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Home My WebLink AboutAGENDA REPORT 2019 1002 REG CCSA ITEM 10DCITY OF MOORPARK,  CALIFORNIA City Council Meeting of October 2, 2019 ACTION Approved Staff Recommendation. BY B.Garza. D. Consider Agreement with Charter Communications Operating, LLC for Leasing Dark Fiber-Optic Cable. Staff Recommendation: Authorize the City Manager to sign the proposed Spectrum Enterprise Dark Fiber License Agreement between the City of Moorpark and Charter Communications Operating, LLC, subject to final language approval by the City Manager and City Attorney. (Staff: Atanas Beltchev) Item: 10.D. MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Atanas Beltchev, Information Systems Manager DATE: 10/02/2019 Regular Meeting SUBJECT: Consider Agreement with Charter Communications Operating, LLC for Leasing Dark Fiber-Optic Cable BACKGROUND On October 1, 2004, the City of Moorpark (City) entered into a fifteen-year Cable System Franchise Agreement (Franchise Agreement) with Century-TCI California, L.P., a limited partnership doing business as Adelphia Cable Communications (Adelphia) for constructing, reconstructing, operating and maintaining a Cable System within the streets and public ways in the City of Moorpark. Adelphia, as outlined in Section 4.2 of the Franchise Agreement, built and provided for the City’s use an Institutional Network (i-Net). The i-Net consists of dark fiber-optic cables, which are actively utilized by the City. The fifteen-year term of the Franchise Agreement expired on September 30, 2019. DISCUSSION On October 1, 2004, the City of Moorpark entered into a fifteen-year Franchise Agreement with Adelphia, which expired on September 30, 2019. As part of the agreement, Adelphia built and the City started using the i-Net, which is still being utilized by the City today. In 2005, Adelphia was acquired by Time Warner NY Cable LLC, doing business as Time Warner Cable (Time Warner) in the City of Moorpark. After the acquisition, the City Council adopted Resolution No. 2005-2410 and transferred the Franchise Agreement to Time Warner. On January 2, 2008, an application by Time Warner was approved by the California Public Utilities Commission (CPUC) and a state-wide franchise agreement was granted to the applicant. Since that time, Time Warner has been acquired by Charter Communications Operating, LLC and re-branded its operations under the name of Spectrum Enterprise (Spectrum). Item: 10.D. 142 Honorable City Council 10/02/2019, Regular Meeting Page 2 Because franchise agreements for cable providers are now governed by the CPUC and not local jurisdictions the City is precluded from extending the original Franchise Agreement from year 2004, which will bring i-Net to an end of life and the City’s use of the dark fiber provided by i-Net must cease. Today, the City’s needs for fast and reliable communications are higher than ever and the use of fiber-optic cables is the only viable solution for City’s growing technology infrastructure. In Moorpark, Spectrum has the largest (by cable length, bandwidth and speed) consumer network and, as part of the old i-Net, Spectrum’s fiber-optic cable infrastructure is already present in multiple City facilities. Over the past year, staff has met with Spectrum’s representatives to discuss options, and after months of talks between the two parties, staff was able to negotiate a new lease of dark fiber, which is offered only to strategic Spectrum clients, at a cost of $1,364.00/month for eight (8) strands of fiber for thirty-six (36) months. To continue the use of Spectrum’s dark fiber-optic cable infrastructure for the City’s needs and to receive the negotiated price, staff is requesting approval of the attached Spectrum Enterprise Dark Fiber License Agreement (Attachment 1) that has a three-year term. The City Attorney’s office has reviewed the draft agreement. Staff will continue to look at the long-term options for our City communication infrastructure, since any further opportunity to renew the lease after the three-year term is unknown. One possible option will be an installation of a City-owned fiber-optic cable infrastructure with preliminary cost estimate of $810,000.00. FISCAL IMPACT There are sufficient funds available in the City Council adopted budget for Fiscal Year 2019/20. Subsequent years’ service costs will be incorporated into future budgets. STAFF RECOMMENDATION Authorize the City Manager to sign the proposed Spectrum Enterprise Dark Fiber License Agreement between the City of Moorpark and Charter Communications Operating, LLC, subject to final language approval by the City Manager and City Attorney. Attachment 1: Spectrum Enterprise Dark Fiber License Agreement 143 SPECTRUM ENTERPRISE DARK FIBER LICENSE AGREEMENT The customer identified below (“Licensee”) hereby acknowledges and agrees to the Dark Fiber License Agreement attached hereto (the “License”) by and between the Licensee and Charter Communications Operating, LLC on behalf of those operating subsidiaries providing the services hereunder (“Spectrum”). Spectrum Sales Support Contact Information Spectrum Account Executive: Gil Dheming Cell: (818)304-2342 Email: gil.dheming@charter.com Licensee Information Licensee Name (Exact Legal Name): City of Moorpark Street Address: 799 Moorpark Ave Suite:City: Moorpark State: CA Zip Code: 93021 Licensee’s Main Tel. No.: 805-517-6200 Fax. No.: Licensee Contact Name: Atanas Beltchev Tel No: 805-517-6231 E-mail: Abeltchev@moorparkCA.gov Billing Address: 799 Moorpark Ave Suite: City: Moorpark State: CA Zip Code: 93021 Billing Contact Name: Accounts Payable Tel No: 805-517-6229 E-mail:n/a Agreement BY EXECUTING BELOW, LICENSEE ACKNOWLEDGES THAT: (1) LICENSEE ACCEPTS AND AGREES TO BE BOUND BY THE AGREEMENT, INCLUDING THE ARBITRATION SECTION THEREOF, WHICH PROVIDES THAT THE PARTIES DESIRE TO RESOLVE ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT THROUGH ARBITRATION; AND (2) BY AGREEING TO ARBITRATION, LICENSEE IS GIVING UP VARIOUS RIGHTS, INCLUDING THE RIGHT TO TRIAL BY JURY AND TO BRING CLAIMS AS CLASS ACTIONS. Authorized Signature for Licensee Charter Communications Operating, LLC By: Charter Communications, Inc., its Manager Dark Fiber Template v 180702 Page 1 of 27 © 2018 Charter Communications, all rights reserved. 144 DARK FIBER LICENSE RECITALS WHEREAS, Licensee and Spectrum wish to establish an agreement under which Licensee may obtain from Spectrum a license to use fibers along specific route(s) of Spectrum’s System for Licensee’s lawful business use, as specified in Exhibit A (as may be supplemented or amended from time to time upon mutual agreement by the Parties). The form of consideration shall be set forth in Exhibit A. With respect to all matters in which Spectrum is providing fibers or other associated rights to Licensee, Spectrum shall be referred to as (“Spectrum”) and the Licensee receiving those fibers shall be referred to as (“Licensee”). NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows: 1. DEFINITIONS As used in this Agreement, the following terms shall have the following meanings ascribed to them: (a) “Acceptance Date” has the meaning ascribed in Section 3.1(d). (b) “Affiliate” means, for purposes of Spectrum, any Person that directly or indirectly controls or is controlled by or is under common control with, or is managed by, the specified Person, whereas, "control" means (i) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or participating shares entitled to vote for the election of directors, and (ii) in the case of non-corporate entities, direct or indirect ownership of at least fifty percent (50%) of the equity interest with the power to participate in the management and policies of such non-corporate entity. (c) “Cable” means all Spectrum fiber optic cable now or hereafter containing the Licensed Fiber(s). (d) “Claims” means causes of action, losses, claims, liabilities, costs (including reasonable attorneys’ fees and related necessary legal costs), damages for injury to or death of Persons, impairment to the environment, and loss of or damage to property. (e) “Costs” means one hundred and fifteen percent (115%) of all direct internal and third party costs, fees, charges, and expenses incurred by Spectrum in performing the services or work and which it utilizes in billing third parties for reimbursable projects, including without limitation, the engineering, construction and/or installation of any portion of the System and in continuing, operating, repairing or maintaining any portion of the System. (f) “Delivery Date” means the date Licensed Fiber(s) are made available to Licensee based on each respective Fiber Attachment on the condition that the provided facilities are tested and meet all Specifications of Exhibit B, C and Exhibit D of this Agreement. (g) “Force Majeure Event” Notwithstanding anything to the contrary in the Service Agreement, neither Party shall be liable to the other for any delay, inconvenience, loss, liability or damage resulting from any failure or interruption of Services, directly or indirectly caused by circumstances beyond such Party’s control, including but not limited to denial of use of poles or other facilities of a utility company, labor disputes, acts of war or terrorism, criminal, illegal or unlawful acts, weather, fire, flood, natural causes, mechanical or power failures, fiber cuts, governmental acts or any order, law or ordinance in any way restricting the operation of the Services (each a “Force Majeure Event”). Changes in economic, business, or competitive conditions shall not be considered a Force Majeure Event. (h) “Governmental Authority” shall mean any Federal, State, Regional, County, City, Municipal, Local, territorial, or Tribal government, whether foreign or domestic or any department, agency, bureau, taxing authority from any of the foregoing including without limitation courts, public utilities, and sewer authorities. (i) “Imposition” shall mean all taxes, fees, levies, imposts, duties, charges or withholdings of any nature (including, without limitation, gross receipts taxes and franchises, license, and/or permit fees) together with any penalties, fines, assessments or interest thereon, imposed upon the Licensed Fiber(s) and/or the Dark Fiber Template v 180702 Page 2 of 27 © 2018 Charter Communications, all rights reserved. 145 transactions contemplated by this Agreement, in either case by any federal, state, or local government or other public taxing authority of competent jurisdiction. (j) “Licensed Fiber(s)” shall mean the optical fibers in the number and of the type specified in Exhibit A along the System Route and licensed to Licensee. Additional Licensed Fiber(s) may be added to this Agreement from time to time upon mutual agreement of the Parties by supplementing and amending Exhibit A in writing. (k) “Person” shall mean any individual, partnership, corporation, limited liability company, joint venture, trust, business trust, cooperative or association, and the heirs, executors, administrators, legal representatives, successors and assigns of such Person where the context so admits. (l) “Rights of Way” shall mean the land and other rights granted to Spectrum by a third party through or by way of the Underlying Rights. (m) “Specifications” shall mean the specifications set forth in Exhibit B attached hereto with respect to the Licensed Fiber(s). (n) “System” shall mean the fiber optic communication system along the System Route. (o) “System Route” shall mean the route of the Licensed Fiber(s) set forth in Exhibit A. (p) “Term” shall mean a time period commencing upon the applicable Acceptance Date and as specified in Exhibit A for which Licensee in granted a License to the respective Licensed Fiber(s). (q) “Underlying Rights” shall mean all deeds, leases, easements, rights of way, licenses, franchises, permits and other rights, titles or interests pertaining to the underlying real property and/or rights-of-way over and/or within which the Licensed Fiber(s) shall be located, as are necessary for the construction, installation, operation, maintenance or repair of the System, including all uses of the System by Licensee hereunder. Dark Fiber Template v 180702 Page 3 of 27 © 2018 Charter Communications, all rights reserved. 146 ARTICLE 2. GRANT OF LICENSE 2.1. Grant of License to Licensee. In exchange for the consideration referenced in Exhibit A, and subject to the conditions hereinafter set forth, Spectrum grants to Licensee a license to use the Licensed Fiber(s) for their respective Term (“License”); Licensee acknowledges that this grant of License expressly excludes the grant by Spectrum to Licensee of any rights or interest in the Underlying Rights. Spectrum agrees to obtain and cause to remain effective all Underlying Rights necessary to grant the License to the Licensed Fiber(s) through the Term. 2.2 Legal Title. Legal title to the System, including fiber and cable sheathing and any bridge attachments, conduits, brackets, insulators, fixtures, guy wires, anchors, splice boxes, fiber distribution centers and other hardware needed or used to fasten or support the Cable, shall remain with and be held by Spectrum. Neither anything contained in this Agreement, nor any use, however extended, of the Licensed Fiber(s), nor any placement of Licensee's facilities on or in the System shall create or vest (or be construed as creating or vesting) in Licensee any right, title or interest in or to any real or personal property owned by Spectrum other than the rights specified herein with regard to the Licensed Fiber(s). 2.3 No Liens/Encumbrances. Licensee shall not cause any encumbrances, liens, rights or claims of any third party to be imposed on the System that adversely affects or impairs directly or indirectly Spectrum’s exclusive ownership and use of the System. 2.4 Permits; Physical Plant and Required Rights. Spectrum shall obtain (and cause to remain effective throughout the Term) all Underlying Rights necessary to grant the License to the Licensed Fiber(s). Notwithstanding anything in this Agreement to the contrary, it is expressly understood that Licensee shall be solely responsible for compliance with all legal and regulatory requirements associated with its business, operation or use of the Licensed Fiber(s) including maintaining all such required franchises, permits, authorizations, licenses, approvals or other consents (other than the Underlying Rights), and Spectrum shall have no responsibility or liability whatsoever in connection therewith, provided, however, that except for any increases in pole attachment rates that may be predicated, based upon, or caused by Licensee’s use of the Licensed Fiber(s), which Spectrum shall be entitled to pass through to Licensee and Licensee shall pay to Spectrum within thirty (30) days of Licensee’s receipt of an invoice therefor, Spectrum shall remain responsible for obtaining and maintaining during the Term for Licensee, at Spectrum’s sole cost and expense, all Underlying Rights to freely use without additional permissions of any kind, the Licensed Fiber(s) to which Licensee is granted the License. Notwithstanding anything herein to the contrary in the event of the expiration or other termination of an Underlying Right, the parties will use commercially reasonable efforts to obtain an alternative solution and shall share the Costs of such solution as prescribed in the Agreement. Where Spectrum is unable to obtain alternative Underlying Rights that are necessary in order to grant, continue or maintain the License in accordance with the Agreement terms, the License with respect to any affected portion of the System shall automatically expire upon the expiration or termination of such Underlying Rights without any further duty or obligation on the part of Spectrum. ARTICLE 3. ACCEPTANCE and MAINTENANCE 3.1 Acceptance and Testing (a) Spectrum shall provide to Licensee all previously completed fiber testing reports to the extent such are applicable to the Licensed Fiber(s). (b) Licensee shall have the right, but not the obligation, at its sole expense, to conduct its own testing for purposes of acceptance as set forth in Exhibit C (“Fiber Acceptance Testing”). Licensee shall perform any such Fiber Acceptance Testing of the Licensed Fiber(s) upon same being made available to Licensee by Spectrum. Spectrum shall have the right, but not the obligation, to have a person or persons present to observe Licensee's Fiber Acceptance Testing. Within five (5) business days of the conclusion of Licensee's Fiber Acceptance Testing of the Licensed Fiber(s), Licensee shall provide Spectrum with a copy of the test results. (c) In the event the results of the tests of the Licensed Fiber(s) reveals a material failure of the Licensed Fibers to satisfy the requirements of the Agreement, Licensee shall notify Spectrum that the Licensed Fiber(s) are unacceptable within ten (10) days following delivery of the Licensed Fiber(s) and provide a copy of its Fiber Acceptance Testing reports (the copy of Licensee’s Fiber Acceptance Testing results indicating such failure to meet applicable Specifications, shall be deemed Licensee’s notice of unacceptability). Thereupon, Spectrum shall us commercially reasonable effort to take such action as shall be reasonably necessary to remedy such material failure within five (5) business days from receipt of Licensee’s notice of unacceptability. After taking such actions, Spectrum Licensee shall again have the right to conduct its own Fiber Acceptance Testing as set forth in Exhibit C. The cycle described above for testing, taking corrective action and retesting shall take place as many times as necessary. (d) Licensee shall be deemed to have accepted the Licensed Fiber(s) unless it notifies Spectrum within ten (10) days following delivery of the Licensed Fiber(s) that the fiber is unacceptable or notifies Spectrum within the ten (10) Dark Fiber Template v 180702 Page 4 of 27 © 2018 Charter Communications, all rights reserved. 147 day period that Licensee has accepted the Licensed Fiber(s) after conducting its own Fiber Acceptance Testing. the results of Licensee's Fiber Acceptance Testing are within the parameters of the Specifications in Exhibit C, Licensee shall, within ten (10) days following delivery of the Licensed Fibers and Spectrum’s previously completed testing results, provide Spectrum with a written notice accepting the Licensed Fiber(s). The date of this notice or the date of deemed acceptance of the Licensed Fiber(s), as the case may be, shall be the “Acceptance Date” for the Licensed Fiber(s). 3.2 Maintenance. (a) Spectrum shall maintain and repair the Licensed Fiber(s) pursuant to the specifications set forth in Exhibit D, and within a commercially reasonable time as determined in Spectrum’s sole discretion, to assure the continuing conformity of the Licensed Fiber(s) with their respective Specifications. Notwithstanding any provision in this Agreement to the contrary, the Costs of procurement, installation, splicing, splice testing and other Costs associated with the replacement or restoration of the Cable for Spectrum facilities in excess of $1,500 for any event or series of closely related events (i) shall be shared pro-rata among all users of the Cable according to the total number of fibers each user has/is using in the same route as the Cable which is to be restored or replaced, or if the Licensee is the sole user of the conduit, then (ii) shall be paid by the Licensee pro-rata, based on the number of fibers in the affected portion of the System that are Licensed Fibers; provided that such restoration or repair is not the result of the negligence or willful misconduct of one of the parties hereto, in which case the damage-causing party shall bear the entire cost thereof (proportionate to such party’s responsibility if both respective parties are at fault). Spectrum, at Licensee’s sole expense and at Spectrum's then-prevailing rates, shall perform maintenance and repair necessitated by Licensee's negligence or willful misconduct or upon Licensee's elective maintenance or repair requests. For cases where pro-rata cost of repair/replacement of the Licensed Fiber(s) exceeds $25,000 unless the same was caused by the negligence or willful misconduct of the Licensee, in which case Licensee shall reimburse Spectrum for the entire cost thereof (proportionate to such Licensee’s responsibility if other parties are at fault), Licensee may choose to not pay such expenses and consequently forfeit all rights to the Licensed Fiber(s) requiring replacement or restoration, and Spectrum shall have no obligations with respect to such affected Licensed Fiber(s). Licensee shall not be responsible for any maintenance or repair of any Spectrum equipment except as set forth above. (b) Spectrum shall respond to any interruption of service or failure of the Licensed Fiber(s) to operate in accordance with this Agreement in accordance with the procedures set forth in Exhibit D. (c) Work and associated costs of such work outside of that described herein, shall be agreed to by the Parties, documented in an Amendment to this Agreement, and signed by Licensee and Spectrum. (d) Spectrum shall be responsible for routine maintenance of Cable, Cable locates, and Costs thereof not specifically due to requirements of Licensee as set forth in Exhibit D. (e) Licensee bears sole responsibility for any and all maintenance of all electronic, optronic and other equipment, materials and facilities used by Licensee in connection with the use of a portion of the System or operation of the Licensed Fibers, none of which is included in the maintenance services to be provided under the Agreement. 3.3 Relocation. If, after the Acceptance Date with respect to any portion of the System, Spectrum is required (i) by any Governmental Authority under the power of eminent domain or otherwise, (ii) by Spectrum or a provider of any Underlying Right, (iii) by any other Person having the authority to require (any or all of the above, a “Relocating Authority”), or (iv) by the occurrence of any Force Majeure Event, to relocate the System within such portion of the System or any further portion thereof, Spectrum shall have the right to either proceed with such relocation, including, but not limited to, the right, in good faith, to reasonably determine the extent and timing of, and methods to be used for, such relocation, or to pay such amounts to the Relocating Authority as are necessary to avoid the need for such relocation. Licensee shall reimburse Spectrum for its proportionate share of the Costs (including Fiber Acceptance Testing and/or amounts paid to a Relocating Authority) related to any such relocation request (to the extent Spectrum has not been reimbursed by the Relocating Authority) allocated to Licensee pro rata based on the number of Licensed Fibers and the total fiber count in the affected portion of the System. Dark Fiber Template v 180702 Page 5 of 27 148 ARTICLE 4. DELIVERY, USE AND CONNECTION 4.1 Delivery of Fibers. Spectrum agrees to deliver to Licensee the Licensed Fiber(s) within a commercially reasonable amount of time as mutually agreeable between the parties. Spectrum shall deliver to Licensee as-builts (maps, diagrams, etc.) with respect to the Licensed Fiber(s) delivered hereunder no later than one hundred eighty (180) days following such delivery. 4.2 Access. Spectrum will provide Licensee with access to the Licensed Fiber(s) at such handholds and splice points with existing slack coils on the System Route (“Connecting Points”) as reasonably requested by Licensee, subject only to the requirements in the Underlying Rights and provided that such access points do not materially interfere with any Spectrum facilities. For Licensed Fiber(s) terminating on and/or traversing across Licensee’s (or its contractor’s or agent’s) property, Licensee will provide Spectrum with access to the Licensed Fiber(s) at any point along the fiber up to and including the splice point and/or demarcation. 4.3 Use of Facilities. Licensee may use the Licensed Fiber(s) for its business uses to provide any lawful communications services provided, however, that Licensee shall not resell, re-License, or permit a third party to assign, sell, License, sublicense, exchange, encumber, transfer or grant an indefeasible right of use of other similar right or interest or otherwise permit or convey the Licensed Fibers themselves. For purposes of clarification, Licensee may use the Licensed Fiber(s) in conjunction with its network to serve its customers a managed type service. Additionally, Licensee shall not use the Licensed Fiber(s) in any manner that is not in compliance with (i) any and all applicable government codes, ordinances, laws, rules, regulations and/or restrictions, and (ii) the Underlying Rights, as such may be amended from time to time. Licensee shall not use any product or service that fails to comply with any applicable standard industry safety rules or that would cause any Cable or related facility of Spectrum to violate any state or federal environmental laws. Licensee shall at all times (i) ensure that the types of electronics or technologies employed to utilize the Licensed Fiber(s) do not interfere with the quiet use and enjoyment of or create any risk of damage to all or any portion of the System used by Spectrum or any other user of the System, or a portion of any other similar system, and (ii) use commercially reasonable safety procedures with such use.. Licensee shall not use the Licensed Fibers, any portion of the System, Cable, System or any associated property (tangible and intangible property solely as needed for the use of the Licensee Fiber, “Associated Property”) in a way which interferes in any way with, creates any risk of damage to, or otherwise adversely affects the use of, the fibers, cable or conduit of any other Person using the System and/or any similar services of another entity. 4.4 Connection. (a) If Licensee desires to connect other fiber optic cables to the Licensed Fiber(s) or create connections with buildings or other structures along the System Route, Licensee will submit a request in writing and shall provide details of the request for Spectrum to review. After review, Spectrum may approve the request and Spectrum will cooperate with Licensee to the extent necessary to enable Licensee to acquire rights to connect to the Licensed Fiber(s) via available Rights of Way and Spectrum will place connecting facilities on the Rights of Way between the Licensed Fiber(s) and such adjoining properties, subject to (i) the ability to do so pursuant to the Underlying Rights and (ii) Licensee’s agreement to pay any incremental increase in Costs arising from or otherwise due to Licensee’s proposed use thereof. Such additional connections activity shall be at Licensee's sole cost and expense (including Costs incurred by Spectrum in providing oversight of any contractors excavating on the Rights of Way or near the Cable to make such connection). Each connection to the Licensed Fiber(s) requiring a Cable to be connected will be performed by Spectrum at Licensee’s sole expense. In order to schedule a connection of this type, Licensee shall contact Spectrum to undertake the work at least fourteen (14) days in advance of the date the connection is requested to be completed. Such work will be mutually agreed upon by the Parties or as otherwise agreed to in writing for specific projects. (b) If Licensee desires to construct fiber to connect to the Licensed Fiber(s) and Spectrum has approved such connection in writing and subject to (i) restrictions affecting the same as mandated by the Underlying Rights and Spectrum’s advance written approval thereof, not to be unreasonably withheld, Spectrum will allow Licensee or Licensee’s agent (contractor), provided they meet Spectrum’s reasonable contractor qualification standards to perform such construction. Licensee must allow a Spectrum agent to be present during such construction. Licensee will pay the Cost of the Spectrum agent’s oversight of the construction on the Rights of Way or near the Cable and the Spectrum agent shall have the absolute ability to direct the activities of the Licensee’s contractor, when performing construction activities on the Underlying Rights or in areas adjacent to the facilities of Spectrum. Any additional such work shall be undertaken by Spectrum at Licensee’s request and within a reasonable amount of time. Licensee shall reimburse Spectrum for all Costs incurred in connection with such work, plus fifteen (15) percent. Dark Fiber Template v 180702 Page 6 of 27 © 2018 Charter Communications, all rights reserved. 149 ARTICLE 5. CONSIDERATION 5.1 License Fee. The consideration to be paid by Licensee to Spectrum for the grant of the Licenses to the Licensed Fiber(s) is set forth in Exhibit A. Spectrum invoices for non-recurring, one-time charges (“OTCs”) for construction or installation charges after the delivery and acceptance of the Licensed Fibers or as specified in Exhibit A. All other fees, including, total monthly license fees as specified on Exhibit A, Costs and Impositions, owed by Licensee to Spectrum shall be paid within forty-five (45) days after the date appearing on the invoice. 5.2 Late Payments. A late payment shall be (i) any payment received after the period specified herein for such payment, and/or (ii) any payment of disputed amounts that is received more than forty-five (45) days after the date such payment is determined to have been due in a final resolution of such dispute. Late payments shall accrue interest at a rate equal to the lesser of one and one half (1.5) percent or the highest rate allowed by law. ARTICLE 6. WARRANTIES, RISK ALLOCATION, INDEMNIFICATION AND REPRESENTATIONS 6.1 Disclaimer of Warranties. Except as may be otherwise provided herein, Spectrum disclaims any and all warranties, express or implied, as to the use or condition of the Licensed Fiber(s) or any other matter hereunder, including without limitation warranties of merchantability, workmanship, quality or fitness for a particular purpose and Licensee agrees to look solely to the manufacturer of all materials and equipment subject to the grant of any license or other rights to Licensee hereunder for any recovery for Claims of Licensee relating to the quality or condition of such materials and equipment. Spectrum shall provide reasonable assistance to Licensee in good faith in the event a warranty claim arises with the manufacturer of the materials or equipment. 6.2 Warranty Acknowledgment. By executing this Agreement, Licensee acknowledges that, except as may be otherwise provided herein, Spectrum has made no warranty or representation with respect to the Licensed Fiber(s) and Licensee agrees to assume all risk of conducting Licensee’s activities using the Licensed Fiber(s) or associated services. 6.3 [Intentionally omitted.] 6.4 INDEMNIFICATION. Unless prohibited under applicable law, Licensee at its own expense, shall indemnify, defend, and hold harmless Spectrum, its affiliates, service providers, and suppliers, and their directors, employees, representatives, officers and agents (the “Spectrum Parties”) against any and all third party claims, liabilities, lawsuits, damages, losses, judgments, costs, fees and expenses incurred by Spectrum Parties, including reasonable attorney and other professional fees and court costs incurred by Spectrum Parties, to the full extent that such arise from or relate to any one or more of the following: (a) Licensee’s use or misuse of the Licensed Fibers, (b) Licensee’s failure to comply with any applicable law, order, rule, regulation or ordinance or this Dark Fiber Agreement, and (c) Personal injury or tangible property damage caused by Licensee’s or its employees’ or agents’ negligence or willful misconduct. Unless prohibited by law, Spectrum at its own expense, shall indemnify and defend, and hold harmless Licensee, its affiliates, officers, directors, agents, representatives and employees (the “Licensee Indemnified Parties”) against any and all third party claims, liabilities, lawsuits, damages, losses, judgments, costs, fees and expenses, including reasonable attorney and other professional fees and court costs incurred by Licensee Indemnified Parties, to the full extent that such arise from or relate to any one or more of the following: Dark Fiber Template v 180702 Page 7 of 27 © 2018 Charter Communications, all rights reserved. (a) Personal injury or tangible property damage directly caused by the negligence or willful misconduct of Spectrum, its employees or contractors, at the site(s) as a direct result from Spectrum’s installation, removal or maintenance at Licensee’s Service locations of the Spectrum Equipment, (b) Spectrum’s failure to comply with any applicable law, order, rule, regulation or ordinance relating to its performance obligations specified in the Service Agreement. Licensee Indemnified Parties shall have the right but not the obligation to participate in the defense of the claim. 6.5 Notice and Defense of Third-Party Actions. The Licensee shall have the right to assume control of the defense 150 of, settle, or otherwise dispose of such third-party action on such terms as the Licensee deems reasonably appropriate; provided, however, that: (a) Indemnified Parties shall have the right but not the obligation to participate in the defense of the claim; (b) The Licensee shall obtain the prior written consent of the Indemnified Party before entering into any settlement or compromise requiring the payment of money or admission or any acknowledgment of facts or any liability in respect thereof or the affirmative obligation of the Indemnified Party, which consent shall not be unreasonably withheld; (c) No Licensee shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a relicense from all liability in respect of such third-party action; and (d) Notwithstanding the foregoing provisions of Section 6.7, to the extent Spectrum is required under the terms and provisions of any Required Right to indemnify any provider of such right from and against any and all claims, suits, judgments, liabilities, losses and expenses arising out of service interruption, cessation, unreliability of or damage to the System, regardless of whether such claims, suits, judgments, liabilities, losses or expenses arise from the sole or partial negligence, willful misconduct or other action or inaction of Spectrum and/or provider of any of their employees, agents, contractors, subcontractors or other Persons using the property covered by such Required Right, Licensee hereby releases Spectrum and such providers from, and hereby waives, all claims, suits, judgments, liabilities, losses and expenses arising out of service interruption, cessation, unreliability of or damage to the System regardless of whether such claims, suits, judgments, liabilities, losses or expenses arise from the sole or partial negligence, willful misconduct or other action or inaction, of Spectrum or such providers or any of their employees, agents, contractors, subcontractors or other Persons using the property covered by such Required Right. 6.6 Cooperation. The Parties and their Affiliates shall cooperate with each other in the defense of any third-party action that is the subject of Article 6 and shall furnish each other all information that they have the right and power to furnish as may reasonably be necessary to defend such third-party action. 6.7 Representations and Warranties. In addition to any other representations and warranties contained in this Agreement, each Party hereto represents and warrants to the other that: (a) It has the full right and authority to enter into, execute, deliver and perform its obligations under this Agreement; (b) It has taken all requisite corporate or company action to approve the execution, delivery and performance of this Agreement; (c) This Agreement constitutes a legal, valid and binding obligation enforceable against such Party in accordance with its terms; and (d) Its execution of and performance under this Agreement shall not violate any applicable then-existing regulations, rules, statutes, or court orders of any local, state or federal government agency, court, or body. ARTICLE 7. DELAYS AND LIMITATION OF LIABILITY 7.1 Outage Liability; Restoration Delays. Spectrum is not responsible for monitoring the performance or operation of the Licensed Fibers, and Licensee must report detected failures of any portion of the System or of the Licensed Fibers to Spectrum’s operation center. Under no circumstances shall Spectrum be liable for any delay in restoring any Licensed Fiber(s) or any operational aspect of the System containing such Licensed Fiber(s) which has been subjected to an outage, interference or interruption. 7.2 LIMITATION OF LIABILITY. WITHOUT LIMITING ANY EXPRESS PROVISIONS OF THIS SERVICE Dark Fiber Template v 180702 Page 8 of 27 © 2018 Charter Communications, all rights reserved. 151 AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, ANY END USER, OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, RELIANCE, OR PUNITIVE DAMAGES (INCLUDING LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF LICENSED FIBERS, INCLUDING ANY SERVICE IMPLEMENTATION DELAYS OR FAILURES, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY, MISREPRESENTATION, OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY OF LICENSEE’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT. EACH PARTY’S MAXIMUM LIABILITY TO THE OTHER PARTY WITH REGARD TO EXHIBIT A SHALL NOT EXCEED THE AMOUNT, EXCLUDING ONE TIME COSTS, PAID OR PAYABLE BY LICENSEE TO SPECTRUM IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION SHALL NOT APPLY WITH RESPECT TO: (A) INJURY OR DEATH TO AN INDIVIDUAL ARISING FROM A PARTY’S NEGLIGENCE; (B) DAMAGE TO TANGIBLE PERSONAL OR REAL PROPERTY (TO THE EXTENT OF THE DAMAGE TO THAT PROPERTY) ARISING FROM A PARTY’S NEGLIGENCE OR (C) ANY INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SERVICE AGREEMENT. SPECTRUM SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES ARISING AS A RESULT OF THE UNAVAILABILITY OF THE SERVICE, INCLUDING THE INABILITY TO REACH 911 OR ANY OTHER EMERGENCY SERVICES, THE INABILITY TO CONTACT A SECURITY SYSTEM OR REMOTE MEDICAL OR OTHER MONITORING SERVICE SPECTRUM OR ANY FAILURE OR FAULT RELATING TO LICENSEE-PROVIDED EQUIPMENT, FACILITIES OR SERVICES. No claims for damages with respect to this Agreement may be made more than one (1) year after the date that the event giving rise to such claim is known or reasonably should have been known to the person or entity making such claim. ARTICLE 8. CONFIDENTIALITY 8.1 Confidential Information. “Confidential Information” shall mean any and all non-public information provided by one Party to this Agreement to the other Party for use in connection with the investigation, negotiation or performance of this Agreement which has been designated as CONFIDENTIAL or PROPRIETARY or PRIVATE. “Confidential Information” excludes any information that (i) the subject Party notifies the recipient in writing is not confidential, (ii) is or becomes available to the recipient on a non-confidential basis from a source other than the subject Party, any Person acting on behalf of the subject Party, or any Person who has confidentiality obligations (whether to the subject Party or otherwise) provided that such disclosure was not itself a breach of a confidentiality obligation running to the subject Party, (iii) is or becomes generally available to the public other than as a result of a disclosure by the recipient or any Person to whom such recipient disclosed the information, or (iv) is required to be disclosed by law, subject to the provisions of Section 8.5 hereof. Confidential Information may take the form of documentation, drawings, specifications, software, technical or engineering data, business information, the terms and conditions of this Agreement, and results of operations, financial information, financial forecasts and projections, capital projects, research and development, design plans, management plans, business plans, marketing plans, and feasibility plans, markets, business, products, services, contracts, customers, suppliers, trade secrets, operating procedures, material and labor costs, sources and requirements, and technological means, methods and processes, as well as every study, report, analysis, notation, summary, synopsis, compilation and other document (collectively, “Work Product”) containing, analyzing or otherwise reflecting any Confidential Information described above, and may be communicated orally, in writing, by electronic or magnetic media, by visual observation, or by other means. 8.2 Confidentiality. Except as otherwise provided in Section 8.3, neither Party will, without the prior written consent of the Party providing such Confidential Information, (i) use any portion of such Confidential Information for any purpose other than performance pursuant to this Agreement, or (ii) disclose any portion of such Confidential Information to any persons or entities other than the Affiliates of such Party and to the officers, employees and contractors of such Party who reasonably need to have access to such Confidential Information for purposes of performance under this Agreement and have agreed to comply with confidentiality terms no less stringent that those set forth in this Agreement in order to preserve the disclosing party’s expectation of confidentiality hereunder. The receiving Party agrees to guard Confidential Information utilizing the same degree of care utilized by such recipient Party in protecting its own Confidential Information, but in any event not less than a reasonable degree of care. The obligations of a recipient Party with respect to Confidential Information shall remain in effect during and for three (3) years after the expiration or termination of all Licensed Fibers(s) under this Agreement. 8.3 Permitte Ud se. Confidential Information provided by Provider may be used by Recipient in connection with Recipient's use of the Licensed Fiber(s). If the receiving Party is compelled, pursuant to a lawful requirement or request from a court or governmental agency acting within its jurisdiction, to disclose Confidential Information, the receiving Party shall, if possible, give written notice, to the extent not otherwise prohibited by law, sufficient to permit the disclosing Party the opportunity to seek suitable protective arrangements before the Confidential Information is disclosed, and the receiving Party shall cooperate fully in all respects with the disclosing Party's efforts to obtain such protective arrangements; provided, however, that if the receiving Party would otherwise be required to disclose Confidential Information under any securities law, the receiving Party shall use reasonable efforts to take steps available under such law (such as by providing a summary or synopsis) to avoid disclosure of such Confidential Information. Dark Fiber Template v 180702 Page 9 of 27 © 2018 Charter Communications, all rights reserved. 152 8.4 Return or Destruction. Confidential Information shall remain the property of the disclosing Party and shall, upon written request, including any copies thereof, be promptly returned to the disclosing Party or, in the case of the recipient's Work Product, be promptly destroyed at the recipient's option, such destruction to be certified in writing to the disclosing Party. 8.5 Required Disclosures. The provisions of Article 8 shall not apply to reasonably necessary disclosures in or in connection with filings under any securities laws, regulatory filings or proceedings, financial disclosures which in the good faith judgment of the disclosing Party are required by law, disclosures required by applicable law, including the California Public Records Act, disclosures required by court or tribunal or competent jurisdiction, or disclosures that may be reasonably necessary in connection with the performance or enforcement of this Agreement or any of the obligations hereof; provided, however, that if the receiving Party would otherwise be required to refer to or describe any aspect of this Agreement in any of the preceding circumstances, the receiving Party shall use its reasonable efforts to take steps as are available under such circumstances (such as by providing a summary or synopsis) to avoid disclosure of the financial terms and conditions of this Agreement. Notwithstanding any provisions of this Agreement to the contrary, either Party may disclose the terms and conditions of this Agreement in the course of a due diligence review performed in connection with prospective debt financing or equity investment by, or a sale to, a third Party, so long as the Persons conducting such due diligence review have agreed to maintain the confidentiality of such disclosure and not to use such disclosure for any other purpose. ARTICLE 9. PUBLICITY AND ADVERTISING Neither Party hereto shall use any advertising, sales promotions, or other publicity materials that use the other Party's logo, trademarks, or service marks, without the prior written consent of the other Party. Each Party shall have the right to review and approve any publicity materials, press releases or other public statements (other than filings required under the securities laws) by the other Party that discloses its identity. ARTICLE 10. FORCE MAJEURE Notwithstanding any other provision of this Agreement, the performance of the obligations set forth in this Agreement, other than obligations to pay money (except as provided below), shall be suspended or excused in the event and only to the extent that such performance is prevented by an event of Force Majeure or its adverse effects. If the performance of a Party's obligations under this Agreement is suspended or excused by an event of Force Majeure or its adverse effects, such Party shall use commercially reasonable diligence to cause such event or effects to cease or be reduced. The Party whose obligations are suspended or excused as described above shall, as soon as practicable, give written notice to the other Party specifying the nature and anticipated duration of the Force Majeure event and outlining its recover plan, if any. To the extent the Licensed Fiber(s) are unavailable for use due to a Force Majeure event and/or Spectrum’s obligations are suspended in accordance herewith (excluding an event in which Licensee’s actions or inactions gave rise to such suspension), then Licensee’s obligation to pay for the Licensed Fiber(s) shall be suspended, on a pro-rata basis, during such time the Licensed Fiber(s) are unavailable for use or Spectrum’s obligations are also suspended. Neither party may terminate either the affected Exhibit or the Agreement due to a Force Majeure Event. Dark Fiber Template v 180702 Page 10 of 27 © 2018 Charter Communications, all rights reserved. 153 ARTICLE 11. ARBITRATION This Agreement requires the use of arbitration to resolve disputes and otherwise limits the remedies available to Licensee in the event of a dispute. Subject to the “Exclusions” paragraph below, Spectrum and Licensee agree to arbitrate disputes and claims arising out of or relating to this Agreement, the Licensed Fibers, the Cable, the System, or marketing of the Licensed Fibers. Notwithstanding the foregoing, either Party may bring an individual action on any matter or subject in small claims court. The arbitrator of any dispute or claim brought under or in connection with this Agreement shall not have the power to award injunctive relief, which may only be sought in an appropriate court of law. No claim subject to arbitration under this Agreement may be combined with a claim subject to resolution before a court of law. THIS AGREEMENT MEMORIALIZES A TRANSACTION IN INTERSTATE COMMERCE. THE FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THESE ARBITRATION PROVISIONS. (a) A Party who intends to seek arbitration must first send to the other a written notice of intent to arbitrate, entitled “Notice of Intent to Arbitrate” (“Notice”). The Notice to Spectrum should be addressed to: VP and Associate General Counsel, Litigation, Charter Communications, 12405 Powerscourt Drive, St. Louis, MO 63131 (“Arbitration Notice Address”). The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If the Parties do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, Licensee or Spectrum may commence an arbitration proceeding, in which all issues are for the arbitrator to decide (including the scope of the arbitration clause), but the arbitrator shall be bound by the terms of this Master Dark Fiber Agreement. The arbitration shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and the arbitration shall be administered by the AAA. The AAA Rules and fee information are available at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Arbitration Notice Address. (b) EACH PARTY SHALL BEAR THE COST OF ANY ARBITRATION FILING FEES AND ARBITRATOR’S FEES THAT SUCH PARTY INCURS INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES OR EXPERT WITNESS COSTS UNLESS OTHERWISE REQUIRED UNDER APPLICABLE LAW. If the arbitrator’s award exceeds $75,000, either Party may appeal such award to a three-arbitrator panel administered by the AAA and selected according to the AAA Rules, by filing a written notice of appeal within thirty (30) days after the date of entry of the arbitration award. The appealing Party must provide the other Party with a copy of such appeal concurrently with its submission of the appeals notice to AAA. The three-arbitrator panel must issue its decision within one hundred twenty (120) days of the date of the appealing Party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which may exist under the Federal Arbitration Act. The Parties may agree that arbitration will be conducted solely on the basis of the documents submitted to the arbitrator, via telephonic hearing, or by an in-person hearing as established by AAA rules. Unless Spectrum and Licensee agree otherwise in writing, all hearings conducted as part of the arbitration shall take place in Los Angeles County, California. (c) LICENSEE AGREES THAT, BY ENTERING INTO THIS AGREEMENT, LICENSEE AND SPECTRUM ARE WAIVING THE RIGHT TO A TRIAL BY JUDGE OR JURY. LICENSEE AND SPECTRUM AGREE THAT CLAIMS MAY ONLY BE BROUGHT IN LICENSEE’S INDIVIDUAL CAPACITY AND NOT ON BEHALF OF, OR AS PART OF, A CLASS ACTION OR REPRESENTATIVE PROCEEDING. Furthermore, unless both Licensee and Spectrum agree otherwise in writing, the arbitrator may not consolidate proceedings or more than one person’s claims and may not otherwise preside over any form of representative or class proceeding. If this specific paragraph is found to be unenforceable, then the entirety of these arbitration provisions shall be null and void and rendered of no further effect with respect to the specific claim at issue. (d) Severability. If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE EVENT SOME OR ALL OF THESE ARBITRATION PROVISIONS IS DETERMINED TO BE UNENFORCEABLE FOR ANY REASON, OR IF A CLAIM IS BROUGHT THAT IS FOUND BY A COURT TO BE EXCLUDED FROM THE SCOPE OF THESE ARBITRATION PROVISIONS, BOTH PARTIES AGREE TO WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY. For purposes of the foregoing sentence only, in the event such waiver is found to be unenforceable, it shall be severed from this Agreement, rendered null and void and of no further effect without affecting the rest of the arbitration provisions set forth herein. (e) EXCLUSIONS. LICENSEE AND SPECTRUM AGREE THAT THE FOLLOWING CLAIMS OR DISPUTES SHALL NOT BE SUBJECT TO ARBITRATION: i ANY INDIVIDUAL ACTION BROUGHT BY LICENSEE OR BY SPECTRUM ON ANY MATTER OR SUBJECT THAT IS WITHIN THE JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS. Dark Fiber Template v 180702 Page 11 of 27 © 2018 Charter Communications, all rights reserved. 154 ii. ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS. iii. ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF LICENSED FIBERS. ARTICLE 12. TAXES 12.1 Payment of Impositions. To the extent that Licensee holds a license to the Licensed Fiber(s) hereunder, Licensee shall reimburse Spectrum for its proportionate share of any and all Impositions imposed upon or with respect to the System Route by third parties during such periods Licensee has use of the Licensed Fiber(s). Licensee's proportionate share of such Imposition shall be determined based on the relative number of Licensed Fiber(s) in the affected portion of the System Route compared to the total number of fibers in the affected portion of the System Route during the relevant period of use by Licensee. Spectrum shall provide Licensee with reasonable supporting documentation for Impositions for which Spectrum seeks reimbursement. 12.2 Contest of Impositions. Notwithstanding any provision herein to the contrary, Spectrum shall have the right to contest any Imposition to the full extent that such contest does not materially and adversely affect Licensee's ability to utilize any License or right granted hereunder and the associated Licensed Fiber(s). The out-of-pocket costs and expenses (including reasonable attorney’s fees) incurred by Spectrum in any such contest shall be borne by Spectrum. Further, where Spectrum does not contest an Imposition, Licensee shall have the right, after notice to Spectrum, to contest such Imposition as long as such contest does not materially and adversely affect the title, property or rights to the System, the Licensed Fiber(s) and/or otherwise the business interests of Spectrum. The out-of-pocket costs and expenses (including reasonable attorney’s fees) incurred by Licensee and any refund or credit Imposition in any such contest shall not be shared by Spectrum. 12. 3 Receipts Impositions. Following the Acceptance Date, Spectrum and Licensee, respectively, shall be separately responsible for any and all Impositions (i) expressly or implicitly imposed upon, based upon, or otherwise measured by the gross receipts, gross income, net receipts or net income received by or accrued to such Party due to its respective interest or use of the System Route and/or any facility to which rights are granted hereunder, or (ii) which have been separately assessed or imposed upon the respective interest of use by such third party on or with respect to the System Route and/or any Provided Facility. ARTICLE 13. TERMINATION AND DEFAULT 13.1 Termination. This Agreement shall terminate with respect to any Licensed Fiber(s) at the end of the Term of the respective Licensed Fiber(s). Upon such termination, the applicable License to the Licensed Fiber(s) shall automatically renew for successive one-month terms, unless either Spectrum or Licensee elects to not renew the License by notice provided to the other at least thirty (30) days in advance of the expiration of the then-current Term. 13.2 Default. A Party shall be in default under this Agreement upon the occurrence of an event in which such Party has failed to comply with any of its obligations as set forth in this Agreement (each an Event of Default; see Section 13.2 (b) below). (a) (a) Upon the occurrence of an Event of Default, other than an Event of Default based upon non-payment of any undisputed amounts owed under this Agreement, the defaulting Party shall have thirty (30) days after receipt of a notice of the Event of Default to cure the Event of Default (unless the Event of Default is waived in writing by the non-defaulting party within the thirty (30) day period). However, in such cases where an Event of Default cannot reasonably be cured within such thirty (30) day period, if the defaulting Party shall proceed promptly to cure the same and prosecute such curing with due diligence, the time for curing such Event of Default (except for Events of Default regarding making payments hereunder and Insolvency Defaults, as defined below) shall be extended for such period of time as may be reasonably necessary to complete such curing. When a party fails to pay any undisputed amounts owed hereunder by their due date, an Event of Default shall occur if the party owing such amount fails to cure same within ten (10) days after receipt of written notice thereof. (b) Events of Default shall include, but not be limited to, the making by a Party of a general assignment for the benefit of its creditors, the filing of a voluntary petition in bankruptcy or the filing of a petition in bankruptcy or other insolvency protection against a Party which is not dismissed within ninety (90) days thereafter, or the filing by a Party of any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution, or similar relief (collectively, an “Insolvency Default”). Dark Fiber Template v 180702 Page 12 of 27 © 2018 Charter Communications, all rights reserved. 155 (c) Any Event of Default by a Party may be waived under the terms of this Agreement at the non-defaulting Party’s sole option. Upon the failure by a defaulting Party to timely cure any such Event of Default after written notice thereof, the non-defaulting Party may (i) terminate this Agreement with respect to any affected Licensed Fiber, and (ii) pursue any legal remedies it may have under applicable law or principles of equity relating to such Event of Default. ARTICLE 14. GENERAL PROVISIONS 14.1 Amendments. This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by both Parties. 14.2 No Assignment or Transfer. Licensee may not assign or transfer (directly or indirectly by any means, including by operation of law or otherwise) this Master Dark Fiber Agreement and the associated Exhibit A or their rights or obligations hereunder to any other entity without first obtaining consent from Spectrum, and any assignment or transfer in violation of this Section shall be null and void. Spectrum may assign its rights and obligations under this Master Dark Fiber Agreement, in whole or in part, and any Exhibit A to affiliates controlling, controlled by or under common control with Spectrum, or to its successor-in-interest if Spectrum sells some or all of the underlying communications system(s) without the prior approval of or notice to Licensee. Licensee understands and agrees that, regardless of any such assignment, the rights and obligations of Spectrum in this Agreement may accrue to, or be fulfilled by, any affiliate, as well as by Spectrum or its subcontractors. 14.3 Limitation of Benefits. It is the explicit intention of the Parties hereto that no Person other than the Parties hereto is or shall be entitled to bring any action to enforce any provision of this Agreement against any Party hereto, and that covenants, undertakings, and agreements set forth in this Agreement shall be enforceable only by the Parties hereto or their respective successors or permitted assigns. 14.4 Notices. Unless otherwise provided in this Agreement, all notices, demands, requests, approvals or other communications which may be or are required to be given, served or sent pursuant to this Agreement shall be in writing and shall be mailed by registered or certified mail, return receipt requested, postage prepaid, or delivered by nationally recognized overnight courier addressed as follows: If to Licensee: with a copy to: If to Spectrum: with copy to: Charter Communications Attn: Commercial Contracts Management - Legal 12405 Powerscourt Drive St. Louis, MO 63131 Each Party may designate by notice in writing a new address to which any notice, demand, request, report, approval or communication may thereafter be given, served or sent. Each notice, demand, request, report, approval or communication which shall be mailed or delivered in the manner described above, shall be deemed sufficiently given, served, sent or received for all purposes at such time as it is delivered to the addressee (with the return receipt or the delivery receipt being deemed conclusive evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation. 14.5 Severability. If any part of any provision of this Agreement or any other agreement, document or writing given pursuant to or in connection with this Agreement shall be held to be invalid or unenforceable under applicable law, said part shall be ineffective to the extent of such invalidity or enforceability only, without in any way affecting the remaining parts of said provision or the remaining provisions of said agreement; provided, however, that if any such ineffectiveness or unenforceability of any provision of this Agreement, in the good faith judgment of either Party, renders the benefits to such Party of this Agreement as a whole uneconomical in light of the obligations of such Party under this Agreement as a whole, then Spectrum and Licensee shall negotiate in good faith in an effort to restore insofar as possible the economic benefits of the transaction to the Parties. Dark Fiber Template v 180702 Page 13 of 27 © 2018 Charter Communications, all rights reserved. 156 14.6 Independent Contractors. In all matters pertaining to this Agreement, the relationship of Spectrum and Licensee shall be that of independent contractors, and neither Spectrum nor Licensee shall make any representations or warranties that their relationship is other than that of independent contractors. This Agreement is not intended to create nor shall it be construed to create any partnership, joint venture, employment or agency relationship between Spectrum and Licensee; and no Party hereto shall be liable for the payment or performance of any debts, obligations, or liabilities of the other Party, unless expressly assumed in writing herein or otherwise. Each Party retains full control over the employment, direction, compensation and discharges of its employees, and will be solely responsible for all compensation of such employees, including social security, tax withholding and worker's compensation responsibilities. 14.7 Labor Relations. Each Party hereto shall be responsible for labor relations with its own employees. Each Party agrees to notify the other immediately whenever it has knowledge that a labor dispute concerning its employees or its Affiliates' employees is delaying or threatens to delay timely performance of its obligations under this Agreement. 14.8 Exercise of Rights. No failure or delay on the part of either Party hereto in exercising any right, power or privilege hereunder and no course of dealing between the Parties shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. 14.9 Additional Actions and Documents. Each of the Parties hereto hereby agrees to take or cause to be taken such further actions, to execute, acknowledge, deliver and file or cause to be executed, acknowledged, delivered and filed such further documents and instruments, and to use its commercially reasonable efforts to obtain such consents, as may be necessary or as may be reasonably requested in order to fully effectuate the purposes, terms and conditions of this Agreement, whether at or after the execution of this Agreement. 14.10 Survival. The obligations of the Parties under Sections 6.5-6.7 (Indemnification), Article 7 (Delays and Limitation of Liability), Article 8 (Confidentiality) (for a period of three (3) years), Article 9 (Publicity and Advertising), Article 11 (Dispute Resolution), Article 12 (Taxes), and Article 14.5 (Miscellaneous). 14.11 Headings. Article headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof. 14.12 Incorporation of Exhibits. The Exhibits referenced in and attached to this Agreement shall be deemed an integral part hereof to the same extent as if written at length herein. 14.13 Governing Law; Venue. This Agreement and each of its provisions shall be governed by and construed and interpreted according to the substantive laws of the State of California without regard to its conflicts of law or choice of law provisions. Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the United States District Court for the Central District of California or, if such court would not have jurisdiction over the matter, then only in a State court sitting in the Los Angeles County. Each Party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum. Each Party waives any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of this Agreement in the Federal or state courts sitting in the Los Angeles County, and agrees not to plead or claim in such courts that any such action has been brought in an inconvenient forum. 14.14 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original but all of which taken together shall constitute one and the same instrument. 14.15 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the transaction contemplated herein, and supersedes all prior oral or written agreements, commitments or understandings with respect to the matters provided for herein. 14.16 Performance. Except as specifically set forth herein, for the purpose of this Agreement, the normal standards of performance within the communications industry in the relevant market shall be the measure of whether a Party’s performance is reasonable and timely. 14.17 No Third Party Beneficiaries. The Parties agree that the terms of this Agreement and the Parties’ respective performance of obligations hereunder are not intended to benefit any person or entity not a party to this Agreement, that the consideration provided by each under this Agreement only runs to the respective Parties hereto, and that no person or entity not a Party to this Agreement shall have any rights hereunder nor the right to require the performance hereunder by either of the respective Parties hereto. Dark Fiber Template v 180702 Page 14 of 27 © 2018 Charter Communications, all rights reserved. 157 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the latter of the signatures below. Spectrum Licensee Charter Communications Operating, LLC By: City of Moorpark By: Charter Communications, Inc., its Manager Name: ____________________________________________ Name: Title: Vice President Title: _ Date:Date: Dark Fiber Template v 180702 Page 15 of 27 © 2018 Charter Communications, all rights reserved. 158 EXHIBIT A. LICENSED FIBERS This Exhibit A represents those Licensed Fibers which Spectrum has granted a license for use to Licensee under the terms of the Agreement and the monthly fees to be paid by Licensee to Spectrum in consideration of such license. System Route Number/ Type of Fibers System Route Length (miles) Delivery Date Initial License Term License Term Renewal Periods (as applicable) See Attachment 1 – MAP 8 10.7 6/17/2019 36 Month to Month Consideration Paid for Fiber: Total Monthly License Fee: $1,364.00 per month (aggregate total for 8 strands) 2 Strands Between each of the 4 locations and City Hall at 799 Moorpark Ave Non-Appropriation of Funds. Notwithstanding anything to the contrary, if the funds Licensee requests for Licensed Fiber under Exhibit A for a fiscal year are not appropriated (a ‘Non-Appropriation’), Licensee shall have the right to terminate, without penalty, such Licensed Fiber within the System Route set forth in Exhibit A, provided that Licensee shall (a) provide Spectrum with at least thirty (30) days written notice prior to the start of such fiscal year setting forth how such Non-Appropriation did not result from the act or failure by Licensee; (b) pay Spectrum all amounts due and owing at the time of such Non-Appropriation for the Licensed Fibers provided by Spectrum pursuant to the Dark Fiber License or applicable terms; and (c) pay to Spectrum, upon receipt of invoice, all construction expenses and other non-recurring charges associated with the Licensed Fiber, and any costs and expenses incurred by Spectrum to deal with the Non-Appropriation. Except as specifically modified herein, all other terms and conditions of the agreement and/or applicable terms shall remain unamended and in full force and effect. City of Moorpark Charter Communications Operating, LLC By: Charter Communications, Inc., its Manager By: By: Name:Name: Title:Title: Date:Date: Dark Fiber Template v 180702 Page 16 of 27 © 2018 Charter Communications, all rights reserved. 159 Attachment 1 to Exhibit A Dark Fiber Template v 180702 Page 17 of 27 © 2018 Charter Communications, all rights reserved. 160 Attenuation vs. Wavelength Range (nm) Ref. (nm) Max Increase (dB/km) 1285 - 1330 1310 0.05 1525 – 1575 1550 0.05 ( = Operating Wavelength) 0 4SO 3 Dispersion = D ( ): 4 ps/(nm * km), for 1200 nm 1600 EXHIBIT B. CONSTRUCTION & FIBER SPECIFICATIONS A. CONSTRUCTION SPECIFICATIONS [RESERVED] B. FIBER SPECIFICATIONS OPTICAL SPECIFICATIONS POINT DISCONTINUITY Attenuation Uncabled Fiber Attenuation Cells Wavelength (nm) Attenuation Cells (dB/km) Premium Standard 1310 <0.35 <0.40 1550 <0.25 0.30 No point discontinuity greater than 0.10 dB at either 1310 nm or 1550 nm. ATTENUATION AT THE WATER PEAK Attenuation With Bending Mandrel Diameter (mm) Number of Turns Wavelength (nm) Induced Attenuation (dB) 32 1 1550 < 0.50 75 100 1310 < 0.05 75 100 1550 < 0.10 he a nuation at 13 + n does The attenuation in a given ot wavelength range does not exceedxce d 2.1 dB/km the attenuation of the reference wavelength by more than the value The induced attenuation due to fiber wrapped around a mandrel of a specified diameter. Cable Cutoff Wavelength ( ccf)• Mode-Field Diameter ccf < 1260 nm 9.30 +/- 0.50 μm at 1310 nm 10.50 +/- 1.00 μm at 1550 nm Dispersion Zero Dispersion Wavelength (λο): 1301.5 nm λο 1321.5 nm Zero Dispersion Slope (Sο): 0.092 ps/(nm2 • km) Fiber Polarization Mode Dispersion Coefficient (PMD): 0.5 ps/ km Dispersion Calculation Dark Fiber Template v 180702 Page 18 of 27 © 2018 Charter Communications, all rights reserved. 161 Operating Temperature Range - 60o C to +85o C ENVIRONMENTAL SPECIFICATION Environmental Test Condition Induced Attenuation (dB/km) 1310 nm 1550 nm Temperature Dependence -60o C to +85o C* ~0.05 ~0.05 Temperature-Humidity Cycling 10o C to +85oC*, up to 98% RH ~0.05 ~0.05 Water Immersion, 23oC ~0.05 ~0.05 Heat Aging, 85oC ~0.05 ~0.05 *reference temperature = +23oC DIMENSIONAL SPECIFICATIONS Standard Length (km/reel): 2.2 – 25.2 *longer spliced lengths available at a premium. Glass Geometry Coating Geometry Fiber Curl: > 4.0 m radius of curvature Coating Diameter: 245 ± 10 µm Cladding Diameter: 125.0 ± 1.0 µm Coating –Cladding Concentricity < 12 µm Core-Clad Concentricity: < 0.6 µm Cladding Non-Circularity: < 1.0% Defined as: [ Min. Cladding Diameter ] x 100 Max. Cladding Diameter MECHANICAL SPECIFICATIONS Proof Test: The entire length of fiber is subjected to a tensile proof stress > 100 kpsi (0.7 GN/m2)*. Dark Fiber Template v 180702 Page 19 of 27 © 2018 Charter Communications, all rights reserved. 162 EXHIBIT C. FIBER CABLE SPLICING, TESTING AND ACCEPTANCE STANDARDS 1. The Party testing fibers hereunder (“Testing Party”) will perform all tests on Licensed Fiber(s) as laid out in Paragraphs 2, 3, and 4 and as applicable to the respective party. The tests should at a minimum follow the requirements and meet the criteria as laid out in Paragraphs 5 and 6. The Testing Party will use the test equipment and follow the testing standards as laid out in Paragraph 7. The Testing Party will confirm operations according to the standards as laid out in Paragraph 8. 2. The Testing Party will take and record power level readings on all Licensed Fiber(s) at both wavelengths in both directions. The Testing Party will then begin bi-directional OTDR testing of all Licensed Fiber(s). The Testing Party will produce for its use and provide copies to the Non-Testing Party of the OTDR traces on diskette recorded according to the standards in Paragraph 8. 3. During the initial construction, it is only possible to measure the fiber from one direction. Because of this, splices will be qualified by the Testing Party during initial construction by being measured with an OTDR from only one direction. (a) OTDR measurements of the splice losses will be made and recorded. These measurements MUST BE MADE AFTER THE SPLICE HANDHOLE OR MANHOLE IS CLOSED in order to check for macro-bending problems. (b) b. When notified by the Party providing fibers hereunder that testing may begin, the pigtail test may be performed for that site. (c) c. As splice points are completed, OTDR measurements of the splice losses will be made and recorded by the Testing Party. These measurements must be made after the splice handhole or manhole is closed in order to check for macro-bending problems. The Testing Party will provide copies of these measurements on disk to the Non- Testing Party upon completion of measurements. 4. Continuity tests will be done to verify that no fibers have been “frogged” or crossed in any of the splice points. Loss measurements will be recorded using a laser source and a power meter. OTDR traces will be taken and splice loss measurements will be recorded. The Testing Party will also store OTDR traces on diskette and provide copies to the Non-Testing Party. (a) Once the fiber color and buffer tube color have been recorded, a laser light source will be attached and a power meter reading will be taken at the far end. Then power level readings should be taken in the opposite direction. The power measurements should be made at 1550nm. Copies of all measurement documentation will be provided to the Non-Testing Party. (b) b. The OTDR traces will be taken at 1550 nm. Loss measurements for each splice should be measured and recorded in both directions. These loss values should then be averaged. The traces for all fibers should be recorded on diskettes and provided to the Non-Testing Party. Copies of all measurement documentation will be provided to the Non-Testing Party. 5. The loss value of the pigtail connector and its associated splice with matching mode field diameters will not exceed .5dB at 1550 nm. The loss value of the pigtail connector and its associated splice with mismatched mode field diameters should not exceed .8 dB. For values greater than this, the splice will be broken and re-spliced until an acceptable loss value is achieved. If the loss value is not less than 0.5 dB, the splice will be marked as Out-of-Spec (OOS) and will be initialed by the Testing Party representative on the data sheet. The Testing Party will then provide all documentation to the Non-Testing Party. Spectrum will remedy the situation per contractual arrangements. The objective for each splice is a loss of 0.0 dB. Since this may not always be achievable, when measured in one direction with an OTDR, a loss of less than 0.15 dB will be acceptable. If after 3 attempts, the Testing Party was not able to produce a loss value of less than 0.15, then 0.3 dB will be acceptable. If after two (2) additional attempts, a value of less than 0.3 dB is not achievable, then the splice will be marked as Out-of-Spec (OOS) and initialed by the Testing Party on the data sheet. It should be noted that if final acceptance of a splice is made based on bi-directional OTDR data that proves to be unacceptable, the Non-Testing Party will notify the Testing Party who will remedy the situation per contractual agreement. Copies of all data will be provided to the Non-Testing Party at completion of testing. 6. The test requirements for the bi-directional testing are as follows (for all testing, it is critical that all test connections are clean during all testing procedures): (a) The continuity test should prove that there is a one-to-one correspondence of all fibers. Any “frogs” or fibers that cross in route will be remedied by the Spectrum upon notification, per contractual agreement. Dark Fiber Template v 180702 Page 20 of 27 © 2018 Charter Communications, all rights reserved. 163 (b) Bi-directional OTDR data will be the tool used to make acceptance of the fibers. The average loss of each splice should not exceed 0.15 dB. Any splice points that exceed this value will be marked Out-of-Spec (OOS) and initialed by the Testing Party representative on the data sheet. The Testing Party will then provide copies of all data to the Non-Testing Party, and the Party providing the fibers hereunder will remedy the situation per contractual agreement. 7. The OTDR’s that are acceptable for testing are the Laser Precision TD1000A, TD2000, TD3000, Photon Kinetics, or compatible. These must have a floppy disk drive for storing the trace files. Again, it should be noted that it is vital that during all tests (OTDR, power meter, etc) that all connectors are clean. This can dramatically affect results if this is not resolved. The following settings should be used during the various tests: Dark Fiber Template v 180702 Page 21 of 27 © 2018 Charter Communications, all rights reserved. 164 For all OTDR’s the following index of refraction settings should be used– Index of Refraction Fiber type 1550 nm AT&T TruWave 1.4700 AT&T Depress Clading 1.4670 Corning SMF-28 1.4684 Sumitomo 1.4670 Corning SMF-LS 1.4700 LEAF 1.4690 OTDR Parameters TD3000 1550 nm TD4000 1550 nm Pigtail 8 km Range 4 km Range 50 ns Pulse 50 ns Pulse 1 m Resolution 0.5 Resolution 10 Seconds 30 Seconds NOTE: INSURE VERTICAL AND HORIZONTAL OFFSETS ARE SET AT ZERO (0) NOTE: INSURE VERTICAL AND HORIZONTAL OFFSETS ARE SET AT ZERO (0) Bi-directional 1550 nm 1550 nm 64 km Range 64 km Range 500 ns Pulse 1001 ns Pulse 4 m Resolution 4 m Resolution Medium averaging Time: 1.5 min. NOTE: FOR SPANS NOTE: FOR SPANS LONGER THAN 64 LONGER THAN 64 KM, SET AT 128 KM KM, SET AT 128 KM SETTING SETTING 2000 ns 2500 ns 4 m resolution 4 m resolution Time: 1.5 min Time: 1.5 min For Spans which are longer than 64 km between regens, a TD 3000 will be required set at 128 km range setting. Bi- directional data will only be required at 1550 nm. 8. On the data sheets, the party providing the fiber must fill in all cable information. These three forms to contain the following information. (a) Power level readings taken with a laser source and power meter must be recorded for every fiber on this sheet. In the column marked fiber, the fiber color must be recorded. In the buffer column, the buffer tube or ribbon color must be recorded. The pigtail column is for recording the pigtail number, which is attached to that particular fiber. On the opposite side of the page the corresponding values at the far end of the cable must be recorded. Each fiber between two sites should fill up both sides of the page, so that a total of 24 fibers will fit on each sheet. Additional sheets may be used if needed. The laser source power at 1550nm must be recorded followed by the received power at the far end of the cable. Copies of measurement documentation taken on each fiber will be provided to the non-testing party upon completion of testing. (b) The loss at each splice point as well as the bi-directional test data taken on a cable installation. One sheet should be used for each fiber. The distance from Site A must be recorded for all splice points. Each measurement made on a particular splice point must be noted with the value measured by the OTDR in one direction. OOS splices will be Dark Fiber Template v 180702 Page 22 of 27 © 2018 Charter Communications, all rights reserved. 165 initialed by the Testing Party. For the bi-directional OTDR testing, distance from site A must be recorded for each splice point. The loss at each splice point must be recorded at both wavelengths in both directions on the spaces provided. The Testing Party must then average this number to obtain the average splice loss at each splice point for the fiber. Again, the Testing Party will initial OOS splices. Copies of all measurement documentation taken on each fiber will be provided to the Non-Testing Party upon completion of testing. (c) Record information about the fiber cable between the two sites. One sheet should be used for each pair of sites. Cable manufacturer, cable type (buffer/ribbon), glass type, cable reel number, number of fibers, and number of fibers per tube must be recorded for each section of cable between splice points. The distance from site A must be recorded for each splice point. The distance value may be written in at the time the OTDR data is being accumulated. Copies of all measurement documentation taken will be provided to the Non-Testing Party upon completion of testing. (d) OTDR traces taken for bi-directional testing, and the OTDR traces of the pigtail launch splice must be recorded on floppy diskette. OTDR traces taken for bi-directional testing and the OTDR traces of the pigtail splice must be recorded on floppy diskette and provided to the other party. To name the traces, each party will provide alpha abbreviations for the sites. The 8-character file name plus 3- character file extension name should follow this example: First four letters = source point Letters 5, 6, 7 = Destination point 8th letter = wavelength Extension = fiber number Examples: Springfield to Lebanon at 1550 nm, fiber 96 = sgfdlbn5.096 Springfield to Monett pigtail trace on fiber 1 = sgfdmntp.001 The OTDR traces will be taken at 1550nm. NOTE: ALL HEADER INFORMATION ON OTDR TRACE MUST BE COMPLETED. Dark Fiber Template v 180702 Page 23 of 27 © 2018 Charter Communications, all rights reserved. 166 EXHIBIT D. MAINTENANCE PROCEDURES I. PREVENTATIVE, DEMAND AND EMERGENCY MAINTENANCE (a) Preventative Maintenance: Preventative Maintenance refers to upgrades, and or routine maintenance or necessary alteration/repair of hardware or software or upgrades to increase capacity. Preventative Maintenance may temporarily degrade the quality of the service, including possible outages. Preventative Maintenance shall be undertaken only between the hours of 12:01 AM to 6:00 AM (local time) Monday – Friday. Where necessary but not routine, activity may be scheduled by Spectrum or 3rd party entities on Saturday and Sunday. High risk activity may be scheduled during day time hours for safety reasons. The Party performing such maintenance shall provide at least ten business (10) days prior notice to the other Party of Preventative Maintenance. Preventative Maintenance performed by Spectrum shall commence with respect to the Licensed Fiber(s) upon the commencement of the grant of License hereunder. Preventative Maintenance performed by Spectrum shall include the following activities: (i) Patrol of System route on a regularly scheduled basis; (ii) Maintenance of a “Call-Before-You-Dig” program and all required and related cable locates; (iii) Maintenance of sign posts along the System right-of-way with the number of the local “Call-Before-You-Dig” organization and the “800” number for the appropriate “Call-Before-You-Dig” program; and (iv) Assignment of maintenance technicians to locations along the route of the System at approximately 200-mile intervals dependent upon terrain and accessibility. (ii) Licensee shall immediately report the need for Unscheduled Maintenance to Spectrum in accordance with procedures promulgated by Spectrum from time to time. Spectrum will log the time of Licensee’s report, verify the problem and dispatch personnel immediately to take corrective action. (b) Emergency Maintenance (Unscheduled Maintenance or Repair): Emergency Maintenance shall be performed by or under the direction of Spectrum in response to an alarm identification by Spectrum’s Network Operations Center (“NOC”), notification by Licensee or notification by any third party of any failure, interruption or impairment in the operation of a Licensee Fiber, or any event imminently likely to cause the failure, interruption or impairment in the operation of a Licensee Fiber. Work to address an Emergency Maintenance situation may degrade the quality of or cause outages. Spectrum may undertake Emergency Maintenance at any time deemed necessary but shall make commercially reasonable efforts to perform such maintenance within the hours identified for Preventative Maintenance if possible. Spectrum shall provide notice of Emergency Maintenance to Licensee as soon as is commercially practicable under the circumstance but when reasonably possible; provide notice twenty-four (24) hours in advance. Whenever prior notice is given, Licensee agrees to acknowledge notice of the emergency event in a reasonable period of time and in all events, Licensee will take necessary steps to notify key personnel internally in order for the Spectrum to correct or repair the affected area. (c) Demand Maintenance: “Demand” maintenance is work necessary to restore service to one or more end- users of Spectrum and/or maintenance work required when a deficiency is found when performing Preventative Maintenance work. Spectrum may undertake Demand Maintenance immediately. Spectrum shall provide notice of Demand Maintenance to Licensee as soon as is commercially practicable under the circumstances. Dark Fiber Template v 180702 Page 24 of 27 © 2018 Charter Communications, all rights reserved. 167 (d) Notification: Spectrum shall provide Licensee with notice of Preventative Maintenance or as soon as possible in the case of Emergency or Demand Maintenance to the following by means of electronic mail notification and telephone: Party Reporting Change/Maintenance Activity Notification Method Spectrum Email To: IS@moorparkca.gov Licensee Email To:ChangeManagement-Carrier@charter.com Licensee shall notify Spectrum of any failure, interruption or impairment in the operation of a Licensee Fiber, or any event imminently likely to cause the failure, interruption or impairment in the operation of a Licensee Fiber. Notifications for planned change/maintenance activities should be sent as follows: Party Reporting Change/Maintenance Activity Notification Method Spectrum Email To: IS@moorparkca.gov Licensee Email To:ChangeManagement-Carrier@charter.com Notifications should include the following information: •Name and contact information •Ticket number or reference for the change/maintenance activity •Severity/Priority •Maintenance/Change Type •Time activity is scheduled to start •Estimated time of completion •Circuit IDs and/or sites impacted (or potentially impacted) •Dark fiber locations may also be communicated by using the following where a circuit ID is unavailable: A/Z Physical Address Location Utility Pole Identifier Fiber Sheath tag or identifier Licensee shall have the right to be present, at its sole cost and expense, during the performance of any Maintenance so long as this requirement does not interfere with Spectrum’s ability to perform its obligations under this Agreement. In the event that Maintenance is canceled or delayed for whatever reason as previously notified, Spectrum shall notify Licensee at Spectrum’s earliest opportunity, and will comply with the provisions of the previous sentence to reschedule any delayed activity. II. SPECTRUM ENTERPRISE NETWORK OPERATIONS CENTER. Spectrum operates and maintains an operations center, Spectrum Enterprise Network Operations Center (CB NOC), which is staffed twenty-four (24) hours a day, seven (7) days a week. Spectrum shall have a maintenance employee at the site requiring Emergency or Demand Maintenance activity within four (4) hours after the time Spectrum becomes aware of an event requiring Emergency or Demand Maintenance, unless delayed by circumstances beyond the reasonable control of Spectrum. III. COOPERATION AND COORDINATION. Licensee shall utilize the Spectrum Enterprise NOC Escalation List, as updated from time to time, to report and seek immediate initial redress of exceptions noted in the performance of Spectrum in meeting maintenance service objectives. The following is the initial Spectrum Enterprise Network Operations Center Escalation List. Dark Fiber Template v 180702 Page 25 of 27 © 2018 Charter Communications, all rights reserved. 168 Spectrum Enterprise Network Operations Center Escalation List Level Contact Spectrum Enterprise Change Management Team Phone Email Level 1 SE-CHANGE- MTNC@SPECTRUM.COM Level 2 Jason Marsh (Manager, Change Management Communications) O: 502-410-7690 C: 703-283-3910 Jason.Marsh@charter.com Level 3 Spectrum Enterprise NOC L-TWC: 877-777-2263 L- CHTR/L-BHN: 866-785-5681 Request escalation to the Change Management on call point of contact (currently Jason Marsh). (a) TROUBLE REPORTING PROCEDURES To report suspected problems on the Licensed Fiber(s) please call our Spectrum Enterprise NOC at (866) 785-5681. We will request the following information related to the problem you are reporting: 1. Company name 2. Your name 3. Your phone number 4. Licensee Contact name and number 5. Licensee account number 6. Licensee trouble ticket number 7. Fiber origination and termination locations 8. Time of trouble onset 9. Nature of observed trouble 10. Is Licensed Fiber(s) released to Licensee for testing? Once our Spectrum Enterprise NOC representative has received all of this information a Licensee Trouble Ticket will be assigned and investigation of your report will begin. Once the status of your report has been determined the Spectrum Enterprise NOC will contact your designated contact individual at the appropriate number to discuss the findings. (b) Spectrum will, as necessary, arrange for unescorted access for Licensee to all sites of the System, subject to applicable contractual, underlying real property and other third-party limitations and restrictions. (c) In the event that any Maintenance hereunder requires a traffic roll or reconfiguration involving cable, fiber, electronic equipment, or regeneration or other facilities of the Licensee, then Licensee shall, at Spectrum’s reasonable request, make such personnel of Licensee available as may be necessary in order to accomplish such maintenance, which personnel shall coordinate and cooperate with Spectrum in performing such maintenance as required of Spectrum hereunder. IV. FACILITIES. Spectrum shall maintain the System in a manner which will permit Licensee’s use, in accordance with the terms and conditions provided under the terms of the Agreement. V. CABLE; FIBERS. a) Spectrum shall perform appropriate Preventative Maintenance on the System in accordance with Spectrum’s then current preventative maintenance procedures, which shall not substantially deviate from standard industry practice. (b) Spectrum shall have qualified representatives on site any time Spectrum has reasonable advance knowledge that another person or entity is engaging in construction activities or otherwise digging within five (5) feet of the Cable. Dark Fiber Template v 180702 Page 26 of 27 © 2018 Charter Communications, all rights reserved. 169 VI.SUBCONTRACTING. Spectrum may subcontract any of the maintenance services hereunder; provided that Spectrum shall require the subcontractor(s) to perform in accordance with the requirement and procedures set forth herein. Spectrum shall remain responsible for all acts and omissions of the subcontracts, and the use of any such subcontractor shall not relieve Spectrum of any of its obligations hereunder. Dark Fiber Template v 180702 Page 27 of 27 © 2018 Charter Communications, all rights reserved. 170