Agmt 2011 San Leandro Dark Fiber LLC (2)

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rendered or material fumished to the City Facilities as part of the Project, at the City's request. If SL Dark Fiber fails to pay any undisputed claims or to discharge any undisputed liens, the City may do so and collect all costs of discharge, including its reasonable attorneys' fees. Payment or discharge by the City shall not constitute a waiver of any right or remedy the City may have on account of SL Dark Fiber's default. SL Dark Fiber may withhold payment of any claim in connection with a good faith dispute over the obligation to pay, so long as the City's property interests are not jeopardized. If a lien is filed as a result of nonpayment, SL Dark Fiber shall within ten (10) business days after knowledge of filing of the lien, provide the City with an executed copy of a discharge of the lien, or deposit with the City cash or a sufficient corporate surety bond or other security satisfactory to the City in an amount sufficient to discharge the lien plus any costs, attorney fees or other charges that could accrue as a result of any foreclosure sale or sale under the lien. This License shall be subject and subordinate to any liens and encumbrances as are now on or as the City may hereafter impose on City Property, and SL Dark Fiber shall upon request of the City, execute and deliver agreements of subordination consistent with this Section. ARTICLE VI REPRESENTATIONS SL Dark Fiber represents and warrants to the City as follows: 6.1. Facilities and Experience. SL Dark Fiber is able to cause the performance of the Permitted Work and has the knowledge, experience and competence to do so. 6.2. Solvent. SL Dark Fiber is financially solvent, able to pay its debts as they mature and is possessed of sufficient working capital to cause the performance of the Scope of Work and meet their obligations under this License. 6.3. Authority. SL Dark Fiber is authorized to do business in California, the County of Alameda and the City, and is properly qualified, certified and licensed to cause the performance of the Permitted Work by all necessary govemmental and quasi - governmental authorities having jurisdiction over SL Dark Fiber. 6.4. Execution. SL Dark Fiber's execution of this License and performance of it is within its duly authorized powers, and neither SL Dark Fiber, nor its respective employees, agents or subcontractors are subject to any restrictive obligations imposed by any third party which would impair SL Dark Fiber's ability to cause the performance of the Permitted Work, or which would prevent SL Dark Fiber from complying fully with the requirements of this License. ARTICLE VII COSTS 7.1. Project Costs. SL Dark Fiber has the sole responsibility for all Project costs, including without limitation all design, development, and construction costs and the cost of all improvements, if any. SL Dark Fiber shall submit design and construction drawings and plans in conformance with the Development Schedule attached as Exhibit C. Except as otherwise expressly provided herein, SL Dark Fiber shall pay all of its own costs and expenses incurred in connection with this License and the activities contemplated hereby. SL Dark Fiber shall be 1677047v4 10 Lit San Leandro Fiber Optic License