Agmt 2011 San Leandro Dark Fiber LLC (2)

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than a two hundred eighty -eight (288) strand capacity (unless otherwise mutually agreed upon by the Parties in writing) and related facilities in the existing conduit or other City infrastructure located on the Property or within the City's right -of -way in order to support the provision of telecommunications services in the City. This License is not intended to nor shall it be interpreted to create or vest in SL Dark Fiber any leasehold, easement or any other property rights or interests in the Property or any part thereof. 2.2. License Fee. On or before the first day of Years 1 through 10 of the Initial Term of this License, SL Dark Fiber shall pay to the City a fee (the "License Fee ") in the amount of one dollar ($1.00) per year for the use of the Property. Such fee is not a revenue sharing arrangement for the telecommunications services to be provided using the Property. (a) Interest. Any amount due from SL Dark Fiber to the City which is not paid when due shall bear interest at the lesser of ten percent (10 %) per annum or the maximum rate which the City is permitted by law to charge, from the date such payment is due until paid, but the payment of such interest shall not excuse or cure any default by SL Dark Fiber under this License. (b) License Fee Review and Increase. Commencing in Year 11 of this License and for every subsequent year in the Initial Term, SL Dark Fiber shall provide sufficient information to the City to document that SL Dark Fiber's operation of the Project has generated for SL Dark Fiber or any partners, affiliates, subsidiaries, or any majority shareholding entity of SL Dark Fiber no net profit or else SL Dark Fiber shall pay an increased License Fee equal to the market rate for conduit at that time, as defined in Section 2.2(c). This increased License Fee shall then be payable for the remainder of the Initial Term with an annual adjustment for inflation. (c) Market Rate. Market rate shall be determined by mutual agreement of the Parties based on ten recently negotiated commercial conduit licensing agreements. If the Parties are unable to agree, then they shall submit to formal mediation with a jointly agreed upon mediator. If mediation is unsuccessful, than the parties shall submit to binding arbitration under the rules of the American Arbitration Association and the decision of the arbitrator(s) shall be enforceable in any court having jurisdiction thereof. Arbitration shall occur only in Alameda County, CA. In the event any dispute is arbitrated, the prevailing Party (as determined by the arbitrator(s)) shall be entitled to recover that Party's reasonable attorney's fees incurred (as determined by the arbitrator(s))._ 2.3. Initial Term. This License shall commence on the date first signed by the Parties and shall have an Initial Term of twenty (20) years. (a) Renewal Right; License Fee During Renewal Term. SL Dark Fiber shall have the right to renew the lease for four (4) additional five (5) year terms, immediately following the Initial Term ( "Renewal Terms "). The License Fee payable during each of the Renewal Terms shall be the market rate for conduit as determined on the first (1st) year of that 1677047v4 3 Lit San Leandro Fiber Optic License