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Ordinance No. 10,329
ORDINANCE NO. 10,329 Am AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A MASTER SERVICES AGREEMENT WITH TIME WARNER CABLE INFORMATION SERVICES (TEXAS), LP, DB /A TIME WARNER CABLE AND AUTHORIZING THEREUNDER A THREE -YEAR CONTRACT TO PROVIDE INTERNET SERVICES AND A THREE -YEAR CONTRACT TO PROVIDE FIBER CABLE CONNECTIVITY BETWEEN CERTAIN MUNICIPAL FACILITIES; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED TWENTY -FOUR THOUSAND AND NO 1100 DOLLARS ($24,000.00); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. AM ****************************************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute a Master Services Agreement with Time Warner Cable Information Services (Texas), LP, d/b /a Time Warner Cable and authorizes thereunder a three -year contract to provide Internet services and a three -year contract to provide fiber cable connectivity between certain municipal facilities. A copy of said agreement and the corresponding service order forms are attached hereto as Exhibit "A," and are incorporated herein for all intents and purpose. Section 2: That the City Council of the City of Baytown authorizes payment to Time Warner Cable Information Services (Texas), LP, d/b /a Time Warner Cable, in an amount not to exceed TWENTY -FOUR THOUSAND AND NO /100 DOLLARS ($24,000.00) for Internet services and fiber cable connectivity in accordance with Section 1 hereof. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less, . provided that the amount authorized in Section 2 hereof may not be increased by more than twenty -five percent (25 %). Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 11 `h day of May, 2006. I ACIO RAMIREZ, SR., Attorney RAKarcn\Files\City Counci1\0rdinances\2006\May I I \TlmeWamerN1SA.doc CALVIN MUNDINGER, Mayol �► i> T I M E WARNER This Master Services Agreement is effective this day of , 2006 ( "Effective Date "), by and between Time Warner Cable Information Services (Texas), LP C A f3 L F d /b /a Time Warner Cable located at 8590 W Tidwell, Houston. TX 77040, a Delaware limited partnership ( "Time Warner Cable "). and located at ,a corporation ( "Customer "). 1. Services. Subject to the Customer placing orders and Time Warner Cable accepting such orders as contemplated herein, Customer agrees to purchase, and Time Warner Cable agrees to provide, the services described in the attached service schedule(s) ( "Service Schedules) ") that reference this Master Services Agreement ( "MSA" or " Agreement") and that are executed by both parties (the "Time Warner Cable Services'), and Third Party Service described in Section 15 (Time Warner Cable Services and Third Party Service, collectively or individually, the "Services "). Time Warner Cable Services may consist of any combination of Time Warner Cable's data products, video products and/or voice products (each referred to as "Network Services "), and/or professional services. All Services shall be provided according to the terms and conditions in this MSA (defined below) and as specified in an accepted order for Services placed by Customer contemporaneously herewith, subsequent hereto or in contemplation hereof ( "Service Order(s) "). This Agreement is comprised of the general terms and conditions contained in Sections 1 through 20 herein (the "General Terms ") together with any appendices, Service Schedules and Service Orders attached or incorporated by reference, and the foregoing shall be deemed one, integrated agreement and not as separate, severable contracts. The Service Schedules may be attached hereto, separately executed, or added by amendment. All Services are subject to availability and approval of Customer's credit by Time Warner Cable at the time of each Service Order. In the event of a conflict between the terms and conditions of this Agreement and its Schedules, and an Addendum accepted in writing by Time Warner Cable, the Addendum shall control. 2. 1ISA Term. The MSA (referring not to individual Services, which will each have their own term as described in Section 3 below) shall continue in effect for three (3) years from the Effective Date ( "MSA Term'), and shall then automatically renew for successive one (1) year periods ( "MSA Renewal Term(s) "), unless either patty gives written notice to the other party of non - renewal, such notice to be delivered at least sixty (60) calendar days before the end of the MSA Term or the MSA Renewal Term. Notwithstanding the prior sentence, unless Customer is in Default, any Service being provided at the time of termination of this MSA shall continue upon the terms and conditions of this MSA until the end of the Service Term or any applicable Extension Period for Service as specified in the applicable Service Order or until such Service Order is terminated; provided, however, that Customer may not order any new Service until Customer and Time Warner Cable have entered into a new agreement or mutually agreed in writing to extend this MSA. 3. Service Term. The term for each Service as described in a Service Order shall be as indicated on the Service Order ( "Service Term"). At the end of the Service Term for any Service, such Service shall continue on a month -to -month basis ( "Extension Period ") unless either patty gives written notice to the other that the Service(s) shall be disconnected, such notice to be delivered at least sixty (60) calendar days before the end of the Service Tetra, or if during the Extension Period, then upon at least thirty (30) calendar days' prior written notice. Notwithstanding the foregoing, if Customer disconnects Service and Customer has ordered its own Internet service or interexchange network service. Customer must provide Time Warner Cable written notification of Customer's disconnect with the Internet service or interexchange network service provider in the form of a disconnection firm order commitment ( "DFOC ') from the Internet service or interexchange network service provider. 3(a). non - Funding. Customer's budget is funded on an October I' to September 30'h fiscal year basis. Should funding become unavailable due to the fact that the City Council does not appropriate the requisite funds for this Agreement, this Agreement may be terminated by Customer by giving thirty (30) days' written notice. Other than Customer's obligations for the fiscal year that has been funded by City Council, such termination shall be without any further obligation of or liability to Customer. In the event that funding for this Agreement is discontinued or is no longer available, Customer shall only be required to pay rent and other charges due through the end of the fiscal year for which funding has been approved. 4. Payment Terms and Charges. Customer agrees to pay recurring and non - recurring charges for Time Warner Cable Services, as set forth in applicable Service Order and/or quote ("Quote") referenced in such Service Order and all charges for Third Party Services, if applicable. Time Warner Cable provides and charges for Services in U.S. Dollars, commencing on the date Time Warner Cable notifies Customer that the relevant Service is available for use by Customer. Subject to Section 5 below, all amounts stated on each invoice are due and payable within thirty (30) calendar days of the date of the invoice ( "Due Date "). As soon as electronic billing becomes available for this Agreement, the Parties agree to switch to an electronic billing system. In the event Customer fails to make full payment of undisputed amounts by the Due Date, Customer shall also pay a late fee on the unpaid balance at the interest rate specified in Section 2251.025 of the Texas Government Code, which amount shall accrue from the Due Date ("Late Fee'). Time Warner Cable may make billing adjustments for Time Warner Cable Services for a period of one hundred eighty (180) calendar days after the date a Service is rendered, and for Third Party Services at any time within two (2) months of Time Warner Cable's receipt of any invoice from the Third Party Provider (defined in Section 15 below), or any other time frame allowed by contract, law, or government rule or regulation, whichever is later. Time Warner Cable will invoice Customer for any billing adjustments and Customer agrees to pay such amounts in accordance with this Section. 5. Billing Disputes. (a) Upon disputing any charges, Customer shall: (i) pay all undisputed charges by the Due Date; (ii) present by the Due Date a written statement of amounts disputed in good faith in reasonable detail with supporting documentation; and, (iii) negotiate in good faith to resolve any bona fide dispute within sixty (60) calendar days from the Due Date. (b) Disputed charges resolved in favor 001" of Time Warner Cable, with a Late Fee, are due and payable within ten (10) calendar days of Time Warner Cable's written notice denying the dispute, which shall be the Due Date for such payment. Disputed charges resolved in favor of Customer will be credited to Customer on the following month's billing cycle and no Late Fees shall apply. 6. Right to Assurance. If a Customer suffers a material adverse change in its financial condition, and/or if at any time during the Tetra or Renewal Term the value of Services ordered by and/or delivered to Customer meets or exceeds Customer's established credit E1WBPf A limit(s), Time Warner Cable may: (i) require initial or additional financial information; (ii) request adequate assurance of Customer's performance per applicable law, (iii) require adjustments to Customer's payment terms and/or (iv) decline to accept or process a Service Order. 7. Defaults, AUP Violation and Remedies. A "Default" shall occur if (i) Customer fails to make any payment when due (subject to Section 5 herein governing billing disputes) and such failure continues for 5 business days after written notice from Time Warner; (ii) Customer fails to comply with a request for assurance as provided in Section 6 and such failure remains uncorrected for five (5) calendar days from such date or the Due Date if applicable; or (iii) either party fails to perform or observe any other material term or obligation contained in this MSA, and any such failure remains uncorrected for the lesser of thirty (30) calendar days after written notice from the non - defaulting party or such different cure period, if any, as may be set forth below. In the event of a Default by Customer, Time Warner Cable may, in addition to its rights available to it at law or in equity: (i) suspend any or all Services to Customer; (ii) cease accepting or processing Service Orders; and/or (iii) terminate this MSA. If this MSA is terminated because of a Default by Customer, all Early Termination Charges shall apply. In the event of a Default by Time Warner Cable, Customer may, in addition to its rights available to it at law or in equity (i) recover its direct damages incurred as a result of Time Warner Cable's default and/or (ii) terminate any or all affected Service Orders, unless this MSA provides for exclusive remedies in the applicable Service Schedule, in which case Customer's remedies are exclusively as described therein. If Customer uses the Services for any unlawful purpose or in any unlawful manner, or causes Time Warner Cable to violate any applicable law, such action shall be a Default and Time Warner Cable shall have the right to suspend and/or terminate any or all Services hereunder by giving five calendar days prior written notice to Customer. Customer affirms that it has reviewed and assented to the Acceptable Use Policy ( "AUP ") posted on Time Warner Cable's AUP website at www.bizclasstiouston.com/ content /contract/twcAUP.pdf, which is incorporated herein by reference. A violation of the AUP shall be a Default and Time Warner Cable shall have the right to suspend and/or terminate any or all Services hereunder and/or the MSA by giving five calendar days prior written notice to Customer. Notwithstanding the foregoing, for any Default that affects Time Warner Cable's network and/or third parties on Time Warner Cable's network, Time Warner Cable shall have the right to immediately suspend and/or terminate any or all Services hereunder and/or the MSA without prior notice to Customer. 8. Taxes and USF Charges. (a) If any local, state, national, international, public or quasi- public governmental entity or foreign government or its political subdivision, or any private entity, imposes any taxes (excluding taxes based on Time Warner Cable's net income or capital or any property taxes), fees, surcharges, or other charges or impositions on Time Warner Cable as a result of Time Warner Cable's sale of Services or Customer's use of Services, Customer shall pay any such impositions ("Additional Charges ") (b) In addition, if Additional Charges are assessable to support the federal Universal Service Fund ( "USF") or any similar local, state, national, international, or foreign fund, Time Warner Cable may elect to calculate and charge Customer in accordance with applicable regulations of the government authority having jurisdiction ( "USF Charges'), unless Customer is paying such Additional Charges directly or is otherwise exempt (as indicated by Customer in Appendix A). To the extent USF Charges apply to Services, Customer shall also pay Time Warner Cable an administrative fee equal to one percent (1 %) of the total Time Warner Cable charges for such Services. 9. Limitation of Liabilitv. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH SUCH PARTY'S PERFORMANCE OF OR FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. 10. Warranties and Disclaimer of Warranty. TLNIE WAIN ER CABLE'S WARRANTY WITH RESPECT TO ANY SERVICE, IF ANY, IS SET FORTH ON THE APPLICABLE SERVICE SCHEDULE. TIME WARNER CABLE DISCLAIMS ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. TIME WARNER CABLE MAKES NO R'ARRAPITY WITH RESPECT TO ANY THIRD PARTY SERVICES. 11. Compliance with Law. Customer's use of the Services and Time Warner Cable's provision of the Services shall be in accordance, and comply, with all applicable laws, regulations, and rules. Customer shall obtain all approvals, consents and authorizations necessary to conduct its business and initiate or conduct any transmissions over any facilities covered by this MSA. Time Warner Cable shall obtain all approvals, consents and authorizations necessary to conduct its business and to provide the Services covered by this MSA. 12. Force Maieure. Either party may adjust or suspend its performance (other than the obligation to make payment) to the extent performance is beyond its control for reasons including, without limitation, acts of God, fire, explosion, atmospheric conditions such as rain fade, cable cut caused by a third party, governmental action, national emergencies, war, riot, insurrection, terrorism, vandalism, or labor difficulties such as work stoppages, strikes, or lockouts. If the force majeure event continues for a period of thirty (30) calendar days, then either party may, without incurring liability, terminate the affected Services or circuits, except for Customer's liability for any charges of a Third Party Provider. 13. Proprietary Information. The Parties agree that the terms and conditions of this MSA and all information exchanged by the parties and all documents referenced herein (excluding invoices, payments made under this MSA, and the general terms and conditions of this MSA and agreements entered into under the MSA) are proprietary to Time Warner Cable. This information, however, may be the subject of a public information act request under the Texas Public Information Act. If information, which is claimed by Time Warner Cable to be proprietary, is requested from Customer by a third party. Customer will: (i) timely submit the information to the Texas Attorney General and (ii) provide notice to Time Warner Cable of the Public Information Act request within three (3) business days from Customer's receipt of the Public Information Act request, including a written copy of the request. Time Warner Cable will be required to submit arguments to the Texas Attorney General as to why the information should not be public. Should Time Warner Cable fail to make timely arguments to the Texas Attorney General, the information requested will be deemed to be public and shall be disclosed by Customer. Should Time Warner Cable make timely arguments to the Texas Attorney General, Customer and Time Warner Cable shall be bound by the resulting opinion unless the opinion is timely appealed. 14. Interstate Service Representation. Time Warner Cable and its Affiliates (defined in Section 19 below) shall not be obligated to make available intrastate Service, e.g., any Service on a circuit which originates/terminates at points both of which are situated within a single state, unless Time Warner Cable or its Affiliates specifically offer an intrastate Service, or an information Service as defined in 47 U.S.C. Section 153(20) or unless Customer represents in writing that such Service (other than switched voice services) or circuit shall be used to carry more than ten percent (10 %) interstate or foreign telecommunications traffic. Customer hereby represents that more than ten percent (10 %) of the transmissions on each circuit shall be interstate transmissions or foreign transmissions as those temis are defined in 47 U.S.C. Sections 153(17) and 153(22). If it is determined at any time that such Service or circuit is subject to regulation by a U.S. State regulatory agency, the Service or circuit may be provided by Time Warner Cable or its Affiliates pursuant to applicable state laws, regulations and applicable tariffs, or Time Warner Cable and its Affiliates may discontinue provision of the affected Service or circuit. 15. Third Partv Services. In conjunction with Time Warner Cable Service. Time Warner Cable may, upon Customer's request, arrange for Service to be provided by a third party ( "Third Part, Service "), such as local access service, interexchange service, or international service. Time Warner Cable shall not be obligated to provision any Third Party Service except in connection with a Service Order for Time Warner Cable Service. In the event Customer requests that Time Warner Cable order Third Party Service, Time Warner Cable shall provision and coordinate the installation of such Service and conduct the initial testing of an interconnection between the Time Warner Cable Service and Third Party Service. Time Warner Cable will not begin billing Customer for such Third Party Service until related Time Warner Cable Service is available. Customer may be required to execute a letter of authorization ( "LOA "), in a form provided by Time Warner Cable and acceptable to the Customer, authorizing Time Warner Cable to deliver such Third Party Service to Customer's location. When Customer requests international service, Time Warner Cable may arrange for the foreign end of the Service or for a portion of the foreign end of the Service to be provided by a third party carrier licensed in the relevant foreign point. In some cases, Time Warner Cable may be unable, and Customer may be required, to arrange the foreign end of such Service with a foreign carrier. Although this MSA governs the terms of Time Warner Cable's arrangement of Third Party Service, service level parameters and related warranties (if any), surcharges, outage credits, required commitments, termination liability, limitations, and other service - specific terms of the Third Party Service shall be those of the provider of the Third Party Service ( "Third Party Provider'). All charges incurred by Time Warner Cable for such Third Party Service, including without limitation monthly recurring charges, installation charges, non - recurring charges, and applicable termination/cancellation charges of the Third Party Provider, shall be invoiced to Customer and Customer shall be responsible for payment thereof. 16. Customer Ordered Internet Service or Interexchanee Service. Customer may order its own Internet service or interexchange service from a data network provider who has established entrance facilities in a Time Warner Cable point of presence upon receipt of a LOA or letter of authorization/carrier facility assignment ( "LOA/CFA "). Customer may order its own Internet service or interexchange service with a vendor who does not have established entrance facilities within Time Warner Cable's point of presence only with Time Warner Cable's written permission. Customer's Internet service or interexchange service provider shall directly bill Customer for such Internet service or interexchange service. Customer shall ensure that Customer - ordered Internet service or interexchange service is available at the same time as the Time Warner Cable Service and shall be obligated to pay for Time Warner Cable Service regardless of whether Customer - ordered Internet service or interexchange service is available. 17. Earl• Termination. Customer may disconnect any Time Warner Cable Service without cause after installation by providing written notification to Time Warner Cable sixty (60) calendar days in advance of the effective date of the disconnection and paying to Time Warner Cable an "Early Termination Charge" in an amount equal to: (i) the recurring charges associated with the Service Term less any recurring charges already paid, (ii) any non - recurring charges not yet paid by Customer, (iii) installation charges discounted or waived at the time Service was installed, (iv) any termination liability associated with Third Party Services, and (v) the balance of any minimum commitments by Customer required under this MSA, if applicable. If Customer terminates any Time Warner Cable Service during an Extension Period as provided in Section 3 above, Customer shall only be responsible for any non - recurring charges not yet paid by Customer together with termination liability associated with Third Party Services. It is the express intent and understanding of the parties that, this MSA and all Service Orders hereunder being one integrated agreement and not separate, severable contracts, Customer's right to early termination of any Service is not a right to "reject ", on an individual basis, any Service or any Service Order pursuant to federal bankruptcy laws. In the event Customer orders its own Internet service or interexchange service, Customer's written disconnection notice must also include a DFOC from the Internet service or interexchange service provider as described in Section 3. 18. Publicity. Any publication of information relating to Time Warner Cable's network or any proprietary information of Time Warner Cable must be approved by Time Warner Cable prior to publication. However, references to (i) the fact that Customer is a customer of Time Warner Cable, (ii) Customer's presence in a Time Warner Cable POP, (iii) any non - proprietary information contained in this MSA (iv) any non - proprietary information contained in any agreement entered into under this MSA, (v) invoices and payments made pursuant to this MSA and any agreements entered into under this MSA, and (vi) information that is required to be disclosed under the Texas Public Information Act or other law, are not considered Publicity for purposes of this section, and Customer needs no prior approval before publication. 19. Miscellaneous. (a) Neither party shall assign or otherwise transfer its rights or obligations under this MSA without the prior written consent of the other party, which shall not be unreasonably withheld; provided, however, either party may freely assign this MSA, upon notice to the other party, to (i) an "Affiliate" (defined as an entity that controls, is controlled by or is under common control), or (ii) in the event of a sale of all or substantially all of its assets, to the purchaser of those assets, or (iii) in the event of a merger, acquisition or recapitalization of the assigning patty, to the surviving entity (the sale of assets, merger, acquisition or recapitalization to be referred to as a "Change of Control "). For the purposes of this Section, "control" means to have more than a fifty percent (50 %) ownership interest. In the event of an assignment by Customer to an Affiliate, the acquiring or surviving entity or assignee (as applicable) must be at least as creditworthy as Customer and no such assignment will release Customer from Customer's obligations herein, including, but not limited to payment, except to the extent that the acquiring or surviving entity or assignee meets its obligations under this MSA. (b) This MSA shall be governed by the laws of the State of Texas without regard to choice of law principles and venue shall be in Harris County. (c) No rule of construction requiring interpretation against the draftsman hereof shall apply in the interpretation of this MSA. (d) The provisions of this MSA are only for the benefit of the parties hereto, and no third party may seek to enforce or benefit from these provisions. (e) If any term or provision of this MSA shall, to any extent, be determined to be invalid or unenforceable by a court or body of competent jurisdiction, then (i) both parties shall be relieved of all obligations arising under such provision and this MSA shall be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its intent, and (ii) the remainder of this MSA shall be valid and enforceable. (f) The failure of either party to enforce any provision hereof shall not constitute the permanent waiver of such provision. (g) No termination of this MSA shall affect the rights or obligations of either party: (i) with respect to any payment for Services rendered before termination; or (ii) pursuant to other provisions of this MSA that, by their sense and context, are intended to survive termination of this MSA, including without limitation, confidentiality and limitation of liability. (h) This MSA, including the General Terms and appurtenant appendices, Service Schedules and Service Orders (including Quotes referenced therein), any applicable tariff and Time Warner Cable's AUP Website, comprise all of the terms and conditions of the agreement between the parties relating to the Services and constitute the complete and exclusive statement of the understanding between the parties and supersedes all proposals and prior agreements (oral or written) between the parties relating to Services provided hereunder. (i) Customer acknowledges that the provisioning of interstate telecommunications services by Time Warner Cable to Customer is contingent upon Customer's submission to Time Warner Cable of the representation in the form set forth in Appendix A to this MSA; either that Customer has properly registered with the Federal Communications Commission ("FCC "), pursuant to 47 CFR 64.1195 (and Time Warner Cable's confirmation of the same), or that Customer is not a telecommunications carrier subject to the FCC's registration requirements. (j) Without in any way diminishing the nature of these General Terms, appurtenant appendices, Service Schedules and Service Orders as one, integrated, non - severable agreement, in the event of any inconsistency between or among a Service Order or Quote referenced therein, a Service Schedule, the General Terms, Time Warner Cable's AUP website, and/or any applicable tariff, the following order of precedence shall prevail (from highest priority to lowest): the applicable tariff, if any, specific pricing contained in a Service Order or Quote referenced therein, the provisions contained in the applicable Service Schedule, these General Terms, Time Warner Cable's AUP website, the applicable Service Order and the Quote referenced therein (except pricing). (k) This MSA may be executed in one or more counterparts each of which shall be deemed an original, but all of which together shall constitute one and the same MSA. (1) Facsimile signatures to this MSA shall be deemed to be binding upon the parties. 20. Authorized Representatives. The individuals named below who are executing this MSA on behalf of the patties are duly authorized to make the representations contained herein. CUSTOMER: TIME WARNER CABLE: By: By. Printed Name: Printed None: Title: Titre: Datc: Date or sipannr: opk Appendix A Time Warner Cable's determination regarding application of the Federal Universal Service Fund ( "USF ") surcharge on the Service noted herein will be based upon the representations and information provided in this attestation form. This attestation form also allows Time Warner Cable to fulfill its obligation to verify that its customers have either filed Federal Communications Commission ( "FCC") Form 499 -A or are not subject to that filing requirement. Customer is: ❑ End users -A U.S. based Customer purchasing Service for its own internal use and not for resale. ❑ ISP - A U.S. based information services provider ( "ISP') or non - common carrier telecommunications provider that is not making its own USF contributions and is not required under FCC rules to file an FCC Form 499 -A with the FCC. ❑ Carrier - A telecommunications carries (including a reseller) that is using the Service to provide telecommunications serviceia to the public for a fee, and Customer: ❑ Will resell the Service in the form of telecommunications and will contribute directly to the Universal Service Administrator pursuant to FCC rules. Customer's FCC Filer ID Number (6 digits beginning with "8 ") ❑ Will use the Service to provide services for which all revenues are from non- domestic (i.e., non -U.S. i,) end users, and Customer is not required under FCC toles to file an FCC Form 499 -A with the FCC. ❑ Qualifies for the de minintis exemption under FCC rulesv, has met its obligation to file a FCC Form 499A, and is not making direct contributions to the USF but is making direct contributions to: LNP TRS NANPA (please mark all that apply). Customer's FCC Filer ID Number (6 digits beginning with "8 ") ❑ International End User or ISP — A non -U.S. base& end user, information services provider or non- contrnon carrier. To qualify as a non -U.S. end user, Customer must (1) not be a citizen or permanent resident of the U.S. if an individual and, if a legal entity, not be created under the laws of the United States, (2) not be qualified to transact business in the U.S. (e.g., through registration with a state secretary of state as a foreign company), (3) have a billing address outside the U.S.vii, and (4) not use the service for communications that both originate and terminate within the U.S. Customer understands that if it designates that it is acting as a "telecommunications carrier, not contributing" under the de minimis exemption, a "domestic end user," a "domestic information service provider," or "domestic non - common carrier," Time Warner Cable will apply the USF surcharges to the appropriate revenues from the Service and charge them to Customer along with any applicable administrative surcharge set forth in the written Agreement. Time Warner Cable is relying upon the information provided by Customer in this representation and any subsequent amendments to determine whether USF surcharges and administrative surcharges apply. if the information contained herein is determined to be incorrect or if it changes, Customer shall pay any applicable surcharges for any Service Time Warner Cable had provided or that it subsequently provides, in each case together with late- payment interest. If there is no applicable written Agreement between Customer and Time Warner Cable, Time Warner Cable's standard Agreement form in effect at the time the Service Order is placed will apply. If, at any time, Customer's representation above is no longer accurate, Customer shall notify Time Warner Cable within thirty (30) calendar days by completing and submitting a new representation to Time Warner Cable at the address set forth on page 1 of the Agreement. i A customer obtaining service for use in its own broadcast operations is an end user. i. "The term 'telecommunications carrier' means any provider of telecommunications services, except that such term does not include aggregators of telecommunications services." 47 U.S.C. § 153(44). ui "The term 'telecommunications service' means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used." 47 U.S.0 § 153(46). "The term 'telecommunications' means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." 47 U.S.C. § 153(43). w "U.S." and "United States" means the United States of America, its possessions, territories, states, districts, and commonwealths, including, without limitation, Guam, Puerto Rico, and the U.S. Virgin Islands. 47 CFR § 54.708. t, .. See footnote iii. .ii Time Warner Cable will waive this requirement if Customer demonstrates that use of a U.S. billing address is solely to facilitate payment by an agent acting on Customer's behalf. Such waiver must be in writing to be effecrive. r..z MSA Schedule 1: Metro Ethernet Service TIME WARNER This Metro Ethernet Service Schedule ( "Schedule'') is part of the Master Services Agreement C A B L F ( "Agreement ") under which Time Warner Cable provides Services to Customer and which incorporates this Schedule into the Agreement. 1. Service Description. Time Warner Cable's Metro Ethernet Service is a Time Warner Cable Service provided solely on Time Warner Cable's network from a Time Warner Cable Metro Ethernet core switch to a Time Warner Cable Metro Ethernet core switch ( "Metro Ethernet Service "). This Schedule governs Time Warner Cable's provision of Metro Ethernet Service and does not govern the provision of any Third Party Service. The service level agreements ( "SLA(s) "), service level objectives ( "SLO(s) "), outage credits and related warranties, as set forth in this Schedule apply only to Time Warner Cable provided Metro Ethernet Service and do not apply to any Third Party Services or non - diverse path building entrance facilities. Any Third Party Provider service level parameters, warranties, surcharges, outage credits, required commitments, termination liability, limitations, and other Service- specific terms of the Third Party Service, if any, shall be those of the Third Party Provider. Time Warner Cable Service can facilitate point -to- point, multiple point -to- point, and multipoint -to- multipoint connections between standard 10 /100 /1000 Mbps Ethernet interfaces. Metro Ethernet Service will meet the SLA as set forth in Section 2.2 below. 2.1 Technical Specifications. Metro Ethernet Service is an Ethernet Service that provides bi- directional transmission of data based on the Ethernet standards and operates at the Layer 2 level of the OSI reference model. Metro Ethernet Service provides for the transmission of data in specific Mbps increments in an Ethernet format that is compliant with the IEEE 802.3 standard. 2.2 Service Level Agreements ( "SLAs "). Metro Ethernet Service shall perform in accordance with the SLAB set forth herein. The standard(s) by which Service is measured apply on a one -way basis between Time Warner Cable Metro Ethernet switches only. a. Network Availability. Network availability is a measurement of the average percent of total time that Service is operative when averaged over a thirty (30) day month (720 hour) period. Service is inoperative when the virtual circuit ( "VC's or port connection ( "Port's status becomes "inactive" and unable to pass traffic due to a fault within the Time Warner Cable network. Network availability for Service will be 99.999 %. b. Latency. Latency objective is measured as the one -way trip time; averaged over a thirty (30) day month (720 hour) period, required for an Ethernet packet (100 bytes) to travel between Time Warner Cable Metro Ethernet switches. Average latency is listed in the Table below. Average Latency Route Distance Average Latency (ms) 0 to 500 miles 15 501 to 1000 miles 25 1001 to 1500 miles 35 1501 to 2000 miles 45 2001 to 2500 miles 55 2501 to 3000 miles 65 c. Packet Loss. Packet loss for the Metro Ethernet Service will not exceed .1% of the total packets transferred during any thirty (30) day month (720 hour) period. 2.3 Service Level Obiectives ( "SLOs "). Time Warner Cable's objective is to provide Metro Ethernet Service that meets the following SLOB. Time Warner Cable shall have no liability for its failure to achieve these objectives. a. Maintenance Limits. Time Warner Cable shall take maintenance actions when one of the following conditions is identified on the Time Warner Cable- provided Service: (i) Percent error free seconds ( "EFS ") specifications are deficient for three (3) consecutive 24 -hour periods or are deficient by a factor of two (two times the % error seconds) in a single 24 -hour period; (ii) unavailability for any reason: Cause to be determined and corrective action taken; or (iii) should an out -of- tolerance condition persist in spite of such maintenance action, Time Warner Cable shall escalate the condition to a management and/or engineering solution. b. Trouble Reporting. Time Warner Cable shall provide Customer with a 24 -hour, 7 -day trouble- reporting phone number and with an escalation list. c. Mean Time to Restore (` "MTTR" ). MTTR is Time Warner Cable's objective to restore Metro Ethernet Service and resume availability within the time periods set forth in this Section 2.3c. The time is measured from the earlier of Time Warner Cable's actual knowledge of the Outage or Time Warner Cable's receipt of notice from Customer of the Outage and provided that Customer has released all or part of the Metro Ethernet Service for testing if requested by Time Warner Cable until the latter of (i) restoration of the first fiber on a cable cut or (ii) equipment is repaired and Metro Ethernet Service is available. Time Warner Cable has an objective of repairing network equipment within an average of four (4) hours and the first fiber on a cable cut restored within an average of four (4) hours. 3.1 Pricing and Charges. Charges for Metro Ethernet Service include monthly recurring charges (MRC(s) ") and non - recurring charges ( "NRC(s) ") as set forth in applicable Service Order and/or quote ("Quote" referenced in such Service Order. MRCS and NRCs contained in Quotes but not included in a Service Order are valid only for thirty (30) calendar days unless Customer places a Service Order Adft incorporating such Quote. MRCS and NRCs contained in a Service Order are firm for the Service Term reflected on the related Service Order. Notwithstanding the foregoing. if Customer requests additional Metro Ethernet Service or a change to an existing Service Order including but not limited to a Service Order change, supplement or tech assist which could incur additional NRCs, such NRCs are subject Time Warner Cable Confidential Pagel of 3 TWC MSA Schedule 1 (2006- 01 -16) MSA Schedule 1: Metro Ethernet Service Alk, to change upon thirty (30) calendar days written or electronic notice. Upon expiration of the Service Term and until a new Service Order is placed, Customer charges for Time Warner Cable Services, as set forth in the Service Order shall continue to apply throughout any Extension Period. Notwithstanding the foregoing, promotional pricing is subject to change at the end of the Service Term, or anytime thereafter, upon thirty (30) calendar days prior written or electronic notice. At the end of a Service Term or Extension Period, Customer may place a new Service Order specifying a new Service Term, and such Service Order shall set forth the charges for the new Service Term. 3.2 Rate Elements. Metro Ethernet Service has two (2) principal elements, Ports and Virtual Circuits (VCs). Time Warner Cable combines both Port and VC(s) as a single charge per port -pair for Point -to -Point Metro Ethernet Service, and per individual port for Point -to- multipoint Metro Ethernet Service, based on the Committed Information Rate (CIR) of the Port(s). Pricing for Metro Ethernet Service, including any approved discounts for volume or term agreements, must be documented on each Customer issued Metro Ethernet Service Order and will apply after Customer receipt of Time Warner Cable's Firm Order Commitment (FOC). 4. Other Non - Recurring Charges. Other Non - Recurring Charges may be incurred for Metro Ethernet Service as set forth in the following table: Charge Description Non - Recurring Charge Change Of Installation Date 5250.00 Change Of Service Order $250.00 Order Expedite S500.00 Network Configuration Change 5250.00 5 Implementation Intervals. Time Warner Cable's standard service implementation interval objective is set forth in the table below. Time Warner Cable shall make reasonable efforts to provide Metro Ethernet Service within its standard service implementation interval. The start date of such interval begins on the acceptance date as provided to Customer in Time Warner Cable's order confirmation document. Failure of Time Warner Cable to deliver by such date shall not constitute a default under the Agreement and Time Warner Cable shall not be liable to pay to Customer any penalties or damages for Time Warner Cable's failure to meet such standard service implementation intervals. Service Order Type Standard Interval Upgrade to existing Service 10 business days New service to On- Network Customer site 20 business days New service to Near - Network Customer site requiring building right of entry and/or further network expansion 30-45 business days New service to Off - Network Customer site requiring construction ICB 6.1 Outage Credits. Outage shall mean an unscheduled, continuous and/or interrupted period of time during which Metro Ethernet Service fails to conform to the requirements set forth in this Schedule ( "Outage'). An Outage shall begin upon the earlier of Time Warner Cable's actual knowledge of the Outage or Time Warner Cable's receipt of notice from the Customer of the Outage and provided that Customer has released all or part of the Metro Ethernet Service for testing if requested by Time Warner Cable. In the event of an Outage, Customer shall be entitled to a credit ( "Outage Credit ") upon Time Warner Cable receipt of Customer's written request for such Outage Credit. Such written request must be received by Time Warner Cable within thirty (30) calendar days of the Outage and the Outage Credit shall be credited on Customer's next monthly invoice. If Time Warner Cable does not receive Customer's written notice within such thirty (30) calendar day period, Customer shall be deemed to waive its right to the Outage Credit. The amount of any applicable Outage Credit for Metro Ethernet Service shall be calculated based on each SLAs set forth in Section 2.2 above and shall be as follows: a. For port availability, the amount of Outage Credit shall be an amount equal to 1 /30th of the MRC for the affected port for each hour during any calendar month that the affected port fails to conform to the SLA for availability. b. For latency, the amount of Outage Credit shall be an amount equal to 1/30th of the MRC for the affected port for each hour during any calendar month that the affected port fails to conform to the applicable SLA. c. For packet loss, amount of Outage Credit shall be an amount equal to 1 /30th of the MRC for the affected port for each hour during any calendar month that the affected port fails to conform to the applicable SLA. d. In no event shall Time Warner Cable's total liability for all Outages exceed a total of one (1) month's MRC for the affected port during any calendar month. 6.3 Excessive Outage. Notwithstanding Time Warner Cable's obligation to provide Outage Credits, Customer shall have the right to immediately disconnect a Metro Ethernet Service without termination liability upon written notice to Time Warner Cable if (i) that Metro Ethernet Service has three (3) or more Outages with a duration of at least fifteen (15) minutes each within a thirty (30) day period or (ii) if an Outage continues for a period of eight (8) continuous hours, or twelve (12) cumulative hours, in any six (6) month period. 6.3 Exceptions. Customer shall not receive an Outage Credit if the Outage is: (i) caused by Customer or others authorized by Customer to use the Metro Ethernet Services under the Agreement; (ii) due to the failure of power, facilities, equipment, systems or connections not provided by Time Warner Cable; (iii) caused by the failure of Third Party Service to Time Warner Cable's network; (iv) the result of maintenance performed by Time Warner Cable in accordance with Sections 7.1 and 7.2 of this Schedule; or (v) due to a force majeure event as defined in the Agreement. Time Warner Cable Confidential Page 2 of 3 TWC MSA Schedule 1 (2006- 01 -16) J"a MSA Schedule 1: Metro Ethernet Service 6.4 Invoice Credit. All Outage Credits shall be credited to Customer's account within the next two (2) billing cycles after the Outage Credit is earned. In the event no additional invoices will be submitted to Customer, any applicable Outage Credit(s) shall be satisfied by Time Warner Cable sending payment for such amounts directly to Customer within thirty (30) days after the Outage Credit is earned. 7.1 Planned Network Maintenance Period ( "PNMP(s) "). Time Warner Cable shall avoid performing PNMP between 0600 to 2200 local time, Monday through Friday. Time Warner Cable shall provide Customer with electronic mail, telephone, facsimile, or written notice of a PNMP (i) not less than three (3) business days prior to performing a PNMP that in Time Warner Cable's reasonable opinion will affect traffic on a Customer circuit, or has a substantial likelihood of affecting Customer's traffic for up to fifty (50) milliseconds, or (ii) not less than ten (10) business days prior to performing a PNMP that in Time Warner Cable's reasonable opinion, has a substantial likelihood of affecting Customers traffic for more than fifty (50) milliseconds. If the PNMP is canceled or delayed, Time Warner Cable shall promptly notify Customer and shall comply with the provisions of this Section to reschedule any delayed PNMP. If Customer is unable to release the Metro Ethernet Service for maintenance, Time Warner Cable will work with Customer to reschedule the PNMP. 7.2 Emereency Network Maintenance Period ( "EN;1iP(s)"). It may be necessary for Time Warner Cable to issue notification of an ENMP. ENMPs allow Time Warner Cable to perform mandated maintenance with a shorter Customer notification interval than PNMPs. 8. Warranty. Subject to Section 12 of the Agreement Time Warner Cable warrants, that Metro Ethernet Service shall conform to SLA's set forth in Section 2.2 above. Time Warner Cable shall use commercially reasonable efforts under the circumstances to remedy any delays, interruptions, omissions, mistakes. accidents or errors in the Metro Ethernet Service and restore such Metro Ethernet Service to comply with the terms hereof. THE OUTAGE CREDIT AS SET FORTH IN SECTION 6.1 SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER IN THE EVENT OF ANY FAILURE, INTERRUPTION OR DEGRADATION OF METRO ETHEMNET SERVICE INCLUDING AN OUTAGE AND /OR FOR BREACH OF THIS WARRANTY. CUSTOMER: TIME WARNER CABLE: By: By, Prinmd Name: Primed Name: rtic rnkn Dare: Dare a(stSUU Time Wamer Cable Confidential Page 3 of 3 TWC MSA Schedule 1 (2006 -01 -16) TIME WARNER Metro Ethernet Point to Multipoint g L Service Order Form Business solutions Revised: 1/2/06 Page 1 of 3 METROS t - P2' Billing Account Name: City of Baytown Order Type: New • 2401 Market Street PO Box 424 Baytown TX Billing Address: 77522 Customer PON: Customer Order Contact: Dennis Wells CRDD: 05/01/06 Phone # 281 420 -5813 E -mail: dennis.wells0baytown.org Install Contact: Dennis Wells Interval: Standard Phone # 281420-5813 Circuit Term: 1 36 Months • E -mail: den nis.wells@baytown.o[g Maintenance Contact: Asim Khan If Other: Phone #: 281420-6610 Acct Mgr: Tom McKenna - 8857 • E -mail: akhan@)gulfcoastcc.com ,,, .• , Hast Location Port Detail Remote, #1i,Lfocation P .5rt Detail Ethernet Interface: 10 /100Mb TX CatS(Ethemet 10 or 1008 • Status: New • Circuit ID#: Port Speed: 10 /100Mbps • Rate: 1 7 Mbps • TWC Hub or POP: Baytown - Houston • Ethernet Interface: I 10 /100Mb TX CatS(Ethemet 10 or 100 • Status: New • Circuit ID #: Port Speed: 10 /100Mbps V Rate: 5 Mbps • TWC Hub or POP: Baytown - Houston • Reo ' •:Host LocationaDetail ma _ Site Name: Baytown City Hall Address: 2401 Market Street B l dglFloor/Sut te/Room: city: Baytown state: TX zip: 77522 Access Hours: 1 8 -5, M -F • Ste Contact Name: Dennis Wells Ste contact Phone: 281420-6610 Site Name: City of Baytown Police Department Address: 3200 North Main r31dg R=fsuiWRoonv City: Baytown state: TX zip: 77521 Access Hours: 1 8 -5, M -F • Site Contact Name: Dennis Wells site contact Phone: 281420-6610 TWC to Extend the Demarc or Install Inside wiring TWC to Extend the Demarc or Install Inside wiring beyond the rninimum point of entry. if'S • beyond the Mnirnrm point of entry- Y� • Extended Demarc Extended Denarc LocationlAssignment: Computer Room Location/AsstgnmenC Diversity or Redundancy Diversity or Redundancy On -Net? No • Required? No • On -Net? ND • Required? ND , • °.Special.-lnstructions:.e;4' ��i.':::::: AVW r PTIME WARNER Metro Ethernet Multipoint C A B L E Service Order Form Page 2 of 3 A` Remote: #2' Location:Port Detail : -. . _mot, :: Remotea #3:Location P,ort:Detallm Ethernet Interface: 110 /100Mb TX Cat5(Ethemet 10 or 1008 Et Ethemet Interface: New Status: Circuit ID #: Status: Circuit ID #: 10 /100Mbp5 3 M ' Port Speed: Rate: Port Speed: Rate: TWC Hub or POP: Baytown - Houston TWC Hub or POP: V r Remote'' #2 Location D - ail ;L*, r:134%vit�> � '' Remofes #3 Locatioti$Detail .';:` - _' Site Name: Baytown City Hall Annex Site Name: Address: 22 West De Fee ,address: Bidg/Floor/ Suite /Roan: Ndg+Floon'Suile/Roorm City: Baytown W. state: TX Zip: 77520 state: Zip: 8 -5, M -F I Access Hours: Access Hours: site Contact Name: Dennis Wells Site Contact Name: Site contact Phone: 281 420 -5813 site Contact Phone: TWC to Extend the Dewar; or Install Inside wiring i YES TWC to Extend the Derrrerc a Install inside wiring beyond the minimum point of entry- beyond the rnninnum point of entry. Extended Demarc Extended Demarc Location/Assignment: Computer Room Locabon/Assignment: Diversity or Redundancy On -Net? NO Required? NO Diversity or Redundancy On -Net? Required? Remote #4 Location PorMetail. .,.F Remote45,Location'Port> Detail I'w I Ethernet Interface: ' Ethemet Interface: Status: I Circuit ID#: Status: L _� -J Circuit ID #: I V1 V V Port Speed: Rate: Port Speed: Rate. TWC Hub or POP: TWC Hub or POP: - Remote;#4Location= :Detail- __ : z ar $.+ Remote #5.Locafion�Defail: Site Name: Site Name: Address: Address: BldgfFloor/Suile/Rcom: &dg/Roor /Su te/Room City: city: Stale: Zip: State: Zip: Access Hours: Access Hours: Site Contact Name: Site Contact Nacre: Site Contact Phone: Site Contact Phone: TWC to Extend the Dernarc or Install Inside wiring I TWC to Extend the Demarc or Install Inside wiring beyond the minimum point of entry. beyond the nnimum point of entry. Extended Demarc Extended Demarc Location/Assignment: Locabon/Assignment: Diversity or Redundancy Diversity or Redundancy On-Net? Required? On -Net? Required? ,TIME WARNER Metro Ethernet Point to Multipoint C A 8 L E Service Order Form PRICING: Host Port - Recurring Page 3 of 3 Install /NRC $ MRCS PRICING: Install /NRC $ MRC $ $0.00 $382.90 Remote 1 Port - Recurring V v $0.00 $274.40 $0.00 $0.00 Remote 2 Port - Recurring $0.00 $217.70 $0.00 $0.00 I $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Pricina Summary Install /NRC $ MRC $ ITotals: $0.00 1 $875.00 Terms & Conditions This Service Order is subject to, governed by and constitutes an integral part of the relevant service agreement ('Agreement") by and between Time Warner Cable Information Services (Texas), LP d/b /a Time Warner Cable and Customer, (unless the Service Is subject to any applicable Time Warner Cable tariff, in wtuch case the tariff shall govem the provision of this Service), and each Service Order shall, together with the Agreement, be deemed one. Integrated agreement and not as separate severable contracts. Cuslnrner hereby represents more than 10% of the Customer's use of Service and or circuit provided by Time Warner Cable Pursuant to this Order will be interstate telecommunications. If it is determined at any time such Interexchange Service or circuit is subject to state regulaiot. the Interexchangle service or circuit may be provided by Time Warner Cable or Its affiliates, pursuant to applicable state law, regulations and applicable Tariff. Time Warner Cable's receipt of this Service Order, including any Implementation thereof, stall not be deemed an acceptance of an offer, and shall not obligate Time Warner Cable to provide the Service requested herein unless and until a relevant service agreement is executed by both parties. In the event that Time Warner Cable has provisioned Service pursuant to this Service Order in contemplation of, but prior to, the execution and delivery of a relevant service agreement. this Service Order is subiect to. governed by and constitutes an Integral Dan of Time Warner Cable's relevant standard form service agreement in effect at the time the Service Order is placed. This Service Order will not be fully implemented until the customer's credit has been approved, and Time Warner Cable's denial of customees credit shall automatically and without further notice cancel this Service Order. All Service is provided in accordance with the processes and procedures set forth in Time Warner Cable's Customer Data Guidelines, which may be found at www.twcbs.mrn/f saaso Metro Ethernet Multipoint Customer Company Name Authorized Representative Printed Name Time Warner Cable Authorized Representative Printed Name MSA Schedule 2: Dedicated Internet Access TI ME WARNER This Dedicated Internet Access Service Schedule ( "Schedule ") is part of the agreement under which Time Warner Cable provides Time Warner Cable Service to Customer and which C A B L E incorporates this Schedule (the "Agreement "). 1.1 Service Description. Time Warner Cable's Dedicated Internet Access Service is a dedicated high -speed connection to the Internet provided solely on Time Warner Cable's Ethernet access network to a Time Warner Cable core IP point of presence ( "IP POP ") ( "DIA Service "). Service level agreements ( "SLA(s) "), service level objectives ( "SLO(s) "), outage credits and related warranties as set forth in this Schedule apply only to Time Warner Cable provided DIA Service and do not apply to any Third Party Services. Customer may select from several connectivity interfaces and speeds as outlined in the following sections. Internet Protocol ( "IP ") addresses and/or secondary domain naming system are also available. DIA Service will meet the SLA as set forth in Section 2.2. 1.2 Connectivity and Speeds. Customer may choose DIA Port Interface and fractional Port Speed options listed in the tables below. Fast Ethernet DIA Interface Port Speed 10 /10OMbps 1 Mbps 10 /10OMbps I 2 Mbps 10 /I0OMbps 3 Mbps 10 /10OMbps 4 Mbps 10 /10OMbps 5 Mbps 10 /10OMbps 6 Mbps 10 /10OMbps 7 Mbps 10 /10OMbps 8 Mbps 10 /10OMbps 9 Mbps 10 /10OMbps 10 Mbps Fast Ethernet DIA Interface I Port Speed 10 /10OMbps 10 Mbps 10 /10OMbps 20 Mbps 10 /10OMbps 30 Mbps 10 /10OMbps I 40 Mbps 10 /10OMbps 50 Mbps 10 /10OMbps I 60 Mbps 10 110OMbps 70 Mbps 10 /10OMbps 80 Mbps 10 /10OMbps 90 Mbps 10 /10OMbps 100 Mbps Gigabit Ethernet DIA Interface Port Speed 1 Gigabit 100 Mbps 1 Gigabit 200 Mbps 1 Gigabit 300 Mbps 1 Gigabit 400 Mbps 1 Gigabit 500 Mbps 1 Gigabit 600 Mbps 1 Gigabit 700 Mbps 1 Gigabit 800 Mbps 1 Gigabit 900 Mbps 1 Gigabit 1000 Mbps 2.1 Technical Specifications. Time Warner Cable has designed its network to conform with the technical standards as specified by the Internet Engineering Task Force ( "IETF "). 2.2 Service Level Aereements ( "SLAs "). DIA Service shall perform in accordance with the following SLAB as set forth in Section 2.2 a. b, and c below. The SLAs for DIA Service are measured between Time Warner Cable IP PON only. a. Port Availability. Port availability is a measurement of the total time that DIA Service is operative when measured in a thirty (30) day month (720 hour) period. DIA Service is considered operative when the Customer can exchange IP packets over the Time Warner Cable IP network via the Customer's access port. Port availability for DIA Service shall be 99.999 %. b. Latency. Latency is measured as the round trip time, averaged over a thirty (30) day month (720 hour) period, for an IP packet to travel from Time Warner Cable IP POP to Time Warner Cable IP POP. Latency for Time Warner Cable network shall not exceed an IP POP network average of 45 milliseconds or a maximum of a 100 - millisecond average between any two Time Warner Cable IP POPs. c. Packet Loss: Packet loss is measured as the percentage of lost packets, averaged over a thirty (30) day month (720 hour) period, from Time Warner Cable IP POP to Time Warner Cable IP POP. Packet loss for Time Warner Cable network shall not exceed .5% between any Time Warner Cable IP POPs. 23 Service Level Objectives ( "SLOs "). Although Outage Credits are provided as set forth above, Time Warner Cable's objective is to provide DIA Service that meets the following SLOs. Time Warner Cable shall have no liability for its failure to achieve these objectives. a. Mean Time to Restore ( "MTTR" ). MTTR is Time Warner Cable's objective to restore DIA Service and resume availability within the time periods set forth in this Section 2.3a. The time is measured from the earlier of Time Warner Cable's actual knowledge of the Outage or Time Warner Cable's receipt of notice from Customer of the Outage and provided that Customer has released all or part of the DIA Service for testing if requested by Time Warner Cable until the latter of (i) restoration of the first fiber on a cable cut or (ii) equipment is repaired and DIA Service is available. Time Warner Cable has an objective of repairing network equipment within an average of four (4) hours and the first fiber on a cable cut restored within an average of four (4) hours. 3.1 Pricine and Charges. Charges for DIA Service include monthly recurring charges (MRC(s) ") and non - recurring charges ( "NRC(s) ") as set forth in applicable Service Order and/or quote ("Quote" referenced in such Service Order. MRCS and NRCs contained in Quotes but not included in a Service Order are valid only for thirty (30) calendar days unless Customer places a Service Order incorporating such Quote. MRCS and NRCs contained in a Service Order are firm for the Service Term reflected on the related Service Order. Notwithstanding the foregoing, if Customer requests additional DIA Service or a change to an existing Service Order including but not limited to a Service Order change, supplement or tech assist which could incur additional NRCs, such NRCs are subject to change upon thirty (30) calendar days written or electronic notice. Upon expiration of the Service Term and until a new Service Order is placed, Customer charges for Time Warner Cable Services, as set forth in the Service Order, shall continue to apply throughout any Extension Period. Notwithstanding the foregoing, promotional pricing is subject to change at the end of the Service Terri, or anytime thereafter, upon thirty (30) calendar days prior written or electronic notice. At the end of a Service Term or Extension Period, Customer may place a new Service Order specifying a new Service Term, and such Service Order shall set forth the charges for the new Service Term. Time Wamer Cable Confidential Page 1 of 3 TWC MSA Schedule 2 (2006 -1 -16) MSA Schedule 2: Dedicated Internet Access 3.2 Flat Rate Pricine. Time Warner Cable DIA is installed with a specific Port Interface, either 10/100 Mbps Ethernet or 1 Gigabit Ethernet, and provisioned at a fractional Port Speed that limits the amount of traffic that the Customer can send and receive. The MRC is fixed each month and does not change due to usage within the limitations of the fractional Port Speed. Customer may upgrade the fractional Port Speed at any time in speed increments as shown in the Tables in Section 1.2 of this Schedule. 4. Other Non - Recurring Charges. Other Non - Recurring Charges may be incurred for DIA Service as set forth in the following table: Charge Description I Non- Recurring Charge Change Of Installation Date $250.00 Change Of Service Order 5250.00 Order Expedite $500.00 !Network Configuration Change 5250.00 5. Implementation Intervals. Time Warner Cable's standard service implementation interval objective is set forth in the table below. Time Warner Cable shall make reasonable efforts to provide DIA Service within its standard service implementation interval. The start date of such interval begins on the acceptance date as provided to Customer in Time Warner Cable's order confirmation document. Failure of Time Warner Cable to deliver by such date shall not constitute a default under the Agreement and Time Warner Cable shall not be liable to pay to Customer any penalties or damages for Time Warner Cable's failure to meet such standard service implementation intervals. Service Order Type Standard Interval Upgrade to existing Service 10 business days New service to On- Network Customer site 20 business days New service to Near- Network Customer site requiring building right of entry and/or further network expansion 3045 business days New service to Off - Network Customer site requiring construction ICB 6.1 Outage Credit. Customer acknowledges the possibility of an unscheduled, continuous and/or interrupted period of time during which DIA Service does not conform to the SLA as set forth in Section 2.2 above ("Outage"). An Outage shall begin upon the earlier of Time Warner Cable's actual knowledge of the Outage or Time Warner Cable's receipt of notice from the Customer of the Outage and provided that Customer has released all or part of the DIA Service for testing if requested by Time Warner Cable. In the event of an Outage. Customer shall be entitled to a credit ("Outage Credit ") upon Time Warner Cable receipt of Customer's written request for such Outage Credit. Such written request must be received by Time Warner Cable within thirty (30) calendar days of the Outage and the Outage Credit shall be credited on Customer's next monthly invoice. If Time Warner Cable does not receive Customer's written notice within such thirty (30) calendar day period, Customer shall be deemed to waive its right to the Outage Credit. The amount of Outage Credit shall be an amount equal to 1/30th of the MRC for the affected port for each hour during any calendar month that the affected port fails to conform to the SLA for availability. In no event shall Time Warner Cable's total liability for all Outages exceed a total of one (1) month's MRC for the affected port during any calendar month. 6.2 Excessive Outage. Notwithstanding Time Warner Cable's obligation to provide Outage Credits, Customer shall have the right to immediately disconnect a DIA Service without termination liability upon written notice to Time Warner Cable if (i) that DIA Service has three (3) or more Outages with a duration of at least sixty (60) minutes each within a thirty (30) day period or (ii) if an Outage continues for a period of eight (8) continuous hours, or twelve (12) cumulative hours, in any six (6) month period. 6.3 Exceptions. Customer shall not receive an Outage Credit if the Outage is: (i) caused by Customer or others authorized by Customer to use the DIA Services under the Agreement; (ii) due to the failure of power, facilities, equipment, systems or connections not provided by Time Warner Cable; (iii) caused by the failure of Third Party Service to Time Warner Cable's network; (iv) the result of maintenance performed by Time Warner Cable in accordance with Sections 7.1 and 7.2 of this Schedule; or (v) due to a force majeure event as defined in the Agreement. 6.4 Invoice Credit. All Outage Credits shall be credited to Customer's account within the next two (2) billing cycles after the Outage Credit is earned. In the event no additional invoices will be submitted to Customer, any applicable Outage Credit(s) shall be satisfied by Time Warner Cable sending payment for such amounts directly to Customer within thirty (30) days after the Outage Credit is earned. 7.1 Planned Network Maintenance Period ( "PN:\IP(s) "). Time Warner Cable shall avoid performing PNMP between 0600 to 2200 local time, Monday through Friday. Time Warner Cable shall provide Customer with electronic mail, telephone, facsimile, or written notice of a PNMP (i) not less than three (3) business days prior to performing a PNMP that in Time Warner Cable's reasonable opinion, has a substantial likelihood of affecting Customer's traffic for up to fifty (50) milliseconds, or (ii) not less than ten (10) business days prior to performing a PNMP that in Time Warner Cable's reasonable opinion, has a substantial likelihood of affecting Customer's traffic for more than fifty (50) milliseconds. If the PNMP is canceled or delayed, Time Warner Cable shall promptly notify Customer and shall comply with the provisions of this Section 6.1 to reschedule the PNMP. 7.2 Emereency Network Maintenance Period ( "ENNIP(s) "). It may be necessary for Time Warner Cable to issue notification of an JIM ENMP. ENMPs allow Time Warner Cable to perform mandated maintenance with a shorter Customer notification interval than PNMPs. Time Warner Cable Confidential Page 2 of 3 TWC MSA Schedule 2 (2006 -1 -16) VISA Schedule 2: Dedicated Internet Access 8. Warranty. Subject to Section 12 of the Agreement Time Warner Cable warrants, that DIA Service shall conform to SLA's set forth in Section 2.2 above. Time Warner Cable shall use commercially reasonable efforts under the circumstances to remedy any delays, interruptions, omissions, mistakes, accidents or errors in the DIA Service and restore such DIA Service to comply with the terms hereof. THE OUTAGE CREDIT AS SET FORTH IN SECTION 6.1 SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER IN THE EVENT OF ANY FAILURE, INTERRUPTION OR DEGRADATION OF DIA SERVICE INCLUDING AN OUTAGE AND /OR FOR BREACH OF THIS WARRANTY. CUSTOMER: TIME WARNER CABLE: Hy. By Printed N�: Printed Name rug: rtttG Dry Demersi@r.n= Time Warner Cable Confidential Page 3 of 3 TWC MSA Schedule 2 (2006 -1 -16) jp► lk TIME WARNER Susiness Solutions Dedicated Internet Access Service Order Form Revised: 1/2/06 Page 1 of 2 Billing Account Name: City Of Baytown 2401 Market Street PO Box 424 Baytown TX Billing Address: 77522 Customer Order Contact: Dennis Wells Phone #: 281420-5813 E -mail: dennis.wells(ba)dgwn.org Order Type: New Customer PON: CRDD: 07/01106 Circuit Qty: 1 Install Contact: Dennis Wells Interval Phone # 281420-5813 Circuit Term: E -mail: dennis.wells@baAgAn_.org Maintenance Contact: Asim Khan If Other: Standard 36 Months M_TZOE-7 _ Phone #: 281420-6610 Acct Mgr: I Tom McKenna - 8857 E -mail: akhan(a gulfcoastmcom r> Generaflrifa atlori ' .<a,,,, Customer Interface Type: 10 /10oMb TX Cat5(Ethemet 10 or 100BT) -Pd V Rate: 10 Mbps # of IP Address(es) Requested: /24 - 256 (Class C) ]ustlflcation Form Re V1 Port Speed: I 10 /100Mbps # of Seconday IP Address(es) Requested: V DNS: II BGP Required: No Reverse DNS: I� BGP' Request Ir'fomtation.(If Applicable); AS Number: AS #'s for Upstream Peers: AS Name: IP Address Blocks to Announce: Subnet Mask of Add'I Block: LAN Address (Optional): BGP Session Password (Optional): Routes Expected: Site Name: Baytown City Hall Address: 2401 Market Street Bldg/Floor /Suite/Room: Current IP Space: Site.Iriformetit rt= f City: Baytown State: TX Access Hours: V Site Contact Name: Dennis Wells Zip: 77522 Site Contact Phone: 281 420 -5813 TWC to Extend the Demarc or Install Inside wiring beyond the minimum point of entry. Yes Extended Demarc Location/Assignment: Computer Room Diversity or Redundancy Serving Hub: I Baytown - Houston On -Net? Yes Required No ,TIME WARNER CABLE PRICING: DIA; Single Route Dedicated Internet Access Service Order Form Page 2 of 2 InstalUNRC $ MRC $ PRICING: Install /NRC $ MRC $ $0.00 $1,125.00 $0.00 $0.00 $0.00 $0.00 I ! • $0.00 $0.00 $0.00 S0.00 • $0.00 $0.00 $0.00 50.00 I • • $0.00 $0.00 $0.00 50.00 $0.00 $0.00 $0.00 50.00 • $0.00 $0.00 I ova- sPriciFin Summav ' I- 11 WL I Install/NRC $ MRC $ Totals: $0.00 1 $1,125.00 Terms rg Conditions This Service Order is subject to, governed by and constitutes an integral pan of the relevant service agreement ('Agreement') by and between Time Warner Cable Information Service: (Texas), LP d/b/a Time Warner Cable and Customer, (unless the Service is subject to any applicable Time Warner Cable tariff, in which case the tariff shall govern the provision of this Service), and each Service Order shall, together with the Agreemenl, be deemed one, integrated agreement and not as separate severable contracts, Customer hereby represents more than 10% of the Customer's use of Service and or circuit provided by Time Warner Cable Pursuant to Otis Order will be interstate telecommunication: If it is detemlined at any time such Intefexchange Service or circuit is subject to state regulation, the interexchange service or circuit may be provided by Time Warner Cable or its affiliates, pursuant to applicable state taw, regulations and applicable Tartly. Time Warner Cable's receipt of this Service Order, including arty Wi plerne Cation thereof, shall nol be deemed an acceptance of an offer, and shall not obligate Time Warner Cable to provide the Service requested herein unless and until a relevant service agreement is executed by both parties. In One event that Tetra Warner Cable has provisioned Service pursuant to this Service Order in cordenpialan of, but prior to, the execution and delivery of a relevant service agreement this Service Order is subject to. oovemed by and constitutes an integral pan of Time Wamef Cable's relevant standard form service aoreement in effect at the time the Service Order is placed. This Service Order will not be A* hrplemented until the custorrees credit has been approved, and Time Warner Cable's denial of customers credit shall automatimily and without fuller notice cancel this Service Order. Al Service is provided in accordance with dine processes and Procedures set forth in Time Warner Cable's Customer Data Guidelines, which may be found at www.twc s.coMf sa.asn Customer Company Name Authorized Representative Printed Name Title Date Revised: 112/06 Time Warner Cable Authorized Representative Printed Name Title Date • • Tt E WARNER This Master Services Agreement is effective this 8th day of Mav , 2006 ("Effective Date"), by and between Time Warner Cable Information Services (Texas), LP CABLE d/b/a Time Warner Cable located at 8590 W Tidwell,Houston,TX 77040,a Delaware limited partnership("Time Warner Cable"),and The City of Baytown located at 2401 Market Street,Baytown TX 77522 ,a corporation("Customer"). 1. Services. Subject to the Customer placing orders and Time Warner Cable accepting such orders as contemplated herein, Customer agrees to purchase, and Time Warner Cable agrees to provide, the services described in the attached service schedule(s) ("Service Schedule(s)") that reference this Master Services Agreement ("MSA" or "Agreement") and that are executed by both parties (the "Time Warner Cable Services"), and Third Party Service described in Section 15 (Time Warner Cable Services and Third Party Service, collectively or individually, the"Services"). Time Warner Cable Services may consist of any combination of Time Warner Cable's data products,video products and/or voice products(each referred to as"Network Services"),and/or professional services.All Services shall be provided according to the terms and conditions in this MSA(defined below)and as specified in an accepted order for Services placed by Customer contemporaneously herewith, subsequent hereto or in contemplation hereof("Service Order(s)"). This Agreement is comprised of the general terms and conditions contained in Sections 1 through 20 herein(the"General Terms")together with any appendices, Service Schedules and Service Orders attached or incorporated by reference, and the foregoing shall be deemed one,integrated agreement and not as separate,severable contracts.The Service Schedules may be attached hereto,separately executed, or added by amendment.All Services are subject to availability and approval of Customer's credit by Time Warner Cable at the time of each Service Order.In the event of a conflict between the terms and conditions of this Agreement and its Schedules,and an Addendum accepted in writing by Time Warner Cable,the Addendum shall control. 2.MSA Term.The MSA(referring not to individual Services,which will each have their own term as described in Section 3 below) shall continue in effect for three(3)years from the Effective Date("MSA Term"),and shall then automatically renew for successive one(1)year periods("MSA Renewal Term(s)"),unless either party gives written notice to the other party of non-renewal,such notice to be delivered at least sixty(60)calendar days before the end of the MSA Term or the MSA Renewal Term.Notwithstanding the prior sentence, unless Customer is in Default, any Service being provided at the time of termination of this MSA shall continue upon the terms and conditions of this MSA until the end of the Service Term or any applicable Extension Period for Service as specified in the applicable Service Order or until such Service Order is terminated;provided,however,that Customer may not order any new Service until Customer and Time Warner Cable have entered into a new agreement or mutually agreed in writing to extend this MSA. 3. Service Term. The term for each Service as described in a Service Order shall be as indicated on the Service Order ("Service Term"). At the end of the Service Term for any Service, such Service shall continue on a month-to-month basis("Extension Period") unless either party gives written notice to the other that the Service(s) shall be disconnected, such notice to be delivered at least sixty (60)calendar days before the end of the Service Term, or if during the Extension Period,then upon at least thirty(30)calendar days' prior written notice.Notwithstanding the foregoing,if Customer disconnects Service and Customer has ordered its own Internet service or interexchange network service, Customer must provide Time Warner Cable written notification of Customer's disconnect with the Internet service or interexchange network service provider in the form of a disconnection firm order commitment("DFOC")from the Internet service or interexchange network service provider. 3(a). Non-Funding. Customer's budget is funded on an October 15` to September 30`h fiscal year basis. Should funding become unavailable due to the fact that the City Council does not appropriate the requisite funds for this Agreement,this Agreement may be terminated by Customer by giving thirty(30)days' written notice. Other than Customer's obligations for the fiscal year that has been funded by City Council,such termination shall be without any further obligation of or liability to Customer. In the event that funding for this Agreement is discontinued or is no longer available,Customer shall only be required to pay rent and other charges due through the end of the fiscal year for which funding has been approved. 4.Payment Terms and Charges.Customer agrees to pay recurring and non-recurring charges for Time Warner Cable Services,as set forth in applicable Service Order and/or quote("Quote")referenced in such Service Order and all charges for Third Party Services,if applicable.Time Warner Cable provides and charges for Services in U.S.Dollars,commencing on the date Time Warner Cable notifies Customer that the relevant Service is available for use by Customer.Subject to Section 5 below,all amounts stated on each invoice are due and payable within thirty (30) calendar days of the date of the invoice ("Due Date"). As soon as electronic billing becomes available for this Agreement, the Parties agree to switch to an electronic billing system. In the event Customer fails to make full payment of undisputed amounts by the Due Date,Customer shall also pay a late fee on the unpaid balance at the interest rate specified in Section 2251.025 of the Texas Government Code,which amount shall accrue from the Due Date("Late Fee").Time Warner Cable may make billing adjustments for Time Warner Cable Services for a period of one hundred eighty(180)calendar days after the date a Service is rendered, and for Third Party Services at any time within two (2) months of Time Warner Cable's receipt of any invoice from the Third Party Provider(defined in Section 15 below),or any other time frame allowed by contract,law,or government rule or regulation,whichever is later.Time Warner Cable will invoice Customer for any billing adjustments and Customer agrees to pay such amounts in accordance with this Section. 5.Billing Disputes.(a)Upon disputing any charges,Customer shall:(i)pay all undisputed charges by the Due Date;(ii)present by the Due Date a written statement of amounts disputed in good faith in reasonable detail with supporting documentation;and,(iii)negotiate in good faith to resolve any bona fide dispute within sixty(60)calendar days from the Due Date.(b)Disputed charges resolved in favor of Time Warner Cable, with a Late Fee, are due and payable within ten (10) calendar days of Time Warner Cable's written notice denying the dispute,which shall be the Due Date for such payment.Disputed charges resolved in favor of Customer will be credited to Customer on the following month's billing cycle and no Late Fees shall apply. 6.Right to Assurance.If a Customer suffers a material adverse change in its financial condition,and/or if at any time during the Term or Renewal Term the value of Services ordered by and/or delivered to Customer meets or exceeds Customer's established credit • ! limit(s),Time Warner Cable may: (i)require initial or additional financial information; (ii)request adequate assurance of Customer's performance per applicable law, (iii) require adjustments to Customer's payment terms and/or (iv) decline to accept or process a Service Order. 7.Defaults,AUP Violation and Remedies. A"Default"shall occur if(i)Customer fails to make any payment when due(subject to Section 5 herein governing billing disputes)and such failure continues for 5 business days after written notice from Time Warner;(ii) Customer fails to comply with a request for assurance as provided in Section 6 and such failure remains uncorrected for five (5) calendar days from such date or the Due Date if applicable; or(iii)either party fails to perform or observe any other material term or obligation contained in this MSA, and any such failure remains uncorrected for the lesser of thirty (30) calendar days after written notice from the non-defaulting party or such different cure period, if any, as may be set forth below. In the event of a Default by Customer, Time Warner Cable may, in addition to its rights available to it at law or in equity: (i) suspend any or all Services to Customer; (ii) cease accepting or processing Service Orders; and/or(iii)terminate this MSA. If this MSA is terminated because of a Default by Customer,all Early Termination Charges shall apply. In the event of a Default by Time Warner Cable,Customer may,in addition to its rights available to it at law or in equity(i)recover its direct damages incurred as a result of Time Warner Cable's default and/or (ii) terminate any or all affected Service Orders, unless this MSA provides for exclusive remedies in the applicable Service Schedule, in which case Customer's remedies are exclusively as described therein. If Customer uses the Services for any unlawful purpose or in any unlawful manner, or causes Time Warner Cable to violate any applicable law, such action shall be a Default and Time Warner Cable shall have the right to suspend and/or terminate any or all Services hereunder by giving five calendar days prior written notice to Customer.Customer affirms that it has reviewed and assented to the Acceptable Use Policy("AUP")posted on Time Warner Cable's AUP website at www.bizclasshouston.com/content/contract/twcAUP.pdf,which is incorporated herein by reference.A violation of the AUP shall be a Default and Time Warner Cable shall have the right to suspend and/or terminate any or all Services hereunder and/or the MSA by giving five calendar days prior written notice to Customer..Notwithstanding the foregoing, for any Default that affects Time Warner Cable's network and/or third parties on Time Warner Cable's network,Time Warner Cable shall have the right to immediately suspend and/or terminate any or all Services hereunder and/or the MSA without prior notice to Customer. 8. Taxes and USF Charges. (a) If any local, state, national, international, public or quasi-public governmental entity or foreign government or its political subdivision, or any private entity, imposes any taxes(excluding taxes based on Time Warner Cable's net income or capital or any property taxes), fees,surcharges, or other charges or impositions on Time Warner Cable as a result of Time Warner Cable's sale of Services or Customer's use of Services,Customer shall pay any such impositions("Additional Charges")(b)In addition, if Additional Charges are assessable to support the federal Universal Service Fund ("USF") or any similar local, state, national,international,or foreign fund,Time Warner Cable may elect to calculate and charge Customer in accordance with applicable regulations of the government authority having jurisdiction ("USF Charges"), unless Customer is paying such Additional Charges directly or is otherwise exempt(as indicated by Customer in Appendix A). To the extent USF Charges apply to Services, Customer shall also pay Time Warner Cable an administrative fee equal to one percent (1%) of the total Time Warner Cable charges for such Services. 9. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES,INCLUDING BUT NOT LIMITED TO LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH SUCH PARTY'S PERFORMANCE OF OR FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. 10. Warranties and Disclaimer of Warranty. TIME WARNER CABLE'S WARRANTY WITH RESPECT TO ANY SERVICE, IF ANY, IS SET FORTH ON THE APPLICABLE SERVICE SCHEDULE. TIME WARNER CABLE DISCLAIMS ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. TIME WARNER CABLE MAKES NO WARRANTY WITH RESPECT TO ANY THIRD PARTY SERVICES. 11.Compliance with Law.Customer's use of the Services and Time Warner Cable's provision of the Services shall be in accordance, and comply,with all applicable laws,regulations,and rules.Customer shall obtain all approvals,consents and authorizations necessary to conduct its business and initiate or conduct any transmissions over any facilities covered by this MSA. Time Warner Cable shall obtain all approvals,consents and authorizations necessary to conduct its business and to provide the Services covered by this MSA. 12. Force Majeure. Either party may adjust or suspend its performance (other than the obligation to make payment) to the extent performance is beyond its control for reasons including,without limitation,acts of God,fire,explosion,atmospheric conditions such as rain fade,cable cut caused by a third party,governmental action,national emergencies,war,riot,insurrection,terrorism,vandalism,or labor difficulties such as work stoppages,strikes,or lockouts.If the force majeure event continues for a period of thirty(30) calendar days,then either party may,without incurring liability,terminate the affected Services or circuits,except for Customer's liability for any charges of a Third Party Provider. 13. Proprietary Information. The Parties agree that the terms and conditions of this MSA and all information exchanged by the parties and all documents referenced herein(excluding invoices,payments made under this MSA,and the general terms and conditions of this MSA and agreements entered into under the MSA)are proprietary to Time Warner Cable. This information,however,may be the subject of a public information act request under the Texas Public Information Act. If information, which is claimed by Time Warner Cable to be proprietary,is requested from Customer by a third party, Customer will: (i)timely submit the information to the Texas Attorney General and(ii)provide notice to Time Warner Cable of the Public Information Act request within three(3)business days from Customer's receipt of the Public Information Act request,including a written copy of the request. Time Warner Cable will be required to submit arguments to the Texas Attorney General as to why the information should not be public. Should Time Warner Cable fail to make timely arguments to the Texas Attorney General,the information requested will be deemed to be public and shall be disclosed by Customer. Should Time Warner Cable make timely arguments to the Texas Attorney General, Customer and Time • • Warner Cable shall be bound by the resulting opinion unless the opinion is timely appealed. 14. Interstate Service Representation. Time Warner Cable and its Affiliates(defined in Section 19 below)shall not be obligated to make available intrastate Service,e.g.,any Service on a circuit which originates/terminates at points both of which are situated within a single state,unless Time Warner Cable or its Affiliates specifically offer an intrastate Service,or an information Service as defined in 47 U.S.C. Section 153(20) or unless Customer represents in writing that such Service (other than switched voice services) or circuit shall be used to carry more than ten percent(10%) interstate or foreign telecommunications traffic. Customer hereby represents that more than ten percent (10%) of the transmissions on each circuit shall be interstate transmissions or foreign transmissions as those terms are defined in 47 U.S.C. Sections 153(17) and 153(22). If it is determined at any time that such Service or circuit is subject to regulation by a U.S.State regulatory agency,the Service or circuit may be provided by Time Warner Cable or its Affiliates pursuant to applicable state laws, regulations and applicable tariffs, or Time Warner Cable and its Affiliates may discontinue provision of the affected Service or circuit. 15. Third Party Services. In conjunction with Time Warner Cable Service, Time Warner Cable may, upon Customer's request, arrange for Service to be provided by a third party ("Third Party Service"), such as local access service, interexchange service, or international service. Time Warner Cable shall not be obligated to provision any Third Party Service except in connection with a Service Order for Time Warner Cable Service.In the event Customer requests that Time Warner Cable order Third Party Service,Time Warner Cable shall provision and coordinate the installation of such Service and conduct the initial testing of an interconnection between the Time Warner Cable Service and Third Party Service. Time Warner Cable will not begin billing Customer for such Third Party Service until related Time Warner Cable Service is available. Customer may be required to execute a letter of authorization ("LOA"), in a form provided by Time Warner Cable and acceptable to the Customer, authorizing Time Warner Cable to deliver such Third Party Service to Customer's location. When Customer requests international service, Time Warner Cable may arrange for the foreign end of the Service or for a portion of the foreign end of the Service to be provided by a third party carrier licensed in the relevant foreign point.In some cases,Time Warner Cable may be unable,and Customer may be required,to arrange the foreign end of such Service with a foreign carrier.Although this MSA governs the terms of Time Warner Cable's arrangement of Third Party Service, service level parameters and related warranties (if any), surcharges, outage credits, required commitments, termination liability, limitations,and other service-specific terms of the Third Party Service shall be those of the provider of the Third Party Service("Third Party Provider"). All charges incurred by Time Warner Cable for such Third Party Service, including without limitation monthly recurring charges, installation charges, non-recurring charges, and applicable termination/cancellation charges of the Third Party Provider,shall be invoiced to Customer and Customer shall be responsible for payment thereof. 16:Customer Ordered Internet Service or Interexchange Service. Customer may order its own Internet service or interexchange service from a data network provider who has established entrance facilities in a Time Warner Cable point of presence upon receipt of a LOA or letter of authorization/carrier facility assignment ("LOAJCFA"). Customer may order its own Internet service or interexchange service with a vendor who does not have established entrance facilities within Time Warner Cable's point of presence only with Time Warner Cable's written permission. Customer's Internet service or interexchange service provider shall directly bill Customer for such Internet service or interexchange service. Customer shall ensure that Customer-ordered Internet service or interexchange service is available at the same time as the Time Warner Cable Service and shall be obligated to pay for Time Warner Cable Service regardless of whether Customer-ordered Internet service or interexchange service is available. 17. Early Termination. Customer may disconnect any Time Warner Cable Service without cause after installation by providing written notification to Time Warner Cable sixty(60)calendar days in advance of the effective date of the disconnection and paying to Time Warner Cable an"Early Termination Charge"in an amount equal to: (i)the recurring charges associated with the Service Term less any recurring charges already paid,(ii)any non-recurring charges not yet paid by Customer,(iii)installation charges discounted or waived at the time Service was installed,(iv)any termination liability associated with Third Party Services,and(v)the balance of any minimum commitments by Customer required under this MSA,if applicable. If Customer terminates any Time Warner Cable Service during an Extension Period as provided in Section 3 above,Customer shall only be responsible for any non-recurring charges not yet paid by Customer together with termination liability associated with Third Party Services.It is the express intent and understanding of the parties that, this MSA and all Service Orders hereunder being one integrated agreement and not separate, severable contracts, Customer's right to early termination of any Service is not a right to"reject",on an individual basis,any Service or any Service Order pursuant to federal bankruptcy laws.In the event Customer orders its own Internet service or interexchange service,Customer's written disconnection notice must also include a DFOC from the Internet service or interexchange service provider as described in Section 3. 18.Publicity.Any publication of information relating to Time Warner Cable's network or any proprietary information of Time Warner Cable must be approved by Time Warner Cable prior to publication. However,references to(i)the fact that Customer is a customer of Time Warner Cable, (ii) Customer's presence in a Time Warner Cable POP, (iii) any non-proprietary information contained in this MSA(iv)any non-proprietary information contained in any agreement entered into under this MSA, (v)invoices and payments made pursuant to this MSA and any agreements entered into under this MSA,and(vi) information that is required to be disclosed under the Texas Public Information Act or other law, are not considered Publicity for purposes of this section, and Customer needs no prior approval before publication. 19.Miscellaneous.(a)Neither party shall assign or otherwise transfer its rights or obligations under this MSA without the prior written consent of the other party,which shall not be unreasonably withheld;provided,however, either party may freely assign this MSA,upon notice to the other party,to(i)an"Affiliate"(defined as an entity that controls,is controlled by or is under common control),or(ii)in the event of a sale of all or substantially all of its assets,to the purchaser of those assets,or(iii)in the event of a merger,acquisition or recapitalization of the assigning party,to the surviving entity(the sale of assets,merger,acquisition or recapitalization to be referred to as a"Change of Control").For the purposes of this Section,"control"means to have more than a fifty percent (50%) ownership interest. In the event of an assignment by Customer to an Affiliate, the acquiring or surviving entity or assignee(as applicable)must be at least as creditworthy as Customer and no such assignment will release Customer from Customer's obligations herein,including,but not limited to payment,except to the extent that the acquiring or surviving entity or assignee meets its obligations under this MSA. (b) This MSA shall be governed by the laws of the State of Texas without regard to choice of law • • principles and venue shall be in Harris County. (c)No rule of construction requiring interpretation against the draftsman hereof shall apply in the interpretation of this MSA.(d)The provisions of this MSA are only for the benefit of the parties hereto,and no third party may seek to enforce or benefit from these provisions. (e)If any term or provision of this MSA shall,to any extent,be determined to be invalid or unenforceable by a court or body of competent jurisdiction,then(i)both parties shall be relieved of all obligations arising under such provision and this MSA shall be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its intent,and(ii)the remainder of this MSA shall be valid and enforceable.(f)The failure of either party to enforce any provision hereof shall not constitute the permanent waiver of such provision.(g)No termination of this MSA shall affect the rights or obligations of either party: (i)with respect to any payment for Services rendered before termination; or(ii)pursuant to other provisions of this MSA that, by their sense and context, are intended to survive termination of this MSA, including without limitation,confidentiality and limitation of liability. (h)This MSA,including the General Terms and appurtenant appendices, Service Schedules and Service Orders (including Quotes referenced therein), any applicable tariff and Time Warner Cable's AUP Website, comprise all of the terms and conditions of the agreement between the parties relating to the Services and constitute the complete and exclusive statement of the understanding between the parties and supersedes all proposals and prior agreements (oral or written) between the parties relating to Services provided hereunder. (i) Customer acknowledges that the provisioning of interstate telecommunications services by Time Warner Cable to Customer is contingent upon Customer's submission to Time Warner Cable of the representation in the form set forth in Appendix A to this MSA; either that Customer has properly registered with the Federal Communications Commission ("FCC"), pursuant to 47 CFR 64.1195 (and Time Warner Cable's confirmation of the same), or that Customer is not a telecommunications carrier subject to the FCC's registration requirements. (j)Without in any way diminishing the nature of these General Terms, appurtenant appendices, Service Schedules and Service Orders as one, integrated, non-severable agreement,in the event of any inconsistency between or among a Service Order or Quote referenced therein, a Service Schedule,the General Terms,Time Warner Cable's AUP website,and/or any applicable tariff,the following order of precedence shall prevail(from . highest priority to lowest): the applicable tariff,if any, specific pricing contained in a Service Order or Quote referenced therein,the provisions contained in the applicable Service Schedule, these General Terms, Time Warner Cable's AUP website, the applicable Service Order and the Quote referenced therein(except pricing). (k)This MSA may be executed in one or more counterparts each of which shall be deemed an original,but all of which together shall constitute one and the same MSA. (1)Facsimile signatures to this MSA shall be deemed to be binding upon the parties. 20. Authorized Representatives. The individuals named below who are executing this MSA on behalf of the parties are duly authorized to make the representations contained herein. CUSTOME7e6 TIM R C LE: 2 By. By: Printed Name: G Jackson �Printed Nam HER SwlEF3��Y Title: City Manager Title: Date: /7—e Date of sigmep BUS 1 N E S S S O L 11 i 1 o N g g n C • • Appendix A Time Warner Cable's determination regarding application of the Federal Universal Service Fund ("USF") surcharge on the Service noted herein will be based upon the representations and information provided in this attestation form. This attestation form also allows Time Warner Cable to fulfill its obligation to verify that its customers have either filed Federal Communications Commission("FCC") Form 499-A or are not subject to that filing requirement. Customer is: O End user;-A U.S.based Customer purchasing Service for its own internal use and not for resale. O ISP -A U.S. based information services provider("ISP") or non-common carrier telecommunications provider that is not making its own USF contributions and is not required under FCC rules to file an FCC Form 499-A with the FCC. O Carrier-A telecommunications carrier(including a reseller)that is using the Service to provide telecommunications serviceiii to the public for a fee,and Customer: O Will resell the Service in the form of telecommunications and will contribute directly to the Universal Service Administrator pursuant to FCC rules. Customer's FCC Filer ID Number(6 digits beginning with"8") O Will use the Service to provide services for which all revenues are from non-domestic (i.e., non-U.S. iv) end users, and Customer is not required under FCC rules to file an FCC Form 499-A with the FCC. 0 Qualifies for the de minimis exemption under FCC rules,has met its obligation to file a FCC Form 499A,and is not making direct contributions to the USF but is making direct contributions to: LNP TRS NANPA(please mark all that apply). Customer's FCC Filer ID Number(6 digits beginning with"8") O International End User or ISP—A non-U.S basedvi end user,information services provider or non-common carrier. To qualify as a non-U.S. end user,Customer must(1)not be a citizen or permanent resident of the U.S. if an individual and,if a legal entity,not be created under the laws of the United States,(2)not be qualified to transact business in the U.S.(e.g.,through registration with a state secretary of state as a foreign company), (3)have a billing address outside the U.S.�� and(4)not use the service for communications that both originate and terminate within the U.S. Customer understands that if it designates that it is acting as a"telecommunications carrier, not contributing"under the de minimis exemption,a"domestic end user,"a"domestic information service provider,"or"domestic non-common carrier,"Time Warner Cable will apply the USF surcharges to the appropriate revenues from the Service and charge them to Customer along with any applicable administrative surcharge set forth in the written Agreement. Time Warner Cable is relying upon the information provided by Customer in this representation and any subsequent amendments to determine whether USF surcharges and administrative surcharges apply. If the information contained herein is determined to be incorrect or if it changes, Customer shall pay any applicable surcharges for any Service Time Warner Cable had provided or that it subsequently provides,in each case together with late-payment interest. If there is no applicable written Agreement between Customer and Time Warner Cable,Time Warner Cable's standard Agreement form in effect at the time the Service Order is placed will apply. If, at any time, Customer's representation above is no longer accurate, Customer shall notify Time Warner Cable within thirty (30) calendar days by completing and submitting a new representation to Time Warner Cable at the address set forth on page 1 of the Agreement. A customer obtaining service for use in its own broadcast operations is an end user. ii"The term`telecommunications carrier'means any provider of telecommunications services,except that such term does not include aggregators of telecommunications services."47 U.S.C.§153(44). iii"The term`telecommunications service'means the offering of telecommunications for a fee directly to the public,or to such classes of users as to be effectively available directly to the public,regardless of the facilities used." 47 U.S.0§153(46). "The term`telecommunications'means the transmission,between or among points specified by the user,of information of the user's choosing,without change in the form or content of the information as sent and received." 47 U.S.C.§ 153(43). iv"U.S."and"United States"means the United States of America,its possessions,territories,states,districts,and commonwealths,including,without limitation,Guam,Puerto Rico,and the U.S.Virgin Islands. v 47 CFR§54.708. vi See footnote iii. Time Warner Cable will waive this requirement if Customer demonstrates that use of a U.S.billing address is solely to facilitate payment by an agent acting on Customer's behalf. Such waiver must be in writing to be effective. R Dedicated Internet Access CARI Service Order Form % Bosirat,ss Solvtiotm Revised: 1/2/06 Page 1 of 2 Billing Account Name: City of Baytown Order Type: New V 2401 Market Street PO Box 424 Baytown TX Billing Address: 77522 Customer PON: Customer Order Contact: Dennis Wells CRDD: 07/01/06 Phone#: 281 420-5813 Circuit Qty: 1 V E-mail: dennis.wells@baytown.orq Install Contact: Dennis Wells Interval: Standard V Phone# 281 420-5813 Circuit Term: 36 Months V E-mail: dennis.wells@baytown.org Maintenance Contact: Asim Khan If Other: Phone#: 281 420-6610 Acct Mgr: Wesley Klaus-8891 V E-mail: akhan@Qulfcoastcc.com `, General Information Customer Interface Type: 10/100Mb TX Cat5(Ethernet 10 or 100BT)-PI V Rate: 10 Mbps V #of IP Address(es)Requested: /24-256(Class C)Justification Form Re V pod Speed: 10/100Mbps V #of Seconday IP Address(es)Requested: V DNS: V BGP Required: No V V Reverse DNS: BGP Request Information(If Applicable) AS Number: AS#'s for Upstream Peers: AS Name: IP Address Blocks to Announce: Subnet Mask of Add'I Block: LAN Address(Optional): BGP Session Password(Optional): Routes Expected: V Current IP Space: V Site Information Site Name:Baytown City Hall Address: 2401 Market Street Bldg/Floor/Suite/Room: City:Baytown State: TX Zip: 77522 Access Hours: V Site Contact Name: Dennis Wells Site Contact Phone: 281 420-5813 TWC to Extend the Demarc or Install Inside wiring beyond the minimum point of entry: Yes V Extended Demarc Location/Assignment: Computer Room Diversity or Redundancy No V Serving Hub: Baytown-Houston On-Net? Yes Required? r i d ftIME WARNER Dedicated Internet Access CABLE Service Order Form Page 2 of 2 PRICING: Install/NRC$ MRC$ PRICING: Install/NRC$ MRC$ DIA;Single Route V $0.00 $1,125.00 V $0.00 $0.00 V $0.00 $0.00 v $0.00 $0.00 V $0.00 $0.00 V $0.00 $0.00 V $0.00 $0.00 v $0.00 $0.00 v $0.00 $0.00 V $0.00 $0.00 V $0.00 $0.00 V $0.00 $0.00 PricinwS;Ummary Install/NRC$ MRC$ Totals: $0.00 $1,125.00 , Terms-&Conditions, ThisService Order is subject to,governed by and constitutes an integral part of the relevant service agreement("Agreement")by and between Time Warner Cable Information Services (Texas),LP d/b/a Time Warner Cable and Customer,(unless the Service is subject to any applicable Time Warner Cable tariff,in which case the tariff shall govern the provision of this Service),and each Service Order shall,together with the Agreement,be deemed one,integrated agreement and not as separate severable contracts. Customer hereby represents more than 10%of the Customer's use of Service and or circuit provided by Time Warner Cable Pursuant to this Order will be interstate telecommunication, If it is determined at any time such Interexchange Service or circuit is subject to state regulation,the Interexchange service or circuit maybe provided by Time Warner Cable or its affiliates,pursuant to applicable state law,regulations and applicable Tariff. Time Warner Cable's receipt of this Service Order,including any implementation thereof,shall not be deemed an acceptance of an offer,and shall not obligate Time Warner Cable to provide the Service requested herein unless and until a relevant service agreement is executed by both parties. In the event that Time Warner Cable has provisioned Service pursuant to this Service Order in conlemptation of,but prior to,the execution and delivery of a relevant service agreement this Service Order is subject to,povemed by and constitutes an inlearal part of Time Warner Cable's relevant standard form service agreement in effect at the time the Service Order is placed. This Service Order will not be fully implemented until the customers credit has been approved,and Time Warner Cable's denial of customers credit shall automatically and without further notice cancel this Service Order. All Service is provided in accordance with the processes and procedures set forth in Time Warner Cable's Customer Data Guidelines,which may be found at www.twcbs.com/f sa.asp Revised:1/2/06 CITY SF B OWN, Time Warner�Cablle Cusfo ompan me C_i 2L-Ck "` Authorized Repr..er�)}ative Autho Ized Representative Gary Ja kgon CHUCK SWEENEY Printed Name Printed Name City Manager S`/2 R V P BUSINESS S Q L U T i D�D O/ C - Title Date Title ate • • TIME WARNER Metro Ethernet Point to Multioint p f MET ?HE:2ivE''s' CAB . I Service Order Form i Easiness Solutions utions Revised: 1/2/06 Page 1 of 3 Billing Account Name: City of Baytown Order Type: New V 2401 Market Street PO Box 424 Baytown TX Billing Address: 77522 Customer PON: Customer Order Contact: Dennis Wells CRDD: 05/01/06 Phone#: 281 420-5813 E-mail: dennis.wells©baytown.orq Install Contact: Dennis Wells Interval: Standard V Phone# 281 420-5813 Circuit Term: 36 Months E-mail: dennis.wells©baytown.orq Maintenance Contact: Asim Khan If Other: Phone#: 281 420-6610 Acct Mgr: Wesley Klaus-8891 E-mail: akhan@gulfcoastcc.com Host-Location port;Detail Remote#1 Location Port Detail Ethernet Interface: 10/100Mb TX Cat5(Ethernet 10 or 10013' Ethernet Interface: 10/100Mb TX Cat5(Ethernet 10 or 100B- V Status: New V Circuit ID#: Status: New V Circuit ID#: Port Speed: 10/100Mbps Rate: 7 Mbps Port Speed: 10/100Mbps w Rate: 5 Mbps v TWC Hub or POP: Baytown-Houston TWC Hub or POP: Baytown-Houston V „Host.Location Detail Remote#1 Location Detail Site Name: Baytown City Hall Site Name: City of Baytown Police Department Address: 2401 Market Street Address: 3200 North Main Bldg/Floor/Suite/Room: Bldg/Floor/Suite/Room: city: Baytown City: Baytown State: TX Zip: 77522 State: TX Zip: 77521 Access Hours: 8-5,M-F V Access Hours: 8-5, M-F V Site Contact Name: Dennis Wells Site Contact Name: Dennis Wells site contact Phone: 281 420-6610 Site Contact Phone: 281 420-6610 TWC to Extend the Demarc or Install Inside wiring TWC to Extend the Demarc or Install Inside wiring beyond the minimum point of entry: Yes V beyond the minimum point of entry: Yes V Extended Demarc Extended Demarc Location/Assignment: Computer Room Location/Assignment: Diversity or Redundancy Diversity or Redundancy On-Net? No V Required? NO V On-Net? NO V Required? NO ?..:. ,Special Instructions`:. • • WARNER Metro Ethernet Multipoint CABLE Service Order Form Page 2 of 3 Remote#2 Location Port Detail;. Remote Location'Port Detail Ethernet Interface: 10/100Mb TX Cat5(Ethernet 10 or 10013' V Ethernet Interface: V Status: New V Circuit ID#: Status: v Circuit ID#: 10/100Mbps V 3 Mbps V V V Port Speed: Rate: Port Speed: Rate: TWC Hub or POP: Baytown-Houston V TWC Hub or POP: V Remote#2 Location,Detail,,. ;Remote#3 Location Deta>II,. Site Name: Baytown City Hall Annex Site Name: Address: 22 West De Fee Address: Bldg/Floor/Suite/Room: Bldg/Floor/Suite/Room: City: Baytown City: State: TX Zip: 77520 State: Zip: Access Hours: 8-5, M-F Access Hours: Site Contact Name: Dennis Wells Site Contact Name: Site Contact Phone: 281 420-5813 Site Contact Phone: TWC to Extend the Demarc or Install Inside wiring Yes V TWC to Extend the Demarc or Install Inside wiring V beyond the minimum point of entry: beyond the minimum point of entry: Extended Demarc Extended Demarc Location/Assignment: Computer Room Location/Assignment: Diversity or Redundancy Diversity or Redundancy On-Net? No V Required? No V On-Net? V Required? V Rernote-#4 Location,Port Detail Remote#5 LocationPort Detail Ethernet Interface: V Ethernet Interface: Status: V Circuit ID#: Status: V Circuit ID#: Port Speed: Rate: Port Speed: Rate: TWC Hub or POP: V TWC Hub or POP: V :Remote#4 Location.Detail -` ;,Remote#5 Location Detail'. , . ., Site Name: Site Name: Address: Address: Bldg/Floor/Suite/Room: Bldg/Floor/Suite/Room: City: City: State: Zip: State: Zip: Access Hours: � Access Hours: Site Contact Name: Site Contact Name: Site Contact Phone: Site Contact Phone: TWC to Extend the Demarc or Install Inside wiring V TWC to Extend the Demarc or Install Inside wiring V beyond the minimum point of entry: beyond the minimum point of entry: Extended Demarc Extended Demarc Location/Assignment: Location/Assignment: Diversity or Redundancy Diversity or Redundancy On-Net? V Required? V On-Net? V Required? V • • TIME WARNER Metro Ethernet Point to Multipoint CABLE Service Order Form Page 3 of 3 PRICING: Install/NRC$ MRC$ PRICING: Install/NRC$ MRC$ Host Port-Recurring V $0.00 ' $382.90 Remote 1 Port-Recurring V $0.00 $274.40 v $0.00 $0.00 Remote 2 Port-Recurring V $0.00 $217.70 w $0.00 $0.00 v• $0.00 $0.00 w• $0.00 $0.00 I. $0.00 $0.00 $0.00 $0.00 'V $0.00 $0.00 $0.00 $0.00 'V $0.00 $0.00 v• $0.00 $0.00 71 $0.00 $0.00 Pricing Summary Install/NRC$ MRC$ Totals: $0.00 $875.00 Terms&Conditions This Service Order is subject to,governed by and constitutes an integral part of the relevant service agreement("Agreement')by and between Time Warner Cable Information Services (Texas),LP d/b/a Time Warner Cable and Customer,(unless the Service is subject to any applicable lime Warner Cable tariff,in which case the tariff shall govern the provision of this Service),and each Service Order shall,together with the Agreement,be deemed one,integrated agreement and not as separate severable contracts. Customer hereby represents more than 10%of the Customer's use of Service and or circuit provided by Time Warner Cable Pursuant to this Order will be interstate telecommunications. If it is determined at any time such Interexchange Service or circuit is subject to state regulation,the Interexchange service or circuit may be provided by Time Warner Cable or its affiliates,pursuant to applicable state law,regulations and applicable Tariff. Time Warner Cable's receipt of this Service Order,including any implementation thereof,shall not be deemed an acceptance of an offer,and shall not obligate Time Warner Cable to provide the Service requested herein unless and until a relevant service agreement is executed by both parties. In the event that lime Warner Cable has provisioned Service pursuant to this Service Order in contemplation of,but prior to,the execution and delivery of a relevant service agreement, this Service Order is subiect to.aovemed by and constitutes an intearal Dart of Time Warner Cable's relevant standard form service agreement in effect at the time the Service Order is placed. This Service Order will not be fully implemented until the customer's credit has been approved,and Time Warner Cable's denial of customer's credit shall automatically and without further notice cancel this Service Order. All Service is provided in accordance with the processes and procedures set forth in Time Warner Cable's Customer Data Guidelines,which may be found at www.twcbs.com/f sa.aso Metro Ethernet Multipoint cTTY ;F as To Warne{' Cable CustoCom a y Na /f ile A thorized R:•r sentative Authorized Representative Gary J: cson CHUCK SWEENEY Printed Name Printed Name ��/©� City Manager 4'./7..d< RVP BUSINESS SntUTIDNS • MSA Schedule 2: Dedicated Internet Access TIME WARNER This Dedicated Internet Access Service Schedule("Schedule") is part of the agreement under which Time Warner Cable provides Time Warner Cable Service to Customer and which CABLE incorporates this Schedule(the"Agreement"). 1.1 Service Description. Time Warner Cable's Dedicated Internet Access Service is a dedicated high-speed connection to the Internet provided solely on Time Warner Cable's Ethernet access network to a Time Warner Cable core IP point of presence("IP POP") ("DIA Service"). Service level agreements("SLA(s)"), service level objectives("SLO(s)"),outage credits and related warranties as set forth in this Schedule apply only to Time Warner Cable provided DIA Service and do not apply to any Third Party Services.Customer may select from several connectivity interfaces and speeds as outlined in the following sections.Internet Protocol("IP")addresses and/or secondary domain naming system are also available.DIA Service will meet the SLA as set forth in Section 2.2. 1.2 Connectivity and Speeds.Customer may choose DIA Port Interface and fractional Port Speed options listed in the tables below. Fast Ethernet DIA Fast Ethernet DIA Gigabit Ethernet DIA Interface Port Speed Interface Port Speed Interface Port Speed 10/100Mbps 1 Mbps 10/100Mbps 10 Mbps 1 Gigabit 100 Mbps 10/100Mbps 2 Mbps 10/100Mbps 20 Mbps 1 Gigabit 200 Mbps 10/100Mbps 3 Mbps 10/100Mbps 30 Mbps 1 Gigabit 300 Mbps 10/100Mbps 4 Mbps 10/100Mbps 40 Mbps 1 Gigabit 400 Mbps 10/100Mbps 5 Mbps 10/100Mbps 50 Mbps 1 Gigabit 500 Mbps 10/100Mbps 6 Mbps 10/100Mbps 60 Mbps 1 Gigabit 600 Mbps 10/100Mbps 7 Mbps 10/100Mbps 70 Mbps 1 Gigabit 700 Mbps 10/100Mbps 8 Mbps 10/100Mbps 80 Mbps 1 Gigabit 800 Mbps 10/100Mbps 9 Mbps 10/100Mbps 90 Mbps 1 Gigabit 900 Mbps 10/100Mbps 10 Mbps 10/100Mbps 100 Mbps 1 Gigabit 1000 Mbps 2.1 Technical Specifications.Time Warner Cable has designed its network to conform with the technical standards as specified by the Internet Engineering Task Force("IETF"). 2.2 Service Level Agreements("SLAs").DIA Service shall perform in accordance with the following SLAs as set forth in Section 2.2 a,b,and c below.The SLAs for DIA Service are measured between Time Warner Cable IP POPs only. a. Port Availability. Port availability is a measurement of the total time that DIA Service is operative when measured in a thirty(30) day month(720 hour)period. DIA Service is considered operative when the Customer can exchange IP packets over the Time Warner Cable IP network via the Customer's access port.Port availability for DIA Service shall be 99.999%.• b. Latency. Latency is measured as the round trip time, averaged over a thirty(30)day month(720 hour)period,for an IP packet to travel from Time Warner Cable IP POP to Time Warner Cable IP POP.Latency for Time Warner Cable network shall not exceed an IP POP network average of 45 milliseconds or a maximum of a 100-millisecond average between any two Time Warner Cable IP POPs. c. Packet Loss:Packet loss is measured as the percentage of lost packets,averaged over a thirty(30)day month(720 hour)period,from Time Warner Cable IP POP to Time Warner Cable IP POP.Packet loss for Time Warner Cable network shall not exceed.5%between any Time Warner Cable IP POPs. 2.3 Service Level Objectives("SLOs").Although Outage Credits are provided as set forth above,Time Warner Cable's objective is to provide DIA Service that meets the following SLOs.Time Warner Cable shall have no liability for its failure to achieve these objectives. a. Mean Time to Restore("MTTR"). MFI'R is Time Warner Cable's objective to restore DIA Service and resume availability within the time periods set forth in this Section 2.3a. The time is measured from the earlier of Time Warner Cable's actual knowledge of the Outage or Time Warner Cable's receipt of notice from Customer of the Outage and provided that Customer has released all or part of the DIA Service for testing if requested by Time Warner Cable until the latter of(i) restoration of the first fiber on a cable cut or (ii) equipment is repaired and DIA Service is available. Time Warner Cable has an objective of repairing network equipment within an average of four(4)hours and the first fiber on a cable cut restored within an average of four(4)hours. 3.1 Pricing and Charges. Charges for DIA Service include monthly recurring charges (MRC(s)") and non-recurring charges ("NRC(s)")as set forth in applicable Service Order and/or quote("Quote")referenced in such Service Order.MRCs and NRCs contained in Quotes but not included in a Service Order are valid only for thirty (30) calendar days unless Customer places a Service Order incorporating such Quote. MRCs and NRCs contained in a Service Order are firm for the Service Term reflected on the related Service Order.Notwithstanding the foregoing,if Customer requests additional DIA Service or a change to an existing Service Order including but not limited to a Service Order change, supplement or tech assist which could incur additional NRCs, such NRCs are subject to change upon thirty(30)calendar days written or electronic notice.Upon expiration of the Service Term and until a new Service Order is placed, Customer charges for Time Warner Cable Services, as set forth in the Service Order, shall continue to apply throughout any Extension Period. Notwithstanding the foregoing, promotional pricing is subject to change at the end of the Service Term, or anytime thereafter, upon thirty(30)calendar days prior written or electronic notice.At the end of a Service Term or Extension Period,Customer may place a new Service Order specifying a new Service Term,and such Service Order shall set forth the charges for the new Service Term. Time Warner Cable Confidential Page 1 of 3 TWC MSA Schedule 2(2006-1-16) • • MSA Schedule 2: Dedicated Internet Access 3.2 Flat Rate Pricing. Time Warner Cable DIA is installed with a specific Port Interface, either 10/100 Mbps Ethernet or 1 Gigabit Ethernet,and provisioned at a fractional Port Speed that limits the amount of traffic that the Customer can send and receive.The MRC is fixed each month and does not change due to usage within the limitations of the fractional Port Speed. Customer may upgrade the fractional Port Speed at any time in speed increments as shown in the Tables in Section 1.2 of this Schedule. 4. Other Non-Recurring Charges.Other Non-Recurring Charges may be incurred for DIA Service as set forth in the following table: 'Charge Description Non-Recurring Charge Change Of Installation Date $250.00 Change Of Service Order $250.00 Order Expedite $500.00 Network Configuration Change $250.00 5. Implementation Intervals.Time Warner Cable's standard service implementation interval objective is set forth in the table below. Time Warner Cable shall make reasonable efforts to provide DIA Service within its standard service implementation interval. The start date of such interval begins on the acceptance date as provided to Customer in Time Warner Cable's order confirmation document. Failure of Time Warner Cable to deliver by such date shall not constitute a default under the Agreement and Time Warner Cable shall not be liable to pay to Customer any penalties or damages for Time Warner Cable's failure to meet such standard service implementation intervals. Service Order Type Standard Interval Upgrade to existing Service 10 business days New service to On-Network Customer site 20 business days New service to Near-Network Customer site requiring building right of entry and/or further network expansion 30-45 business days New service to Off-Network Customer site requiring construction ICB 6.1 Outage Credit. Customer acknowledges the possibility of an unscheduled, continuous and/or interrupted period of time during which DIA Service does not conform to the SLA as set forth in Section 2.2 above("Outage").An Outage shall begin upon the earlier of Time Warner Cable's actual knowledge of the Outage or Time Warner Cable's receipt of notice from the Customer of the Outage and provided that Customer has released all or part of the DIA Service for testing if requested by Time Warner Cable. In the event of an Outage,Customer shall be entitled to a credit("Outage Credit")upon Time Warner Cable receipt of Customer's written request for such Outage Credit. Such written request must be received by Time Warner Cable within thirty (30) calendar days of the Outage and the Outage Credit shall be credited on Customer's next monthly invoice. If Time Warner Cable does not receive Customer's written notice within such thirty(30) calendar day period, Customer shall be deemed to waive its right to the Outage Credit. The amount of Outage Credit shall be an amount equal to 1/30th of the MRC for the affected port for each hour during any calendar month that the affected port fails to conform to the SLA for availability.In no event shall Time Warner Cable's total liability for all Outages exceed a total of one(1) month's MRC for the affected port during any calendar month. 6.2 Excessive Outage. Notwithstanding Time Warner Cable's obligation to provide Outage Credits, Customer shall have the right to immediately disconnect a DIA Service without termination liability upon written notice to Time Warner Cable if(i)that DIA Service has three(3)or more Outages with a duration of at least sixty(60)minutes each within a thirty(30)day period or(ii)if an Outage continues for a period of eight(8)continuous hours,or twelve(12)cumulative hours,in any six(6)month period. 6.3 Exceptions. Customer shall not receive an Outage Credit if the Outage is:(i)caused by Customer or others authorized by Customer to use the DIA Services under the Agreement;(ii)due to the failure of power,facilities,equipment,systems or connections not provided by Time Warner Cable;(iii)caused by the failure of Third Party Service to Time Warner Cable's network;(iv)the result of maintenance performed by Time Warner Cable in accordance with Sections 7.1 and 7.2 of this Schedule;or(v)due to a force majeure event as defined in the Agreement. 6.4 Invoice Credit.All Outage Credits shall be credited to Customer's account within the next two(2)billing cycles after the Outage Credit is earned. In the event no additional invoices will be submitted to Customer,any applicable Outage Credit(s)shall be satisfied by Time Warner Cable sending payment for such amounts directly to Customer within thirty(30)days after the Outage Credit is earned. 7.1 Planned Network Maintenance Period ("PNMP(s)"). Time Warner Cable shall avoid performing PNMP between 0600 to 2200 local time, Monday through Friday. Time Warner Cable shall provide Customer with electronic mail, telephone, facsimile, or written notice of a PNMP(i)not less than three(3)business days prior to performing a PNMP that in Time Warner Cable's reasonable opinion, has a substantial likelihood of affecting Customer's traffic for up to fifty (50)milliseconds, or(ii) not less than ten(10)business days prior to performing a PNMP that in Time Warner Cable's reasonable opinion,has a substantial likelihood of affecting Customer's traffic for more than fifty(50)milliseconds.If the PNMP is canceled or delayed,Time Warner Cable shall promptly notify Customer and shall comply with the provisions of this Section 6.1 to reschedule the PNMP. 7.2 Emergency Network Maintenance Period ("ENMP(s)"). It may be necessary for Time Warner Cable to issue notification of an ENMP.ENMPs allow Time Warner Cable to perform mandated maintenance with a shorter Customer notification interval than PNMPs. Time Warner Cable Confidential Page 2 of 3 TWC MSA Schedule 2(2006-1-16) • • MSA Schedule 2: Dedicated Internet Access 8. Warranty.Subject to Section 12 of the Agreement Time Warner Cable warrants,that DIA Service shall conform to SLA's set forth in Section 2.2 above. Time Warner Cable shall use commercially reasonable efforts under the circumstances to remedy any delays, interruptions,omissions,mistakes,accidents or errors in the DIA Service and restore such DIA Service to comply with the terms hereof. THE OUTAGE CREDIT AS SET FORTH IN SECTION 6.1 SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER IN THE EVENT OF ANY FAILURE,INTERRUPTION OR DEGRADATION OF DIA SERVICE INCLUDING AN OUTAGE AND/OR FOR BREACH OF THIS WARRANTY. CUSTOMER: TIME A E CABLE: A By. By: Printed Name: / Printed Name: Gary Jac son CHUCK SWEEiz ' -- Title: Title: City Manager /p-.J BUSINESS SOLUTIONS � � Date: Date cfl'S gn�enue: Time Warner Cable Confidential Page 3 of 3 TWC MSA Schedule 2(2006-1-16) • • MSA Schedule 1: Metro Ethernet Service TIME WARNER This Metro Ethernet Service Schedule("Schedule")is part of the Master Services Agreement ("Agreement") under which Time Warner Cable provides Services to Customer and which CABLE incorporates this Schedule into the Agreement. 1. Service Description.Time Warner Cable's Metro Ethernet Service is a Time Warner Cable Service provided solely on Time Warner Cable's network from a Time Warner Cable Metro Ethernet core switch to a Time Warner Cable Metro Ethernet core switch ("Metro Ethernet Service").This Schedule governs Time Warner Cable's provision of Metro Ethernet Service and does not govern the provision of any Third Party Service. The service level agreements ("SLA(s)"), service level objectives ("SLO(s)"), outage credits and related warranties,as set forth in this Schedule apply only to Time Warner Cable provided Metro Ethernet Service and do not apply to any Third Party Services or non-diverse path building entrance facilities.Any Third Party Provider service level parameters,warranties,surcharges, outage credits, required commitments, termination liability, limitations, and other Service-specific terms of the Third Party Service, if any, shall be those of the Third Party Provider. Time Warner Cable Service can facilitate point-to-point, multiple point-to-point, and multipoint-to-multipoint connections between standard 10/100/1000 Mbps Ethernet interfaces.Metro Ethernet Service will meet the SLA as set forth in Section 2.2 below. 2.1 Technical Specifications. Metro Ethernet Service is an Ethernet Service that provides bi-directional transmission of data based on the Ethernet standards and operates at the Layer 2 level of the OSI reference model.Metro Ethernet Service provides for the transmission of data in specific Mbps increments in an Ethernet format that is compliant with the IEEE 802.3 standard. 2.2 Service Level Agreements ("SLAs"). Metro Ethernet Service shall perform in accordance with the SLAs set forth herein. The standard(s)by which Service is measured apply on a one-way basis between Time Warner Cable Metro Ethernet switches only. a. Network Availability. Network availability is a measurement of the average percent of total time that Service is operative when averaged over a thirty (30) day month (720 hour) period. Service is inoperative when the virtual circuit ("VC") or port connection ("Port")status becomes"inactive"and unable to pass traffic due to a fault within the Time Warner Cable network.Network availability for Service will be 99.999%. b. Latency.Latency objective is measured•as the one-way trip time;averaged over a thirty(30)day month(720 hour)period,required for an Ethernet packet(100 bytes)to travel between Time Warner Cable Metro Ethernet switches.Average latency is listed in the Table below. Average Latency Route Distance Average Latency(ms) 0 to 500 miles 15 501 to 1000 miles 25 1001 to 1500 miles 35 1501 to 2000 miles 45 2001 to 2500 miles 55 2501 to 3000 miles 65 c. Packet Loss.Packet loss for the Metro Ethernet Service will not exceed.1%of the total packets transferred during any thirty(30)day month(720 hour)period. 2.3 Service Level Objectives("SLOs"1.Time Warner Cable's objective is to provide Metro Ethernet Service that meets the following SLOs.Time Warner Cable shall have no liability for its failure to achieve these objectives. a. Maintenance Limits. Time Warner Cable shall take maintenance actions when one of the following conditions is identified on the Time Warner Cable-provided Service: (i)Percent error free seconds("EFS")specifications are deficient for three(3)consecutive 24-hour periods or are deficient by a factor of two(two times the%error seconds)in a single 24-hour period;(ii)unavailability for any reason:Cause to be determined and corrective action taken;or(iii)should an out-of-tolerance condition persist in spite of such maintenance action,Time Warner Cable shall escalate the condition to a management and/or engineering solution. b. Trouble Reporting.Time Warner Cable shall provide Customer with a 24-hour,7-day trouble-reporting phone number and with an escalation list. c. Mean Time to Restore ("MTTR"). MFIR is Time Warner Cable's objective to restore Metro Ethernet Service and resume availability within the time periods set forth in this Section 2.3c.The time is measured from the earlier of Time Warner Cable's actual knowledge of the Outage or Time Warner Cable's receipt of notice from Customer of the Outage and provided that Customer has released all or part of the Metro Ethernet Service for testing if requested by Time Warner Cable until the latter of(i)restoration of the first fiber on a cable cut or(ii) equipment is repaired and Metro Ethernet Service is available. Time Warner Cable has an objective of repairing network equipment within an average of four(4)hours and the first fiber on a cable cut restored within an average of four(4) hours. 3.1 Pricing and Charges. Charges for Metro Ethernet Service include monthly recurring charges(MRC(s)")and non-recurring charges ("NRC(s)")as set forth in applicable Service Order and/or quote("Quote")referenced in such Service Order.MRCs and NRCs contained in Quotes but not included in a Service Order are valid only for thirty (30) calendar days unless Customer places a Service Order incorporating such Quote.MRCs and NRCs contained in a Service Order are firm for the Service Term reflected on the related Service Order. Notwithstanding the foregoing,if Customer requests additional Metro Ethernet Service or a change to an existing Service Order including but not limited to a Service Order change,supplement or tech assist which could incur additional NRCs,such NRCs are subject Time Wamer Cable Confidential Page 1 of 3 TWC MSA Schedule 1(2006-01-16) • • MSA Schedule 1: Metro Ethernet Service to change upon thirty(30)calendar days written or electronic notice.Upon expiration of the Service Term and until a new Service Order is placed, Customer charges for Time Warner Cable Services, as set forth in the Service Order shall continue to apply throughout any Extension Period. Notwithstanding the foregoing, promotional pricing is subject to change at the end of the Service Term, or anytime thereafter,upon thirty(30)calendar days prior written or electronic notice.At the end of a Service Term or Extension Period,Customer may place a new Service Order specifying a new Service Term, and such Service Order shall set forth the charges for the new Service Term. 3.2 Rate Elements. Metro Ethernet Service has two (2) principal elements, Ports and Virtual Circuits (VCs). Time Warner Cable combines both Port and VC(s) as a single charge per port-pair for Point-to-Point Metro Ethernet Service, and per individual port for Point-to-multipoint Metro Ethernet Service,based on the Committed Information Rate(CIR) of the Port(s). Pricing for Metro Ethernet Service,including any approved discounts for volume or term agreements,must be documented on each Customer issued Metro Ethernet Service Order and will apply after Customer receipt of Time Warner Cable's Firm Order Commitment(FOC). 4. Other Non-Recurring Charges. Other Non-Recurring Charges may be incurred for Metro Ethernet Service as set forth in the following table: Charge Description Non-Recurring Charge Change Of Installation Date $250.00 Change Of Service Order $250.00 Order Expedite $500.00 Network Configuration Change $250.00 • 5 Implementation Intervals.Time Warner Cable's standard service implementation interval objective is set forth in the table below. Time Warner Cable shall make reasonable efforts to provide Metro Ethernet Service within its standard service implementation interval. The start date of such interval begins on the acceptance date as provided to Customer in Time Warner Cable's order confirmation document.Failure of Time Warner Cable to deliver by such date shall not constitute a default under the Agreement and Time Warner Cable shall not be liable to pay to Customer any penalties or damages for Time Warner Cable's failure to meet such standard service implementation intervals. Service Order Type Standard Interval Upgrade to existing Service 10 business days New service to On-Network Customer site 20 business days New service to Near-Network Customer site requiring building right of entry and/or further network expansion 30-45 business days New service to Off-Network Customer site requiring construction ICB 6.1 Outage Credits. Outage shall mean an unscheduled, continuous and/or interrupted period of time during which Metro Ethernet Service fails to conform to the requirements set forth in this Schedule("Outage").An Outage shall begin upon the earlier of Time Warner Cable's actual knowledge of the Outage or Time Warner Cable's receipt of notice from the Customer of the Outage and provided that Customer has released all or part of the Metro Ethernet Service for testing if requested by Time Warner Cable.In the event of an Outage, Customer shall be entitled to a credit("Outage Credit")upon Time Warner Cable receipt of Customer's written request for such Outage Credit.Such written request must be received by Time Warner Cable within thirty(30)calendar days of the Outage and the Outage Credit shall be credited on Customer's next monthly invoice. If Time Warner Cable does not receive Customer's written notice within such thirty(30)calendar day period,Customer shall be deemed to waive its right to the Outage Credit.The amount of any applicable Outage Credit for Metro Ethernet Service shall be calculated based on each SLAs set forth in Section 2.2 above and shall be as follows: a. For port availability,the amount of Outage Credit shall be an amount equal to 1/30th of the MRC for the affected port for each hour during any calendar month that the affected port fails to conform to the SLA for availability. b. For latency,the amount of Outage Credit shall be an amount equal to 1/30th of the MRC for the affected port for each hour during any calendar month that the affected port fails to conform to the applicable SLA. c. For packet loss,amount of Outage Credit shall be an amount equal to 1/30th of the MRC for the affected port for each hour during any calendar month that the affected port fails to conform to the applicable SLA. d. In no event shall Time Warner Cable's total liability for all Outages exceed a total of one (1) month's MRC for the affected port during any calendar month. 6.3 Excessive Outage. Notwithstanding Time Warner Cable's obligation to provide Outage Credits, Customer shall have the right to immediately disconnect a Metro Ethernet Service without termination liability upon written notice to Time Warner Cable if(i)that Metro Ethernet Service has three(3)or more Outages with a duration of at least fifteen(15)minutes each within a thirty(30)day period or(ii)if an Outage continues for a period of eight(8)continuous hours,or twelve(12)cumulative hours,in any six(6)month period. 6.3 Exceptions.Customer shall not receive an Outage Credit if the Outage is:(i)caused by Customer or others authorized by Customer to use the Metro Ethernet Services under the Agreement;(ii)due to the failure of power,facilities,equipment,systems or connections not provided by Time Warner Cable; (iii) caused by the failure of Third Party Service to Time Warner Cable's network; (iv)the result of maintenance performed by Time Warner Cable in accordance with Sections 7.1 and 7.2 of this Schedule; or(v)due to a force majeure event as defined in the Agreement. Time Warner Cable Confidential Page 2 of 3 TWC MSA Schedule 1(2006-01-16) 0111 MSA Schedule 1: Metro Ethernet Service 6.4 Invoice Credit.All Outage Credits shall be credited to Customer's account within the next two(2)billing cycles after the Outage Credit is earned.In the event no additional invoices will be submitted to Customer,any applicable Outage Credit(s)shall be satisfied by Time Warner Cable sending payment for such amounts directly to Customer within thirty(30)days after the Outage Credit is earned. 7.1 Planned Network Maintenance Period ("PNMP(s)"). Time Warner Cable shall avoid performing PNMP between 0600 to 2200 local time, Monday through Friday. Time Warner Cable shall provide Customer with electronic mail, telephone, facsimile, or written notice of a PNMP(i)not less than three(3)business days prior to performing a PNMP that in Time Warner Cable's reasonable opinion will affect traffic on a Customer circuit,or has a substantial likelihood of affecting Customer's traffic for up to fifty(50)milliseconds,or (ii)not less than ten(10)business days prior to performing a PNMP that in Time Warner Cable's reasonable opinion,has a substantial likelihood of affecting Customers traffic for more than fifty(50)milliseconds.If the PNMP is canceled or delayed,Time Warner Cable shall promptly notify Customer and shall comply with the provisions of this Section to reschedule any delayed PNMP. If Customer is unable to release the Metro Ethernet Service for maintenance,Time Warner Cable will work with Customer to reschedule the PNMP. 7.2 Emergency Network Maintenance Period ("ENMP(s)"). It may be necessary for Time Warner Cable to issue notification of an ENMP.ENMPs allow Time Warner Cable to perform mandated maintenance with a shorter Customer notification interval than PNMPs. 8. Warranty. Subject to Section 12 of the Agreement Time Warner Cable warrants, that Metro Ethernet Service shall conform to SLA's set forth in Section 2.2 above. Time Warner Cable shall use commercially reasonable efforts under the circumstances to remedy any delays,interruptions,omissions,mistakes,accidents or errors in the Metro Ethernet Service and restore such Metro Ethernet Service to comply with the terms hereof. THE OUTAGE CREDIT AS SET FORTH IN SECTION 6.1 SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER IN THE EVENT OF ANY FAILURE,INTERRUPTION OR DEGRADATION OF METRO ETHERNET SERVICE INCLUDING AN OUTAGE AND/OR FOR BREACH OF THIS WARRANTY. CUSTOMER: C Of tOWTI By TIME WARNER CABLE: By: Printed Name: Printed N e: - Ga. Jackson 'CAUEK Sw Hut Title: _ Title: __ City Manager MVP BUSINESS SoLuT3DNS Dale: - /� / - Date of Signature: /4/(0-C • Time Warner Cable Confidential Page 3 of 3 TWC MSA Schedule 1(2006-01-16)