HomeMy WebLinkAboutContract 48209-CA1 CITY SECRETARY y
CONTRACT NO.
2 AM CONSENT TO LEASEHOLD DEED OF TRUST
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FORT WORTH SPINKS AIRPORT
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This CONSENT TO L E A S E H O L D 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; MARLINE
AVIATION, LLC ("Lessee"), a Texas limited liability company, and PlainsCapital Bank
("Lender"), a national banking association.
The following introductory provisions are true and correct and form the basis of this Consent:
A. On September 13, 2016 (M&C C-27907), Lessor and Lessee entered into City Secretary
Contract ("CSC") No. 48209 (the "Lease"), Ground Lease Agreement known as lease site W3
("Leased Premises") at Fort Worth Spinks Airport("Airport").
B. Lessee and the Lender desire Lessor to consent to the execution by Lessee of the 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 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
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
Marline Aviation,LLC
Deed of Trust Upon Lienhold
in favor of Plains Capital Bank
Page 1 of s OFFICIAL RECORD
CITY SEC=RETARY
FT.WORTH,TX
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 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
Marline Aviation,LLC
Deed of Trust Upon Lienhold
in favor of Plains Capital Bank
Page 2 of 8
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
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:
PlainsCapital Bank
ATTN: Wendy Washington
4501 Matlock Road, Suite 101
Arlington, TX 76018
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
Marline Aviation,LLC
Deed of Trust Upon Lienhold
in favor of Plains Capital Bank
Page 3 of 8
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 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
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
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.
L 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 May 2017.
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 August 31, 2046
at 11:59 PM. Lessee has a right to extend the term of the Lease for two (2)
Marline Aviation,LLC
Deed of Trust Upon Lienhold
in favor of Plains Capital Bank
Page 4 of 8
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 the Lender 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
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]
Marline Aviation,LLC
Deed of Trust Upon Lienhold
in favor of Plains Capital Bank
Page 5 of 8
LENDER: ATTEST:
PlainsC pital Bank
By: By:
Wendy Was 'ngto , Senior Vice President
Date: S_kilt?
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
on this day personally appeared Wendy Washington 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 PlainsCapital Bank and that she executed the same as the act of PlainsCapital
Bank for the purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE,this day of
2017.
SR{''•�pll Renee Hughes
0 o:
A 11 Commission Expires Notary Public in an for the State of Texas
�,� �� 1 uo2rzo2o
ID No.12154553
Marline Aviation,LLC
Deed of Trust Upon Lienhold
in favor of Plains Capital Bank
Page 8 of 8
IN WITNESS WHEREOF, e parties hereto have executed this Agreement in
multiples on this the/", ' �`-� day of , 2017.
CITY OF FORT WORTH:
By: ��-
Fernando Costa
Assistant City Manager
Date: G /S/7
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
u✓LQ , 2017.
TRIKINYA L JOHNSON
ter.°ue
ai;• ,�' Notary Public, State of Texas
Comm, Expires 04-17-2018 Notary Publi in a or the State of Texas
°.; �I t�`�`� Notary ID 1238832.0
APPROVED AS TO FORM ATTEST:
AND LEGALITY:
By: 3 I By:
ige Meb ne hary J. "r,
Assistant City Attorney City Secretary ��F F9/�
M&C: L4_ 7�
Date Approved:
Form 1295: A017- o"'O8&foll
Contract Compliance Manager:p g
By signing, I acknowledge that I am the person responsible for the monitoring and administration of this
contract, in ding ensuring all performance and reporting requirements. '/T}
Anne-M rie a Title
Marline Aviation,LLC
Deed of Trust Upon Lienhold
in favor of Plains Capital Bank
Page 6 of 8
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
LESSEE: ATTEST:
Marline Aviation, LLC
By: By:
Aaron Stalberger, IJ c s 1� f`'1,,r,�$S
Vice President of Operations
Date: U Y a(', 15 ) :.o
STATE OF TEXAS §
COUNTY OF'"(�i' eAf) " §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Aaron Stalberger 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
Marline Aviation, LLC and that he executed the same as the act of Marline Aviation,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_ Ll
2017.
Y PV
s Renee Hughes
c*'C*
� g Notary Public in and for e State of Texas
?i �° My Commission Expires
11/0212020
9'F ID No. 12154553
Marline Aviation,LLC
Deed of Trust Upon Lienhold
in favor of Plains Capital Bank
Page 7 of 8
M&C Review Page 1 of 2
Official site of the City of Fort Worth,1 exas
CITY COUNCIL AGENDA FORT
COUNCIL ACTION: Approved on 6/13/2017
REFERENCE , LOG 55FWS
DATE: 6/13/2017 NO.: C-28273 NAME: MARLINECONSENTTODEEDTRUST
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: Authorize Execution of a Consent to Deed of Trust to Facilitate the Construction of a New
Hangar Facility for Lease Site W3 with Marline Aviation, LLC, at Fort Worth Spinks Airport
(COUNCIL DISTRICT 6)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a Consent to Deed of Trust to
facilitate the construction of a new hangar facility for Lease Site W3 with Marline Aviation, LLC, at
Fort Worth Spinks Airport.
DISCUSSION:
On September 13, 2016, City Council approved Mayor and Council Communication (M&C C-27907),
the execution of a new 30 year Ground Lease Agreement, with mandatory improvements, with
Marline Aviation, LLC, for Lease Site W3, at Fort Worth Spinks Airport. The mandatory
improvements include the construction of a 16,000 square foot hangar facility. The hangar will
provide storage for based aircraft at the airport. Lease Site W3 consists of 42,992 square feet of
land, 49,992 square feet of shared aircraft parking, 3,923 square feet of shared access easement and
will include a 16,000 square foot hangar. The land will be leased at a rate of$0.29 per square foot
annually. The shared aircraft parking and access easement will be leased at a rate of$0.145 per
square foot annually. Revenue generated from the lease will be approximately $20,285.36 annually
payable in monthly installments of$1,711.27. This is in accordance with the Aviation Department's
current Schedule of Rates and Charges.
Rental rates shall be subject to an increase on October 1st of any given year, based on the upward
percentage change in the Consumer Price Index for the Dallas-Fort Worth Metropolitan area. At no
time will the adjusted rate exceed the rate that is current in the Schedule of Rates and
Charges. Five-year rate adjustments will be applied to the ground rate starting on October 1, 2021
and every fifth year thereafter.
Staff has received a request from Marline Aviation, LLC, that the City consent to its execution of a
Deed of Trust as part of the financing to construct the new hangar.
The Lease Agreement prohibits any assignment of the leases or causing any lien to be made on
improvements constructed on the leased premises without City Council approval. These types of
transactions are routine for airport tenants and staff have no objection to this request.
Fort Worth Spinks Airport is located in COUNCIL DISTRICT 6.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that the $20,285.36 annual revenue generated from the lease will be
included in the upcoming Fiscal Year's budget and that the Aviation Department is responsible for the
collection and deposit of funds.
http://apps.cfwnet.org/council_packet/mc review.asp?ID=24713&councildate=6/13/2017 6/20/2017
M&C Review Page 2 of 2
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: Anne Marie-Stowe (5415)
ATTACHMENTS
Form 1295 Marline Aviation.pdf
Form 1295 Plains Capitalpdf
Map W3_pdf
http://apps.cfwnet.org/council_packet/mc review.asp?ID=24713&councildate=6/13/2017 6/20/2017
2�-73
CERTIFICATE OF INTERESTED PARTIES FORM 1295
lofl
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. 2016-94598
Marline Aviation,LLC
Mansfield,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 0810312016
being filed.
City of Fort Worth Date Ackn wl dged:
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,an provide a
description of the services,goods,or other property to be provided under the contract.
Lease Site W3
New Ground Lease Agreement at Fort Worth Spinks Airport
Nature of interest
4
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling I intermediary
Eddins,Angela Mansfield,TX United States X
Eddins, Mark Mansfield,TX United States X
5 Check only if there is NO Interested Party.
6 AFFIDAVIT 1 swear,or affirm,under penalty of perjury,that the above disclosure is true and correct.
WM
RENEE R.HUGHES
NotsryiPobbc
STATE OF'TELA.S
aN?ov tv FAY Ca+��P.xovamber 2,2016 ignature of authorized agent of contracting business entity
AFFIX NOTARY STAMP/SEAL ABOVE
Sworn to and subscribed before me,by the said Wesly C Maness this the 3rd day of August
20_16 _,to certify which,witness my hand and seal of office,
�a�t,b, I f.A q 11- 1�4
Signature of officer admin t ring oath Printed name of officer fftiministering oath Title of officer ad inistering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277