HomeMy WebLinkAboutContract 42806-CA1 (2)4
I i I AM, 111C
CSC NO.
CONSENT TO DEED OF TRUST LIEN UPON LEASEHOLD
FORT WORTH SPINKS AIRPORT
GROUND LEASE AGREEMENT
TERMINAL BUIDLING AND LEASE SITE W2
CITY SECRETARY CONTRACT NO. 42806
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 partnership; and TEXAS CAPITAL BANK, NATIONAL
ASSOCIATION ("Bank"), a national banking association
A. On or about January 10, 2012, Lessor and Lessee entered into City Secretary Contract
(CSC) No. 42806 (the "Lease"), a ground lease agreement at Fort Worth Spinks Airport
('Airport") for approximately 63,128 square feet of ground, more .commonly known as the
Terminal Tract and the W2 Hangar Tract (the "Leased Premises").
B. On or about August 25, 2006, Lessor and Lessee entered into CSC No. 33916, a consent to
deed of trust lien upon leasehold for the W2 Hangar Tract. On September 2, 2008, Lessor and
Lessee entered into CSC No. 37540 for the Terminal Tract. CSC Nos. 33916 and 37540 were
executed in favor of Regions Bank. Lessee has satisfied all requirements under both deed of trust
liens, therefore Regions Bank will issue a Release of Lien.
C. In order for Lessee to obtain certain additional financing related to Lessee's construction of
additional 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 Banlc 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.
FWS Realty, LTD
Consent to Deed of Trust
in favor of Texas Capital Bank, National Association
CSC No.
�3���IV�® PLAY 0 � 2014
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 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. Lessee and the Bank 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 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 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 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 Lessor without Bank's advance written consent shall be void and Lessee specifically
releases, holds harmless and agrees to indemnify Lessor for any damages that may arise as a result
of any such consent.
FWS Realty, LTD
Consent to Deed of Trust
in favor of Texas Capital Bank, National Association
CSC No.
Page 2 of 6
6. 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, 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 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 City of Fort Worth. Any remaining proceeds shall apply to secure 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 Trust. This Agreement will automatically terminate on the earlier of (1)
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 Banlc, its agents,
employees, servants or representatives, or (ii) deposited in the United States Mail, certified, return
receipt requested, addressed as follows:
Texas Capital Bank, National Association
500 Throckmorton, Suite 300
Fort Worth, Texas 76102
Attention: Justin Holt, Vice President
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
FWS Realty, LTD
Consent to Deed of Trust
in favor of Texas Capital Bank, National Association
CSC No.
Page 3 of 6
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 anon -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. Lessee and Bank may modify
and extend the terms of the note secured by the Deed of Trust and file the modifications in the Real
Property Records of Tarrant County, Texas. Lessee and Bank shall notify Lessor in writing within
ten (10) business days of any modification or extension of the terms of the note secured by the Deed
of Trust.
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,
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, t e parties hereto have executed this Agreement in
multiples on this the day of
Assistant City Manager
Date.
STATE OF TEXAS §
COUNTY OF TARRANT §
FWS Realty, LTD
Consent to Deed of Trust
in favor of Texas Capital Bank, National Association
CSC No.
Page 4 of 6
0
BEFORE ME, the undersi rtty, a Notary Public in and for the State of Texas,
on this day personally appeare ernando 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
2014.
LINDA M. HIRRLINGER
MY COMMISSION EXPIRES
February 2, 2018
AND�LEGALITY: /�
Assistant City Attorney �
M&C: — e? �C-i
Approved:
LESSEE:
FWS REALTY, LTD.
By: Harrison Realty Investments, LLC
Its General Partner
Date: Apas` .1� , 2014
STATE OF TEXAS §
COUNTY OF TARRANT §
U) W, I
Notary Public in and for the
ATTEST:
By:
A'
of Texas
day
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
FWS Realty, Ltd., a Texas limited partnership, and that he executed the same as the Manager of
Harrison Realty Investments, LLC, the general partner acting on behalf and as the act of FWS
Realty, Ltd., for the purposes and consideration therein expressed and in the capacity therein
stated.
FWS Realty, LTD
Consent to Deed of Trust
in favor of Texas Capital Bank, National Association
CSC No.
Page 5 of 6
OFFICIAo. RECORD
CITY SECRETARY
I:To WORTH, TX
UNDER MY HAND AND SEAL OF
2014.
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NATIONAL ASSOCIATION
By: QMM� NO
in Holt, Vice President
STATE OF TEXAS §
COUNTY OF TARRANT §
OFFICE this 2 day of
in and for the State of Texas
ATTEST:
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Justin Holt, 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
Texas Capital Bank, National Association, and that he executed the same as the Vice President
on behalf and as the act of Texas Capital Bank, National Association, for the purposes and
consideration therein expressed and in the capacity therein stated.
•GGIVEN UNDER MY HAND AND SEAL OF OFFICE this � I day of
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FWS Realty, LTD
Consent to Deed of Trust
in favor of Texas Capital Bank, National Association
CSC No,
Page 6 of 6
Notary Public
for the State of Texas
M&C Review Page 1 of 2
Official site of the City of Fort Worth, Texas
COUNCIL ACTION: Approved on 5/6/2014
DATE: 5/6/2014 REFERENCE NO.: **C-26790 LOG NAME: 55FWS CONSENT
DEED
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: Authorize Execution of Written Consent of Two Deed of Trust Liens by FWS Realty, LTD,
in Favor of Texas Capital Bank, National Association for the Terminal Building and Lease
Site W2, and for Lease Site NW-3 at Fort Worth Spinks Airport (COUNCIL DISTRICT 6)
��_._ , . �,.,�,� .N _��, � v�.a r ._ �:. � �._, � �.W__�� ,_� ,v �. w �.�� _..x,._ _>�w __ _ � .__��� . � _ �� �..� �_v U�
RECOMMENDATION:
It is recommended that the City Council authorize the execution of two written Consent to Deed of
Trust Liens by FWS Realty, LTD, in favor of Texas Capital Bank, National Association for the
Terminal Building and Lease Site W2, and for Lease Site NW-3 at Fort Worth Spinks Airport.
DISCUSSION:
On January 10, 2012, (M&Cs C-25388 and C-25389) the City Council approved the execution of two
Ground Lease Agreements for the Terminal Building and Lease Site W2 and for Lease Site NW-3
with FWS Realty, LTD (FWS), at Fort Worth Spinks Airport (Spinks). The Terminal Building with
Lease Site W2 consists of 63,128 square feet of ground space. Lease Site NW-3 consists of 19,497
square feet of ground space.
On August 3, 2006, (M&C C-21599) the City Council approved the execution of a Consent to Deed of
Trust Lien upon leasehold (Deed of Trust Lien) for Lease Site W2. On September 2, 2008, (M&C C-
23005) the City Council approved the execution of a Deed of Trust Lien for the Terminal
Building. These deed of trust liens were executed in favor of Regions Bank. FWS has satisfied all
requirements under both Deed of Trust Liens; therefore, a Release of Lien will be issued by Regions
Bank.
Staff has received a request from FWS to obtain financing through two Deed of Trust Liens, one for
each of the lease sites, from Texas Capital Bank, National Association (Bank).
The Deed of Trust Liens will grant the Bank the right to operate as lessee or to secure another tenant
in place of FWS, if approved by the City Council, in the event that FWS defaults on the loan or their
Lease Agreements with the City of Fort Worth. The Lease Agreements prohibit FWS from making
any assignment of the Lease Agreements or causing any lien to be made on improvements
constructed on each of the lease sites without City Council approval. The Deed of Trust Lien for
Lease Site NW-3 is subordinate to the construction loan from the City to FWS (City Secretary
Contract No. 43936, M&C C-25813, approved September 11, 2012). This type of transaction is
routine for large airport tenants and Staff has no objection to this request.
Fort Worth Spinks Airport is located in COUNCIL DISTRICT 6, Mapsco 119T.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that this action will have no material effect on
City funds.
r�
TO Fund/Account/Centers
FROM Fund/Account/Centers
5/7/2014
M&C Review
Page 2 of 2
Submitted for City Manager's Office b�
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
55FWS CONSENT DEED Exhibit.pdf
Fernando Costa (6122)
Bill Welstead (5402)
Jonnie Huitt (5409)
5/7/2014