HomeMy WebLinkAboutContract 48506-CD3 CSC No. 48506-CD3
CONSENT TO LEASEHOLD DEED OF TRUST AND ESTOPPEL
FORT WORTH SPINKS AIRPORT
LEASE AGREEMENTS
LEASE SITE 20E
This CONSENT TO LEASEHOLD DEED OF TRUST AND ESTOPPEL ("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 Delaware corporation, and DEERWOOD BANK, a
Minnesota state banking corporation ("Lender").
The following introductory provisions are true and correct and form the basis of this Consent:
A. Lessor and Lessee have entered into a Ground Lease Agreement identified as City
Secretary Contract No. 48506, as amended and assigned, (the "Lease") for the space known as
lease site 20E which contains 158,735 square feet of ground space including improvements
consisting of a 51,300 square foot hangar ("Leased Premises") at Fort Worth Spinks Airport
("Airport").
B. Lessee and the Lender desire Lessor to consent to the execution by Lessee of the Leasehold
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 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
Leasehold Deed of Trust. Lessor does not adopt, ratify or approve of any of the particular
provisions of the Leasehold Deed of Trust and does not grant any right,privilege or use to
Lessee, Lender, or any successor in interest pursuant to the Leasehold 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 Leasehold 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, except as otherwise set forth herein. 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 Leasehold 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 Leasehold 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, except with respect to the consents granted by the Lessor
Leasehold Deed of Trust Upon Lien hold OFFICIAL RECORD
in favor of Deerwood Bank CITY SECRETARY
Page 1 of 8
FT.WORTH, TX
related to the execution, delivery and recording of the Leasehold Deed of Trust as
contemplated herein.
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 at the address set forth
herein and in accordance with the terms of the Lease. Lessor agrees that (i) the Lender
may, but shall not be obligated to,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 of 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 at the address set forth herein. The Lender shall have fifteen (15) 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. If Lender, in its sole discretion, elects to not cure the default or
breach of Lessee under the Lease, then Lender shall be permitted to peaceably enter and
retain possession of the Leased Premises for a period of up to 60 days following delivery
of the written notice to Lessor to complete removal of the personal property collateral.
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 Leasehold
Deed of Trust(including but not limited to,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 Loan
Documents or the Leasehold Deed of Trust. in the event that Lender undertakes to enforce
its rights to any collateral granted by the Leasehold Deed of Trust on account of default by
Lessee under the Leasehold 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,
including permitting the Lender to peaceably enter and retain possession of the Leased
Premises for a period of up to 60 days to complete removal of the personal property
Leasehold Deed of Trust Upon Lien hold
in favor ofDeerwood Bank
Page 2 of 8
collateral. The Lender hereby agrees to repair any damages at or to the Leased Premises
caused by or incident to such removal (normal wear and tear excepted).
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 or loss payees, as applicable, 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 Leasehold Deed
of Trust, the Lender hereby agrees and covenants that any and all proceeds payable under
the terms of such commercial property insurance policies shall first be applied to cover the
repair and/or replacement of the Leased Premises and to satisfy fully the terms and
conditions of the Lease. The Lessor hereby agrees and covenants that such commercial
property insurance proceeds shall second be applied to Lessee's indebtedness to the Lender
pursuant to the terms of the Leasehold Deed of Trust.
S. 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 Leasehold 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 Leasehold 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 Leasehold Deed of Trust to another
financial institution or an affiliate of Lender; provided, however, that Lender shall notify
Lessor of any such assignment at least thirty (30) days before the assignment to the new
lender becomes effective.
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:
Deerwood Bank
14986 Lynwood Drive
Baxter, Minnesota 56425
Attention: Ted Abear
Leasehold Deed of Trust Upon Lien hold
in favor of Deerwood Bank
Page 3 of 8
12. Subject to Sections 4 and 6 of this Agreement, 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 Leasehold Deed of Trust. Subject to Sections 4 and 6 of this Agreement,
improvements of a non-permanent nature, all trade fixtures, machinery, furnishings and
other non-permanent 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 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 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, contain the
entire agreement and understanding of the Lessor and Lessee with respect thereto.
Lessee is the current holder of the leaschold interest in the premises under the
Lease.
(c) To the best knowledge of the Lessor, no monetary or non-monetary default by the
Lessee or the Lessor 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 Lessee or the Lessor under the Lease.
(d) The Lessor 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 December 31, 2056
at 11:54 PM.
(f) The Leasehold Deed of Trust is permitted under the lease and the execution,
delivery and recording of the Leasehold Deed of Trust will not constitute a default
of breach by Lessee under the Lease.
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.
Leasehold Deed of Trust Upon Lien hold
in favor of Deerwood Bank
Page 4 of 8
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 Leasehold Deed of Trust,
or assign any rights and/or obligations thereunder, without the prior written consent of
Lessor; provided, however, (a) Lender may amend the maturity date as set forth in the
Leasehold Deed of Trust without Lessor's consent,(b)Lender may amend the loan amount
as set forth in the Leasehold Deed of Trust without Lessor's consent, and (c) Lender may
assign its interest in the Leasehold Deed of Trust and the obligations secured thereunder to
another financial institution or an affiliate of Lender without Lessor's consent in
accordance with Section 10 of this Agreement. In the event that Lender amends or modifies
or assigns the Leasehold Deed of Trust pursuant to subsections (a) - (c) of this paragraph,
the Lender shall notify Lessor at least thirty (30) days before such amendment,
modification or assignment becomes effective.
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. Each of the undersigned 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. Each
party is fully entitled to rely on this warranty and representation in entering into this
Agreement.
20. Should any provision of this Agreement be determined to be void, invalid, unenforceable
or illegal for whatever reason, such provision(s) shall be null and void;provided, however,
that the remaining provisions of this Agreement shall be unaffected thereby and shall
continue to be valid and enforceable.
[Signature Pages Follow]
Leasehold Deed of Trust Upon Lien hold
in favor of Deerwood Bank
Page 5 of
IN WITNESS WHEREOF,the parties hereto have executed this Agreement in multiples
as of the date first set forth above,
CITY OF FORT WORTH:
By Dana Burghdoff(Mn 17,20 16:56 CDT)
Dana Burghdoff
Assistant City Manager
Date: J U n 17, 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. Jun 21,2022
Selena Ala(Jun 21,2022 09:18 CDT)
Notary Public in and for the State of Texas
oFF OR'Cy r��a
ooa000000,
APPROVED AS TO FORM ATTEST: p,�o 00
AND LEGALITY: j�o op-t�
�vo
d
0000�5 as
)3 J ette S.Goodall(Jun 21,2022 11 coT) aa>Z FXp► b
y' y' �Qnaoao
Thomas Royce Hansen Jannette S. Goodall
Assistant City Attorney City Secretary
M&C: 22-0415
Date Approved: June 14, 2022
Form 1295: 2022-883690 Air Center Helicopters
pSiY PG SELENA ALA
2022-883655 Deerwood Bank 2O� Notary Public
+ • STATE OF TEXAS
N.GV Q Notary I.D.132422528
9�OF My Comm.Exp.Mar.31,2024
JUL
AT
OFFICIAL RECORD
Leasehold Deed of Trust Upon Lien hold CITY SECRETARY
in favor of Deerwood Bank
Page 6 of 8 FT.WORTH, TX
Contract Compliance Manager:
By signing, I acknowledge that I am the person responsible for the monitoring and administration
of this contract, including ensuring all performance and reporting requirements.
Barbara Goodwin
Real Property Manager
LESSEE:
Air Center Helicopters, Inc.
By: C�L---
Io L, can, Exec. VP/Chief Operating Officer
Date: May 9, 2022
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the under i ed authority, a Notary Public in and for the State of Texas, on
this day personally appeared bhh �"n known to me to be the person whose name is
subscribed to.the foregoing instrument, and acknowledged to me that the same w s the act of
LL V? ( 60 and that he executed the same as the act of uG �? tSM for the
purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this r day of
2022.
=jenniferDawn Notary Public ' and the State of Texas
OFFICIAL RECORD
CITY SECRETARY
Leasehold Deed of Trust Upon Lien hold
in favor of Deerwood Bank FT.WORTH, TX
Page 7 of 8
LENDER:
DEERWOOD BANK,
a Minnesota state banking corporation
By:
Ted A6ear
Its: Vice President
Date: 0
STATE OF MINNESOTA §
COUNTY OF \48
io 13
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Minnesota, on
this day personally appeared Ted Abear 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 DEERWOOD
BANK, a Minnesota state banking corporation and that he executed the same in his capacity as
Vice President of DEERWOOD 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
, 2022.
Y E. KANNEL
I L C MINNESOTA ary Pub
Exp.
Jan.
1'2025
CASEY E. KANNEL
NOTARY PUBLIC-MINNESOTA ary Pub c in and Kr the State of
• MY Co=-Exp.Jan.31,2025 Minni ota
2380543 1 v I
Leasehold Deed of Trust Upon Lien hold OFFICIAL RECORD
in favor of Deerwood Bank
Page 8 of 8 CITY SECRETARY
FT.WORTH, TX
M&C Review Page 1 of 2
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FART II
Create New From This M&C
REFERENCE **M&C 22- 55FWS AIR CENTER
DATE: 6/14/2022 NO.: 0415 LOG NAME: CONSENT TO LEASEHOLD
DEED OF TRUST, 20E
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: (CD 6) Authorize the Execution of a Consent to Leasehold Deed of Trust With Air Center
Helicopters, Inc. and Deerwood Bank to Enable Air Center Helicopters, Inc. to Obtain
Financing to Purchase the Leasehold Interest for Lease Site 20E Located at Fort Worth
Spinks Airport
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a consent to leasehold deed of
trust with Air Center Helicopters, Inc. and Deerwood Bank to enable Air Center Helicopters, Inc. to
obtain financing to purchase the leasehold interest for lease site 20E located at Fort Worth Spinks
Airport.
DISCUSSION:
On December 27, 2016, Mayor and Council Communication (M&C) C-28043, City Council approved
City Secretary Contract No. 48506, a Hangar and Ground Lease Agreement with Dumont Group
Properties VI, LLC, (Dumont), for Lease Site 20E at Fort Worth Spinks Airport.
On April 12, 2022, (M&C 22-0283) City Council approved City Secretary Contract No. 48506-CA1, a
Consent to Assignment made between the City of Fort Worth (City), Dumont (Assignor) and Air
Center Helicopters, Inc. (Air Center) (Assignee).
Air Center has been working with their lender, Deerwood Bank to secure a loan to finance the
purchase of the leasehold interest of Lease Site 20E, which consists of 158,735 square feet of
ground space and a 51,300 square foot hangar. The initial term of the lease commenced on January
17, 2017 and expires on December 31, 2056 at 11:59 PM. On January 1, 2049, a hangar rate will be
added to the lease agreement and included with the ground rate. The hangar rate will be equal to the
then fair market value, as determined by Lessor's market analysis and will expire with the ground rate
on December 31, 2056. The hangar is to be used for aeronautical purposes in accordance with City
and Aviation Department policies. Annual revenue from the ground lease is $46,807.81.
The Consent to Leasehold Deed of Trust will grant Air Center's lenders, Deerwood Bank, the right,
subject to any superior lien, to operate as Lessee or secure another tenant in place of Air Center, if
previously approved by the City Council, in the event Air Center defaults on its loan or its lease with
the City of Fort Worth. The lease agreement prohibits Air Center 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's request.
Fort Worth Spinks Airport is located in COUNCIL DISTRICT 6
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that approval of this recommendation will have no material effect on
City funds.
TO
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=29968&councildate=6/14/2022 6/14/2022
M&C Review Page 2 of 2
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 Air Center.pdf (CFW Internal)
Form 1295_Deerwood.pdf (CFW Internal)
Location Map 20E.pdf (Public)
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=29968&councildate=6/14/2022 6/14/2022