
                 Provider landing pages. Service Subscribers shall select a Service Provider
                 option and shall be redirected to the appropriate Service Provider’s proprietary
                 sign up pages to complete the sign up transaction. Based on the Service
                 Subscriber’s selection of Occasional Use Wi-Fi Broadband Products, the Service
                 Subscriber will be directed to appropriate landing pages where options for
                 Occasional Use Wi-Fi Broadband Products will be presented. Users shall select
                 an Occasional Use Wi-Fi Broadband Product option (e.g. 1 hour subscription, 24
                 hour subscription) and shall be directed to the EarthLink proprietary Occasional
                 Use Wi-Fi Broadband Product sign up and billing information capture pages to
                 complete the transaction. All Service Subscribers must agree to the terms and
                 conditions of use for the Network.

                 Civic content will either be provided on a landing page or made available from
                 landing page link to another page that can be configured by users.

                 EarthLink and the City shall work together to create appropriate disclaimers and
                 protections to protect both Parties from any liability which could result by
                 providing subsidized or unencrypted Internet Access to Service
                 Subscribers/Network Users via the Network.

                 The City shall be entitled to determine up to 6 links in the Portal landing and
                 welcome pages in its reasonable discretion for announcements, community
                 notices and/or advertising.

                 To the extent it is reasonable, mutually agreeable, and technically possible,
                 EarthLink shall allow limited access to the end users from the City links to the
                 underlying sites to end users that have not logged in or signed up for service.
                 EarthLink may also make available certain functionality to allow the user to
                 perform local directory searches, access maps and to perform other functions as
                 may be determined from time to time, within the context of the Free Garden. The
                 user must agree to the terms and conditions of use for the Network in order to
                 access these Web sites and utilities in the Free Garden.


105. Security    The City and EarthLink agree that the Network will support the security provisions from
                 time to time mutually agreed upon by EarthLink and the City or equivalent industry
     OPEN        security standards.

     Insert on
     Exhibit?
     CHANGED


106. Payments    EarthLink shall pay during the Term the following amounts for the use of the right of way and the Installed
                 City Poles. A prepayment of right of way fees shall be paid in the amount of $600,000 (“ROW
     OPEN        Prepayment”) which will be due and payable as follows: $200,000 within ___ days of the Effective Date of
                 Agreement, $200,000 within ___ days of the Proof of Concept Acceptance, and $200,000 within ___ days of
                 the Final Acceptance of Network.
     Insert on
     Exhibit?    Beginning at the end of the first year after the Final Acceptance and on each Anniversary Date thereafter
                 during the Term, EarthLink shall pay within ___ days after the end of each Anniversary Date a right of way
     CHANGED     fee to the City equal to five (5%) percent of Gross Access Revenues (ROW fee) actually received by
                 EarthLink for the Network (“ROW Fee”). The $600,000 ROW Prepayment is a nonrefundable prepayment
                 of ROW Fees, with a maximum amount applied each year to be $75,000, until the $600,000 is exhausted.
                 EarthLink is entitled to reduce the ROW Fee due to the City up to $75,000 each year until the balance of the
                 balance ROW Prepayment equals zero.

                 Compensation for Installed City Poles. As compensation for the right to access and use City Poles in which
                 the street light/traffic light and the installation pole are completely owned by the City as contemplated by this
                 Agreement, EarthLink shall pay in arrears to the City a fee (“Installed City Pole Use Fee”) for the right to
                 access and use the Installed City Poles for a flat rate of $_____ per Installed City Pole per month
                 commencing on the first day of the first calendar month after the entire Network becomes operational with
                 customers who are paying for the services of the Network after all pilots and testing is completed
                 (“Commencement Date”). The Installed City Pole Use Fee shall be calculated based on the number of
                 Installed City Poles determined as of the date that is thirty (30) days prior to each payment date so the
                 amount owed will increase and decrease as the number of Installed City Poles increases and decreases.

                 Payment Terms for Installed City Poles. EarthLink shall pay to the City the Installed City Pole Use Fee in
                 arrears for each previous month, and shall make such payments within sixty (60) days of the date that the
                 City sends an invoice to EarthLink for the fees. The Installed City Pole Use Fee shall only be due for the
                 Installed City Poles for which the City has the complete right to grant all of the attachment rights to
                  EarthLink as provided herein without the need for EarthLink to pay another party for such rights for any
                  reason including without limitation the fact that the third party owns the pole on which the street light or
                  traffic light is installed. However, if the City does not obtain all of the attachment rights for the street
                  light/traffic light and the installation pole for EarthLink as provided herein without the need for EarthLink to
                  pay another party for such rights for some of the City Poles then if EarthLink is able, and elects, to obtain
                  such rights by agreeing to pay a third party for its rights in the pole, street light or traffic light, or if
                  EarthLink is required to pay such third party for such rights, EarthLink shall be entitled to deduct the total
                  amount of such payments to third parties from the total payments due hereunder. The City and EarthLink
                  may mutually agree to invoice for the Installed City Pole Use Fee monthly, quarterly, semi-annually, or
                  annually.

107. Digital
     Inclusion
     Accounts

     OPEN

     Insert on
     Exhibit?
     MOVED



108. Efficient
     Permitting   POLE AGREEMENT PROVISION
     Process        Permission:
                         o EarthLink may only install equipment of a model that the City, including the City's Planning
     OPEN                     Department or Commission and the PUC staff has previously reviewed and approved.
                         o EarthLink may update or replace the installed equipment from time to time with prior written
                              notice, provided that: 1) the replacement device model has been approved by the City; 2) the
     CHANGED                  replacement device is no heavier or larger, uses no more electrical power, or creates no
                              greater health, safety or visual impact than the model being replaced; 3) the same method of
                              obtaining electrical power is used; 4) the replacement device does not pose an undue risk to
                              City facilities, employees or the public; and 5) any change in the location of the device on the
                              pole is approved in writing by the City.
                         o EarthLink may only install equipment in a manner approved by the PUC. Prior to the
                              installation of network equipment and facitilites, EarthLink must submit to the PUC staff for
                              approval plans and specifications for each equipment configuration. Such plans and
                              specifications shall include at a minimum, size, weight, mounting method, mounting
                              placement, method of providing electrical power (including placement of cables and attaching
                              to photo light cells), estimated monthly electrical use, and information regarding
                              radiofrequency radiation.
                         o PUC light poles will be classified in three different categories:
                                        Category 1: poles pre-designated as suitable for use to attach network elements
                                         located in areas where there are no restrictions on placement;
                                        Category 2: poles pre-designated as suitable for use to attach network elements
                                         located in areas where there are restrictions on use, such as local, state or national
                                         historic districts;
                                        Category 3: poles that EarthLink will not be permitted to use because they are
                                         decorative, historic or adjacent to a national, state or historic landmark.
                         o For Category 1 poles, , with [ ] days prior notice to the PUC of each zone in which devices
                              are to be installed on poles, EarthLink may install up to 300 devices at one time. No
                              additional PUC approval is required.
                         o For Category 2 poles, City approval is required before installing devices on any poles.
                         o EarthLink shall obtain any other appplicable City permits (e.g., sidewalk occupancy) before
                              installing devices on poles.

                      Reporting: EarthLink to maintain a current list of poles on which it has installed devices and shall
                       update the list on a monthly basis whenever there are changes to EarthLink's use of PUC light poles.
                       EarthLink to provide the list of poles and each update to PUC and DTIS. The list will include pole
                       identifier, equipment, and configuration.


109. Removal    Removal Security. Prior to Proof of Concept Acceptance under this Agreement, EarthLink shall furnish to
     Security   the City removal security in the form of a letter of credit, in the amount of One Hundred Thousand Dollars
                ($100,000), to pay the City’s costs of removing the Communications Equipment from Street Lights in the
     OPEN       event EarthLink fails to remove the Communications Equipment when required to do so under this
                Agreement. EarthLink shall deliver to the City a letter of credit issued by Bank of America or another bank
                or financial institution in the form attached hereto as Exhibit __ during the Term and for one year thereafter.
                If the number of installations on City Poles exceeds ________ by more than twenty (20%) percent
                (“Expected Number of City Pole Installations”) then within ninety (90) days written notice from City
                requesting a pro rata increase EarthLink will increase the amount of the letter of credit by a pro rata amount
                equal to $_____ for every City Pole on which Communications Equipment has been installed in excess of the
                Expected Number of City Pole Installations. Notwithstanding anything to the contrary, the City shall only be
                entitled to draw on the letter of credit to the extent of sums actually incurred and paid by the City solely for
                the removal of Communications Equipment of Earthlink that EarthLink was obligated to remove from the
                Street Lights pursuant to this Agreement that were not removed within the time required under the
                Agreement and only if all of the Draw Conditions set forth below are satisfied fully. “Draw Conditions”
                mean that all of the following have occurred: (i) the Agreement has expired or been terminated in
                accordance with the provisions of this Agreement; (ii) EarthLink is obligated to remove the Communications
                Equipment pursuant to the provisions of this Agreement; (iii) EarthLink has not removed the
                Communications Equipment within the time required in this Agreement (“Removal Deadline”); (iv) the City
                has, after the expiration of the Removal Deadline and in compliance with this Agreement, actually removed
                Communications Equipment that Earthlink was obligated to remove pursuant to this Agreement
                (“Removal”); (v) the City has paid third parties sums that are reasonably charged solely for the Removal of
                Communications Equipment (“Removal Expenses”); (vi) the City Managing Director has signed a notarized
                certification on oath stating that all of the above conditions in items (i), (ii), (iii), (iv) and (v) have occurred
                and specifying the correct amount of the Removal Expenses (“Signed Certification”); (vii) the City has
                delivered to the issuer of the letter of credit and EarthLink an original paper copy of the Signed Certification
                and written notice of intent to submit a draw request no sooner than five (5) business days after delivery of
                such notice (“Draw Notice”); (viii) five (5) business days have expired since the delivery of the Signed
                Certification and Draw Notice to the issuer of the letter of credit and EarthLink; and (ix) the City has
                delivered to the issuer of the letter of credit the original letter of credit and a draw request in the amount of
                the Removal Expenses using forms required by such issuer that certifies that all of the above Draw
                Conditions have been satisfied in full. The letter of credit disbursement shall be limited to the amount of the
                Removal Expenses and after a draw request is paid by the issuer of the letter of credit in that amount then no
                further draws or payments under that letter of credit shall be allowed.



                                                                    Exhibit __


                                                      FORM OF LETTER OF CREDIT


                Irrevocable Letter of Credit No. _____________
                Date
                Beneficiary’s Name
                Beneficiary’s Address
                            Account Party:      EarthLink, Inc.
                            Beneficiary:                  City of
                            Amount:             $_,000.00 U.S. Dollars
                Ladies and Gentlemen:
                         A.         We hereby issue this irrevocable, letter of credit number ________ (the "Credit") in your
                favor, payable in immediately available funds in one or more draws of any sum or sums not exceeding in the
                aggregate ______ Thousand Dollars ($_,000.00), by your draft(s) drawn on us at sight presented at our
counters together with a signed and notarized certificate stating the following:
                     "The undersigned, the duly appointed and current Managing Director of Beneficiary
          (“City”), hereby certifies on oath that the City has delivered notice of intent to draw on the Credit
          at least ten (10) days prior to the actual date of this draw request and that either: (1) all of the Draw
          Conditions set forth in Section ___ of the Agreement dated _______ between EarthLink, Inc. and
          the City (“Agreement”) have occurred and have been satisfied in full, the City has complied with
          all of the Draw Conditions, and the correct amount of the Removal Expenses (as defined in the
          Agreement) equals $_________, which is the amount being drawn on the Credit, and the City is
          entitled to the amount drawn hereunder, which is $ _______, pursuant to the terms of the
          Agreement; or (2) EarthLink has notified the City that the Credit will expire within thirty (30) days
          and a renewal or extension of this Credit has not been delivered to the City prior to such thirty (30)
          day period.”
         We will accept such statement as conclusive, binding and correct without having to investigate or
having to be responsible for the accuracy, truthfulness, correctness or validity thereof, and notwithstanding
the claim of any person to the contrary.
          Drafts presented under this Credit shall specify the number of this Credit as set forth above and
shall be presented on or before the expiration date hereof.
         B.        This Credit is assignable and transferable and may be transferred one or more times,
without charge, upon our receipt of your written notice that an agreement to transfer or assign this Credit has
been executed.
          C.          This Credit shall be automatically renewed from year to year commencing on the first
anniversary of the date hereof, unless and until we shall give thirty (30) days prior written notice to you, by
certified mail, return receipt requested, at the address set forth above, of our intent not to renew this Credit at
the expiration of such thirty (30) day period. During such thirty (30) day period, this Credit shall remain in
full force and effect and Beneficiary may draw up to the full amount hereof when accompanied by one of the
statements described in the first paragraph of this Credit.
          D.          Notwithstanding anything to the contrary contained herein, the letter of credit
disbursement shall be limited to the amounts stated and reasonably documented by the City in the
certification described above. After a draw request is paid by us in that amount, then the balance remaining
on the letter of credit shall not be available for further draws by the Beneficiary as required pursuant to the
Agreement. In the event the Beneficiary’s actual sums due to the City pursuant to the Agreement is less than
the amount stated in the City Managing Director’s above described certification, then the City shall promptly
refund the amount of such difference to the issuer of the letter of credit, which will credit the refund to the
amount that can be drawn on the letter of credit. This Credit shall be returned to EarthLink for cancellation
if: (1) all Communications Equipment (as defined in the Agreement) of EarthLink has been removed by
EarthLink or its contractors from City street lights, and (2) EarthLink has complied with all obligations in the
Agreement and the Agreement have also terminated.
         E.          We hereby engage with you that drafts drawn under and in compliance with the terms of
this Credit will be duly honored ten (10) days after the above certification is presented to us and also
delivered to EarthLink, Inc.
          F.         This Credit sets forth in full the terms of our undertaking and such undertaking shall not
in any way be modified, amended, amplified or limited by reference to any document, instrument or
agreement referred to herein, or by any document, instrument or agreement in which this Credit is referred
to, or to which this Credit relates, and any such reference shall not be deemed to incorporate herein by
reference any such document, instrument or agreement.
         G.         Except as otherwise expressly stated herein, this Credit is subject to the International
Standby Practices (ISP98), International Chamber of Commerce Publication No. 590 and, to the extent not
inconsistent therewith, the laws of the State of New York.
                                                               [BANK]


                                                               By:       ______________________________
                                                                         Authorized Officer
110. Leases         MATRIX PROVISION: City agrees to lease assets to EarthLink subject to mutually
                    agreeable terms. To the extent possible, City and EarthLink will strive to secure approval
     OPEN           of leases, etc. concurrent with City pole attachment approval.


111. Interference   EarthLink will work with the City in a commercially reasonable manner to develop
                    mutually acceptable procedures for resolving and escalating interference issues, to the
     AGREED         extent EarthLink and the City can reach mutual agreement.

     MOVED TO
     FINAL


112. Disaster       EarthLink and the City will work together to develop a network disaster preparedness
     Planning       plan to the extent EarthLink and the City can reach mutual agreement.

     AGREED
     MOVED TO
     FINAL

113. Non-browser    The Network will support non-browser based devices, as long as they support the
     Devices        security protocols required on the Network. EarthLink will work with various
     AGREED
                    device manufacturers and the development community to encourage more
                    devices to access and use the Network, without compromising the security of the
     CHANGED        Network.
     MOVED TO
     FINAL
114. Battery        SEE 112
     Backup

     AGREED


115. ADA            EarthLink acknowledges that programs and services provided by the City to the public,
                    whether directly or through a contractor operating on the City's behalf, must be
                    accessible to the disabled public in accordance with the provisions of the Americans with
     OPEN           Disabilities Act ("ADA”). However, EarthLink does not agree that EarthLink is providing
                    the Network or related services on the City’s behalf. In performing the services inside
                    the City pursuant to the requirements of this Agreement, EarthLink will provide the
                    services specified in this Agreement in a manner that substantially complies with the
                    applicable provisions of the ADA and other applicable federal, state and local disability
                    rights laws and regulations to the extent required by the provisions of the ADA that are
                    normally applicable to the overall business of EarthLink.

116. Definitions
                                a. Affiliate and Affiliated shall mean any entity Controlling,
                                   Controlled, or under common Control with the entity in question.
     OPEN

     NEW &                      b. Agreement shall mean this document.
     CHANGED
                                c. City shall mean the City and County of San Francisco, California.

                                d. City Manager shall mean Manager, as defined below.
e. Controlling and Controlled shall mean

f. Customer Premises Equipment, or CPE, shall mean
   communications equipment used with the end user's device
   accessing the Network to improve reception of or utilize a Wi-Fi
   signal.

g. Manager shall mean the City Manager of the City or his or her
   designee.

h. Municipal Charter shall mean San Francisco’s City Charter.

i. Gross Access Revenue shall mean the revenue received by
   EarthLink, attributable to the aggregate number of subscribers
   during that calendar month that paid EarthLink for a product that
   included the basic internet access service, or a better product
   including internet and web access, calculated using the amount
   charged by EarthLink, at retail or wholesale as applicable,
   provided that the calculation of Gross Access Revenue shall not
   include sums received, paid or charged for services provided to the
   City or other federal, state, or local governments or agencies,
   Digital Inclusion and similarly discounted services for
   disadvantaged users or nonprofit organizations serving the
   disadvantaged, additional products, advertising, services,
   equipment, or any additional products, functions, speed or features
   that EarthLink may also provide to such subscriber that is in
   excess of the basic internet access service, such as for example,
   VoIP, add-on products or applications, content, video, or audio,
   and further provided that the above revenue shall be net of and
   reduced by deductions for all applicable taxes, government
   required fees, refunds, charge-backs, bounties and referral fees.

j. Parties shall mean both City and EarthLink.

k. Person shall mean a natural person, corporation, partnership or
   any other form of legal entity.

l. Subcontractor shall mean third parties that enter into contracts
   with EarthLink for the installation or maintenance of the Network
   inside the City during the Term.

m. Network Acceptance shall mean

n. Network shall mean

o. Pole Use Agreement shall mean
          p. Basic Tier shall mean internet access service with a speed of
             minimum average 300kbps that is available without the Basic Tier
             user paying any subscription fees.

          q. Premium Tier shall mean internet access service with a speed of
             minimum average 1mbps.

          r. Administrative Group shall mean

          s. SLAs shall mean

          t. POC Acceptance shall mean

          u. Effective Date shall mean

          v. ISPs shall mean third parties the EarthLink contracts with for
             marketing and sale of Network services with payments for such
             services being paid to Earthlink by such third parties.

          w. Basic Tier Login Method shall mean

          x. Implementation Conditions shall mean

          y. POC Implementation Conditions shall mean

          z. Digital Inclusion Product shall mean internet access service with
             a speed of minimum average 1mbps that is discounted for
             disadvantaged user that have been qualified and certified by the
             City.

          aa. Wholesale Service shall mean internet access service with a speed
              of minimum average 1mbps marketed and sold by ISPs.

          bb. Roaming Service shall mean

          cc. Occasional Use shall mean


Effective Date
       Basic (minimum average 300kbps)
       - Premium (minimum average 1mbps)
       - Digital Inclusion Product (minimum average 1mbps)
       - Occasional Use (minimum average 1mbps)
       - Wholesale (minimum average1mbps)
       - Roaming (minimum average 1mbps).
               IN WITNESS WHEREOF, the Parties acknowledge and accept the
terms, conditions and obligations of this Agreement as evidenced by the following
signatures of their duly authorized representatives. It is the intent of the Parties that this
Agreement shall become operative on the Effective Date.


THE CITY OF SAN FRANCISCO

Signed:        ________________________________________

Name:          ________________________________________

Title:         ________________________________________

Date:          ________________________________________



EARTHLINK, INC.

Signed:        ________________________________________

Name:          ________________________________________

Title:         ________________________________________

Date:          ________________________________________
              EXHIBITS AND SCHEDULES

EXHIBIT A –

EXHIBIT B -
                                                          Appendix A
                                             Services to be Provided by EarthLink




1.       Reports

EarthLink shall submit written reports as mutually agreed by DTIS and EarthLink. Format for the content of such reports shall
be determined by DTIS and EarthLink mutually. The timely submission of all reports is a necessary and material term and
condition of this Agreement. The reports, including any copies, shall be submitted on recycled paper and printed on double-
sided pages to the maximum extent possible. These reports shall be the confidential information and trade secrets of
EarthLink to the maximum extent permitted by applicable law.


2.       Department Liaison

In performing the services provided for in this Agreement, EarthLink's liaison with DTIS will be _______________ [insert
name of contact person in department].
Appendix B

								
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