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<br />6 First Amendment to SL Dark Fiber License Agreement
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<br />SL Dark Fiber, or that materially interferes with or degrades the services provided by SL Dark
<br />Fiber.
<br />2.12 Inspection of Property; Right of Entry Agreement. At its sole discretion, SL Dark Fiber must
<br />inspect, examine, survey, and prepare any studies, surveys, plans, specifications and reports (“SL
<br />Dark Fiber Studies”) that SL Dark Fiber deems necessary or desirable to determine the viability
<br />of the Project in the Expanded Property. Such studies may include, without limitation, marketing,
<br />feasibility, seismic and environmental studies, financial feasibility analyses and design studies. SL
<br />Dark Fiber’s inspection, examination, survey and SL Dark Fiber Studies shall be at SL Dark
<br />Fiber’s sole expense. SL Dark Fiber shall be responsible for obtaining the City’s advance written
<br />permission for access to the Property as may be necessary to prepare the SL Dark Fiber Studies.
<br />SL Dark Fiber shall provide the City with a summary of the results of SL Dark Fiber Studies for
<br />the limited purpose of notifying the City that SL Dark Fiber has determined that the Property is
<br />suitable for the Project. After any necessary inspection, examination, survey or review SL Dark
<br />Fiber shall repair, restore and return the Property to the condition it was immediately preceding SL
<br />Dark Fiber’s entry therein at SL Dark Fiber’s sole expense, unless otherwise directed by the City.
<br />The provisions of this Section shall survive the expiration or earlier termination of this License.
<br />2.13 AS-IS Conveyance. The City hereby grants this License to SL Dark Fiber for the Expanded
<br />Property in its “as-is, where-is” condition existing on the Effective Date, and SL Dark Fiber
<br />acknowledges that, except as otherwise expressly set forth in this License, the City makes no
<br />representations, guaranties, or warranties to SL Dark Fiber with regard to the condition of the
<br />Expanded Property or the fitness or suitability thereof for SL Dark Fiber’s purposes, including but
<br />not limited to, matters pertaining to topography, utilities, soil, subsoil, presence or absence of fill,
<br />presence or absence of Hazardous Materials (as defined in Section 11.3(b) of the Original License),
<br />drainage, flood zone designation, environmental laws, rules, or regulations. The City shall allow
<br />SL Dark Fiber to have access to the Property at no charge for inspection and verification of the
<br />suitability of the Property for the Projects. SL Dark Fiber shall rely solely on its own independent
<br />investigation and judgment as to all matters relating to the Expanded Property and the suitability of
<br />the Expanded Property for SL Dark Fiber’s use. SL Dark Fiber represents that it has, prior to the
<br />execution of this License, made investigations of the Property, including without limitation such
<br />inquiries of governmental agencies, soils testing, tests and inspections as SL Dark Fiber has
<br />deemed necessary to determine the condition of the Expanded Property and that SL Dark Fiber, by
<br />execution hereof, accepts the Expanded Property in its current “as-is, where-is” condition and state.
<br />Notwithstanding this provision, the City agrees that it will negotiate with SL Dark Fiber in good
<br />faith to accommodate SL Dark Fiber’s capacity needs, including replacing, relocating or sharing
<br />City fiber optic conduit or related facilities with SL Dark Fiber. Any costs arising from such
<br />accommodation shall be mutually agreed to in writing by the City and SL Dark Fiber.
<br />2.14 Financial Feasibility. Prior to the execution of this License, SL Dark Fiber must provide the
<br />City with confirmation that it has sufficient financial resources and will fund the Project.
<br />2.15 Reporting.
<br />(a) Together with any applicable License Fee, within 45 days of the close of each
<br />fiscal year, SL Dark Fiber shall send to the City a confidential written annual report detailing
<br />the following information: The names and addresses of all third party telecommunications
<br />providers contracted with SL Dark Fiber to provide telecommunications services within the
<br />City of San Leandro; fiber optic capacity used and capacity available; revenue and expense
<br />statements; and any other additional information necessary to verify compliance with the
<br />requirements of the Original License and this First Amendment. Such report is designated a SL
<br />Dark Fiber trade secret exempt from disclosure under the California Public Records Act.
<br />(b) SL Dark Fiber shall provide to the City, on an annual-basis, current and
<br />historical performance data (to the extent it is reasonably feasible for SL Dark Fiber to collect
<br />such data) for all dark fiber offered by SL Dark Fiber. Performance Metrics shall include the
<br />following, commencing on the date of this Amendment:
<br />1. Average time to turn up end user customers, defined as the average number of days
<br />between receipt of an order to install service and completion of the installation,
<br />including provisioning of termination and/or access points as ordered.
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