HomeMy WebLinkAboutContract 48209-CD1 CSC No. 48209-CD1
CONSENT TO LEASEHOLD DEED OF TRUST
FORT WORTH SPINKS AIRPORT
LEASE AGREEMENTS
LEASE SITE W3
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; AIR CENTER
HELICOPTERS, INC. ("Lessee"), a Texas corporation, and INDEPENDENT BANK,
("Lender"), a national banking association, doing business as
INDEPENDENT FINANCIAL.
The following introductory provisions are true and correct and form the basis of this Consent:
A. Lessor and Marline Aviation,LLC("Former Lessee")entered into City Secretary Contract
No. 48209, as amended (the "Lease") for the space known as lease site W3 ("Leased Premises")
at Fort Worth Spinks Airport ("Airport").
B. On or about January 25,2022,the Former Lessee and Lessee approached Lessor requesting
the Lessor's consent for the assignment of the Lease from the Former Lessee to the Lessee
C. Lessee, in order to finance the assignment of the Lease, has requested, along with the
Lender, that the Lessor also consent to the execution by Lessee and Lender to a deed of trust on
the Leased Premises in favor of the Lender ("Deed of Trust") through this Agreement
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 will
be 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
AIR CENTER HELICOPTERS,INC.
Deed of Trust Upon Lien hold
In favor of INDEPENDENT FINANCIAL
Page l of 8
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
the right to develop such interest within the Leased Premises;provided,however,that Lessor
expressly waives all rights to utilize the surface of the Leased Premises in the exploration,
production, or transportation of any oil, gas, or minerals. Nothing herein contained shall
ever be construed to prevent the Grantor, or its successors or assigns, from developing or
producing the oil, gas and other minerals in and under the Leased Premises by pooling or
by directional drilling under the Leased Premises from well sites not located within the
boundaries of the Leased Premises and only at a depth of no less than 500 feet below the
surface of the Leased Premises.
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 Lessee's and Lender's (if Lender assumes the
Lessee's interest under the Lease) 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 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 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.
AIR CENTER HELICOPTERS,INC.
Deed of Trust Upon Lien hold
In favor of INDEPENDENT FINANCIAL
Page 2 of 8
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 a 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 to writing when the Lender h as
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 expires or is 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
AIR CENTER HELICOPTERS,INC.
Deed of Trust Upon Lien hold
In favor of INDEPENDENT FINANCIAL
Page 3 of 8
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:
Independent Financial
7777 Henneman Way
McKinney, TX 75070
Attn: Jordan Bass
12. The parties hereto understand and agree that upon expiration or termination of the Lease,
all permanent 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.
Improvements of a non-permanent nature, such as all trade fixtures, tools, machinery,
equipment, materials, and supplies owned by the Lessee ("Non-Permanent Collateral")
placed on the Leased Premises by Lessee 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.Notwithstanding the foregoing to
the contrary, if at the time of the expiration or termination of the Lease there is a default
under the Deed of Trust then Lender may continue its security interest on any Non-
Permanent Collateral that remains the property of Lessee.
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 Lessor 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 Lessor 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 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.
d. The City has not taken, and does not currently anticipate taking any action to, or
that would,terminate the Lease.
e. Pursuant to the Lease,the Initial Term of the Lease expires on August 31, 2046 at
AIR CENTER HELICOPTERS,INC.
Deed of Trust Upon Lien hold
In favor of INDEPENDENT FINANCIAL
Page 4 of 8
11:59 PM. Lessee has a right to extend the term of the Lease for two(2)additional
successive term of five(5)years 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;
provided, however, Lender may assign the Deed of Trust and the obligations secured
thereunder to an affiliate of Lender without Lessor's consent but Lender must notify
Lessor of such assignment.
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]
AIR CENTER HELICOPTERS,INC.
Deed of Trust Upon Lien hold
In favor of INDEPENDENT FINANCIAL
Page 5 of 8
IN WITNESS WHEREOF,the parties hereto have executed this Agreement in multiples
on this the day of ---, 2022.
CITY OF FORT WORTH:
Oana HuL, lZ doAc
By:
Dana Burghdoff(Mar 31,202218:27CDT)
Dana Burghdoff
Assistant City Manager
Date: Mar 31, 2022
BEFORE ME,the undersigned authority, a Notary Public in and for the State of Texas,on
this day personally appeared Dana Burghdoff, 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
2022. Mar 31,2022
Selena Ala(Mar 31,202218:28 CDT)
Notary Public in and for the State of Texas
APPROVED AS TO FORM ATTEST:
AND LEGALITY:
,17
By: By:Jannette S.Goodall(Apr 1,2022 09:29 CDT)
Thomas Royce Hansen Jannette S. Goodall �pF°FORr�d
Assistant City Attorney City Secretary 'C Oo
rJ
P~°
000
AT Y°o
00
000000
M&C: 22-0236 a44 i,XpSoap
Date Approved: 03/29/2022 SELENA ALA
i Notary Public
STTOF TEXAS
Form 1295: 2022-849055 ®� Notary LD.1 242 528
"BOF� My Comm.Exp.Mar.31,2024
AIR CENTER HELICOPTERS,INC.
Deed of Trust Upon Lien hold OFFICIAL RECORD
In favor of INDEPENDENT FINANCIAL
Page 6 of 8 CITY SECRETARY
FT. WORTH, TX
Contract Compliance Manager:
By signing, I acknowledge at I am the person responsible for the monitoring and administration of this
cludin fts n Il rformance and reporting requirements.
arbara G odwin
Real Property Manager
LESSEE:
AIR CENTER HELICOPTERS,INC
By: (j
JO . BEAN
Executive Vice President
Date: 3"off y-Z d Z 2-
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. BEAN 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 AIR
CENTER HELICOPTERS, INC and that he executed the same as the act of AIR CENTER
HELICOPTERS, INC for the purposes and consideration therein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE,this day of r&-)
,2022.
Notary Public in and for the State of Texas
AIR CENTER HELICOPTERS,INC.
Deed of Trust Upon Lien hold
In favor of INDEPENDENT FINANCIAL 0.Y°�B CAROLYN NICOLE NEWMAN
Page 7 of 8 2�� Notary ID+Y 10637368
My Commission Expires
May 8, 2025 OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
LENDER: ATTEST:
INDEPENDENT FINANCIAL
JorC g Bass
Date: Z 12-t+ Z Z
STATE OF TEXAS §
COUNTY OF4AR4Ai;T §
DM CI>
BEFORE ME,the undersigned authority,a Notary Public in and for the State of Texas,on
this day personally appeared JORDAN BASS 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
INDEPENDENT FINANCIAL and that he executed the same as the act of INDEPENDENT
FINANCIAL for the purposes and consideration therein expressed and in the capacity therein
stated.
GIVEN UNDER MY ILAND AND SEAL OF OFFICE, this aQ4-('N _day of
)2022.
KIM A.GILMAN
-Notary Public,State of Texas
; Comm.Expires 02-22-2026
Notary ID 1204903 Notary ublic in and for the State of Texas
AIR CENTER HELICOPTERS,INC.
Deedof Trust Upon Lien hold
In favor of INDEPENDENT FINANCIAL
Page 8 of 8 OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
M&C Review Page 1 of 2
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FORT_VURTIll
Create New From This M&C
REFERENCE **M&C 22- 55FWS CONSENTASSIGNMENT
DATE: 3/29/2022 NO.: 0236 LOG NAME: GRND LEASE W3, AIR CENTER
HELICOPT
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: (CD 6) Authorize Execution of a Consent to Assignment of a Ground Lease Agreement for
Lease Site W3 by Marline Aviation, LLC to Air Center Helicopters, Inc. and a Consent to
Leasehold Deed of Trust with Air Center Helicopters, Inc. and Independent Financial for
the Purpose of Financing the Purchase of the Leasehold Interest of Lease Site W3,
Located at Fort Worth Spinks Airport
RECOMMENDATION:
It is recommended that the City Council
1. Authorize the execution of a consent to assignment of a ground lease agreement for lease
site W3 by Marline Aviation, LLC to Air Center Helicopters, Inc. at Fort Worth Spinks Airport;
and
2. Authorize the execution of a consent to leasehold deed of trust with Air Center Helicopters,
Inc. and Independent Financial for the purpose of financing the purchase of the leasehold
interest of Lease Site W3, located at Fort Worth Spinks Airport.
DISCUSSION:
On September 13, 2016, through Mayor and Council Communication (M&C) C-27907, City Council
authorized Lessor to execute an unimproved Ground Lease Agreement and associated mandatory
improvements under City Secretary Contract (CSC) 48209 with Marline Aviation, LLC (Marline
Aviation), dated September 26, 2016, for the lease and use of real property known as Lease Site W3
and any improvements and facilities thereon, consisting of 42,992 square feet of ground space,
49,992 square feet of shared aircraft parking and 3,923 square feet of shared access easement
(Leased Premises) at Fort Worth Spinks Airport (Airport). Mandatory improvements included a 16,000
square foot hangar and associated office space on the site.
On November 2, 2016, the Lessor and Marline Aviation entered into CSC 48209-A1 to correct a
monthly rental payment calculation.
On June 13, 2017, through Mayor and Council Communication (M&C) C-28273, City Council
authorized Lessor to execute a Consent to Leasehold Deed of Trust with Marline Aviation in favor of
PlainsCapital Bank to finance the construction of improvements at lease site W3. The loan will be
satisfied and the lien removed upon a sale of the leasehold interest of lease site W3 located at Fort
Worth Spinks Airport.
On or about January 24, 2022, Marline Aviation notified the Aviation Department of a request for a
consent to assignment of the lease to Air Center Helicopters, Inc. (Air Center Helicopters) due to a
pending sale of its leasehold interest. The mandatory improvements required under the Lease have
been completed and now include a 19,723 square foot hangar which includes office space. The lease
will expire on August 31, 2046, with two consecutive options to renew for two additional successive
terms of five years each.
Annual revenue from the lease is approximately $21,866.16 payable in monthly installments of
$1,822.18. Rental rates shall be subject to an increase on October 1 st of any given year, based on
http://apps.cfwnet.org/council_packethlle_review.asp?ID=29790&councildate=3/29/2022 3/29/2022
M&C Review Page 2 of 2
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 then current rate published in the Schedule of Rates
and Charges. Five-year rate adjustments are applied to the ground rate with the next scheduled
adjustment on October 1, 2026, and every fifth year thereafter.
The Consent to Leasehold Deed of Trust will grant Air Center Helicopters' lender, Independent
Financial, the right, subject to the previous lien, to operate as Lessee or secure another tenant in
place of Air Center Helicopters, if previously approved by City Council, in the event Air Center
Helicopters defaults on the loan or the lease with the City of Fort Worth. The Ground Lease
Agreement prohibits Air Center Helicopters 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 staff has no objection to Air Center Helicopters'
request.
Fort Worth Spinks Airport is located in Council District 6.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that upon approval of the above recommendations and execution of
the lease, funds will be deposited into the Municipal Airport Fund. The Aviation Department(and
Financial Management Services) is responsible for the collection and deposit of funds due to the City.
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: Dana Burghdoff(8018)
Originating Department Head: Roger Venables (5402)
Additional Information Contact: Ricardo Barcelo (5403)
ATTACHMENTS
FID TABLE.xlsx (CFW Internal)
Form 1295 Certificate 1.25.2022 Marline Signed.pdf (CFW Internal)
Form 1295 Air Center Helicopter.pdf (CFW Internal)
Form 1295 Independent Financial.pdf (CFW Internal)
Marline Aviation W3 Location Mappdf (Public)
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=29790&councildate=3/29/2022 3/29/2022