Agmt 2011 San Leandro Dark Fiber LLC (2)

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suitability thereof for SL Dark Fiber's purposes, including but not limited to, matters pertaining to topography, utilities, soil, subsoil, presence or absence of fill, presence or absence of Hazardous Materials (as defined in Section 1 1.3(b)), drainage, flood zone designation, environmental laws, rules, or regulations. The City shall allow SL Dark Fiber to have access to the Property at no charge for inspection and verification of the suitability of the Property for the Project. SL Dark Fiber shall rely solely on its own independent investigation and judgment as to all matters relating to the Property and the suitability of the Property for SL Dark Fiber's use. SL Dark Fiber represents that it has, prior to the execution of this License, made investigations of the Property, including without limitation such inquiries of governmental agencies, soils testing, tests and inspections as SL Dark Fiber has deemed necessary to determine the condition of the Property and that SL Dark Fiber, by execution hereof, accepts the Property in its current "as -is" condition and state. Notwithstanding this provision, the City agrees that it will negotiate with SL Dark Fiber in good faith to accommodate SL Dark Fiber's capacity needs, including replacing, relocating or sharing existing City fiber optic cable or related facilities with SL Dark Fiber. Any costs arising from such accommodation shall be mutually agreed to in writing by the City and SL Dark Fiber. 2.10. Financial Feasibility. Prior to the execution of this License, SL Dark Fiber must provide the City with confirmation that it has sufficient financial resources and commits to fund the Project. 2.11. Annual Reporting. Together with any applicable License Fee, SL Dark Fiber shall send to the City a confidential written annual report detailing information regarding the number of subscribers, capacity used, capacity available, and revenue received from the Project. Such report is designated a SL Dark Fiber trade secret exempt from disclosure under the California Public Records Act. ARTICLE [I1 SCOPE OF WORK; PERFORMANCE OF WORK; DEVELOPMENT SCHEDULE 3.1. Scope of Work. Pursuant to this License, the City authorizes SL Dark Fiber to install the Project in the existing conduit of the Property (hereinafter "Permitted Work ") as described in the "Scope of Work," attached as Exhibit B and incorporated herein by this reference. The performance of the Scope of Work shall be at SL Dark Fiber's own risk, subject to inspection with or without notice at any and all times by the City, final approval by the City and subject to the City's review of SL Dark Fiber's final plans for the Project. Any improvements made to the Property as a result of the Scope of Work shall be for the benefit of the City, and all costs shall be borne by SL Dark Fiber. 3.2. Development Schedule. SL Dark Fiber shall make all efforts to comply with the Development Schedule, attached as Exhibit C and incorporated herein by this reference, which includes a schedule describing the anticipated dates by which SL Dark Fiber shall obtain entitlements, commence construction, and complete the Project. The City shall assist SL Dark Fiber in obtaining any necessary permits or entitlements from the City (including but not limited to encroachment permits and environmental review). The City acknowledges and agrees that the schedule set forth in Exhibit C is a best estimate by SL Dark Fiber and that any failure or inability to meet the deadlines set forth in Exhibit C shall not constitute a material breach or 1677047v4 7 Lit San Leandro Fiber Optic License