HomeMy WebLinkAboutContract 43657CITY $ECRETARYL)1I____CONTRACT N0.OILawc,
CONSENT TO DEED OF TRUST LIEN UPON LEASEHOLD
AND ESTOPPEL CERTIFICATE
FORT WORTH SPINKS AIRPORT
UNIMPROVED GROUND LEASE AGREEMENT
WITH MANDATORY IMPROVEMENTS
LEASE SITE E-12
(CITY SECRETARY CONTRACT NO. 33940)
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; CLIFF
MILLICAN("Lessee"), an individual, and The American National Bank of Texas ("Bank"), a
Texas banking association.
A. On or about August 30, 2006, Lessor and Lessee entered into City Secretary Contract
("CSC") No. 33940, an unimproved ground lease agreement with mandatory improvements
("Ground Lease") for approximately twenty-two thousand four hundred square feet of
unimproved ground, more specifically identified as Lease Site E-12 (the "Leased Premises"),
at Fort Worth Spinks Airport ("Airport"). CSC No. 33940 shall hereinafter be referred to as the
"Lease."
B. On or about October 11, 2006, the City, Lessee and Southwest Bank entered into a
Consent to Deed of Trust Lien Upon Leasehold to allow Lessee to obtain financing related to the
Lessee's construction of the mandatory improvements on the Leased Premises.
C. In order for Lessee to obtain refinancing related to Lessee's construction of the
mandatory improvements on the Leased Premises, Lessee and the 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 "A." 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
Cliff Millican
Deed of Trust Upon Lienhold and Estoppel
in favor of The American National Bank of Texas
CSC No. 33940
Page 1 of 8
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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 Bank's obligations to Lessoi 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.
Lessoi 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 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 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 monetar y 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 i f 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 Lessoi 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 or consent to any future modifications,
amendments or assignments of the Lease without first 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 Lessoi 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. As long as such does not conflict with Lessor's rights under the Lease, Lessor
consents to the exercise by the Bank 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
Cliff MiIlican
Deed of Trust Upon Lienhold and Estoppel
in favor of The American National Bank of Texas
CSC No. 33940
Page 2 of 8
remedies as may be available to Bank, if an Event of Default occurs under the Deed
of Trust In the event that Bank 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, Lessoi will cooperate with the Bank in its efforts to assemble and/oi 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 insured's 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 first be applied to cover the r eplacement 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 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 Tiust. 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. If the Bank forecloses on the Leased Premises as a result of exercising its rights under the
Deed of Trust, the Bank may become the owner of all of Lessee's rights under the Lease,
without Lessor's further action or consent. However, if the Bank desires to sell or
otherwise transfer its leasehold interest in the Leased Premises to a third party (either at
or after foreclosure), the Bank 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
Bank from assigning the liens and security interests created by the Deed of Tiust 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 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:
Cliff Millican
Deed of Trust Upon Lienhold and Estoppel
in favor of The American National Bank of Texas
CSC No. 33940
Page 3 of 8
THE AMERICAN NATIONAL BANK OF TEXAS
308 E RENFRO STREET, SUITE 100
BURLESON, TEXAS 76028
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
perrnanently 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. Estoppel.
a. The document referred to above as comprising the Ground Lease is the only
document which constitutes the Ground Lease, and the Ground Lease is in full
force and effect and has not been modified, changed altered or amended in any
respect.
b. The Ground Lease is the only agreement between the City and the Existing
Tenant relating to the Existing Tenant's Ground Lease at the Fort Worth Spinks
Airport and together with the minimum standards and other general regulations
that may apply to the lessee under the Ground Lease, contain the entire agreement
and understanding of the City and the Existing Tenant with respect thereto. The
Existing Tenant is the current holder of the leasehold interest in the premises
under the Ground Lease.
c. To the best knowledge of the City no monetary or non -monetary default by
Existing Tenant presently exists under the Ground 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 Existing Tenant under the Ground Lease.
d. To the best knowledge of the City, no monetary or non -monetary default by the
City presently exists under the Ground Leases 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 Ground Lease
e. The City has not taken, and does not currently anticipate taking any action to, or
that would, terminate the Ground Lease.
f. All improvements, facilities, work and alterations required to be furnished by the
Existing Tenant under the Ground Lease have been satisfactorily constructed.
Cliff Millican
Deed of Trust Upon Lienhold and Estoppel
in favor of The American National Bank of Texas
CSC No. 33940
Page 4of8
g. Existing Tenant is current in the payment of any and all rent and any other
charges i equii ed to be paid by Existing Tenant under the Ground Lease, which
amounts have been paid through the month of 2012.
h. There are no escrows or other deposits from Existing Tenant held by the City
pursuant to the Ground Lease.
i. Pursuant to the Ground Lease, the Initial Tenn of the Ground Lease expires on
October 31, 2036 at 11:59 PM. The Existing Tenant has a right to extend the term
of the Ground Lease for two (2) additional successive terms of five (5) years each
(each a "Renewal" Term).
14. The provisions of this Consent to Deed of Trust Lien Upon Leasehold and Estoppel 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 Consent to Deed of Trust Lien Upon Leasehold
and Estoppel is for the benefit of the Bank, that the Bank relied upon this Consent to
Deed of Trust Lien Upon Leasehold and Estoppel in making its decision to make the
Loan and that the Bank would not make the Loan absent Lessor's execution and delivery
of this Consent to Deed of Trust Lien Upon Leasehold and Estoppel.
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 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.
17. This Agreement shall be construed in accordance with the laws of the State of
T exas. Venue for any action arising under the provisions of this Agreement shall lie in
state courts located in Tarrant County, Texas or in 1 he 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 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.
[Signature Pages Immediately Follow]
Cliff Millican
Deed of Trust Upon Lienhold and Estoppel
in favor of The American National Bank of Texas
CSC No. 33940
Page 5of8
IN WITNESS W EREOF, the parties hereto have executed this Agreement in
multiples on this the dayof .� ,�-� , 2012.
p
CITY OF FORT WORTH:
By:
5
Fernando Costa
Assistant City Manager
Date: fire/it
i
w
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 eat at. day of
4a.) . 2012.
•
EVONIA DANIELS
MY COMMISSION EXPIRES
July 10, 2013
APPROVED AS TO FORM
AND LEGALITY:
By:WeLcr
Charlene Sanders
Assistant City Attorney
M&C: L
Date: q
4;151!
--
Cliff Millican
Deed of Trust Upon Lienhold and Estoppel
in favor of The American National Bank of Texas
CSC No. 33940
Page 6 of 8
Notary Public in and for the State of Texas
ATTEST:
By:
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Mary J. Ka; • r
City Secretary
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OFFICIAL RECORD
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LESSEE: ATTEST:
CLIFF MILLICAN
By: Cd-,701‘efeed
Cliff Millman
Date: dO -t �7
STATE OF 4)c-a S
COUNTY OF �c'khSD►1
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BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Cliff Millican 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
Cliff Millican and that he executed the same as the act of Cliff Millican for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this a 0 day of
Jeptnbet
, 2012.
KRISTEN S. NELON
Notary Public
STATE OF TEXAS
My Comm. Exp. 07/15/2013
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Cliff Millican
Deed of Trust Upon Lienhold and Estoppel
in favor of The American National Bank of Texas
CSC No. 33940
Page 7of8
item cfp201--'
Notary Public in and for the State of Texas
BANK: ATTEST:
THE AMERICAN NATIONAL BANK OF TEXAS
By: Ot4iBy:
[Duly Authorized Signer] �
Name:
cleVe- iJfr VI/
Title: &1i1 47 (e4 fry Pres/ det-c
Date:
lizo
ifrd
Ile
STATE OF t eta
COUNTY OF SohiNsto §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared 6. >4-ckje.. bcwti , 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 P caak$vao Ct4k( P(ts i'&e&.t and that he/she
executed the same as the act of the Ccwp ,4cts1-io ►^ for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this a- ° day of
iej4ervnbe-v' , 2012.
•
KRISTEN S. NELON
Notary Public
STATE OF TEXAS
My Comm. Exp. 07/15/2013
f tiv"v•:..1v vvArk3v\Ivs.IvvNvvMvN.P.t\n\
Cliff Millican
Deed of Trust Upon Lienhold and Estoppel
in favor of The American National Bank of Texas
CSC No. 33940
Page 8of8
Notary Public in and for the State of Texas
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 9/25/2012
DATE• Tuesday, September 25, 2012 REFERENCE NO.: **C-25876
LOG NAME: 55FWS CMILLICAN DEEDAMNBANK
SUBJECT:
Authorize Execution of a Written Consent to Deed of Trust Lien and Estoppel Certificate by Cliff Millican in
Favor of The American National Bank of Texas for Lease Site E-12 at Fort Worth Spinks Airport (COUNCIL
DISTRICT 8)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a written Consent to Deed of Trust Lien
and Estoppel Certificate by Cliff Millican in favor of The American National Bank of Texas for Lease Site
E-12 at Fort Worth Spinks Airport.
DISCUSSION:
On July 18, 2006, (M&C C-21574) the City Council approved execution of an unimproved Ground Lease
with Mandatory Improvements for lease site E-12 with Cliff Millican (Millican) at Fort Worth Spinks Airport.
On October 3, 2006, (M&C C-21750) the City Council approved execution of a Consent to Deed of Trust
Lien in favor of Southwest Bank for financing related to the construction of the mandatory improvements of
lease site E-12.
Millican has requested approval to change lien holders from Southwest Bank to The American National
Bank of Texas (Bank). Millican has requested the City of Fort Worth (City) consent to execution of a
Consent to Deed of Trust Lien and Estoppel Certificate (Consent) on the premises to secure this loan. The
Consent will grant the Bank the right to operate as Lessee or to secure another tenant in place of Millican,
if approved by the City Council, in the event that Millican defaults on the loan or the Lease with the City.
The Lease Agreement prohibits Millican 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 Staff has no objection to Millican's request.
Fort Worth Spinks Airport is located in COUNCIL DISTRICT 8.
FISCAL INFORMATION / CERTIFICATION:
The Financial Management Services Director certifies that this action will have no material effect on City
funds.
FUND CENTERS:
TO Fund/Account/Centers FROM Fund/Account/Centers
CERTIFICATIONS:
Submitted for City Manager's Office bv:
Fernando Costa (6122)
Logname. 55FWS CMILLICAN DEEDAMNBANK Page 1 of 2
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
1. 55FWS CMILLICAN DEEDAMNBANK Exhibit.pdf (Public)
Bill Welstead (5402)
Jonnie Huitt (5409)
Logname. 55FWS CMILLICAN DEEDAMNBANK Page 2 of 2