City of Clifton, NJ Right-Of-Way Use Agreements

The following numbered documents, which are occasionally referred to in an agreement entered into hereunder are formally incorporated and made part of such agreement by this reference:

Exhibit A: Supplemental site license.

In the event of any conflict between an agreement, including the exhibit, and the Clifton Municipal Code as it exists on e effective date of the agreement, the Clifton Code prevails, except as the federal or state law may preempt or act to modify the Clifton Municipal Code at present or in the future. Future amendments to the Clifton Municipal Code shall also prevail in the case of an conflict with any provisions of this agreement and any exhibits, so long as the Clifton Municipal Code changes apply equally to all wireless carriers and do not alter any material provisions of an agreement, except as federal or state law may preempt or act to modify the Clifton Municipal Code.

§ 369-2 Grant of permission and terms.

Permission. Provider must obtain from the City nonexclusive permission in the form of supplemental site license and execute an agreement with the City, to use and occupy the ROW throughout City's territorial boundaries, as these boundaries may be adjusted from time to time due to annexations, to attach, install, operate, maintain, upgrade, remove, reattach, reinstall, relocate and replace equipment at each approved wireless site ("license"). This grant shall be subject to the terms, conditions and other provisions set forth in the agreement and all laws. Provider shall install its equipment consistent with applicable laws. This is a limited grant of authority subject in all respects to applicable law, including, without limitation, those regarding the kind, size, height and bulk of structures in the rights-of-way, and further subject to all provisions contained herein. Nothing in this chapter or agreement entered into hereunder shall be interpreted to authorize the installation of macro wireless communications service facilities, macro base stations, or similar high-powered cellular facilities in the ROW, backhaul equipment, or the installation of macro wireless towers, or poles intended for macro facilities.

Separation requirements. The facilities set forth in Exhibit A of the agreement together with any and all future small wireless facilities to be installed by provider or any other entity may not exceed one small wireless facility per City block, regardless of whether the small wireless facility is owned by provider or any other entity. Additionally, small wireless facility shall not be located within 600 feet of another small wireless facility and small wireless facility shall be located within five feet of a side lot line in residential areas. If no poles exist within 15 feet of a side lot line, the City will work with provider to permit attachment to a pole with the leas impact to the neighborhood. No small wireless facility shall be located closer than 25 feet from any residential structure or 15 feet from any commercial structure. It is the intent of the parties that "residential" is to be construed as broadly as possible and includes by way of example, and not limitation, dormitories, firehouses, and any other structure where people reside.

Scope and priority.

The City's preferred location for the installation of small wireless facilities owned and/or controlled by the provider is on any City poles that are not traffic signal poles in the ROW under the terms of this agreement. If no such poles are available, or if the Company prefers a different location and after consultation with City and the execution of a supplemental site license and all required permits, and if the City agrees, then the small wireless facilities owned and/or controlled by the company may be installed on:

Third-party poles in the ROW under the terms of a fully executed pole attachment agreement with the owner of such poles (i.e., public utility companies or other entities); then

(b)

On street lighting poles in the ROW approved for street lighting purposes by the City that are purchased by provider and assigned to the City or a private utility company; or

(c)

In conformance with the City's regulations and ordinances, on provider's proprietary poles newly installed in the ROW.

Locations will be prioritized based upon provider's technical and radio frequency needs and construction costs, but in any situation where provider has a choice of equipment locations, provider and the City shall mutually exercise good faith efforts to agree on attachments to poles in the order indicated above. Decorative streetlights and traffic poles are specifically excluded from the consent granted hereunder and under no circumstances shall traffic poles and decorative streetlights be utilized in any way hereunder. Notwithstanding the prioritization listed above, the City may deny a request to locate a pole in a given location, based upon factors including, without limitation, unique aesthetic issues and matters relating to public safety. New poles may be permitted if no other vertical facilities are available and the new poles do not exceed the height of existing utility poles in the neighborhood and the separate requirements of § 369-2B are met. Provider shall be responsible for complying with all obligations under this chapter and their agreement entered into hereunder regarding equipment, irrespective of ownership of or title to such equipment. Subject to the exception described below; all small wireless facilities shall be installed on poles located at wireless sites. For attachments of small wireless facilities in the ROW on structures owned by the City, in addition to all obligations of this chapter and their agreement entered into hereunder, provider shall be bound by all applicable City rules and regulations, which may be modified by City from time to time.

Noise. No facility installed hereunder shall emit any noise whatsoever except that provider shall be permitted to emit noise for a reasonable period of time during repairs, not to exceed two hours without prior authorization from the City.

Ground-based equipment. All ground-based equipment and all utilities shall be located in a flush-to-grade underground equipment vault unless otherwise permitted by the City.

Camouflage and concealment. Facilities shall be designed to blend into the surrounding environment through the use of color and camouflaging architectural treatment, except in instances where the color is dictated by federal or state authorities. Every facility shall be of colors and design that are compatible and harmonious to blend with the natural features, buildings, and structures surrounding such facility.

Lighting. The facility shall not be artificially lighted unless otherwise required by the appropriate governmental authority (e.g., FAA).

Backup generation. If backup generation is used for the facility, annual certification of conformance with the applicable emissions standards and the requirements and conditions of approval shall be required.

Provider shall be responsible for publication and posting of notice in accordance with N.J.S.A. 48:3-13 prior to execution of their agreement.

Provider is responsible for obtaining authority and all required approvals of the Board of Public Utilities, if any, and shall provide a copy of such authority and/or approvals to the City prior to the execution of their agreement. During the term of their agreement, provider shall promptly notify the City in writing of any changes to such authority and/or approval.

Additional protections for deployment in residential areas or areas of aesthetic sensitivity. In the sole discretion of the City, additional aesthetic safeguards, such as camouflaging, flush-to-ground equipment relocation, or other concealment techniques may be required for installations on or adjacent to any residential property or other areas of aesthetic sensitivity (i.e., historic districts or landmarks).

Co-location.

Future co-locations are not pre-authorized by this chapter or provider's agreement hereunder. All co-locations shall be reviewed upon submission of a separate and complete application to the City Engineer. Irrespective of provider's rights, if any, under 47 U.S.C. § 1455(a) [codifying Section 6409( a) of the Middle Class Tax Relief and Job Creation Act of 2012] and the FCC's implementing regulations thereunder, including 47 CFR 1.6100, provider shall not (i) unless otherwise agreed to by the City in a supplemental site license and (ii) unless provider obtains any additional, required permitting and land use approval in accordance with applicable law:

Install a pole in the PROW with a height in excess of 40 feet;

(b)

Increase or seek to increase the height of any pole in the PROW more than 10 feet higher (as measured from the ground to the top of the pole) than any existing utility or traffic signal within 500 feet of the pole or structure and in no case to a total height in excess of 40 feet; or

(c)

Install at ground level equipment shelters or cabinets or electrical distribution panels, except, in each case after all reasonable alternative pole locations and underground locations have been explored and found unavailable or lacking in some, substantial way.

The City shall weigh requests by provider to include any of the foregoing in a supplemental site license in light of the City's historic preservation policies, aesthetic considerations, pedestrian, disabled person and/or bicyclist access to sidewalks, public safety concerns, technical installation conflicts, and compliance with applicable law.

Backhaul. No approval hereunder shall be deemed to include backhaul equipment and no backhaul equipment shall be installed unless the City explicitly provide for same and the terms thereof in writing by subsequent addendum.

Approval process. After approval of an agreement by the governing body of the City, provider shall file with the City Engineer a facility site application for every proposed facility site. Said application form may be modified from time to time by the City as deemed necessary in order to more efficiently process applications from provider.

Facility, site approval process. Upon filing of a facility site application, the City shall process the facility site application.

Rights-of-way determination. The City will determine whether the location (and any existing pole) identified by provider as a facility site is within rights-of-way.

Ownership. The City will confirm the ownership of any City pole identified for installation of the facility or whether the provider has appropriate written authority from a third-party pole owner.

Site eligibility. For City-owned poles, City shall determine whether the requested City pole is eligible as a facility site based on space availability or other considerations. In addition, and for all sites City must determine whether public safety considerations prevent eligibility of a pole as a facility site. City shall determine whether there is availability or rights-of-way in accordance with the density limitation of no more than one standalone pole per block.

Review criteria. For each facility site application, the City shall:

Verify that the facility site application is complete.

Review engineering design documents to determine in its reasonable discretion compliance with this chapter and the contractual requirements under the required agreement with the City; and

Review provider's information demonstrating that there will be no interference with City public safety radio system, traffic signal light system, or other communications components; and

All facility site applications requesting access to an existing or replacement pole and substantial modifications described in § 369-2Q(2) below must include a load-bearing study to determine whether the attachment of the Facility may proceed without pole modification or whether the installation will require pole reinforcement or replacement. If pole reinforcement or replacement is necessary, provider shall provide engineering design and specification drawings demonstrating the proposed alteration to the pole and shall be responsible for the cost of replacing the pole, if permitted by the City, in its sole discretion.

(5)

As appropriate, the City shall require provider to make design modifications in order to comply with applicable contractual, regulation, or legal requirements. Failure to make the requested design modifications shall result in an incomplete facility site application, which may not be processed under this chapter.

(6)

Determine compliance with any other applicable requirements.

Modifications.

Minor modification. Notwithstanding anything in this chapter or agreement entered hereunder to the contrary, modifications to the equipment with like-kind or similar equipment shall be subject to permitting required under applicable Llaws, but shall not be subject to approval of the City under the Clifton Municipal Code, to the extent that: (i) such modification to the attachment involves only substitution of internal components, and does not result in any change to the external appearance, dimensions, or weight of the attachment, or loading impacts on the pole as approved by City or impact multimodal traffic flow; or (ii) such modification involves replacement of the attachment with an attachment that is the same or smaller in weight and dimensions as the approved attachment, and does not impact multimodal traffic flow (each of the foregoing, a "minor modification'').

Substantial modification. Any modification which does not meet the requirements of a minor modification as defined in § 369-2Q(1) above shall be considered a "substantial modification." For all substantial modifications, provider shall first obtain the written approval for the use and installation of the proposed equipment from the City Engineer and in accordance with the Clifton Municipal Code, pursuant to the timelines under applicable law and required permitting, which approval shall not be unreasonably withheld, conditioned or delayed. In addition to any other submittal requirements, provider shall provide load (structural) calculations for all facilities upon which it intends to modify equipment in the ROW.

Permitted use of ROW. The ROW may be used by provider seven days a week, 24 hours a day, only for the wireless sites and installation, use and operation of equipment, and not for any other purpose. Provider shall, at its expense, comply with all laws in connection with the use, installation, operation, maintenance, and replacement of equipment in the ROW, including, without limitation, obtaining the necessary permits, traffic control plan approvals, or street occupancy fees for any work within the ROW by provider and allowable work hours under the Clifton Municipal Code.

Interference. Provider, in the performance and exercise of its rights and obligations under this chapter and agreement entered hereunder, shall not interfere with the existence and operation of any public and private rights-of-way, sanitation sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and telephone wires, electroliers, cable television, and other telecommunications, utility, or municipal property, without the express written approval of the owner or owners of the affected property.

Inventory of wireless sites. Provider shall maintain a current inventory of wireless sites, governed by this chapter and their agreement entered into hereunder throughout the term. Provider shall provide to City a copy of the inventory of wireless sites governed by this chapter and agreement entered into hereunder by December 31 of each year until the end of the term. If provider does not provide the inventory in a timely manner, City will provide provider with 30 days' written notice, plus a thirty-day period commencing from receipt of the notice in which to provide the inventory. The inventory shall include roadway intersection (if applicable), GIS coordinates, date of installation, license site ID number, type ,of pole used for installation, pole owner, and designation/type of installation for each wireless site equipment installation within the ROW. Concerning wireless sites that become inactive, the inventory shall include the same information as active installations in addition to the date the wireless site was deactivated and the date the small wireless facilities were removed from the ROW. The City will compare the inventory to its records to identify any discrepancies.

Additional installations. Provider may install its equipment on other poles in the ROW lawfully owned and operated by third parties. Subject to obtaining the written permission of the owner(s) of the affected property, and obtaining any required building or electrical permits (and paying associated permit fees), the City hereby authorizes and permits provider to enter upon the ROW and to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace equipment in or on poles or other structures lawfully owned and operated by public utility companies or other property owners located within the ROW as may be permitted by the public utility company or property owner, as the case may be. In such situation, a supplemental site license shall be required but a pole attachment fee shall not be paid. Provider will obtain all required permits and approvals for installation on third-party poles in the ROW pursuant to the Clifton Municipal Code. Nothing herein is intended to limit any rights provider may have in accordance with laws or the Clifton Municipal Code.

Unauthorized installations. If there are any unauthorized wireless sites identified by City as a result of comparing the inventory of wireless sites to internal records or through any other means, City shall provide written notice to provider of such unauthorized wireless site. Provider shall then have 30 days thereafter in which to submit an application request for a supplemental site license for that location or, alternatively, to remove the equipment and restore the property at provider's expense. If provider fails to submit a request for a supplemental site license, or if the request is denied, provider shall remove the equipment from the ROW and restore the property at its expense within 30 days, unless a different time period is agreed to by the City. If the request is approved, provider must pay the required fees for a new equipment site, plus interest at the rate of 2% per annum on the required fees from the date of the original installation.

§ 369-3 Term of agreement; supplements; cancellation, termination, removal or abandonment at expiration.

Agreement term. The agreement entered into hereunder shall be in effect for a period of 20 years commencing on the date that the agreement is fully executed (the "execution date"), and expiring on the later of (a) 20th anniversary of the execution date, or (b) the expiration of the last supplement term (unless sooner cancelled or terminated as provided in this section) (the "term"). Beginning in the moth following the conclusion of the 17th year of the agreement (i.e., three years before the agreement terminates by its terms), the provider may meet with the City to discuss an extension of the agreement. At that time, and provided that there is no default, the parties will discuss modifications which may be necessary, or may decide to replace it with a new agreement. If the City does not believe that provider is entitled to renewal as requested, the City shall provide written notification to provider at least 180 days prior to the expiration date of this agreement, in which notice the City shall provide support for its position. As between the City and provider, provider shall at all times retain control of the small wireless facilities, unless an alternative vertical structure, such as a streetlight, has been purchased by the City and ownership conveyed to the City, pursuant to this agreement. Upon expiration or nonrenewal of this agreement, within 90 days or the expiration of the then-current term, provider shall be permitted to remove its small wireless facilities installed within the ROW, or alternatively, sell the same to a qualified buyer consistent with applicable law including, but not limited to, this chapter.

Supplement term. The term of each supplemental site license shall be concurrent with the term of the agreement entered into hereunder; provided, however, that the minimum term of a supplemental site license shall be five years. If the term of the agreement expires before the end of any five-year supplemental site license term, the agreement shall remain in effect only with respect to any supplemental site license through the end of such supplemental site license's term, which shall be, in such case, no more than five years.

Provider cancellation. Provider may cancel their agreement or any supplemental site license before the date of expiration by providing the City with 30 days' express written notice of cancellation. Any prepaid pole attachment fee shall be retained by City. The agreement and all supplemental site licenses may only be cancelled or terminated as provided in the agreement or any supplemental site license.

Abandonment. If provider abandons the use of a municipal facility or a provider-owned facility location for a period of six or more consecutive months, the equipment for such municipal facility or the equipment and provider-owned facilities shall be removed at the expense of provider. In the event provider is unable or refuses to remove such equipment when requested by City, City may authorize removal and provider shall be responsible for all costs incurred for such removal. Alternatively, at the discretion of the City, provider will transfer ownership of a light pole to the City in exchange for its then book value.

§ 369-4 Fees and charges.

Provider shall be solely responsible for the payment of all fees and charges in connection with provider's performance under this chapter and the agreement entered into hereunder, including those set forth as follows:

Fees. Provider shall pay to City, upon execution of their agreement, $2,500, the current small wireless facilities rights-of-way use agreement fee. Additionally, provider shall pay to City, upon execution of each site supplement, $500, the current small wireless facilities supplemental site license fee, which fee shall include up to five sites with $100 additional per site thereafter. Additional fees may be required to cover additional engineering or other professional fees in the event they are reasonably necessary to the City's evaluation of a particular site. Required fees shall be paid from the escrow established in § 369-4E.

Pole attachment fee.

Annual fee. As of the commencement date defined in each supplemental site license, provider shall pay to City an annual fee equal to $270 for each supplemental site license for attachment to a municipal facility. Beginning on the first anniversary of the commencement date and continuing throughout the supplement term, including any extensions or additional extensions, the annual fee due hereunder shall increase by 1% per annum over the annual rental rate due during the immediately preceding year. The annual pole attachment fee shall not apply to or be charged for attachments to third-party facilities, the installation of provider's proprietary poles in the ROW, or to any poles assigned to City by provider.

Fee payment. The pole attachment fee is nonrefundable and is payable within 90 days of the initial commencement date, and on or before each subsequent annual anniversary of the commencement date during the supplement term (or until such earlier time as such supplemental site license is terminated). Upon agreement of the City, provider may pay the pole attachment fee by electronic funds transfer and in such event, City agrees to provide to provider bank routing information for such purpose. City agrees to provide to provider a completed, current version of Internal Revenue Service Form W-9, or equivalent. Until the requested documentation has been received by provider, rent shall accrue in accordance with their agreement but provider shall have no obligation to deliver rental payments. Upon receipt of the requested documentation, provider shall deliver the accrued rent as directed by City.

Late payment interest. Any fees not paid within 15 days of notice of nonpayment will be assessed interest at a rate of 10% per annum from that date.

Payment of fees to City. Provider shall pay City the fees specified in this section in the form of a money transfer or a check made out to the order of the City of Clifton and sent to: 900 Clifton Avenue, Clifton, NJ 07013 Attn: Treasurer.

Municipal costs and escrow.

In payment for the estimated time, review analysis, and other administrative, legal and engineering costs and services rendered by the City in connection with its management of the public rights-of-way, as authorized by N.J.S.A. 51:30A-124, in addition to the $2,500 use agreement fee set forth above, provider agrees to deposit a lump sum of $2,500 upon application. The $2,500 will be deposited into escrow representing the municipal costs, engineering, and maintenance escrow (the "escrow") to be maintained and paid in accordance with N.J.S.A. 40:55D-53a. Provider will maintain the escrow amount at $2,500 through the fee payments for the agreement and the first four supplemental site license fee payments. If such payments have been timely made, after the fourth supplemental site license fee payments, the amount of the escrow shall be reduced to $1,500. Provider will replenish the escrow to $2,500 or $1,500, as applicable. Provider agrees to pay any expenses due the City with respect to each wireless site application and supplemental site license upon written request by the City. Any balance remaining in the escrow will be returned to provider upon termination of their agreement and removal of provider's facilities. Any costs that are they responsibility of provider may be assessed through the escrow fund described in this chapter and the agreement hereunder.

Provider shall also be responsible for any additional costs for outside duty police traffic control, when required by the City, as a result of actions undertaken by or on behalf of provider, in the sole and reasonable discretion of the City.

In the event provider desires to install additional WCFs, it shall pay to the City such further fees as may be deemed appropriate by the City, commensurate with the scope of any future plans submitted and the resulting cost to the City, consistent with the fees agreed to in their agreement.

§ 369-7 Common conditions or requirements applicable to supplemental site licenses issued under provider's agreement.

Any costs that are the responsibility of provider may be assessed by the City through the escrow fund described in this chapter and the agreement hereunder.

Taxes. Provider shall pay all applicable City, county and state taxes levied, assessed, or imposed on provider or on provider's equipment by reason of this chapter and the agreement hereunder.

Electric meter. Provider shall be responsible for paying all charges for any electricity furnished by a utility to provider and for charges for furnishing service to the equipment. When the equipment requires an electric meter, as determined by the utility provider, provider shall install or cause to be installed a separate electric meter on a ground-mounted pedestal or on provider's pad-mounted equipment cabinet as required by the electric provider for the operation of its equipment. Provider will request of the utility provider that it in good faith attempt to install power facilities which are inconspicuous as reasonably possible and yet consistent with electric code installation requirements.

§ 369-5 Permits.

To the extent not in contravention of any applicable law, all of the equipment will be installed, operated and maintained by or on behalf of provider in accordance with applicable provisions of the Clifton Municipal Code regulating wireless communications facilities. Provider or its designee may be required to apply for, obtain and pay the generally applicable fees for a permit issued by the City for work performed within the ROW, and the ROW will be used according to the plans submitted by provider and approved by the City in issuing a permit. Execution of the agreement or any supplemental site license does not constitute the issuance of a permit.

§ 369-6 Basic design and installation requirements.

The basic design of the equipment will be described in Attachment 1 to each supplemental site license. All of provider's construction and installation work for its equipment in the rights-of-way shall be performed at provider's sole cost and expense and in a good and workmanlike manner and promptly completed. With respect to municipal facilities, when provider and City have agreed on an existing municipal facility location as a suitable site for provider's equipment, but the existing City-owned pole needs to be replaced to accommodate the equipment, then provider shall pay all costs related to replacing the City-owned pole, including, but not limited to, installation of the replacement pole (the "replacement pole"), transfer of the streetlight fixtures, traffic signal, and/ or other items attached to the existing City-owned pole to the replacement pole, and removal and salvage of the existing City-owned pole to the City. Likewise, when provider and City have agreed on an existing streetlight facility location as a suitable site for provider's equipment, but the existing pole needs to be replaced to accommodate the equipment, then provider shall pay all costs related to removal and replacing the pole, including but not limited to installation of the replacement pole, transfer of the streetlight fixtures; and/or other items attached to the existing pole to the replacement pole, and removal and salvage of the existing pole to the City. Payment of the pole replacement costs does not provide provider with any ownership interest in the replacement pole. City will be deemed to own the original City-owned pole and the replacement pole. The installation or attachment of the equipment using the replacement pole shall be at provider's sole cost and expense.

Damage to property. If provider damages or disturbs the surface or subsurface of any ROW or adjoining property, pole, streetlight fixture, traffic signal, or other public improvement, in the exercise of the rights granted through their agreement, provider will promptly, at its own expense, and in a manner reasonably acceptable to City, repair the damage or disturbance in accordance with the Clifton Municipal Code. Provider acknowledges its responsibility to separately adjust damage it actually causes to private property, if any, in the process of provider's exercise of its rights hereunder.

Public emergency. In the event of an emergency or to protect the public health or safety, prior to the City accessing or performing any work on a municipal facility or in proximity to a structure on which provider has installed equipment, City may require provider to deactivate such equipment if any of City's employees or agents must move closer to the equipment than the FCC's recommended minimum distance. In such case, City will contact provider to request immediate deactivation.

Removal and relocation.

Provider understands and acknowledges that City may require provider to relocate one or more of its equipment installations. Provider shall, at City's direction and upon 120 days' prior written notice to provider, relocate such equipment at provider's sole cost and expense whenever City reasonably determines that the relocation is needed for any of the following purposes: (i) if required for the construction, modification, completion, repair, relocation, or, maintenance of a City or other public agency project; (ii) because the equipment is interfering with or adversely affecting proper operation of City-owned poles, traffic signals, communications, or other municipal facilities; or (iii) City is abandoning or removing the municipal facility. City may also require provider to relocate, remove, modify or disconnect equipment located in the ROW in the event of an emergency, when the public health or welfare requires such change (for example, without limitation, the equipment is interfering with or adversely affecting proper operation of City-owned poles, traffic signals, communications, or other municipal facilities). In any such case, City shall use reasonable efforts to afford provider a reasonably equivalent alternate location. If provider shall fail to relocate any equipment as requested by the City in accordance with the foregoing provision, City shall be entitled to remove or relocate the equipment at provider's sole cost and expense, without further notice to provider. In such event, City shall not be liable for any damage to any portion of the network other than damage caused by City's negligence or willful misconduct. Provider shall pay to the City actual costs and expenses incurred by the City in performing any removal work and any storage of provider's property after removal, within 30 days of the date of a written demand for this payment from the City.

Provider shall make certain that it has a designated contact person available 24/7 in the event of an emergency requiring City to take immediate action. After two attempts to make contact by City with no response, City shall have the right to undertake any actions that City may deem reasonably necessary to avoid damage to property or personal injury, and City's reasonable and documented costs for such undertaking shall be paid by provider.

In the event of an assignment sublicense or transfer pursuant to the agreement, any such assignee or transferee shall immediately provide up dated or new contact information pursuant to this provision.

In the event provider desires to relocate any equipment from one municipal facility to another, provider shall so advise City. City will use reasonable efforts to accommodate provider by making another reasonably equivalent municipal facility available for use in accordance with and subject to the terms and conditions of this chapter and agreement hereunder.

Nonexclusivity. The rights and privileges granted to provider under this chapter and agreement hereunder, and each supplemental site license described herein, are nonexclusive.

Noninterference. The following provisions shall apply to ensure and/or avoid interference (both physical interference and radio frequency interference) resulting from provider's installation, operation and/or maintenance of its equipment:

Radio frequency interference. Provider shall ensure that the equipment will not cause radio frequency interference with wireless communication facilities or devices, cable television, broadcast radio or television systems, satellite broadcast systems, or City traffic, public safety or other communications signal equipment existing at the time of installation of the equipment.

Existing uses. Provider shall not interfere in any manner with the existing uses of City property including ROW, and including sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electric and telephone wires, streetlight fixtures, cable television, and other telecommunications, utility, and municipal property without the express written approval of the owner(s) of the affected property or properties.

In the event any WCFs interfere with the City's traffic signal system, public safety radio system, or other City communications infrastructure operating on spectrum where the City is legally authorized to operate, provider will respond to the City's request to address the source of the interference as soon as practicable, but in no event later than 24 hours of receiving such request, pursuant to protocol outlined below.

Response protocol. The protocol for responding to events of interference will require provider to provide the City Engineer an interference remediation report that includes the following items:

Remediation plan. Devise a remediation plan to stop the event of interference;

(b)

Time frame for execution. Provide the expected time frame for execution of the remediation plan;

(c)

Additional information. Include any additional information relevant to the execution of the remediation plan;

(d)

Removal; relocation. In the event interference with the City's facilities cannot be eliminated, provider shall shut down the WCFs and remove or relocate any WCF that is the source of the interference to a suitable alternative location.

(5)

City interference. City reserves the right, but not the obligation, to maintain and operate its municipal facilities in such reasonable manner as will best enable City to fulfill its own service requirements or obligations. City agrees that City will install only such equipment that is of the type and frequency which will not cause harmful interference which is measurable in accordance with then-existing industry standards to the then-existing equipment of provider.

(6)

Remedies. Without limiting any other rights or remedies, if interference occurs and continues for a period in excess of 24 hours following notice to the interfering party via telephone to provider or to City by contacting the City Manager at (973)470-5800, the interfering party shall require any other user to reduce power or cease operations of the interfering equipment until the interference is cured. The parties acknowledge that there will not be an adequate remedy at law for noncompliance with the provisions of this § 369-7 and therefore the parties shall have the right to equitable remedies such as, without limitation, injunctive relief and specific performance provided that specific performance shall never be an available remedy against the City.

§ 369-8 Damage to provider's equipment.

In the event of any damage to provider's equipment, City shall have no liability or responsibility to repair the same unless such damage arose from the negligence or willful misconduct of City, its employees, agents, or contractors; provided, however, in such case, City's liability shall be limited to the cost to repair or replace the same.

§ 369-9 Title to equipment.

Title to the municipal facility. Title to and control of the equipment, exclusive of the municipal facility (original or replacement) used for support, but including ground-mounted equipment, shall remain with provider and shall constitute provider's personal property and equipment, and not fixtures or improvements attached to the land.

No ownership in City property. Neither this chapter, the agreement hereunder, any supplemental site license, nor any license issued herein, nor any permit separately issued for installation of any equipment, regardless of the payment of any fees and charges, shall create or vest in provider any ownership or property rights in any portion or elements of the municipal facilities, the underlying real property on which any City-owned poles or any equipment is located, or any portion of the ROW. Additionally, provider acknowledges that this chapter and agreement hereunder do not constitute or create a leasehold interest and except as otherwise expressly provided herein, any right to the benefit of any City property or portion thereof. Nothing contained in this chapter or agreement hereunder shall be construed to compel provider to construct, retain, extend, place, or maintain any poles or other' facilities for the benefit of City which are not needed for provider's own service requirements.

"As is" condition. Provider accepts all municipal facilities identified in any supplemental site license, or any replacement pole, in its "as is" condition, without representation or warranty of any kind by City, or any City officer, agent, or employee, and subject to all applicable laws governing the use of the City poles for provider's intended purpose.

Maintenance and repair. City shall maintain and keep the municipal facility containing equipment in good condition and in accordance with City's standard maintenance requirements, at its sole cost and expense. Provider shall keep the equipment and other improvements by provider on the municipal facility, if any, in good repair.

§ 369-10 Hazardous substances.

Provider agrees that provider, its contractors, subcontractors and agents, will not use, generate, store, produce, transport or dispose any hazardous substance on, under, about or within the area of a municipal facility or the ROW in which provider equipment is located in violation of any applicable laws. Except to the extent of the negligence or intentional misconduct of City, provider will pay, indemnify, defend and hold City harmless against and to the extent of any loses or liability incurred by reason of any hazardous substance produced, disposed of, or used by provider pursuant to their agreement. Provider will ensure that any on-site or off-site storage, treatment, transportation, disposal or other handling of any hazardous substance will be performed by persons who are properly trained, authorized, licensed and otherwise permitted to perform those services. The City recognizes that provider is only using a small portion of the ROW and that provider shall not be responsible for any environmental condition or issue except to the extent resulting from provider's, its agents' or contractors' specific activities and responsibilities under this agreement.

§ 369-11 Indemnity.

Provider shall indemnify, defend and hold the City, its employees, officers, elected officials, agents and contractors (the "Indemnified parties") harmless from and against all injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses arising from the installation, use, maintenance, repair or removal of the equipment, any of its or its customers' activities on any wireless site, or provider's breach of any provision of their agreement. The indemnity provided for in this section shall not apply to any liability resulting from the negligence or willful misconduct of the City or an indemnified party.

City shall give provider timely written notice of the making of any claim or of the commencement of any action, suit or other proceeding in connection with any provider equipment. In the event such claim arises, City shall tender the defense thereof to provider and provider shall consult and cooperate with the City Attorney's Office while conducting its defense. City and the indemnified party shall cooperate fully therein with Provider's legal representative and shall be consulted on any settlements of claims prior to the execution of any settlement agreements.

If separate representation to fully protect the interests of both parties is or becomes necessary, such as a conflict of interest between the indemnified party and the counsel selected by provider to represent the City, provider shall pay for all reasonable expenses incurred by the City as a result of such separate representation; provided, however, in the event separate representation becomes necessary, City shall select its own counsel and any other experts or consultants, subject to provider's prior approval, which shall not be unreasonably withheld. City's expenses hereunder shall include all reasonable out-of-pocket expenses, such as experts and consultants' fees, and outside attorneys' fees, and shall also include the reasonable value of any services rendered by the City Attorney or his/her assistants or any employees of the City or its agents.

Neither City or provider will be liable under the agreement entered into hereunder for consequential, indirect, special, incidental or punitive damages for any cause of action, whether in contact, tort, or otherwise, even if the party was or should have been aware of the possibility of these damages, whether under theory of contract, tort (including negligence), strict liability, or otherwise.

§ 369-12 Insurance requirements.

Provider shall, and shall require its subcontractors to maintain substantially the same coverage with substantially the same limits as required of provider, carry during the term, at its own cost and expense, the following insurance: (i) commercial general liability insurance with, a limit of liability of $5,000,000 per occurrence and $5,000,000 general aggregate and which provides coverage for bodily injury, death, damage to or destruction of property of others, including loss of use thereof' and including products and completed operations; (ii) excess or umbreIla liability on an occurrence basis in excess of the commercial general liability insurance, which has coverage as broad as such policy, with a limit of $2,000,000; (iii) workers' compensation insurance as required by law and employers' liability insurance with limits of $500,000 bodily injury each accident, $500,000 disease each employee, and $500,000 bodily injury disease policy limit. Notwithstanding the foregoing, upon 60 days' prior notice to and review by provider, City may increase the aforementioned limits of insurance at any time in its reasonable discretion.

All of 'the insurance coverages identified in § 369-12A, except the workers' compensation insurance and employer's liability insurance, shall include City as an additional insured as their interest may appear under the agreement, and shall provide a defense and indemnification to City regardless of City's fault or wrongdoing. The insurance shall indemnify and defend City against all loss, damage, expense and liability arising out of or in any way connected with the performance of the agreement. Each of such insurance coverages shall contain a waiver of subrogation for City's benefit. Further, the insurance coverages identified in § 369-12A will be primary and noncontributory with respect to any self-insurance or other insurance maintained by City.

Upon execution of their agreement and upon any subsequent request of City, provider shall provide City with a certificate of insurance and blanket additional insured endorsements evidencing the coverage required by this § 369-12.

Upon receipt of notice from its insurer, provider shall provide 30 days' advance notice to City in the event of cancellation of any coverage.

All of the insurance policies provider and its subcontractors are required to maintain in this § 369-12 shall be obtained from insurance carriers having an A.M. Best rating of at least A-VII.

§ 369-13 Assignment; transfer.

The agreement entered into hereunder and each license granted herein is personal to provider and for City's use only. Provider shall not lease, sublicense, share with, convey or resell to others any such space or rights granted hereunder. Subject to § 369-13C below, the related rights and privileges may not be assigned or otherwise transferred without the express written consent of City, which consent shall not be unreasonably withheld, conditioned or delayed. Provider shall provide City 60 days' notice of the proposed transfer, and City shall, within 15 days of the notice, inform provider if the proposed transferee has any violations of the Clifton Municipal Code. If not, then City shall promptly provide its consent. If the proposed transferee does have violations of the Clifton Municipal Code, then such violations shall be remedied in the following 30 days; and, if rectified, then City shall give its consent. Any agreement which is assigned or otherwise transferred pursuant to this section shall be equally subject to all the obligations and privileges of the agreement, including any amendments, which will remain in effect, as if the assigned agreement was the original agreement. After assignment, the agreement, including any amendments, shall be binding on the assignee to the full extent that was binding upon provider.

Any nonpermitted transfer or assignment shall be void and not merely voidable. City may, in its sole discretion and in addition to all other lawful remedies available to City under this chapter and the agreement hereunder, collect any fees owed from provider all without prejudicing any other right or remedy of City. No cure or grace periods shall apply to transfers or assignment prohibited by the agreement or to the enforcement of any provisions of the agreement against a transferee or assignee who did not receive City's consent.

Exceptions.

Notwithstanding anything to the contrary in this § 369-13, the agreement and/or any supplemental site license and/or permit approved by the City may be sold, assigned or transferred by provider, without advance notice to or the consent of City, to (i) any entity in which provider holds a controlling or similar interest; (ii) any entity which holds a controlling equity or similar interest in provider; (iii) any entity under common control with provider; or (iv) any entity currently operating in City that represents to provider and City that it is in compliance in all material respects with all permits and land use approvals. Provider shall provide written notice to City within 30 days of provider completing a transaction with an unaffiliated entity as covered in this section.

Notwithstanding anything in the agreement to the contrary, certain Small wireless facilities deployed by provider in the rights-of-way pursuant to this agreement may be owned and/or operated by provider's third-party wireless carrier customers ("carriers") and installed and maintained by provider pursuant to license agreemnents between provider and such carriers. Such small cell facilities shall be treated as provider's small cell facilities for all purposes under the agreement provided that (i) provider remains responsible and liable for all performance obligations under the agreement with respect to such small cell facilities; (ii) City' s sole point of contact regarding such small cell facilities shall be the provider; and (iii) provider shall have the right to remove and relocate the small cell facilities. Such small cell facilities are subject to laws and the provider shall indemnify the City and hold it harmless from any claims from carriers related to any action taken by the City with respect to the facilities in accordance with law. Should provider's agreement(s) with any carriers related to any small wireless facilities cease, provider shall provide the City with notice of such termination and contact information for the owners of the small wireless facilities at least 10 business days prior to such termination.

No waiver. The consent or approval of the City to transfer by provider does not constitute a waiver or release of the rights of the City in or to its ROW, and any transfer shall by its own terms be expressly subject to the terms and conditions of this chapter and agreement hereunder.

Agreement binding. Any sale, transfer or assignment of the agreement entered into hereunder will bind the successor in interest to the terms of the agreement.

Pledge of assets. Notwithstanding anything contained in the agreement, provider may pledge the assets of the network and small wireless facilities for the purpose of financing provided that such pledge of assets shall not impair provider or mitigate provider's responsibility and capability to meet all its obligations under the provisions of the agreement.

§ 369-14 Default.

Default of provider.

City shall provide provider with a detailed written notice of any violation of the agreement hereunder, and a thirty-day period within which provider may: (i) demonstrate that a violation does not exist, (ii) cure the alleged violation, or (iii) if the nature of the alleged violation prevents correction thereof within 30 days, to initiate a reasonable corrective action plan to correct such alleged violation, including a projected completion date, subject to City's written approval, which approval will not be unreasonably withheld.

If provider fails to disprove or correct the violation within 30 days or, in the case of a violation which cannot be corrected in 30 days if provider has failed to initiate a reasonable corrective action plan and to correct the violation within the specified time frame, then City may declare in writing that provider is in default.

Within 15 days after receipt of a written declaration of default from the City, provider may make a written request for a hearing before City Council or its designee, in a public proceeding affording due process. If a hearing is not requested, the City may seek any remedy available under law. If a hearing is requested, such hearing shall be held within 60 days of the receipt of the request therefor and a decision rendered within 15 days after the conclusion of the hearing. Upon a finding of default, City Council or its designee may impose remedies of revocation and/or recovery of actual damages caused by such breach. Any decision shall be in writing and shall be based upon written findings of fact as contained in the record of the hearing.

Provider may appeal a finding of default and/or imposition of remedies by City Council or its designee, which appeal shall be pursuant to Rule 4:6911 of the New Jersey Court Rules and based upon the written record. Alternatively, the parties may, by mutual agreement, agree to address the finding of default through arbitration or mediation.

Default of City.

Provider shall provide City with a detailed written notice of any violation of the agreement hereunder, and a thirty-day period within which City may: (i) demonstrate that a violation does not exist, (ii) cure the alleged violation, or (iii) if the nature of the alleged violation prevents correction thereof within 30 days, to initiate a reasonable corrective action plan to correct such alleged violation, including a projected completion date; provided, however, that such plan shall be subject to provider's written approval where provider's equipment or operations will be affected by the corrective action, which approval will not be unreasonably withheld

If City fails to disprove or correct the violation within 30 days or, in the case of a violation which cannot be corrected in 30 days if City has failed to initiate a reasonable corrective action plan and to correct the violation within the specified time frame, then provider may declare in writing that City is in default.

Termination/revocation. In the event of a default, without limiting the nondefaulting party in the exercise of any right or remedy which the nondefaulting party may have by reason of such default, the nondefaulting party may terminate this agreement if the default affects all supplemental site licenses and the agreement as a whole, or any supplemental site license subject to the default, and/or pursue any remedy now or hereafter available to the nondefaulting party under the law. Further, upon a default by provider, the City may at its option (but without obligation to do so) perform the defaulting party's duty or obligation. The costs and expenses of any such performance by the City shall be due and payable by provider upon invoice therefor.

§ 369-15 Bankruptcy.

In the event provider shall become a debtor in any voluntary or involuntary bankruptcy proceeding under the United States Bankruptcy Code, 11 U.S.C. § 101 et seq. ("the Bankruptcy Code"), for the purposes of proceeding under the Bankruptcy Code, the agreement shall be treated as an unexpired lease of nonresidential real property under Section 365 of the Bankruptcy Code, 11 U.S.C. § 365 (as may be amended), and, accordingly, shall be subject to the provisions of Subsections (d)(3) and (d)(4) of said Section 365 with the exception that City waives any requirement for provider to assume or reject the agreement earlier than prior to confirmation of a plan. Any person or entity to which provider' s rights, duties and obligations under the agreement are assigned pursuant to the provisions of the Bankruptcy Code shall be deemed without further act to have assumed all of the obligations of provider arising under the agreement both before and after the date of such assignment. Any such assignee shall upon demand execute and deliver to City an instrument confirming such assumption. Any monies or other considerations payable or otherwise to be delivered in connection with such assignment shall be paid to City, shall be the exclusive property of City, and shall not constitute property of provider or of the estate of provider within the meaning of the Bankruptcy Code. Any monies or other considerations constituting City's property under the preceding sentence not paid or delivered to City shall be held in trust for the benefit of City and be promptly paid to City.

§ 369-16 Surrender.

Within 90 days of the expiration of the supplement term of any supplemental site license, or upon the earlier termination thereof, provider shall remove all equipment, at its sole expense, shall repair any damage to the municipal facilities or the ROW and adjacent property caused by such removal, and shall restore the municipal facilities, ROW and any adjacent property to the condition in which they existed prior to the installation of the equipment, reasonable wear and tear and loss by casualty or other causes beyond provider's control excepted.

§ 369-17 Notices.

Any notice, request, demand, statement, or consent herein required or permitted to be given by either party to the other hereunder shall be in writing signed by or on behalf of the party giving the notice and addressed to the other at the address as set forth in the agreement.

Each party to the agreement may by notice in writing change its address for the purpose of the agreement, which address shall thereafter be used in place of the former address. Each notice, demand, request, or communication which shall be mailed to any of the aforesaid shall be deemed sufficiently given, served, or sent for all purposes hereunder (i) two business days after it shall be mailed by United States certified mail, postage prepaid and return receipt requested, in any post office or branch post office regularly maintained by the United States Postal Service, (ii) upon personal delivery, or (iii) one business day after deposit with any recognized commercial air courier or express service. Any communication made by e-mail or similar method shall not constitute notice pursuant to the agreement.

Emergency contact, provider. As set forth above, provider shall make certain that it has a designated contact person available 24/7 in the event of an emergency requiring City to take immediate action. Provider shall maintain the emergency contact information current at all times, including in the event of transfer or assignment.