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2024-1022024-102 Resolution Authorizing The Town Supervisor To Execute Right Of Way Agreements At a Regular Meeting of the Town Board of the Town of Wappinger, Dutchess County, New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on April 8, 2024. The meeting was called to order by Joseph D. Cavaccini, Town Supervisor, and upon roll being called, the following was recorded: ✓ Vote Record - Resolution RES -2024-102 ADOPTED [UNANIMOUS] MOVER: Al Casella, Councilman SECONDER: Angela Bettina, Councilwoman AYES: Cavaccini, Beale, Bettina, Phillips, Casella Yes/Aye No/Nay Abstain Absent Q Adopted ❑ Adopted as Amended Joseph D. Cavaccini Voter Q ❑ ❑ ❑ ❑ Defeated William H. Beale Voter Q ❑ ❑ ❑ ❑ Tabled Angela Bettina Seconder Q ❑ ❑ ❑ ❑ Withdrawn Christopher Phillips Voter Q ❑ ❑ ❑ Al Casella Mover Q ❑ ❑ ❑ The following Resolution was introduced by Casella and seconded by Councilwoman Bettina. WHEREAS, on October 16, 2023, the Planning Board adopted a Resolution of Site Development Plan and a Special Use Permit for one small cell facility on Kent Road, and WHEREAS, on January 11, 2024, the Planning Board adopted a Resolution of Site Development Plan and a Special Use Permit for one small cell facility on Spook Hill Road, and WHEREAS, the two small cell facilities are located on approximately four (4) square feet of space along the Kent Road and Spook Hill Road Town owned rights of way, and WHEREAS, each of the two small cell facilities include the installation of a 43' wooden utility pole with an antenna located at the top of the utility pole for a total structure height of 46.2', and NOW THEREFORE BE IT RESOLVED, that the two Right of Way Agreements are hereby approved, and the Town Supervisor is hereby authorized and directed to execute the above described agreement in the form annexed hereto with such changes as the Town Supervisor may deem advisable in consultation with the Town Attorney. The foregoing was put to a vote which resulted as follows RESULT: ADOPTED [UNANIMOUS] MOVER: Al Casella, Councilman SECONDER: Angela Bettina, Councilwoman AYES: Cavaccini, Beale, Bettina, Phillips, Casella Dated: Wappingers Falls, New York 4/8/2024 The Resolution is hereby duly declared Adopted. Aft ATTORNEYS AT LAW EXECUTIVE WOODS, FIVE PALISADES DRIVE, ALBANY, NY 12205 Phone: 518-438-9907 • Fax:518-438-9914 www.youngsommer.com March 22, 2024 Via Federal Express Hon. Joseph D. Cavaccini Town Supervisor Town of Wappinger 20 Middlebush Road Wappingers Falls, NY 12590 Writer's Telephone Extension: ?58 solson@youngsommer.com RE: Verizon Wireless of the East LP d/b/a Verizon Wireless — Proposed Right of Way Agreements for Kent Road and Spook Hill Road Dear Supervisor Cavaccini: I write to follow up with you concerning the proposed Verizon Wireless Right of Way Agreements for two small cell facilities that were recently approved by the Planning Board in late 2023. Because both small cell facilities (described below) are located in the Spook Hill Road and Kent Road rights of way, town roads, Verizon Wireless requests that the town enter into two separate Right of Way Agreements which allow Verizon Wireless to use and occupy approximately four (4) square feet of space in both the Spook Hill Road and Kent Road rights of way fornthe installation and operation of these two (2) small cell facilities. The specific locations of each small cell facility are shown on the respective Right of Way Survey for each facility. Each of the proposed small cell facilities includes the installation of a 43' wooden utility pole with an antenna located at the top of the pole (for a total structure height of 46.2'). Necessary equipment will be located on the lower portion of each pole. The Kent Road facility was previously before the Town Board in December, 2023.The Town Board tabled consideration of the draft resolution to authorize the town to execute the Right of Way Agreement. It was scheduled to be on the January 8, 2024 meeting. Unfortunately, neither of the two Verizon Wireless proposals were considered at the January 8'2' meeting. During the Planning Board's January 11, 2024, the Planning Board's Attorney requested that Verizon Wireless provide a legal description for the proposed facilities for the purpose of identifying the location of each facility within each respective right of way. As requested, we have enclosed a Right of Way Survey which includes legal descriptions for each location. Also enclosed are the draft Right of Way Agreements for each facility with the Survey attached to each one as Exhibit A. Please kindly add these two items to the next available Town Board meeting agenda. Thank you. Very-tluly yours, Scott P. �, kzron, Eso.11f Encl. C: Kyle Barnett, Esq. (via e- RIGHT-OF-WAY AGREEMENT This Right -of -Way Agreement ("Agreement") is entered into between the Town of Wappinger ("Town") and Verizon Wireless of the East LP d/b/a Verizon Wireless ("Verizon") and its successors and assigns. WHEREAS, Verizon wishes to access a portion of the public rights-of-way within the Town's territorial boundaries ("Right -of -Way") to install and operate a new small wireless facility intended to provide communications services to the residents, and emergency services that operate, within the Town; and WHEREAS, Verizon proposes to install and operate a new small wireless facility in the Kent Road Right -of Way, which is a Town Right -of -Way, which facility includes a 46.2' wooden utility pole and related pole -mounted equipment, the general design and location of which are shown on the sketch provided in Exhibit A annexed hereto ("Kent Rd. Facility" or "Facility"); and WHEREAS, on October 16, 2023, the Wappinger Planning Board adopted a Resolution of Site Development Plan and Special Use Permit for the Kent Rd. Facility, in which the Planning Board authorized the installation and operation of the Kent Rd. Facility subject to certain conditions including the condition that Verizon obtain a license agreement from the Town Board of Wappinger for use of the Town Right of Way; and WHEREAS, the Town wishes to enable Verizon to provide its communication services to benefit its residents and emergency services agencies; NOW, THEREFORE, the parties agree as follows: Verizon's use of the Right -of -Way will be to install, maintain, operate, repair, modify, replace, and/or remove from time to time certain communications facilities. The Kent Rd. Facility may include the installation and operation of antennas, radios, wireless microwave and other backhaul equipment, fiber optic cables, conduit, ducts, control boxes, vaults, poles, cables, power sources, and/or other equipment, structures, appurtenances, and improvements. 2. Verizon's use of the Right -of -Way will be consistent with the Town's Right -of -Way management regulations (if any) and all applicable local, state and federal laws and regulations. The Right -of -Way may be used by Verizon, seven (7) days a week, twenty-four (24) hours a day, only for the installation, construction, use, maintenance, operation, repair, modification, replacement and upgrade of the Facility by Verizon from time to time for communications services or to comply with applicable law, and not for any other purpose whatsoever. 4. Verizon shall keep and maintain the Facility in commercially reasonable condition and repair throughout the term; normal wear and tear and casualty excepted. Verizon shall have Rights -of -Way Agreement for Verizon Wireless Page 2 the right to conduct testing and maintenance activities, and repair and replace damaged or malfunctioning Facility at any time during the term. 5. Verizon will obtain permits and pay fees applicable to Verizon's use of the Right -of -Way only as required under the Town's Right -of -Way management regulations and/or any other applicable local, state or federal regulation, including, without limitation, those designed to protect structures in the Right -of -Way, to ensure the proper restoration of the Right-of- Way ight-ofWay and any structures located therein, to provide for protection and the continuity of pedestrian and vehicular traffic, and otherwise to protect the safety of the public's utilization of the Right -of -Way. 6. Verizon may remove the Facility from time to time during the term, in which event Verizon shall provide advance notice thereof to the Town and Verizon shall have no Ri rther obligations or liability (including for the payment of any applicable recurring fees) in connection therewith. 7. Verizon shall remove and relocate its Facility at its own expense to an alternative location made available by Town and acceptable to Verizon not later than one hundred twenty (12 0) days after receiving written notice that removal, relocation, and/or alteration of the Facility (including poles) is necessary due to: a. construction, expansion, repair, relocation, or maintenance of a street or other public improvement project; or b. maintenance, upgrade, expansion, replacement, or relocation of Town traffic light poles and/or traffic signal light system; or c. permanent closure of a street or sell of Town property; or d. projects and programs undertaken to protect or preserve the public health or safety; or e. activities undertaken to eliminate a public nuisance; or f. duty otherwise arising from applicable law. Verizon's duty to remove and relocate its Facility at its expense under this Paragraph 7 is not contingent on the availability of an alternative location acceptable for relocation. Town will make reasonable efforts to provide an alternative location on Right -of -Way for relocation, but regardless of the availability of an alternative site acceptable to Verizon, Verizon shall comply with the notice to remove its Facility as instructed. Verizon and Town shall cooperate to the extent possible to assure continuity of service during relocation of the Facility. If Verizon fails to remove and/or relocate its Facility to the satisfaction of the Town after one hundred twenty (120) days after the date of notice or has not diligently commenced such removal as directed by Town, the Town may remove the Facility at the expense of Verizon. S. Nothing in this Agreement shall be construed as preventing Verizon from recovering the cost of removal and/or relocation of its Facility from a nongovernmental third -party responsible for the removal and/or relocation. Rights -of -Way Agreement for Verizon Wireless Page 3 Any damage to the Right -of -Way or adjacent property caused by Verizon that occurs during the removal and/or relocation of Verizon's Facility shall be promptly repaired or replaced at Verizon's sole expense. Should Verizon not make nor diligently pursue adequate repairs within thirty (30) days of receiving written notice, Town may make all reasonable and necessary repairs on behalf of Verizon, the reasonable and actual costs of which will be charged to Verizon. Verizon shall promptly remit payment of such costs when invoiced by the Town. 10. In case of an emergency due to interference of any unforeseen events, the Town will act to protect the public health and safety of its citizens, and to protect public and private property, notwithstanding any provision in this Agreement. The Town will make every reasonable effort to coordinate its emergency response with Verizon. To that end, the Town will use the following emergency contacts, which may be updated upon notice to the Town: Verizon's network operations center may be reached 2417 at (800) 621-2622. 11. The Facility shall not physically interfere with or cause harmful interference to any of the Town's existing radio facilities located on Town poles. The Town shall not physically interfere with or cause harmful interference to Facility installed by Verizon. Verizon shall coordinate with the Town on any maintenance of Town poles so as not to obstruct or impede the Town's performance of such maintenance. The Town shall contact Verizon's network operations center at the contact information listed in Paragraph 10 to request Verizon's coordination pursuant to this paragraph. 12. The term of this Agreement and the respective Facility License for the Kent Rd. Facility shall be for ten (10) years commencing on the first day of the month in which Verizon begins installation of the Facility ("Commencement Date") and shall automatically renew for four (4) additional five (S) year periods thereafter, unless Verizon notifies the Town of its intent not to renew at least ninety (90) days prior to the end of the then current term. Notwithstanding the foregoing, either party may terminate this Agreement in the event a parry materially breaches a provision herein and the breach is not cured within: sixty (60) days after receipt of written notice thereof from the non -breaching party. If the nature of the breach reasonably requires more than sixty (60) days to cure, the breaching parry will not be in default hereunder if such party promptly commences such cure and is diligently pursuing the same. 13. Notwithstanding anything contained in this Agreement to the contrary, TWO HUNDRED SEVENTY and 00/100 DOLLARS ($270.00) for the Kent Rd. Facility. Verizon shall pay the initial fee on or before the Commencement Date (defined in Paragraph 12) and pay subsequent recurring fees on or before each anniversary of the Commencement Date. Before any recurring fees are paid, the Town shall provide Verizon a completed, current Internal Revenue Service Form W-9 and state and local withholding forms if required. Verizon may make payments by check made out to the order of the Town of Wappinger and sent to the following address or through electronic transfer subject to the Town's approval and necessary bank routing instructions. Rights -of -Way Agreement for Verizon Wireless Page 4 Town of Wappinger] [DEPARTMENT] '[Attu '[NAME/'TITLE}] [ADDRESS]' 14. If any federal, state, or local laws or regulations (including, but not limited to, those issued by the Federal Communications Commission or its successor agency) and any binding judicial interpretations thereof (collectively, "Laws") that govern any aspect of the rights or obligations of the parties under this Agreement shall change after the effective date and such change makes any aspect of such rights or obligations inconsistent with the then - effective Laws, then the parties agree to promptly amend the Agreement as reasonably required to accommodate and/or ensure compliance with any such legal or regulatory change. 15. Verizon shall indemnify, defend, and hold harmless, the Town and its elected officials, employees, officers, and directors ("Indemnitees"), from and against any and all costs, claims, liens, damages, losses, expenses, fees, fines, penalties, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including but not limited to, personal or bodily injury, death, and properly damage, made upon or incurred by the Town and arising out of a third -party claim to the extent that such third -party claim is caused by any negligent acts or omissions of Verizon while in the exercise of the rights or performance of the duties under this Agreement. The indemnity provided for in this paragraph shall not apply to any liability resulting or arising from the negligence of the Town or an Indemnitee. The Town shall give prompt written notice to Verizon of any claim for which the Town seeks indemnification. Verizon shall have the right to investigate, defend, and compromise these claims with prompt notice to the Town's attorney. 16. Neither party shall be liable for consequential, indirect, or punitive damages (including lost revenues, loss of equipment, interruption or loss of service, or loss of data) for any cause of action, whether in contract, 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. 17. Verizon shall, and shall require its contractors and subcontractors to obtain and maintain substantially the same coverage as required of Verizon with limits commensurate with the work or service to be provided, obtain and maintain at all times during the term of this Agreement, Commercial General Liability Insurance including contractual liability, independent contractors and explosion, collapse and underground coverages with limits of $6,000,000 per occurrence, $6,000,000 general aggregate. 18. Verizon shall obtain and maintain at all times during which work occurs under this Agreement, Workers' Compensation in compliance with the statutory requirements of the state of operation and employer's liability insurance with a limit of $1,000,000 each accident/disease/policy limit. Certificates of such insurance shall be provided to the Town on New York State mandated forms. Rights -of -Way Agreement for Verizon Wireless Page 5 19. Notices required by this Agreement may be given by registered or certified mail by depositing the same in the United States mail, postage prepaid, or by commercial overnight courier. Either party shall have the right, by giving written notice to the other, to change the address at which its notices are to be received. Until any such change is made, notices shall be delivered as follows: If to Town: Town of Wappinger 20 Middlebush Road Wappingers Falls, NY 12590 Attn: [Director of Public Works] If to Verizon: Verizon Wireless of the East LP d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attn: Network Real Estate With a copy to: Attn: [ 1' With a copy to: Verizon Wireless of the East LP d/b/a Verizon Wireless [ADDRESS] Attn: Legal Dept. 20. The provisions of this Agreement shall be construed under, and in accordance with, the laws of the State of New York, without regard to its conflict -of -laws principles, and all obligations of the parties created hereunder shall be performed in the County in which the Town is located. Therefore, in the event any court action is brought directly or indirectly by reason of this Agreement, the courts of such County shall have jurisdiction over the dispute and venue shall be in such County. 21. If any law, ordinance, regulation, or court decision renders any provision of this Agreement invalid, the remaining provisions shall remain in full force and effect. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. This Agreement is the complete and exclusive statement of the parties' agreement with respect to the subject matter and supersedes all other oral and written agreements or communications between the parties prior to the execution of this Agreement relating to this subject matter. This Agreement will not be deemed to provide third parties with any remedy, claim, right of action or other right. This Agreement may be executed and delivered in multiple counterparts, each of which is an original. 22. This Agreement shall take effect on the date that is the later of the dates on which each of the parties have executed this Agreement. 23. Based on the foregoing, the Town hereby grants Verizon the right to use, occupy and access that portion of the Right -of Way for the purpose of installing, operating and maintaining the Kent Rd. Facility subject to the terms and conditions set forth herein. Rights -of -Way Agreement for Verizon Wireless Page 6 IN WITNESS WHEREOF, the duly authorized representatives of the parties hereto have executed this Agreement as of the dates below. TOWN OF WAPPINGER VERIZON WIRELESS OF THE EAST LP D/B/A VERIZON WIRELESS Signature Signature Dr. Richard L. Thurston, Supervisor Date Name Title Date ATTEST: ATTEST: [NAME], [Town Clerk] Date [NAME]. [TITLE] Date Rights -of -Way Agreement for Verizon Wireless Page 7 EXHIBIT A Rights -of -Way Agreement for Verizon Wireless Page 8 RIGHT-OF-WAY AGREEMENT This Right -of -Way Agreement ("Agreement") is entered into between the Town of Wappinger ("Town") and Verizon Wireless of the East LP d/b/a Verizon Wireless ("Verizon") and its successors and assigns. WHEREAS, Verizon wishes to access a portion of the public rights-of-way within the Town's territorial boundaries ("Right -of -Way") to install and operate a new small wireless facility intended to provide communications services to the residents, and emergency services that operate, within the Town; and WHEREAS, Verizon proposes to install and operate a new small wireless facility in the Spook Hill Road Right -of Way, which is a Town Right -of -Way, which facility includes a 46.2' wooden utility pole and related pole -mounted equipment, the general design and location of which are shown on the sketch provided in Exhibit A annexed hereto ("Spook Hill Rd. Facility" or "Facility"); and WHEREAS, on January 11, 2024, the Wappinger Planning Board adopted a Resolution of Site Development Plan and Special Use Permit for the Spook Hill Rd. Facility, in which the Planning Board authorized the installation and operation of the Spook Hill Rd. Facility subject to certain conditions including the condition that Verizon obtain a license agreement from the Town Board of Wappinger for use of the Town Right of Way; and WHEREAS, the Town wishes to enable Verizon to provide its communication services to benefit its residents and emergency services agencies; NOW, THEREFORE, the parties agree as follows: 1. Verizon's use of the Right -of -Way will be to install, maintain, operate, repair, modify, replace, and/or remove from time to time certain communications facilities. The Spook Hill Rd. Facility may include the installation and operation of antennas, radios, wireless microwave and other backhaul equipment, fiber optic cables, conduit, ducts, control boxes, vaults, poles, cables, power sources, and/or other equipment, structures, appurtenances, and improvements. 2. Verizon's use of the Right -of -Way will be consistent with the Town's Right -of -Way management regulations (if any) and all applicable local, state and federal laws and regulations. 3. The Right -of -Way may be used by Verizon, seven (7) days a week, twenty-four (24) hours a day, only for the installation, construction, use, maintenance, operation, repair, modification, replacement and upgrade of the Facility by Verizon from time to time for communications services or to comply with applicable law, and not for any other purpose whatsoever. Rights -of -Way Agreement for Verizon Wireless Page 2 4. Verizon shall keep and maintain the Facility in commercially reasonable condition and repair throughout the term, normal wear and tear and casualty excepted. Verizon shall have the right to conduct testing and maintenance activities, and repair and replace damaged or malfunctioning Facility at any time during the term. 5. Verizon will obtain permits and pay fees applicable to Verizon's use of the Right -of -Way only as required under the Town's Right -of -Way management regulations and/or any other applicable local, state or federal regulation, including, without limitation, those designed to protect structures in the Right -of -Way, to ensure the proper restoration of the Right -of - Way and any structures located therein, to provide for protection and the continuity of pedestrian and vehicular traffic, and otherwise to protect the safety of the public's utilization of the Right -of -Way. 6. Verizon may remove the Facility from time to time during the term, in which event Verizon shall provide advance notice thereof to the Town and Verizon shall have no further obligations or liability (including for the payment of any applicable recurring fees) in connection therewith. 7. Verizon shall remove and relocate its Facility at its own expense to an alternative location made available by Town and acceptable to Verizon not later than one hundred twenty (120) days after receiving written notice that removal, relocation, and/or alteration of the Facility (including poles) is necessary due to: a. construction, expansion, repair, relocation, or maintenance of a street or other public improvement project; or b. maintenance, upgrade, expansion, replacement, or relocation of Town traffic light poles and/or traffic signal light system; or c. permanent closure of a street or sell of Town property; or d. projects and programs undertaken to protect or preserve the public health or safety; or e. activities undertaken to eliminate a public nuisance; or f. duty otherwise arising from applicable law. Verizon's duty to remove and relocate its Facility at its expense under this Paragraph 7 is not contingent on the availability of an alternative location acceptable for relocation. Town will make reasonable efforts to provide an alternative location on Right -of -Way for relocation, but regardless of the availability of an alternative site acceptable to Verizon, Verizon shall comply with the notice to remove its Facility as instructed. Verizon and Town shall cooperate to the extent possible to assure continuity of service during relocation of the Facility. If Verizon fails to remove and/or relocate its Facility to the satisfaction of the Town after one hundred twenty (120) days after the date of notice or has not diligently commenced such removal as directed by Town, the Town may remove the Facility at the expense of Verizon. Rights -of -Way Agreement for Verizon Wireless Page 3 8. Nothing in this Agreement shall be construed as preventing Verizon from recovering the cost of removal and/or relocation of its Facility from a nongovernmental third -party responsible for the removal and/or relocation. 9. Any damage to the Right -of -Way or adjacent property caused by Verizon that occurs during the removal and/or relocation of Verizon's Facility shall be promptly repaired or replaced at Verizon's sole expense. Should Verizon not make nor diligently pursue adequate repairs within thirty (30) days of receiving written notice, Town may make all reasonable and necessary repairs on behalf of Verizon, the reasonable and actual costs of which will be charged to Verizon. Verizon shall promptly remit payment of such costs when invoiced by the Town. 10. In case of an emergency due to interference of any unforeseen events, the Town will act to protect the public health and safety of its citizens, and to protect public and private property, notwithstanding any provision in this Agreement. The Town will make every reasonable effort to coordinate its emergency response with Verizon. To that end, the Town will use the following emergency contacts, which may be updated upon notice to the Town: Verizon's network operations center may be reached 24/7 at (800) 621-2622. 11. The Facility shall not physically interfere with or cause harmful interference to any of the Town's existing radio facilities located on Town poles. The Town shall not physically interfere with or cause harmful interference to Facility installed by Verizon. Verizon shall coordinate with the Town on any maintenance of Town poles so as not to obstruct or impede the Town's performance of such maintenance. The Town shall contact Verizon's network operations center at the contact information listed in Paragraph 10 to request Verizon's coordination pursuant to this paragraph. 12. The term of this Agreement and the respective Facility License for the Spook Hill Rd. Facility shall be for ten (10) years commencing on the first day of the month in which Verizon begins installation of the Facility ("Commencement Date") and shall automatically renew for four (4) additional five (5) year periods thereafter, unless Verizon notifies the Town of its intent not to renew at least ninety (90) days prior to the end of the then current term. Notwithstanding the foregoing, either party may terminate this Agreement in the event a party materially breaches a provision herein and the breach is not cured wither sixty (60) days after receipt of written notice thereof from the non -breaching party. If the nature of the breach reasonably requires more than sixty (60) days to cure, the breaching party will not be in default hereunder if such party promptly commences such cure and is diligently pursuing the same. 13. Notwithstanding anything contained in this Agreement to the contrary, TWO HUNDRED SEVENTY and 00/100 DOLLARS ($270.00) for the Spook Hill Rd. Facility. Verizon shall pay the initial fee on or before the Commencement Date (defined in Paragraph 12) and pay subsequent recurring fees on or before each anniversary of the Commencement Date. Before any recurring fees are paid, the Town shall provide Verizon a completed, current Internal Revenue Service Form W-9 and state and local withholding forms if required. Rights -of -Way Agreement for Verizon Wireless Page 4 Verizon may make payments by check made out to the order of the Town of Wappinger and sent to the following address or through electronic transfer subject to the Town's approval and necessary hank routing instructions. Town of Wappinger] [DEPARTMENT] [Attn: [NAMEITITLE]] [ADDRESS] 14. If any federal, state, or local laws or regulations (including, but not limited to, those issued by the Federal Communications Commission or its successor agency) and any binding judicial interpretations thereof (collectively, "Laws") that govern any aspect of the rights or obligations of the parties under this Agreement shall change after the effective date and such change makes any aspect of such rights or obligations inconsistent with the then - effective Laws, then the parties agree to promptly amend the Agreement as reasonably required to accommodate and/or ensure compliance with any such legal or regulatory change. 15. Verizon shall indemnify, defend, and hold harmless, the Town and its elected officials, employees, officers, and directors ("Indemnitees"), from and against any and all costs, claims, liens, damages, losses, expenses, fees, fines, penalties, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including but not limited to, personal or bodily injury, death, and property damage, made upon or incurred by the Town and arising out of a third -party claim to the extent that such third -party claim is caused by any negligent acts or omissions of Verizon while in the exercise of the rights or performance of the duties under this Agreement. The indemnity provided for in this paragraph shall not apply to any liability resulting or arising from the negligence of the Town or an Indemnitee. The Town shall give prompt written notice to Verizon of any claim for which the Town seeks indemnification. Verizon shall have the right to investigate, defend, and compromise these claims with prompt notice to the Town's attorney. 16. Neither parry shall be liable for consequential, indirect, or punitive damages (including lost revenues, loss of equipment, interruption or loss of service, or loss of data) for any cause of action, whether in contract, 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. 17. Verizon shall, and shall require its contractors and subcontractors to obtain and maintain substantially the same coverage as required of Verizon with limits commensurate with the work or service to be provided, obtain and maintain at all times during the term of this Agreement, Commercial General Liability Insurance including contractual liability, independent contractors and explosion, collapse and underground coverages with limits of $6,000,000 per occurrence, $6,000,000 general aggregate. Rights -of -Way Agreement for Verizon Wireless Page 5 18. Verizon shall obtain and maintain at all times during which work occurs under this Agreement, Workers' Compensation in compliance with the statutory requirements of the state of operation and employer's liability insurance with a limit of $1,000,000 each accident/disease/policy limit. Certificates of such insurance shall be provided to the Town on New York State mandated forms. 19. Notices required by this Agreement may be given by registered or certified mail by depositing the same in the United States mail, postage prepaid, or by commercial overnight courier. Either party shall have the right, by giving written notice to the other, to change the address at which its notices are to be received. Until any such change is made, notices shall be delivered as follows: If to Town: Town of Wappinger 20 Middlebush Road Wappingers Falls, NY 12590 Attn: [Director of Public Works] If to Verizon: Verizon Wireless of the East LP d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attn: Network Real Estate With a copy to: Attn f 1 With a copy to: Verizon Wireless of the East LP d/b/a Verizon Wireless IADDRESSJ Attn: Legal Dept. 20. The provisions of this Agreement shall be construed under, and in accordance with, the laws of the State of New York, without regard to its conflict -of -laws principles, and all obligations of the parties created hereunder shall be performed in the County in which the Town is located. Therefore, in the event any court action is brought directly or indirectly by reason of this Agreement, the courts of such County shall have jurisdiction over the dispute and venue shall be in such County. 21. If any law, ordinance, regulation, or court decision renders any provision of this Agreement invalid, the remaining provisions shall remain in full force and effect. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. This Agreement is the complete and exclusive statement of the parties' agreement with respect to the subject matter and supersedes all other oral and written agreements or communications between the parties prior to the execution of this Agreement relating to this subject matter. This Agreement will not be deemed to provide third parties with any remedy, claim, right of action or other right. This Agreement may be executed and delivered in multiple counterparts, each of which is an original. Rights -of -Way Agreement for Verizon Wireless Page b 22. This Agreement shall take effect on the date that is the later of the dates on which each of the parties have executed this Agreement. 23. Based on the foregoing, the Town hereby grants Verizon the right to use, occupy and access that portion of the Right -of Way for the purpose of installing, operating and maintaining the Spook Hill Rd. Facility subject to the terms and conditions set forth herein. IN WITNESS WHEREOF, the duly authorized representatives of the parties hereto have executed this Agreement as of the dates below. TOWN OF WAPPINGER VERIZON WIRELESS OF THE EAST LP D/B/A VERIZON WIRELESS By: Cellco Partnership, its General Manager Signature Signature Joseph D. Cavaccini, Supervisor Date Name Title Date ATTEST: ATTEST: [NAME], [Town Clerk] Date [NAME] . [TITLE] Date Rights -of -Way Agreement for Verizon Wireless Page 7 EXHIBIT A