Agmt 2011 San Leandro Dark Fiber LLC

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THIS EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT (this "Agreement ") is entered into effective as of 7/13/2011, 2010 ( "Effective Date ") by and between the City o San Leandro, a municipal corporation ( "City ") and SL Dark Fiber LLC, a privately held corporation ( "Dark Fiber "). City and Dark Fiber are hereinafter collectively referred to as the "Parties." RECITALS A. Dark Fiber proposes to install fiber optic facilities throughout a defined area (the "Project ") by utilizing available space within City owned and managed rights of way, vaults and conduit (the "Conduit" or "Property "), as depicted in the attached map and related diagrams incorporated herein and made a part hereof, as Exhibit A. B. Staffdesires to pursue negotiations with Dark Fiber regarding Dark Fiber's proposed development of the Project such that the City Manager will execute an agreement granting Dark Fiber exclusive rights to negotiate with City for the purpose of reaching agreement on a license or other agreement ( "the License ") whose terms and conditions would govern the development of the Project. NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: I . Good Faith Efforts to Negotiate. The Parties shall use their best efforts to successfully negotiate a License or other agreement which shall describe the terms and conditions governing the development and management of the Project. The Parties shall diligently and in good faith pursue such negotiations. This Agreement does not impose a binding obligation on City to convey or license City Property to Dark Fiber, nor does it obligate the City to grant any approvals or authorizations required for the Project. Without limiting the generality of the foregoing, Dark Fiber expressly acknowledges that a license resulting from negotiations contemplated herein shall become effective only if the license is approved by the City Council as required by applicable law and compliance with all other requirements of law, including without limitation the California Environmental Quality Act. 1.1 License Agreement. The Parties agree that the License or other agreement shall include the following terms: 1.1.1 Price. The price for a irrevocable, un- assignable and non - exclusive use of the Property shall be the fair market value, determined by a method mutually acceptable to City and Dark Fiber. 1.1.2 AS -IS Conveyance. The City will have no responsibility for environmental remediation of any kind. The City makes no representations or warranties regarding the physical condition of the Property or its suitability for Dark Fiber's use, but the City will disclose to Dark 2