HomeMy WebLinkAboutContract 47613 CITY SECRETAW .
CONTRACT NO. U101I
RECEIVED
MAR 14 2016 CONSENT TO THIRD DEED OF TRUST LIEN UPON LEASEHOLD
FORT WORTH SPINKS AIRPORT
C1TnC ETARY LEASE AGREEMENT
LEASE SITE NO. E-20
CITY SECRETARY CONTRACT NO.35803
This CONSENT TO SECOND 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;
NEWONE HANGARS, LLC, a Texas limited liability company ("Lessee"); and PINNACLE
BANK("Bank"),a Texas banking corporation.
A. On or about September 19, 2007, Lessor and Lessee entered into City Secretary Contract
(CSC)No. 35803 (the "Lease"), an unimproved ground lease of land at Fort Worth Spinks Airport
("Airport") with associated mandatory improvements known as Lease Site No. E-20 (the "Leased
Premises").
B. On or about September 19, 2007, Lessor and Lessee entered into CSC No. 35802, a
Consent to Deed of Trust Lien Upon Leasehold for improvements to construct a hangar on Lease
Site No.E-20 at Fort Worth Spinks Airport.
C. On or about November 12, 2009, Lessor and Lessee entered into CSC No. 39487, a second
Consent to Deed of Trust Lien Upon Leasehold for improvements to construct a hangar on Lease
Site No.E-20 at Fort Worth Spinks Airport.
D. In order for Lessee to renew existing loans 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 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
Consent to Second Deed of Trust
Newone Hangars,LLC and Pinnacle Bank—Page 1 OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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 i f 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.
Consent to Second Deed of Trust
Newone Hangars,LLC and Pinnacle Bank—Page 2
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.
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 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 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 Deed of Trust to
Consent to Second Deed of Trust
Newone Hangars,LLC and Pinnacle Bank—Page 3
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: Jon Z. Averhoff
PO Box 676
Keene, TX 76059
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 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 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 Spinks 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
Existing Tenant or 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 Existing Tenant or Lessee under the Lease.
d. To the best knowledge of the City, no monetary or non-monetary default by the
Consent to Second Deed of Trust
Newone Hangars,LLC and Pinnacle Bank—Page 4
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.
E All improvements, facilities, work and alterations required to be furnished by the
Existing Tenant under the Lease have been satisfactorily constructed.
g. Existing Tenant 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 February 2016.
h. There are no escrows or other deposits from Existing Tenant held by the City
pursuant to the Lease.
i. Pursuant to the Lease, the Initial Term of the Lease expires on July 31, 2037, 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
state courts located in Tarrant County, Texas or in the United States District Court for
the Northern District of Texas, Fort Worth Division.
Consent to Second Deed of Trust
Newone Hangars,LLC and Pinnacle Bank—Page 5
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 Second Deed of Trust
Newone Hangars,LLC and Pinnacle Bank—Page 6
IN WITNESS WHEREOF, a parties hereto have executed this Agreement in
multiples on this the J—day of 2016.
CITY OF FORT WORTH:
By: :57� (di — --
Fernando Costa
Assistant City Manager
Date: �4z�
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 N& day of
2016.
TRIKINYA L. JOHNSON
,.�pQV P�iii
Notary Public,State of Texas
My Commission Expires
April 17, 2018 - A A15
Notary Publi n an or the State of Texas
APPROVED AS TO FORM ATTEST:
AND LEGALITY:
By: C6B .
Paige N46ane Mary er
Assistant City Attorney ecretary
FORT �r
�a9s:ao►c�_ 031 o ` ®�
Date Approved: 1���
�$ Jac
Consent to Second Deed of Trust
Newone Hangars,LLC and Pinnacle Bank—Page 7 '` '
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
LESSEE:
NEWONE HANGARS, LLC.
By: 1 /
Danny Du osque
Managing Partner
Date: x.11, �/(0
ATTEST:
By:
K-W``K/
STATE OF T-E� §
COUNTY OF M §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, r
on this day personally appeared Danny DuBosque, 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
Newone Hangars, LLC, and that he executed the same as the act of Newone Hangars, LLC,
for the purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
.— 2016.
Notary Public in anthe State of-Tvxta
et1-mak!
Consent to Second Deed of Trust
Newone Hangars,LLC and Pinnacle Bank—Page 8
BANK:
PINNACLE BANK, ATTEST:
By: By:
Jon Z.Averhoff
Branch President Cl—Date: 2- 14�
STATE OF TEXAS §
COUNTY O Q §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on
this day personally appeared Jon Z. Averhoff, 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 s/he executed the same as the act of Pinnacle Bank for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE 's day of 2016.
�ySP W ESjF
1PR y �i
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OtPd
Z 0 = P lic in and for the State of Texas
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OF
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16-20
Consent to Second Deed of Trust
Newone Hangars,LLC and Pinnacle Bank—Page 9
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 3/1/2016
DATE: Tuesday, March 01, 2016 REFERENCE NO.: **C-27634
LOG NAME: 55FWS NEWONECONSENT3
SUBJECT:
Authorize Execution of a Consent to Deed of Trust Lien to Facilitate the Renewal and Consolidation of
Three Existing Loans Into One Loan to Pay a Lien Release and Other Property Debts for Lease Site E-20
with Newone Hangars, LLC, at Fort Worth Spinks Airport (COUNCIL DISTRICT 6)
RECOMMENDATION:
It is recommended that the City Council authorize execution of a Consent to Deed of Trust Lien to facilitate
the renewal and consolidation of three existing loans into one loan to pay a lien release and other property
debts for lease site E-20 with Newone Hangars, LLC, at Fort Worth Spinks Airport.
DISCUSSION:
On or about September 19, 2007, Newone Hangars, LLC (Newone), and the City of Fort Worth, entered
into City Secretary Contract (CSC) No. 35803, an unimproved ground lease of land at Fort Worth Spinks
Airport with associated mandatory improvements known as Lease Site No. E-20.
On or about September 19, 2007, the City of Fort Worth and Newone entered into CSC No. 35802, a
Consent to Deed of Trust Lien Upon Leasehold for improvements to construct a hangar on Lease Site No.
E-20 at Fort Worth Spinks Airport.
On or about November 12, 2009, the City of Fort Worth and Newone entered into CSC No. 39487, a
Second Consent to Deed of Trust Lien Upon Leasehold for improvements to construct a hangar on Lease
Site No. E-20 at Fort Worth Spinks Airport.
In order for Newone to renew existing loans related to Newone construction of improvements on the
leased premises and other property debts, Newone and Pinnacle Bank desire the City of Fort Worth to
consent to the execution by Newone of a Deed of Trust Lien upon the Leasehold in favor of Pinnacle
Bank.
The Deed of Trust Lien will grant Pinnacle Bank the right, subject to the previous lien, to operate as
Lessee or secure another tenant in place of Newone, if previously approved by the City Council, in the
event Newone defaults on its loan or its lease with the City of Fort Worth. The Lease Agreement prohibits
Newone 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 City staff has no objection to Newone's request.
Fort Worth Spinks Airport is located in COUNCIL DISTRICT 6.
FISCAL INFORMATION /CERTIFICATION:
The Director of Finance certifies that this action will have no affect on the $28,865.52 in annual revenue
Logname: 55FWS NEWONECONSENT3 Page 1 of 2
generated from this lease. Revenues associated with these agreements will be included in the upcoming
fiscal year's budget and the Aviation Department is responsible for the collection and deposit of funds.
FUND IDENTIFIERS (FIDs):
TO
ru–nJ-6—epartment ccoun IProject Program ctivity Budget Reference # moun
ID ID Year (Chartfield 2)
FROM
Fund Department ccoun Project Program ctivity Budget Reference # moun
ID ID Year Chartfield 2
CERTIFICATIONS:
Submitted for City Manager's Office by: Fernando Costa (6122)
Originating Department Head: Bill Welstead (5402)
Additional Information Contact: Anne Marie-Stowe (5415)
ATTACHMENTS
1. 55FWS ASSIGN NEWONE HANGAR -MC MAP.pdf (Public)
2. Form 1295 Newone.pdf (Public)
3. Form 1295 Pinnacle Bank.pdf (Public)
Logname: 55FWS NEWONECONSENT3 Page 2 of 2
CERTIFICATE OF INTERESTED PARTIES FORM 1295
1 of 1
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2016-7815
Pinnacle Bank
Burleson,TX United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 02/01/2016
being filed.
City of Fort Worth Date Acknowledged:
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the goods or services to be provided under the contract.
Site E-20
Consent to Deed of Trust at site E-20 Fort Worth Spinks Airport
4 Nature of interest(check applicable)
Name of Interested Party City,State,Country(place of business)
Controlling Intermediary
Pinnacle Bank Burleson,TX United States X
5 Check only if there is NO Interested Party. ❑
6 AFFIDAVIT I swear,or affirm,under penalty of u that the above disclosure is true and correct.
P tY perjury,.
W E S TFC'%,�
Signature of authorized agent of contracting business entity
, �9rFrF �
AFFIX N6yARY AS.kA�Ak0VE
Sworn to and su shribe before me,by the said �U rl Q'pa ,this the I day of ,
20� certify hich,witness my hand and seal of office. —T—
Sidnafure of officer administering oath Printed name of officer administering oath Title of officer administering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.34416
CERTIFICATE OF INTERESTED PARTIES C-.M 3ef
FORM 295
lofl
Complete Nos.l-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2016-7253
Newone Hangars, LLC
Fort Worth,TX United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is01/29/2016
being filed.
City of Fort Worth Date Acknowledged:
-k-t-1
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the goods or services to be provided under the contract.
Site E-20
Consent to Deed of Trust at site E-20 Fort Worth Spinks Airport
4 Nature of interest(check applicable)
Name of Interested Party City,State,Country(place of business)
Controlling Intermediary
Newone Hangars,LLC Fort Worth,TX United States X
5 Check only if there is NO Interested Party. ❑
6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct.
Signature of aut ized agent racting business entity
AFFIX NOTARY STAMP/SEAL ABOVE
Sworn to and subscribed before me,by the said � •U[%(//G this the At, day of
2011D to certify which,witness my hand and seal of office.
Signature of officLYr administering ath Printed name of officler administerind oath Title of officer administering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.34416