HomeMy WebLinkAboutPR 21573: FOR LEASING AGREEMENT AT 1440 TERMINAL RD. Cin'of =
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INTEROFFICE MEMORANDUM
Date: September 11, 2020
To: The Honorable Mayor and City Council
Through: Ronald Burton, City Manager
From: Donald Stanton, Acting Director of Water Utilities
RE: P.R. 21573 for Leasing Agreement at 1440 Terminal Rd.
Introduction:
The intent of this Agenda Item is to seek the City Council's approval for the City Manager to
enter into a five-year contract with NextEdge Networks of San Francisco, California to install,
maintain and operate the radio communications equipment, antennas, and appurtenances.
Lease will generate a revenue source of$3,000.00 per year. Equipment will be attached to the
new water tower on Terminal Road.
Background:
Access at our new water tower at 1440 Terminal Road is need to reinforce military
communications in the area. The minimum contract with NextEdge Networks is for five years.
Budget Impact:
Revenue source of$3,000.00 per year will be realized.
Recommendation:
It is recommended that City Council approve P.R. 21573, authorizing the City Manager to
enter into a contract with NextEdge Networks of San Francisco, California, to install, maintain
and operate the radio communications equipment, antennas, and appurtenances.
"Remember,we are here to serve the Citizens of Port Arthur"
P.O.Box 1089 X Port Arthur,Texas 77641-1089 X 409.983.8101 X FAX 409.982.6743
P. R. No.21573
Page 1 of 2
9/11/20 bw
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER
INTO A LEASING AGREEMENT BETWEEN THE CITY OF PORT
ARTHUR AND NEXTEDGE NETWORKS OF SAN FRANCISCO,
CALIFORNIA TO INSTALL, MAINTAIN, AND OPERATE THE RADIO
COMMUNICATIONS EQUIPMENT, ANTENNAS, AND
APPURTENANCES AT THE WATER TOWER AT 1440 TERMINAL
ROAD, PROVIDING AN ADDITIONAL SOURCE OF REVENUE.
WHEREAS, the Department of Defense (DOD) wishes to ensure safe communication without
commercial interference; and,
WHEREAS, the DOD wishes to place radio communication equipment on the water tower at 1440
Terminal Road; and,
WHEREAS, the DOD desires to enter into a Leasing Agreement through NextEdge Networks with the
City of Port Arthur, in substantially the same form as Exhibit"A", in order to install, maintain, and operate the
radio communications equipment, antennas, and appurtenances at the water tower at 1440 Terminal Road; and,
WHEREAS, NextEdge Networks of San Francisco, California will pay the City of Port Arthur in the
amount of$3,000.00 per year.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT
ARTHUR:
Section 1. That the facts and opinions in the preamble are true and correct.
Section 2. That the City Manager is authorized to execute the Service Agreement in substantially
the same form as attached hereto as Exhibit"A".
Section 3. That a copy of the caption of this Resolution be spread upon the minutes of the City
Council.
P. R. No. 21573
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9/11/20 bw
READ, ADOPTED, AND APPROVED this day of , 2020, at
a Regular Meeting of the City Council of the City of Port Arthur, Texas by the following vote:
AYES: Mayor:
Councilmembers:
NOES:
Thurman "Bill" Bartie
Mayor
ATTEST:
Sherri Bellard
City Secretary
APPROVED AS TO FORM: APPROVED FOR ADMINISTRATION:
al Tizeno Ronald Burton
City Attorney City Manager
r
Donald Stanton Kandy Dani is
Interim Director of Water Utilities Interim Director of Finance
EXHIBIT A
LEASE AGREEMENT
This Lease Agreement("Agreement")dated , 2020 ("Effective Date"), between
City of Port Arthur, with its principal offices located at 444 Fourth Street, Port Arthur, Texas 77640,
("Landlord"),and NextEdge Networks,LLC,a Delaware limited liability company,with its principal offices
at 240 Stockton Street,3rd Floor, San Francisco,CA 94108 ("Tenant"). Landlord and Tenant are at times
collectively referred to hereinafter as the"Parties"or individually as the"Party."
RECITALS
In consideration of the mutual covenants contained herein and intending to be legally bound
hereby,the Parties agree as follows:
1.LEASE OF PREMISES. Pursuant to all of the terms and conditions of this Agreement, Landlord
agrees to lease to Tenant space on the real property to which Landlord has an interest located at 1440
Terminal Road,Port Arthur,Texas,77640,(the"Property")for Tenant's installation,operation,repair,and
maintenance of a communications facility consisting of sensors and related communications equipment as
depicted in Exhibit"A" (the"Premises"). Furthermore, Landlord grants Tenant the non-exclusive right of
ingress and egress from a public right-of-way,seven(7)days a week,twenty-four(24)hours a day,over the
Property to and from the Premises for the purpose of installation,operation,and maintenance of Tenant's
communications facility. If sufficient electrical power (not to exceed a 10 Amp breaker) is available for
Tenant's communications facility, Landlord agrees to allow Tenant to utilize Landlord's power at no
additional cost and Tenant's use of Landlord's power is included in the consideration described below in
Paragraph 3.Tenant has the right to install conduits connecting the Premises to Landlord's power source.
If there is insufficient electric service on the Property for Tenant to operate its communications facility,or
if Tenant requires a telephone, cable, or fiber connection, Landlord grants Tenant or the servicing utility
provider the right to install such utilities on,over and/or under the Property,provided the location of such
utilities shall be approved by Landlord.
2. CONDITION OF PROPERTY. Landlord represents and warrants to Tenant that as of the
Commencement Date(as defined in Paragraph 3 below)and continuing throughout the Term: Property is
in compliance with all laws, including any applicable building codes, regulations, or ordinances and the
Property is free of all lead-based paint,asbestos or other hazardous substances,as such term maybe defined
under any applicable federal,state or local law.If a breach of the representations and warranties contained
in this Paragraph is discovered at any time, Landlord shall, promptly after receipt of written notice from
Tenant setting forth a description of such non-compliance,rectify same at Landlord's expense.
3.TERM; RENTAL.This Agreement shall be for a term of five(5)years commencing upon the day
that Tenant commences installation of the equipment on the Premises (the "Commencement Date").
Tenant shall provide Landlord written notification of its intent to commence the Agreement. Said
notification shall be deemed received by Landlord be via email with read receipt acknowledgement.Within
thirty(30)days of the Commencement Date,Tenant will pay Landlord,as rent the sum of Three Thousand
Dollars($3,000.00)per year("Rent").
4.EXTENSIONS.This Agreement shall automatically be extended for three (3)additional five(5)
year terms unless Tenant terminates it at the end of the then current term by giving Landlord written notice
of the intent to terminate at least two(2)months prior to the end of the then current term.The initial term
and all extensions shall be referred to collectively herein as the "Term". Tenant will pay Landlord, as
consideration for this Agreement extension,an annual payment in the amount of Three Thousand Dollars
($3,000.00). Said payment will be paid annually within thirty (30) days of each of extension in advance
and incur the standard 2 percent(2%)annual increase.
5. USE; GOVERNMENTAL APPROVALS. Tenant shall use the Premises for the purpose of
installing, operating, repairing, and maintaining a communications facility and incidental uses. Tenant
shall have the right to replace, repair, add or otherwise modify its utilities, equipment and/or conduits or
any portion thereof and the frequencies over which the equipment operates. It is understood and agreed
that Tenant's ability to use the Premises is contingent upon its obtaining all of the certificates,permits and
other approvals(collectively the"Governmental Approvals")that may be required by any federal, state or
local authorities.Landlord shall cooperate with Tenant in its effort to obtain such approvals and shall take
no action that would adversely affect the status of the Property with respect to the proposed use thereof by
Tenant.
6.INDEMNIFICATION AND LIMITATION OF LIABILITY.
a. Subject to Paragraph 7 below and to the extent allowed by applicable law, each Party
shall indemnify and hold the other harmless against any claim of liability or loss from personal injury or
property damage resulting from or arising out of the negligence or willful misconduct of the indemnifying
Party,its employees,contractors or agents, except to the extent such claims or damages may be due to or
caused by the negligence or willful misconduct of the other Party,or its employees,contractors or agents.
b. Except to the extent allowed by applicable law,neither Party shall be liable to the other,
or any of their respective agents, representatives, employees for any lost revenue, lost profits, loss of
technology,rights or services,incidental,punitive,indirect,special or consequential damages,loss of data,
or interruption or loss of use of service,even if advised of the possibility of such damages,whether under
theory of contract,tort(including negligence),strict liability or otherwise.
7.INSURANCE.
a.To the extent allowed by applicable law,the Parties hereby waive and release any and all
rights of action for negligence against the other which may hereafter arise on account of damage to the
Premises or to the Property,resulting from any fire,or other casualty of the kind covered by standard fire
insurance policies with extended coverage,regardless of whether or not,or in what amounts,such insurance
is now or hereafter carried by the Parties,or either of them.These waivers and releases shall apply between
the Parties and they shall also apply to any claims under or through either Party as a result of any asserted
right of subrogation.All such policies of insurance obtained by either Party concerning the Premises or the
Property shall waive the insurer's right of subrogation against the other Party.
b. Tenant will maintain commercial general liability insurance with limits not less than
$1,000,000 for injury to or death of one or more persons in any one occurrence and$500,000 for damage
or destruction to property in any one occurrence.Tenant shall name the Landlord as an additional insured
and provide the Landlord with a certificate of insurance evidencing such.
8.TERMINATION. Notwithstanding anything to the contrary contained herein, provided Tenant
is not in default hereunder beyond applicable notice and cure periods, Tenant shall have the right to
terminate the Agreement providing two(2)months prior written notice to Landlord.
9. INTERFERENCE. Tenant's communications facility will not cause measurable interference to
Landlord's or any other tenants of the Property's equipment that is operating on the Property prior to the
Effective Date, such measurable interference to be determined in accordance with then existing industry
standards. If Tenant's equipment causes measurable interference, Landlord will notify Tenant in writing,
and Tenant will take all commercially reasonable steps necessary to correct and eliminate the interference,
including but not limited to,at Tenant's option,powering down such equipment and later powering up such
equipment for intermittent testing. In no event will Landlord be entitled to terminate the Agreement or
relocate the equipment as long as Tenant is making a good faith effort to remedy the interference issue.
Landlord agrees that Landlord and/or any other tenants of the Property who currently have or in the future
take possession of the Property will not install or operate equipment that causes measurable interference
to Tenant's then existing communications facility. The Parties acknowledge that there will not be an
adequate remedy at law for noncompliance with the provisions of this Paragraph and therefore,either Party
shall have the right to equitable remedies, such as, without limitation, injunctive relief and specific
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performance.
10.REMOVAL AT END OF TERM.Tenant shall,within thirty(30)days after the expiration of this
Agreement, remove its communications equipment and all personal property and restore the Premises to
its original condition immediately prior to Tenant installation, reasonable wear and tear and casualty
damage excepted. Landlord agrees and acknowledges that all of Tenant's communications equipment and
personal property shall remain Tenant's personal property, and Tenant shall have the right to remove the
same at any time during the Term.
ii.WAIVER OF LANDLORD'S LIEN RIGHTS.Landlord expressly waives,releases and negates any
and all liens and security interests (constitutional,statutory, contractual or otherwise)to which Landlord
might now or hereafter be entitled on all communications equipment, trade fixtures, or other personal
property or assets which Tenant may place or permit to be placed in or about the Premises. In connection
with such waiver, Landlord agrees to enter into any such bona fide lien holder's commercially reasonable
form to acknowledge such waiver and Tenant will reimburse Landlord for all reasonable attorneys' fees
Landlord incurs in connection with such agreement.Such amounts shall be due and payable within thirty
(30)days of Landlord's written demand therefor.
12. RIGHTS UPON SALE. If Landlord, sells or transfers the Property during the Term of the
Agreement, such sale or transfer of interest will be under and subject to the Agreement and any such
purchaser or transferee shall recognize Tenant's rights hereunder the terms of the Agreement.
13.OUIET ENJOYMENT AND REPRESENTATIONS. Landlord covenants that Tenant,on paying
the rent and performing the covenants herein, shall peaceably and quietly have, hold and enjoy the
Premises. Landlord represents and warrants to Tenant as of the date of the Agreement, and covenants
during the Term that Landlord is seized of good and sufficient title and interest to the Property and has full
authority to enter into and execute the Agreement. Landlord further covenants during the Term that there
are no liens,judgments or impediments of title on the Property, or affecting Landlord's title to the same
and that there are no covenants, easements or restrictions which prevent or adversely affect the use or
occupancy of the Premises by Tenant as set forth above.
14.ASSIGNMENT AND SUBLETTING.Provided no default has occurred and is continuing,Tenant
shall have the right to assign,hypothecate,mortgage,and/or sublease all or any portion of this Agreement,
the Premises, and/or any and all rights appurtenant thereto. Upon an assignment to an assignee who
assumes all obligations and duties under this Agreement, Landlord will release Tenant from any and all
liability under the Agreement from the effective date of the assignment.
15.NOTICES.All notices hereunder must be in writing and shall be deemed validly given if sent by
certified mail,return receipt requested or by commercial courier,provided the courier's regular business is
delivery service and provided further that it guarantees delivery to the addressee by the end of the next
business day following the courier's receipt from the sender,addressed as follows(or any other address that
the Party to be notified may have designated to the sender by like notice):
LANDLORD: City of Port Arthur
444 Fourth Street
Port Arthur,TX 77640
TENANT: NextEdge Networks,LLC
240 Stockton Street,3rd Floor
San Francisco,CA 94108
Attn: Network Operations
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the
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foregoing.
16. RECORDING. At Tenant's request, Landlord agrees to execute a memorandum of agreement
which Tenant may record with the appropriate recording officer.The date set forth in the memorandum is
for recording purposes only and bears no reference to commencement of the Term.
17. DEFAULT AND REMEDIES. Notwithstanding anything contained herein to the contrary and
without waiving any other rights granted to it at law or in equity,each Party shall have the right,but not the
obligation, to perform a defaulting Party's duty or obligation on the defaulting Party's behalf, or may
terminate this Agreement immediately on written notice, if the defaulting Party fails to perform any
covenant or commits a material breach of this Agreement and fails to diligently pursue a cure to its
completion after thirty(3o)days'written notice specifying such failure or performance or default,or after
five(5)days'written notice if Landlord fails to perform any covenant that interferes with Tenant's ability to
operate its communication facility.Any costs and expenses incurred by the non-defaulting Party related to
performing the defaulting Party's duty or obligation shall be due and payable by the defaulting Party upon
invoice submitted by the non-defaulting Party.
i8.CASUALTY.If damage by fire or other casualty to the Building or Premises impact Tenant's use
of the Premises,Landlord will use best efforts to relocate Tenant temporarily to avoid disruption of Tenant's
ability to operate its communication facility.If the damage or other casualty cannot reasonably be expected
to be repaired within forty-five (45) days following same or, if the Property is damaged by fire or other
casualty so that such damage may reasonably be expected to disrupt Tenant's operations at the Premises
for more than forty-five (45) days, then Tenant may, at any time following such fire or other casualty,
terminate the Agreement upon fifteen(15)days prior written notice to Landlord.
19. MISCELLANEOUS. This Agreement contains all agreements, promises and understandings
between the Landlord and the Tenant regarding this transaction, and no oral agreement, promises or
understandings shall be binding upon either the Landlord or the Tenant in any dispute, controversy or
proceeding.This Agreement may not be amended or varied except in a writing signed by all Parties.This
Agreement shall extend to and bind the heirs,personal representatives,successors and assigns hereto.The
failure of either party to insist upon strict performance of any of the terms or conditions of this Agreement
or to exercise any of its rights hereunder shall not waive such rights and such party shall have the right to
enforce such rights at any time. The performance of this Agreement shall be governed, interpreted,
construed, and regulated by the laws of the state in which the Premises is located without reference to its
choice of law rules.
[The Remainder of this Page is intentionally Left Blank;Signature Page to Follow]
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IN WITNESS WHEREOF,the Parties hereto have set their hands and affixed their respective seals the day
and year first above written.
LANDLORD:
City of Port Arthur
A municipality
By:
Name:
Its:
Date:
TENANT:
NextEdge Networks,LLC,
A Delaware limited liability company
By:
Its: CEO
Name:Chris Maguire
Date:
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Exhibit A
Premises
Sensosrto be installed on pipe
�T/ EUs1ore o"t trwaLL mount behind the wall
t Q.E AlloNlNc 4CL
3.51b sensor
Power Enclosure mechanical details
I gill
Enclosure Dimensions: 12"x 10"x 6"
To be installed on the pipe mount behind the parapet
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Notes:
1. This Exhibit A may be replaced by a Site Plan substantially depicting the above once Tenant receives
it.
2. The type, number, and mounting positions and locations of sensors and lines are illustrative only.
Actual types,numbers, mounting positions,may vary slightly from what is shown above.
A-i
Nextdil=dge
N E T W O R K S
Project Overview
What this equipment does:
• In 2015,the FCC approved usage of a spectrum called Citizens Broadband Radio
Service. Commercial users and carriers have been dominating the usage of the signal and it has
been experiencing increased traffic.
• The purpose of this sensor is to give the government and military priority usage of this signal
when it is needed for air and sea operations.When necessary, the sensor relocates commercial
users to a different part of the band. It then frees up the spectrum for government use and gives
them priority access and interference-free access in order to protect the coastline and nation.
• These sensors are being installed up and down the coastlines in the U.S. in every 20-25 miles.
We will install one of two ways:
• Non-penetrating sled mount on the roof(see photo.) It's
weighted to withstand the windload requirements of each
market. If the owner needs to do roof repairs or replace the
roof,we can merely pick it up and move the sled to another "` ~ ' �
portion of the roof and put it back.
• Parapet or penthouse wall mount. We merely attach a pipe
mount on the side and place the sensor on that. In this case, 1
we use bolts to install a plate and attach a pipe with the
sensor.
About the equipment:
• The ESC sensor weighs between 3.5 to 7 pounds.
• This is a receive-only sensor which does not transmit nor cause any interference to your existing
equipment.This equipment doesn't transmit any frequency and any data is sent via ethernet or
modem connection.
• We will install a power box (8"x10", 7 pounds) located in your telecommunications room or
shelter
• We would like to use an available circuit breaker in your existing panel, or we can install a 10-
amp breaker at our expense
Nextil=dge
About the project:
• To assist with your research, we encourage you to visit FederatedWireless.com
• Next Edge Networks is a subcontractor of Federated Wireless.We were hired to procure lease
agreements with property owners to perform the installation of this equipment along the
coastlines of the U.S. We don't directly represent any federal agency, however the federal
agencies are beneficiaries of the equipment that we are installing.
• Doug Wiest, CEO of Next Edge Networks will be the signing party of this agreement. His bio
can be found here: http://nextedgenetworks.com/about-us/
r,�yT op •
4.„r, DEPARTMENT OF DEFENSE
a� 2 6000 DEFENSE PENTAGON
o .,I�i;: n, WASHINGTON,D.C.20301-6000
♦' 7
AUG 3 0 2018
CHE FORMATION OFFIC 31
F
MEMORANDUM FOR THE RECORD
SUBJECT: Deployment of Commercial Radio Frequency (RF) Receivers in 3.55 —3.65 GHz
Reference: Electronic Code of Federal Regulations, Title 47, Chapter I, Subchapter D, Part 96,
CITIZENS BROADBAND RADIO SERVICE (https://www.ecfr.gov/cgi-bin/text-
idx?mc=true&tpl=/ecfrbrowse/Title47/47cfr96_main_02.tpl)
The 3.55 —3.65 GHz Frequency band has been designated by the FCC for spectrum
sharing between the federal primary radiolocation allocation users and the Citizens Broadband
Radio Service (CBRS), Reference. The sharing plan provides spectrum access to commercial
interests to increase spectrum utilization while protecting the primary users. The primary DoD
users in this band are shipborne radar systems, with some inland locations. This spectrum
sharing arrangement allows commercial interests to use this frequency band when the incumbent
radar systems are not in nearby geographic coastal regions, and when radar test sites are not
operating.
Incumbent federal operations are being protected from interference by a spectrum sharing
system defined as Spectrum Access Systems (SASs) and Environmental Sensing Capability
(ESC)networks; the ESC detects the radio frequency(RF)transmissions from the incumbent
radars and the SASs timely turn off the commercial CBRS devices in the 3.55 —3.65 GHz band,
until DoD radar operation ceases. This prevents interference to the incumbent radars, as part of
the sharing arrangements in the FCC's rules (Reference).
The ESC receivers will be primarily placed along coastlines to monitor DoD radar
transmissions (incumbent use of the band). The locations of these devices will be known to DoD
prior to deployment. The Office of the DoD CIO is working closely with the U.S. Navy, Air
Force, Marine Corps. and Army to coordinate the development of the spectrum sharing
capabilities in this band. The DoD CIO, on behalf of the above listed Military Services,
acknowledges that the following companies under the FCC's rules will deploy ESC RF sensors
(receivers) in this band to protect DoD operations:
CommScope/Comsearch
Federated Wireless
Google
Key Bridge
The DoD CIO point of contract for this issue is Mr.Thomas Taylor
thomas.j.taylor2.civ@mail.mil.
dilk
e. -ric D.MO' - eld
Director, Spectrum Policy_/.
International Engageme
Nextitil=dge
NETWORKS
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