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HomeMy WebLinkAboutContract 50902-CD1 k CITY SECRETARY G�`� -9 rONTRACT NO._anoa—CD � 2��9 CONSENT TO LEASEHOLD DEED OF TRUST pUG-2 woA� CV 0�FORS ZP�Y FORT WORTH SPINKS AIRPORT UV S�Z LEASE AGREEMENTS LEASE SITE 31N �5 0� S-oQ This CONSENT TO LEASEHOLD DEED OF TRUST ("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; DANIEL GRIFFITH ("Lessee"), an individual, and PINNACLE BANK ("Lender"), a national banking association. The following introductory provisions are true and correct and form the basis of this Consent: A. Lessor and Lessee entered into City Secretary Contract (CSC) 50902 on June 27, 2018, a Ground Lease Agreement for the space known as lease site 31N ("Leased Premises") at Fort Worth Spinks Airport("Airport"), (the"Lease"). B. Lessor and Lessee have recently amended CSC 50902, which incorporates a new survey reflecting an increase in the amount of square footage to the original lease from 48,817 square feet to 78,229 square feet("Amendment"). C. Lessee and the Lender now desire Lessor to consent to the execution by Lessee of a Leasehold Deed of Trust on the Leased Premises 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 will be 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 Leasehold Deed of Trust. Lessor does not adopt, ratify or approve of any of the particular provisions of the Leasehold Deed of Trust and does not grant any right,privilege or use to Lessee, Lender, or any successor in interest pursuant to the Leasehold 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 Leasehold 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 Leasehold Deed of Trust and the Lease, the Lease shall control in Daniel Griffith Leasehold Deed of Trust Upon Leasehold in favor of Pinnacle Bank Page 1 of 8 OFFICIAL RECORD CITY SECRETARY r-'r AVORTH,TX 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 Leasehold Leasehold 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. 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 Leasehold 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 Leasehold Deed of Trust. In the event that Lender undertakes to enforce its rights to any collateral granted by the Leasehold Deed of Trust on account of default by Lessee under the Leasehold 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. Daniel Griffith Leasehold Deed of Trust Upon Leasehold in favor of Pinnacle Bank Page 2 of 8 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 Leasehold 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. 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 Lender agrees that it promptly will notify Lessor in writing when the Lender has released its rights under the Leasehold 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 expire or are terminated. 10. If the Lender forecloses on the Leased Premises as a result of exercising its rights under the Leasehold 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 withheld, conditioned or delayed. Nothing in this Agreement is intended to prohibit the Lender from assigning the liens and security interests created by the Leasehold 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: Pinnacle Bank ATTN: Ronny Korb,President P.O. Box 2668 Fort Worth,Texas 76113 12. The parties hereto understand and agree that upon expiration or termination of the Lease, Daniel Griffith Leasehold Deed of Trust Upon Leasehold in favor of Pinnacle Bank Page 3 of 8 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 Leasehold Deed of Trust. Improvements of a non-permanent nature including all trade fixtures, machinery, furnishings and other non-permanent items may specifically be removed from the Leased Premises in accordance with the Lease.In the event that the Lease expire or are 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 document referred to above as comprising of the Lease is the only document 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 Spinks Airport and, together with the minimum standards and other general regulations that may apply to the lessee under the Lease, contain 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 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. d. The City has not taken, and does not currently anticipate taking any action to, or that would,terminate the Lease. e. Pursuant to the Lease, the Initial Term of the Lease expires on June 12, 2048 at 11:59 PM. 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 the Lender covenant and agree that they will not amend the Leasehold Deed of Trust, or assign any rights and/or obligations thereunder, without the prior written consent of Lessor. Daniel Griffith Leasehold Deed of Trust Upon Leasehold in favor of Pinnacle Bank Page 4 of 9 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 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] Daniel Griffith Leasehold Deed of Trust Upon Leasehold in favor of Pinnacle Bank Page 5 of 8 IN WITNESS WHEREOF,the paiVies hereto have executed this Agreement in multiples on this the AILIC. day of , 2019. CITY OF FORT WORTH: By: �L- Fernando Costa Assistant City Manager Date: 8A2A' 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. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of CA Ig S' , 2019. LAUREN ROSALES Notary ID # 124818929 My Commission Expires Notary Public in and for the State of Texas 't(h� May 10, 2020 WNW �Fr . APPROVED AS TO FORM ATTEST: © :......; •.• `' A1�v'iy LEG ALI—Y 2 By: By-. Thomas Royce Hansen, ary J. Kay r Assistant City Attorney City Secretary M&C: C`0�11�S Date Approved: S1xvtLk, Id011 Form 1295: N/A Daniel Griffith Leasehold Deed of Trust Upon Leasehold in favor of Pinnacle Bank Page 6 of 8 OFFICIAL RECORD C17Y SECRETARY WORTH,ORTH,TX Contract Compliance Manager: By signing,I acknowledge that I am the person responsible for the monitoring and administration of this contragtincludi 11 perfo nee and reporting requirements. _ r wo Leasing oordinna or Print Name LEE D IEL GRIFfTH Daniel Griffith Date: 7 =c;26 l 9 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 Daniel Griffith 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 Daniel Griffith and that he executed the same as the act of Daniel Griffith for the purposes and consideration therein expressed and in the capacity therein stated. G"v EN UNDER MY HAND AND SEAL OF OFFICE,this o � day of 12019. 11111111� ♦♦ 0, j' - yam/ Z Notary Public in and for the State of Texas y . � ••,��lf OF top;• 1��111111 Daniel Griffith Leasehold Deed of Trust Upon Leasehold in favor of Pinnacle Bank Page 7 of 8 OFFICIAL RECORD CITY SECRETARY FT. WORTH,TX LENDER: ATTEST: PINNACLE BANK t By: By: Ronny Korb, ffresident Dater 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 Ronny Korb 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 Pinnacle Bank and that she executed the same as the act of Pinnacle Bank for the purposes and consideration therein expressed and in the capacity therein stated. GI Y EN UNDER MY HAND AND SEAL OF OFFICE,this day of 12019. MARS ', •tip�Y Notary Public in and for the State of Texas i '.gip F OF • i •.��84t7'�.' � �01-fp Oi•13 LO�ot� Daniel Griffith LFTWORTH, Leasehold Deed of Trust Upon Leasehold in favor of Pinnacle Bank L RECORD Page 8 of 8 CRETARY TX M&C Review Page 1 of 2 Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA FoRIr— TWORTH COUNCIL ACTION: Approved on 6/11/2019 DATE: 6/11/2019 REFERENCE NO.: **C-29145 LOG NAME: 55FWS AMENDN01 DANIEL GRIFFITH CODE: C TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Execution of Amendment No. 1 to City Secretary Contract No. 50902 to Increase the Ground Space of Lease Site 31 N and Authorize Execution of a Consent to Leasehold Deed of Trust to Facilitate New Hangar Construction with Daniel Griffith, at Fort Worth Spinks Airport (COUNCIL DISTRICT 6) RECOMMENDATION: It is recommended that the City Council: 1. Authorize execution of Amendment No. 1 to City Secretary Contract No. 50902 to increase the ground space of Lease Site 31 N with Daniel Griffith, at Fort Worth Spinks Airport; and 2. Authorize execution of a Consent to Leasehold Deed of Trust to facilitate new hangar construction for lease site 31 N with Daniel Griffith, at Fort Worth Spinks Airport. DISCUSSION: On June 12, 2018, (M&C C-26726) City Council approved City Secretary Contract No. 50902, a Ground Lease Agreement with Daniel Griffith, for Lease Site 31 N, at Fort Worth Spinks Airport. Daniel Griffith has requested to increase the size of Lease Site 31 N in order to facilitate new hangar construction. Lease Site 31 N is comprised of 48,817 square feet of ground space and will increase to 78,229 square feet under the amended lease agreement, resulting in an additional $7,941.24 annual revenue. Total revenue received from this lease will be approximately $21,121.83 annually or $1,760.15 per month. Revenue is based on a ground rental rate of$0.27 per square foot, in accordance with the Aviation Department's Schedule of Rates and Charges and Lessor's market analysis at the time the original lease was executed. Rental rates shall be subject to an increase on October 1st of this year, based on the upward percentage change in the Consumer Price Index for the Dallas-Fort Worth Metropolitan area. Five-year rate adjustments will be applied to the ground rate starting on October 1, 2023, and every fifth year thereafter. At no time will the adjusted rate exceed the rate that is current in the Schedule of Rates and Charges. The Consent to Leasehold Deed of Trust will grant Mr. Griffith's lender, Pinnacle Bank, the right, subject to the previous lien, to operate as Lessee or secure another tenant in place of Mr. Griffith, if previously approved by the City Council, in the event Mr. Griffith defaults on his loan or his lease with the City of Fort Worth. The Lease Agreement prohibits Mr. Griffith from making any assignment of the lease or causing a lien to be made on improvements constructed on the leased premises without City Council approval. This type of transaction is routine for airport tenants and Staff has no objection to Mr. Griffith's request. Fort Worth Spinks Airport is located in COUNCIL DISTRICT 6. This M&C does not request approval of a contract with a business entity. http://apps.cfwnet.org/council_packet/mc_review.asp?ID=26923&councildate=6/11/2019 8/6/2019 M&C Review Page 2 of 2 FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that the Aviation Department is responsible for the collection and deposit of funds due to the City. Upon receipt, these funds will be deposited into the Municipal Airports Fund, Ground Lease Revenue Account. Estimated annual revenue from this agreement is $21,121.83. TO Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year (ChartField 2) FROM Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year (ChartField 2) Submitted for City Manager's Office by: Fernando Costa (6122) Originating Department Head: Bill Welstead (5402) Additional Information Contact: Dakota Shaw(5407) ATTACHMENTS Daniel Griffith 1295.pdf MC Map.pdf Pinnacle Bank 1295.pdf http://apps.cfwnet.org/council_packet/mc_review.asp?ID=26923&councildate=6/11/2019 8/6/2019