HomeMy WebLinkAboutContract 39487"I rY SFCRETAR r,
NTR ar;CT NO
CONSENT TO SECOND DEED OF TRUST LIEN UPON LEASEHOLD
FORT WORTH SPINKS AIRPORT
(LEASE SITE NO. E=20)
(CITY SECRETARY CONTRACT NO,
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. Lessee requires further financing in the amount of
$60,000 in order to install a fire detection and alarm system in the hangar.
C. In order for Lessee to obtain certain financing 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 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 of Trust that is different from or
Consent to Second Deed of Trust
Newone Hangars, LLC and Pinnacle Bank —Page 1
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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
the Bank as additional insureds and to cover all public risks related to the leasing, use, occupancy,
Consent to Second Deed of Trust
Newone Hangars, LLC and Pinnacle Bank —Page 2
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: Peter G. Bennis
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
prior written consent of Lessor. Lessee and Bank shall have the right to modify and extend the
Consent to Second Deed of Trust
Newone Hangars, LLC and Pinnacle Bank —Page 3
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 Second Deed of Trust
Newone Hangars, LLC and Pinnacle Bank— Page 4
IN WITNESS WHEREOF, the parties hereto have executed this Lease in multiples, this
IZ day of �20090
LESSOR:
CITY OF FORT WORTH:
By:
Fernando Costa
7
Assistant City Manager
Date: /////S
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 of�����2009
�'�""°�t'• EVONIADANIELS
`-*: *' MY COMMISSION EXPIRES
July 10, 2013 -
APPROVED AS TO FORM AND LEGALITY:
By:
C arlene Sanders
Assistant City Attorney
Contract Authorization:
M & C: C,-13
Consent to Second Deed of Trust
Newone Hangars, LLC and Pinnacle Bank —Page 5
otary Public in and for the State of Texas
ATTEST:
Cite Secretary
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Date Approved:
LESSEE,
NEWONE HANGARS, LLC.
a Texas Limited Liability Company
By:
Dubosque, J�., President
Date: II cy I �1
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 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 Nw , 2009.
Notary
Consent to Second Deed of Trust
Newone Hangars, LLC and Pinnacle Bank —Page 6
in and for the State of Texas
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
BANK:
PINNACLE BANK,
a Texas banking corporation:
By:
Name: Peter G. Bennis
Title: V! ld E7 V� , /C r✓ (� .
Date: l l-C� �cl
STATE OF TEXAS §
COUNTY OF JOHNSON §
ATTEST:
LAO
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 �2day of i` �2WYE
o�sf`` P JANEf GOODMAN
: � Notary Public rt STATE OF TEXAS
My Comm. ExP. 04/09/2013
Consent to Second Deed of Trust
Newone Hangars, LLC and Pinnacle Bank —Page 7
Notary �ublic in and for the State of Texas
M&C Review
Page 1 of 2
DATE: 11 /3/2009
CODE: C
Official site of the City of Fort Worth, Texas
COUNCIL ACTION: Approved on 11/3/2009
REFERENCE NO.: **C-23885
TYPE:
CONSENT
LOG NAME:
PUBLIC
HEARING:
�t:IRT ��[�R'f lYl
55NEWONE
HANGARS LLC
SUBJECT: Authorize the Execution of a Consent to Second Deed of Trust Lien Upon Leasehold by
NewOne Hangars, LLC, in Favor of Pinnacle Bank for Lease Site E-20 at Fort Worth
Spinks Airport
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a Consent to Second
Deed of Trust Lien Upon Leasehold by NewOne Hangars, LLC, in Favor of Pinnacle Bank for Lease
Site E-20 at Fort Worth Spinks Airport.
DISCUSSION:
On or about September 19, 2007, NewOne Hangars, LLC, 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 Hangars, LLC, 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. NewOne Hangars, LLC, requires furthe
financing in the amount of $60,000.00 in order to install a fire detection and alarm system in the
hangar.
In order for NewOne Hangars, LLC, to obtain certain financing related to NewOne Hangars, LLC,
construction of improvements on the leased premises, NewOne Hangars, LLC, and Pinnacle Bank
desire the City of Fort Worth to consent to the execution by NewOne Hangars, LLC, of a Leasehold
Deed of Trust lien on the leased premises 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 Hangars, LLC, if previously approved by the
City Council, in the event NewOne Hangars, LLC, defaults on its loan or its lease with the City of For
Worth. The Lease Agreement prohibits NewOne Hangars, LLC, 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.
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
http://apps.cfwnet.org/council�acket/mc review.asp?ID=12527&councildate=ll/3/2009 11/10/2009
M&C Review
Page 2 of 2
Submitted for Cif Manager's Office bv:
Originati � D�artment Head:
Additional Information Contact:
ATTACHMENTS
Fernando Costa (6122)
Kent Penney (5403)
Diana Lama (5409)
Aya Ealy (5406)
http://apps.cfwnet.org/council�acket/mc review.asp?ID=12527&councildate=ll/3/2009 11/10/2009