Agmt 2011 San Leandro Dark Fiber LLC (2)

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Facsimile: 51 0.577.3340 Attn: City Manager SL Dark Fiber: SL Dark Fiber 303 W. Joaquin STE 100 San Leandro, CA 94577 Telephone: (510) 877 -4383 Facsimile: (510) 405 -2001 Attn: Crystal Galvan 12.2. Modification. No waiver, modification or amendment of this License shall be effective or enforceable unless made in writing, signed by SL Dark Fiber and the City and specifying with particularity the nature and extent of such waiver, modification or amendment. Any waiver by the City or SL Dark Fiber shall not affect or impair any right arising from any subsequent default. 12.3. Dispute Resolution Procedure. The City and SL Dark Fiber shall endeavor to resolve all disputes through business -like negotiations, without resort to litigation. Accordingly, if a dispute arises, the Parties shall meet and engage in reasonable good faith negotiations to resolve the matter. If the Parties are unable to negotiate a mutually acceptable resolution within ten (10) calendar days they shall be free to pursue any legal remedies which may be available. Except as to those matters that the Parties mutually agree to be resolved by such alternate dispute resolution mechanisms as the Parties may deem appropriate, all claims, disputes and other matters in question which arise out of or relate to this License shall be decided by a court of competent jurisdiction. 12.4. Goveming Law and Forum. This License shall be govemed by the laws of the State of California, and any action to enforce or interpret its provisions must be brought in courts with jurisdiction in Alameda County, California. 12.5. Relationship of Parties. The Parties agree that nothing in this License shall be deemed or interpreted to create between them the relationship of lessor and lessee, of buyer and seller, or of partners or joint venturers. 12.6. Attorneys' Fees. En the event any suit, action or proceeding arising from or based upon this License, the Permitted Work or the Scope of Work shall be instituted by SL Dark Fiber or the City, the prevailing party in any such action, suit or proceeding shall be entitled to recover its reasonable attorneys' fees, costs and disbursements, including the cost of reasonable investigation, preparation and professional or expert consultation incurred by reason of such suit, action or proceedings. This attorney fee provision shall not apply to any suit, action or proceeding brought by a third party. 12.7. Severability. If any term or provision of this License or the application thereof shall, to any extent, be held to be invalid or unenforceable, such term or provision shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining terms and provisions of this License or the application of such terms and provisions to circumstances other than those as to which it is held invalid or 1677047v4 19 Lit San Leandro Fiber Optic License •