Agmt 2011 San Leandro Dark Fiber LLC

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5. Dark Fiber's Studies: Right of Entry. During the Term, Dark Fiber shall use its best efforts to prepare, at Dark Fiber's expense, any studies, surveys, plans, specifications and reports ( "Dark Fiber Studies ") Dark Fiber deems necessary or desirable in Dark Fiber's sole discretion, to determine the viability of the Project. Such studies may include, without limitation, marketing, feasibility, seismic and environmental studies, financial feasibility analyses and design studies. Dark Fiber shall be responsible for obtaining City's advance written permission for access to the Property as may be necessary to prepare the Dark Fiber Studies. In connection with entry to the Property, Dark Fiber shall and hereby agrees to indemnify, defend (with counsel approved by City) and hold harmless the Indemnitees (defined in Section 14) from and against all Claims (defined in Section 14) resulting from or arising in connection with entry to the Property by Dark Fiber or Dark Fiber's agents, employees, consultants, contractors or subcontractors. City may require Dark Fiber to execute a right of entry agreement satisfactory to City prior to entry into the conduit. Dark Fiber's inspection, examination, survey and review of the Property shall be at Dark Fiber's sole expense, but Dark Fiber shall not be required to pay for, or reimburse the City, for time spent on such activities. Dark Fiber shall provide City with copies of all Dark Fiber Studies, including without limitation reports and test results within ten (10) days following completion of such reports and testing, whether or not such reports and test results are completed prior to or after the expiration or earlier termination of this Agreement. The City agrees to keep all such reports and testing confidential. After any necessary inspection, examination, survey or review Dark Fiber shall repair, restore and return the Property to its condition immediately preceding Dark Fiber's entry therein at Dark Fiber's sole expense, unless otherwise directed by City. Dark Fiber shall at all times keep the Property free and clear of all liens and encumbrances affecting title to the Property. Dark Fiber's indemnification obligations, obligations to the Dark Fiber Studies, and obligations to discharge liens that attach to the Property as set forth in this Section 5 shall survive the expiration or earlier termination of this Agreement. 6. City Responsible for its Own Expenses. City will be responsible for its costs (staff, attorney and consultant time) and expenses to assist Dark Fiber with access to or surveys of the Property, and to conduct any studies including without limitation any marketing, financial feasibility, and design studies it deems necessary to assist it with the analysis of Dark Fiber's proposal and the Project. However, Dark Fiber shall be responsible for any environmental studies required by the California Environmental Quality Act (CEQA), including an Environmental Impact Report should one become necessary, that is required for the approval of the License or other agreement. 7. Dark Fiber's Pro Forma. Prior to execution of the License contemplated by this Agreement, Dark Fiber shall provide City with a pro forma that confirms the financial feasibility of the proposed Project. 8. Expenses. Except as otherwise expressly provided herein, Dark Fiber shall pay all of its own costs and expenses incurred in connection with this Agreement and the activities contemplated hereby. 4