HomeMy WebLinkAboutContract 33916 CITY SECRETARY
CONTRACT NO.
CONSENT TO DEED OF TRUST LIEN UPON LEASEHOLD
FORT WORTH SPINKS AIRPORT
IMPROVED AND UNIMPROVED GROUND LEASE AGREEMENT
WITH MANDATORY IMPROVEMENTS
(LEASE SITE NO.W-2)
(CITY SECRETARY CONTRACT NO.30655)
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; FWS REALTY, LTD
("Lessee"), a Texas limited liability company; and REGIONS BANK("Bank"), a Texas banking
association.
A. On or about October 6, 2004, Lessor and Lessee entered into City Secretary Contract No.
30655 (the "Lease"), a lease of improved and unimproved land at Fort Worth Spinks Airport
("Airport")known as Lease Site No. W-2 (the"Leased Premises").
B. In order for Lessee to obtain certain financing related to Lessee's construction of
improvements on the Leased Premises, Lessee and Bank 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 Bank.
NOW,THEREFORE,Lessor,Lessee and the Bank 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 Bank 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 Bank of the Deed of
Trust, which is attached hereto as Exhibit "C. 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, Bank, 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 Bank acknowledge, understand and agree
that Lessee and the Bank do not have any right to convey any interests in the Leased Premises
greater than those granted specifically by the Lease. 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
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Consent to Deed of Trust between
FWS Realty,LTD and Regions Bank
Bank'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 Bank. Lessor agrees that (i) the Bank 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 Bank's performance the
same as if Lessee 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 Bank with written notice of its intent to exercise such any such right. The
Bank 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 Bank, 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
Bank shall negotiate in good faith a reasonable amount of additional time to cure such default.
5. Lessee agrees that it will not request to or consent to any future modifications, amendments
or assignments of the Lease without fust receiving the Bank'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 Bank'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.
6. In the event that Bank undertakes to enforce its rights to any collateral granted by the Deed
of Trust on account default by Lessee under the Deed of Trust,Lessor will cooperate with the Bank
in its efforts to assemble and/or remove any personal property of Lessee on the Premises. The Bank
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 Bank 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 Bank hereby agrees and covenants that any and all proceeds
payable under the terms of such insurance policies shall fust 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
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Consent to Deed of Trust between
FWS Realty,LTD and Regions Bank
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117
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indebtedness to the Bank.
8. 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 Bank agrees that it promptly will notify Lessor in writing when the Bank 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 Bank releases such rights or(ii)the date upon which the Lease expires or is
terminated.
10. The Bank may not sell or otherwise transfer in any way any of the Bank's or Lessee's rights
or interest in the Leased Premises unless Lessor consents to such sale or transfer in the form of a
written agreement approved in advance by Lessor's City Council.
11. Notices to the Bank required pursuant to the provisions of this Agreement shall be
conclusively determined to have been delivered when (i) hand-delivered to the Bank, its agents,
employees, servants or representatives, or (ii) deposited in the United States Mail, certified, return
receipt requested, addressed as follows:
Regions Bank C/o U) l(I'Al"t co 1,I(s o11, CP
Monroe Main Office
1500 North 18`' Street
Monroe, LA 71201
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 Bank covenant and agree that nothing herein shall obligate Lessor to assume in any
way Lessee's indebtedness to the Bank.
13. 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 Bank
covenant and agree that they will not amend the Deed of Trust, or assign any rights and/or
obligations thereunder,without the prior written consent of Lessor.
14. 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 state courts located
in Tarrant County, Texas or in the United States District Court for the Northern District of Texas,
Fort Worth Division.
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Consent to Deed of Trust between
FWS Realty,LTD and Regions Bank
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15. This written instrument, including any documents attached hereto and/or incorporated
herein by reference, contains the entire understanding and agreement between Lessor, Lessee and
Bank 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples
as of the latest date below:
CITY OF FORT WO H: ATTEST:
1
By: By:
Marc OttMarty Hendrix
Assistant City Manager City Secretary
Date:
APPROVED AS TO FORM AND LEGALITY:
Benita Harper
Assistant City Attorney
M&C: C. - a Ls 9 9
FWS REALTY,LTD: ATTEST:
Harrison Realty Investments,LLC
General Partner
By: //, .�_ By:
John Cockerham
Manager
Date: g' 4
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Consent to Deed of Trust between
FWS Realty,LTD and Regions Bank
OFFICIAL
REGIONS BANK, ATTEST:
a Texas banking association:
By: By: LLL&�
Ndame:W ilb'am f . W,V130/L.
Title: f t e c uV Je dt`r-e.
Date:
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Consent to Deed of Trust between
FWS Realty,LTD and Regions Bank
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on
this day personally appeared Marc Ott, 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.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this /f 5� day
2006.
IJ
hIETTIE LANE Notary Public in and or the State of Texas
e
° MY COWSMISSION EXPIRES
July 26,2007
STATE OF TEXAS §
COUNTY OF TARR.ANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on
this day personally appeared 344 Co.-kgp hc.w. , 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 FWS
Realty,LTD and that s/he executed the same as the act of FWS Realty, LTD for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN EN UNDER MY HAND AND SEAL OF OFFICE this day
f- 2006.
Q-
sr iy
�r'RyP RITA A. SINGLETON Notary blic in and for the tate of Texas
� �
° k NOTARY PUBLIC
STATE OF TEXAS
Nl''*°F ire MY Comm.Expires 12-15-2008
QFFICIAI Cu 0
CIff Mt'llpfffklff
°�fit/\(1
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authonity. a Notary Public in and for the State of Texas, on
this day personally appeared �.,J;1 t, �., �� j ��� , 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
Regions Bank and that s/he executed the same as the act of Regions Bank for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN ER MY HAND AND SEAL OF OFFICE this D C day
2006.
Notaryc in and for the State ofq£cxas
PEG GY HARBOR
Notary Public#16298
State of Louisiana
my Commission is for Life
CITY SECRETARyr,),�l 1 '
'ONTRACT NO.
MEMORANDUM OF LEASE
This is a Memorandum of the Unimproved Ground Lease Agreement with Mandatory
Improvements (the "Lease") executed between the City of Fort Worth ("Lessor")and
FWS Realty, Ltd. ("Lessee")on the 6t'day of October, 2004, said Lease being identified
by the City Secretary as Contract No. 30655 and Amendment No. 32469 to such Lease
dated the oday ofAQ '1
200 ,
Lessor is the City of Ft. Worth, a home rule municipal corporation, situated in Tarrant
County, Texas.
Lessee is FWS Realty, Ltd., a Texas Limited Liability Partnership, with its principal
place of business in Tarrant County, Texas.
The Description of the leased premises is as set forth on Exhibits A attached hereto.
The Initial Term of the lease commenced on the 6th day of October 2004 and expires
on September 30, 2034 unless terminated earlier as provided in the Lease.
The Lease Term can be renewed for two (2)additional successive terms of five (5)
years each upon expiration of the Initial Lease Term as long as Lessee abides by the
terms of the Lease.
Nothing contained herein shall alter, modify, change or supersede the terms of the
Lease
Memorandum of Lease r� N
City of Fort Worth— FWS Realty, Ltd. �F 1 1AlkI HC,0 b
Page 1 of 3 CN � �Elt�'Y
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In witness whereof, the parties have hereunto executed this Memorandum of the
Unimproved Ground Lease Agreement with Mandatory Improvements subject
Amendment Number One to such Lease this gy of 2006.
LESSOR:
CITY OF FORT WORTH:
B Mal /,17
Marc Ott
Assistant City Manager
ATTEST:
By:
�a Ai
City Secretary
APPROVED AS TO FORM AND LEGALITY:
15-V
Assistant City Attorney
M & C: C- a+IsC19
LESSEE:
FWS REALTY, LTD
Harrison Realty Investments, LCC
General Partner
BY ' 1-k, , C i-
John Cockerham, Manager
Memorandum of Lease OFFICIAL
�
City of Fort Worth - FWS Realty, Ltd. b
Page 2 of 3 ITY NAS n , i ff
T. WOiTHI YVIL
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
Texas, on this day personally appeared Marc Ott, 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 said
City of Fort Worth for the purposes and consideration therein expressed and in the
capacity therein stated. 4
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of2006_
LANEo ary Public in and for the State of TexasW7HETTIE
COMMISSION EXPIRES July 26,2007
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
Texas, on this day personally appeared John Cockerham, 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 Harrison Realty Investments LLC as General Partner of FWS
Realty, Ltd. and that he executed the same as the act of its act for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 2006.
Ri T H A. SINGLETON
NOTARY PUBLIC
Notaly Public in and for the S to of Texas �� � ' STATE OF TEXAS
''�of My Comm.Expires 12-15-2008
Memorandum of Lease ���� j�� y:v �
City of Fort Worth — FWS Realty, Ltd. '� �•�
Page 3 of 3 V 1oi�Y SECRE
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 8/3/2006
DATE: Thursday, August 03, 2006
LOG NAME: 55FWS DOT REFERENCE NO.: **C-21599
SUBJECT:
Authorization to Execute a Written Consent to Deed of Trust Lien by FWS Realty, LTD in Favor of
Regions Bank for Lease Site W-2 at Fort Worth Spinks Airport
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a written consent to Deed of
Trust Lien by FWS Realty, LTD in favor of Regions Bank for Lease Site W-2 at Fort Worth Spinks Airport.
DISCUSSION:
On May 18, 2004, (MSC C-20086) City Council approved execution of an unimproved ground lease with
mandatory improvements with Haydn Cutler for a phased development project at Fort Worth Spinks Airport.
FWS Realty, LTD, managed by Haydn Cutler, currently leases Lease Site W-2 at Fort Worth Spinks Airport
pursuant to City Secretary Contract (CSC) No. 30655. FWS Realty, LTD wishes to put up a 22,500 square
foot executive hangar as collateral.
FWS Realty, LTD wishes to obtain financing for the 22,500 square foot executive hangar from Regions
Bank. Accordingly, Mr. Cutler has requested the City's consent to his execution of a Deed of Trust Lien on
the premises in order for the Bank to secure his loan. The Deed of Trust Lien will grant the Bank the right to
operate as Lessee or to secure another tenant in place of FWS Realty, LTD, if approved by the City
Council, in the event that FWS Realty, LTD defaults on the loan or their lease with the City of Fort Worth.
The Lease Agreement prohibits FWS Realty, LTD or Haydn Cutler from making any assignment of the
Lease or causing any lien to be made on improvements constructed on the Leased Premises without City
Council approval. This type of transaction is routine for large airport tenants and City staff has no objection
to Mr. Cutler's request.
Fort Worth Spinks Airport is located in COUNCIL DISTRICT 8.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this action will have no material effect on City funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office by: Marc Ott (8476)
Originating Department Head: Mike Feeley (871-5403)
Additional Information Contact: Mike Feeley (871-5403)
.ogname: 60SOUTHWEST Page 1 of 2