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4.6 Non -Exclusive Use Rights. Notwithstanding any other provision of this Agreement, any and all rights expressly or impliedly granted to Licensee under this Agreement shall be non-exclusive, and shall be subject and subordinate to (1) the continuing right of the Licensor to use, and to allow any other person or persons to use, any and all parts of the ROW or Municipal Facilities, exclusively or concurrently with any other person or persons, and (2) the public easement for streets and any and all other deeds, easements, dedications, conditions, covenants, restrictions, encumbrances and claims of title (collectively, "Encumbrances") which may affect the ROW or Municipal Facilities now or at any time during the term of this Agreement, including, without limitation any Encumbrances granted, created or allowed by the Licensor at any time. 4.7 In any situation where Licensee has a choice of attaching its equipment to either Municipal Facilities or third -party -owned poles in the public rights -of -way, Licensee shall in good faith consider attaching to Municipal Facilities, provided that the Municipal Facility in question is substantially similar to third -party owned poles (i.e., it provides the same functionality, fulfills the same need and can be made available within the same time frame) and the total cost of installing and maintaining the Equipment on the Municipal Facility in question is the same or less than on the available alternative third -party owned pole. 5. COMPENSATION. Licensee shall be solely responsible for the payment of all fees in connection with Licensee's performance under this Agreement, including those set forth below. 5.1 Application Fee. Each application for a Supplement shall be accompanied by a non-refundable application fee ("Application Fee") in the amount fixed by Licensor's Miscellaneous Fees Schedule that is in effect at the time the application for a Supplement is made to Licensor. 5.2 License Fees. 5.2.1 Licensee acknowledges that the FCC has adopted a Declaratory Ruling (FCC 18-133) that relates to the compensation which went into effect on January 14, 2019 but that Declaratory Ruling is currently the subject of litigation. Paragraphs 5.2.2, 5.2.3 and 5.2.4 govern the payment of compensation and how it may be impacted by the Declaratory Ruling and the resolution of related litigation during the Initial Term and any Renewal Terms. 5.2.2 During any period in which the FCC Declaratory Ruling (FCC 18-133) is in effect and during any period in which the Alternate License Fee provisions in paragraph 5.2.3 are not applicable, the Licensee shall pay a License Fee as described in this paragraph. Licensee shall pay to the Licensor the base amount of two hundred and seventy dollars ($270.00) per year for each location covered by a Supplement ("License Fee"). The base amount of the License Fee under all Supplements shall be subject to an annual adjustment of three percent (3%) applied on each anniversary of the Effective Date. Any new Supplements entered into during a given year shall commence at the License Fee, as adjusted by this Section to reflect the then -current rate. There shall be no refunds of License Fees paid due to the termination or expiration of the Agreement for any reason. Page 7 of 23 25F-9