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HomeMy WebLinkAboutContract 37288-CD1 CITY SECRETARY CONTRACT N0.,T t-/lk CONSENT TO DEED OF TRUST LIEN UPON LEASEHOLD FORT WORTH MEACHAM INTERNATIONAL AIRPORT OFFICIAL RECORD LEASE AGREEMENT CITY SECRETARY LEASE SITE NO. 3W FT.WORTH,TX CITY SECRETARY CONTRACT NO. 37288 This CONSENT TO DEED OF TRUST LIEN UPON LEASEHOLD ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("Lessor"), a home rule municipal corporation organized under the laws of the State of Texas; TACTICAL AVIATION SERVICES, LLC, a Texas limited liability company (`Lessee"); and BOKF, NA DBA BANK OF TEXAS ("Lender"), a national banking association. A. On May 13, 2008 (M&C C-22805), WTW Properties, Inc. ("WTW"), entered into City Secretary Contract ("CSC") No. 37288, ("Lease"), a lease of real property consisting of 21,514 square feet of ground space at Fort Worth Meacham International Airport ("Airport") known as Lease Site 3W ("Leased Premises"). CSC No. 37288 shall hereinafter be referred to as the "Lease." B. On April 11, 2017 (M&C C-28178), City Council approved CSC-37288-A1, Amendment No. 1, increasing the current ground space square footage from 21,514 square feet to 25,266 square feet. C. WTW has assigned its interest in the Lease to Lessee, and City has consented to such assignment in a contract to be executed concurrently with this Agreement. D. Lessee and Lender desire Lessor to consent to the execution by Lessee of a Leasehold Deed of Trust lien on the Leased Premises (the "Deed of Trust") in favor of the Lender. NOW, THEREFORE,Lessor, Lessee and the Lender hereby agree as follows: 1. The statements set forth in the recitals above are true and correct and form the basis upon which Lessor, Lessee and the Lender have entered into this Agreement. The Lease is a public document on file in Lessor's City Secretary's Office and is incorporated herein by reference for all purposes. 2. Lessor hereby consents to the execution and delivery by Lessee to the Lender of the Deed of Trust. Lessor does not adopt, ratify or approve of any of the particular provisions of the Deed of Trust and does not grant any right, privilege or use to Lessee, Lender, or any Consent to Deed of Trust Tactical Aviation Services,LLC and Bank of Texas—Page 1 the Deed of Trust and does not grant any right, privilege or use to Lessee, Lender, or any successor in interest pursuant to the Deed of Trust that is different from or more extensive than any right, privilege or use granted to Lessee under the Lease. Notwithstanding anything contrary in the Deed of Trust, Lessee and the Lender acknowledge, understand and agree that Lessee and the Lender do not have any right to convey any interests in the Leased Premises greater than those granted specifically by the Lease. Lessee and the Lender further acknowledge, understand and agree that Lessor retains the mineral interest and the right to develop such interest. In the event of any conflict between the Deed of Trust and the Lease, the Lease shall control in all respects as to Lessor and as to Lessee's and the Lender's obligations to Lessor established by the Lease and/or this Agreement. In the event of any conflict between the Deed of Trust and this Agreement, this Agreement shall control. In the event of any conflict between this Agreement and the Lease,the Lease shall control. 3. In the event that Lessor is required by the Lease to provide any kind of written notice to Lessee with regard to the Leased Premises, including notice of breach or default by Lessee, Lessor shall also provide a copy of such written notice to the Lender. Lessor agrees that (i) the Lender may perform any of the obligations or requirements imposed on Lessee by the Lease in order to avoid a breach or default under the Lease by Lessee and (ii) Lessor will accept the Lender's performance the same as ifLessee had performed such obligations or requirements. 4. Lessor agrees and covenants that it will not exercise any rights it may have under the Lease to cancel or terminate the Lease or to force surrender of all or part of the Leased Premises unless it first has provided the Lender with written notice of its intent to exercise such any such right. The Lender shall have ten (10) calendar days from the date it receives such notice to cure any monetary default under the Lease and thirty (30) calendar days from the date it receives such notice to cure any other default under the Lease to Lessor's reasonable satisfaction in order to avoid such cancellation, termination or surrender; provided, however, that if the Lender, in good faith and after diligent and continuous efforts to remedy any non-monetary default under the Lease, cannot cure such default within thirty (30) calendar days, it shall notify Lessor in writing and Lessor and the Lender shall negotiate in good faith a reasonable amount of additional time to cure such default. 5. Lessee agrees that it will not request or consent to any future modifications, amendments or assignments of the Lease without first receiving the Lender's written consent thereto and providing a copy of such written consent to Lessor. Lessee understands and agrees that any such consent granted by Lessor without Lender's advance written consent shall be void and specifically releases, holds harmless and agrees to indemnify Lessor for any damages that may arise as a result of any such Consent to Deed of Trust Tactical Aviation Services,LLC and Bank of Texas—Page 2 consent. 6. As long as such does not conflict with Lessor's rights under the Lease, Lessor consents to the exercise by the Lender of any and all rights and remedies permitted under the Deed of Trust (including judicial and/or non judicial foreclosure on the Leased Premises), and to the exercise of such additional legal and equitable rights and remedies as may be available to Lender, if an Event of Default occurs under the Deed of Trust. In the event that Lender undertakes to enforce its rights to any collateral granted by the Deed of Trust on account of default by Lessee under the Deed of Trust, Lessor will cooperate with the Lender in its efforts to assemble and/or remove any personal property of Lessee on the Premises. The Lender hereby agrees to repair any damages at or to the Airport, including the Leased Premises, caused by or incident to such removal. 7. As a condition precedent to the effectiveness of this Agreement, Lessee agrees and covenants that it will endorse all insurance policies required by the Lease to name both Lessor and the Lender as additional insureds and to cover all public risks related to the leasing, use, occupancy, maintenance, existence or location of the Leased Premises. Notwithstanding anything to the contrary in the Deed of Trust, the Lender hereby agrees and covenants that any and all proceeds payable under the terms of such insurance policies shall first be applied to cover the replacement of all facilities and improvements on the Leased Premises and to satisfy fully the terms and conditions of the Lease. Payment of such proceeds shall apply secondarily to secure any of Lessee's indebtedness to the Lender. S. Subject to Sections 4 and 6 of this Agreement, Lessor may take all action available to it under the Lease, at law or in equity in order to protect its interests, including, but not limited to, cancellation of Lessee's interest as provided by the Lease and in accordance with this Agreement. 9. The Lender agrees that it promptly will notify Lessor in writing when the Lender has released its rights under the Deed of Trust. This Agreement will automatically terminate on the earlier of (i) the date as of which the Lender releases such rights or (ii) the date upon which the Lease expires or is terminated. 10. If the Lender forecloses on the Leased Premises as a result of exercising its rights under the Deed of Trust, the Lender may become the owner of all of Lessee's rights under the Lease, without Lessor's further action or consent. However, if the Lender desires to sell or otherwise transfer its leasehold interest in the Leased Premises to a third party (either at or after foreclosure), the Lender must obtain the Lessor's written consent to and approval of the purchaser. Such consent and approval will not be unreasonably Consent to Deed of Trust Tactical Aviation Services,LLC and Bank of Texas—Page 3 withheld, conditioned or delayed. Nothing in this Agreement is intended to prohibit the Lender from assigning the liens and security interests created by the Deed of Trust to another financial institution with Lessor's prior written consent, which such consent will not be unreasonably withheld, conditioned, or delayed. 11. Notices to the Lender required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (i) hand-delivered to the Lender, its agents, employees, servants or representatives, or (ii) deposited in the United States Mail, certified, return receipt requested, addressed as follows: BOKF,NA DBA Bank of Texas ATTN: Jennifer Baggs 801 Cherry Street, Suite 3325 Fort Worth, TX 76102 12. The parties hereto understand and agree that upon expiration or termination of the Lease, all structures, improvements and fixtures on the Leased Premises, and any items permanently attached to any such structure, fixture or improvement, will become the sole property of Lessor, free and clear of all liens, including the Deed of Trust, except for improvements of a non-permanent nature, all trade fixtures, machinery, furnishings and other items may specifically be removed from the Leased Premises in accordance with the Lease. In the event that the Lease expires or is terminated, Lessee and the Lender covenant and agree that nothing herein shall obligate Lessor to assume in any way Lessee's indebtedness to the Lender. 13. Estoppel. a. The documents referred to above as comprising the Lease are the only documents which constitute the Lease, and the Lease is in full force and effect and has not been modified, changed, altered or amended in any respect. b. The Lease is the only agreement between the City and Lessee relating to the Lease at Fort Worth Meacham International Airport and,together with the minimum standards and other general regulations that may apply to the lessee under the Lease, contains the entire agreement and understanding of the City and Lessee with respect thereto. Lessee is the current holder of the leasehold interest in the premises under the Lease. C. To the best knowledge of the City, no monetary or non-monetary default by Lessee presently exists under the Lease and no state of facts exist which with the passage of time or giving of notice, or both, would constitute a default by the Consent to Deed of Trust Tactical Aviation Services,LLC and Bank of Texas—Page 4 Lessee under the Lease. d. To the best knowledge of the City, no monetary or non-monetary default by the City presently exists under the Lease and no state of facts exist which with the passage of time or giving of notice, or both, would constitute a default by the City under the Lease. e. The City has not taken, and does not currently anticipate taking any action to, or that would, terminate the Lease. L All improvements, facilities, work and alterations required to be furnished by the Lessee or any prior lessee under the Lease have been satisfactorily constructed. g. Lessee is current in the payment of any and all rent and any other charges required to be paid by Existing Tenant under the Lease, which amounts have been paid through the month of August 2017. h. There are no escrows or other deposits from Lessee held by the City pursuant to the Lease. i. Pursuant to the Lease, the Initial Term of the Lease expires on September 30, 2038, at 11:59 PM. Lessee has a right to extend the term of the Lease for two (2) additional successive terms of five (5)years each(each a"Renewal" Term). 14. The provisions of this Agreement shall be self-operative and effective without the execution of any further instruments on the part of any party hereto. 15. Lessor understands and agrees that this Agreement is for the benefit of the Lender, that the Lender relied upon this Consent to Leasehold Deed of Trust and Estoppel in making its decision to make the Loan to Lessee and that the Lender would not make the Loan absent Lessor's execution and delivery of this Agreement. 16. This Agreement may not be withdrawn, amended or modified except by a written agreement executed by the parties hereto and approved by Lessor's City Council. Lessee and Lender covenant and agree that they will not assign any rights and/or obligations thereunder, without the prior written consent of Lessor. Lessee and Lender shall have the right to modify and extend the terms of the note secured by the Deed of Trust and to file such modifications in the Deed Records of Tarrant County, Texas. 17. This Agreement shall be construed in accordance with the laws of the State of Texas. Venue for any action arising under the provisions of this Agreement shall lie in Consent to Deed of Trust Tactical Aviation Services,LLC and Bank of Texas—Page 5 state courts located in Tarrant County, Texas or in the United States District Court for the Northern District of Texas, Fort Worth Division. 18. This written instrument, including any documents attached hereto and/or incorporated herein by reference, contains the entire understanding and agreement between Lessor, Lessee and the Lender as to the matters contained herein. Any prior or contemporaneous oral or written agreement concerning such matters is hereby declared null and void to the extent in conflict with this Agreement. 19. The person signing this Agreement hereby warrants that he/she has the legal authority to execute this Agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. [Signature Pages Follow] Consent to Deed of Trust Tactical Aviation Services,LLC and Sank of Texas—Page 6 IN WITNESS WHEREOF, the parties h reto have executed this Agreement in multiples on this the A511;—day of , 2017. CITY OF FORT WORTH: By: L.e� Fernando Costa Assistant City Manager Date: 9L21 /-7 BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Fernando Costa, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that he executed the same as the act of the City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. GI�EN UNDER MY HAND AND SEAL OF OFFICE, this 2/ day of 2017. iRIKiNYA L JOHNSON �•S�aY PU6 4- o 4o ZiNotary Public,state of Texas Comm.Expires 04-17-2018 Notary P blit in d for the State of Texas ,T..... +•,. '.,F�„`,,,• Notary ID 1238832 0 APPROVED AS TO FORM AT T ES T: AND LEGALITY: By: By: A117 Paige Meb e Mary J. er Assistant City Attorney City S ry d n O Date Approved: Form 1295: rf�a�Lr1� ' yCP,S Consent to Deed of Trust OFFICIAL RECORD Tactical Aviation Services,LLC and Sank of Texas—Page 7 ciTv SECRETARY FT.WORTH,TX Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this con t, including ensuring all performance and reporting requirements. Anne-Marie Stowe Title LESSEE: TACTICAL AVIATION SERVICES, LLC ATTEST: By: _ _ By: Thomas J o M ger 62 Date: // 7 �� STATE OF TEXAS § COUNTY OF79'16� § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Thomas Trejo, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of Tactical Aviation Services, LLC, and that he executed the same as the act of Tactical Aviation Services, LLC, for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 1eq� day of 2017. ,.��av•�a,, ANNE-MARIE STOWE Notary Public, State of Texas Notary Public in and fur the State of Texas Comm.Expires 05-01-2018 -'rF � Notary ID 45976.5 Of Consent to Deed of Trust Tactical Aviation Services,LLC and Bank of Texas—Page 8 LENDER: BOKF, NA DBA BANK OF TEXAS ATTEST: JENNIFER BAGGS B ( By: QJe ' r Ba gs, Sr.Vice President Date: STATE OF TEXAS § COUNTY OF § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Jennifer Baggs, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of BOKF, NA dba Bank of Texas and that s/he executed the same as the act of BOKF, NA dba Bank of Texas for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day �%�2�L017. ANNE-MARIE STOWE Notory Public,State of Texas Notary Pub is un and for the State of Texas Comrn.Expires 05-01-2018 Notary ID 45916-5 Consent to Deed of Trust Tactical Aviation Services,LLC and Bank of Texas—Page 9