HomeMy WebLinkAboutContract 39486CONSENT TO THIRD DEED OF TRUST LIEN UPON LEASEHOLD
FORT WORTH SPINKS AIRPORT
(LEASE SITE NO. E-4) 2 %� l�
(CITY SECRETARY CONTRACT NO. ✓ � r �T
This CONSENT TO THIRD 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;
JOHN L. DUBOSQUE, ("Lessee"), an individual; and PINNACLE BANK ("Bank"), a Texas
banking corporation.
A. On or about October 18, 2004, Lessor and Lessee entered into City Secretary Contract
(CSC) No. 30881 (the "Lease"), a lease of improved and unimproved ground lease of land at Fort
Worth Spinks Airport ("Airport") known as Lease Site No. E-4 (the "Leased Premises").
B. On or about January 14, 2005, Lessee entered into CSC 31190, a Consent to Deed of Trust
Lien Upon Leasehold for improvements to construct a hangar on Lease Site No. E-4 at Fort Worth
Spinks Airport.
C. On or about November 8, 2005, Lessee entered into CSC 32618, a Second Consent to Deed
of Trust Lien Upon Leasehold for additional improvements to construct a hangar on Lease Site No.
E-4 at Fort Worth Spinks Airport.
D. In order for Lessee to obtain certain financing related to construction of improvements on
Lease Site E-20, Lessee and Bank desire Lessor to consent to the execution by Lessee of a
Leasehold Deed of Trust lien on these Leased Premises as additional collateral for Lease Site E-20
(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
Consent to Third Deed of Trust
John Dubosque and Pinnacle Bank —Page 1
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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. 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 specifically releases,
holds harmless and agrees to indemnify Lessor for any damages that may arise as a result of any
such consent.
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
Consent to Third Deed of Trust
John Dubosque and Pinnacle Bank— Page 2
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 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 will promptly 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 (i)
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 Bank, its agents,
employees, servants or representatives, or (ii) deposited in the United States Mail, certified, return
receipt requested, addressed as follows.
Pinnacle Bank
PO Box 676
Keene, TX 76059
Attn: Ronny Korb
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 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 assign any rights and/or obligations thereunder, without the
Consent to Third Deed of Trust
John Dubosque and Pinnacle Bank —Page 3
prior written consent of Lessor. Lessee and Bank 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.
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.
[Signature Pages Follow)
Consent to Third Deed of Trust
John Dubosque and Pinnacle Bank— Page 4
IN WITNESS WHEREOF, the parties hereto have executed this Lease in multiples, this
0, day of 1,,jo i a or 2009.
LESSOR:
3y47
Fernando Costa
Assistant City Manager
Date:/dap
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 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 said 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 ofAmm6ff, 2009
EVONIA DANIELS
MY COMMISSION EXPIRES
Juty 10, 2013
APPROVED AS TO FORM AND LEGALITY:
By:�
Charlene Sanders
Assistant City Attorney
Contract Authorization:
M&C: C � 430��'�
Date Approved: 10 1171 l d 9
Consent to Third Deed of Trust
John Dubosque and Pinnacle Bank —Page 5
otary Public in and for the State of Texas
ATTEST:
By:
City Secretary
OFFICIAL RECORD
CITY SECRETARY
T.
WORTH, TX
LESSEE:
JOHN L. DUBOSQUE
An Individual:
By: r - _� _
Jo L. Dubosque, Jr., esid nt
Date: I (� (; -_ 07
ATTEST:
By:
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 John L. Dubosque, Jr., 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 John L. Dubosque, Jr., and that he executed the same as the act of John L. Dubosque,
Jr., for the purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this G% day of ��Qu, 2009.
�„„,,,� VICKI MARSH
Notary Public
t STATE OF TEXAS
My Comm. Exp, January 13, 2012
Consent to Third Deed of Trust
John Dubosque and Pinnacle Bank— Page 6
Notary Public in and for the State of Texas
OFFICIAL RECORD
CITY SECRETARY
T. WORTH, TX
BANK:
PINNACLE BANK,
a Texas banking corporation:
Rv•
Name: We
er G. Bennis
Title:si'�0
Date:
STATE OF TEXAS §
COUNTY OF JOHNSON §
ATTEST:
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on
this day personally appeared Peter G. Bennis, 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 this
��, VICKI MARSH
�/�\NotaTy Public
jSTATE OF TEXAS
�My Comm. Exp. January 13, 2012
Consent to Third Deed of Trust
John Dubosque and Pinnacle Bank —Page 7
Notary Public in and for the State of Texas
M&C Review
�.
Page 1 of 2
DATE:
CODE:
SUBJECT:
Official site of the City of Fort Worth, Texas
e t
� 1 ! .; i
COUNCIL ACTION: Approved on 10/27/2009
10/27/2009 REFERENCE NO.: **C-23874 LOG NAME: 55JOHN L
DUBOSQUE
C TYPE: CONSENT PUBLIC NO
HEARING:
Authorize Execution of a Consent to a Third Deed of Trust Lien by John L
Favor of the Bank for Lease Site E-20 at Fort Worth Spinks Airport
Dubosque in
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a Consent to a Third
Deed of Trust Lien by John L. Dubosque in favor of the Bank for lease site E-20 at Fort Worth Spink:
Airport.
DISCUSSION:
On October 18, 2004, John L. Dubosque, Lessee, entered into City Secretary Contract No. 30881, a
ground lease of improved and unimproved land at Fort Worth Spinks Airport known as Lease Site Nc
E-20 for an aircraft maintenance facility. Lessee requires further financing in the amount of $60,000 i
order to install a fire detection and alarm system in the hangar.
In order for Lessee to obtain certain financing related to construction of improvements on Lease Site
E-20, Lessee and Pinnacle Bank (Bank) desire Lessor to consent to the execution of improvements
on Lease Site E-20, Lessee and Bank desire Lessor to consent to the execution by Lessee of a
Leasehold Deed of Trust lien on these leased premises as additional collateral for Lease Site E-20
(the "Deed of Trust") in favor of the Bank.
The Deed of Trust Lien will grant the Bank the right, subject to the previous liens, to operate as
Lessee or to secure another tenant in place of Mr. Dubosque, if previously approved by the City
Council, in the event Mr. Dubosque defaults on his loan or his lease with the City of Fort Worth. The
lease agreement prohibits Mr. Dubosque 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 airport tenants and City staff has no objection to Mr.
Dubosque's request.
The property 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.
TO Fund/Account/Centers
FROM Fund/Account/Centers
Submitted for City Manager's Office by: Fernando Costa (6122)
Originating Department Head:
http://apps.cfwnet.org/council�acket/mc review.asp?ID=12476&councildate=l0/27/2009 11/10/2009