HomeMy WebLinkAboutContract 29135-CD1 Cff`Y SECRET
oW"CT No 2°I 13S- CD
CONSENT TO DEED OF TRUST LIEN UPON LEASEHOLD
FORT WORTH MEACHAM INTERNATIONAL AIRPORT
IMPROVED AND UNIMPROVED GROUND LEASE
(LEASE SITE NO. SN,6N,7N,8N,9N, 10N)
(CITY SECRETARY CONTRACT NO.29135)
This CONSENT TO 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; Meacham Development,
LLC ("Lessee"), a Delaware limited liability company and Wells Fargo, N.A. ("Bank"), a
national banking association.
A. On or about September 26, 2003, Lessor and Lessee entered into City Secretary Contact
No. 29135 (the "Lease"), an Improved and Unimproved Ground Lease at Fort Worth
Meacham International Airport ("Airport") known as Lease Site No. 5N, 6N, 7N, 8N,9N and
1ON(the "Leased Premises").
B. 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 Lease 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 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 the
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.
Page 1 of OFFICIAL RECORD'
CITY SECRETARY
FT WORTH, TX
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. No notice of breach or
default shall be deemed given to Lessee unless and until such copy shall have been given and
received by the Bank.
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 such 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. The Bank and its agents and contractors shall have full access to the Leased
Premises upon reasonable notice to cure a non-monetary default. Lessor agrees that in the event
of termination of the Lease, Lessor will enter into a new lease of the Leased Premises with the
Bank at Bank's sole election. Such new lease will be effective as of the date of termination of
the Lease and will contain the same terms and covenants.
5. Lessor hereby certifies to Bank that: (a) Lessee has accepted and is in possession of the
Leased Premises; (b) neither Lessor nor Lessee is in default in the performance of the lease; (c)
no rent under the Lease has been paid more than thirty (30) days in advance of its due date; (d)
Lessee, as of this date, has no claim or offset against the rent; (e) except as otherwise provided
herein, the Lease has not been modified and is valid and enforceable; (f) Lessor is the present
owner and holder of the Leased Premises; (g) all amounts required to be paid under the Lease of
the date hereof have been paid and all terms required under the Lease as of the date hereof have
been performed; and (h) Lessor agrees to comply in a timely manner with the terms of the Lease
required to be performed by Lessor.
6. Lessee agrees that it will not request to 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.
7. In the event that agrees Bank undertakes to enforce its rights to any collateral granted by
the Deed of Trust on account 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 the Bank. In the event that Bank obtains the Lease as a result of a
foreclosure of its interest under the Deed of Trust and subject to approval by Lessor's City
Page 2 of 7
Council, which shall not unreasonably be withheld, the Bank shall have the right to sublease or
assign the Lease to an aviation-related business.
8. 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 insured 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.
9. Subject to Sections 4 and 7 of this Agreement, Lessor may take all action available to it
under the Lease, at law or in equity in order to protect its interest, including, but not limited to,
cancellation of Lessee's interest as provided by the Lease and in accordance with this
Agreement.
10. The Bank agrees that it promptly will 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.
11. 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.
12. 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:
Wells Fargo Bank,National Association
201 Main Street, Suite 300
Fort Worth,Texas 76102
Ref: AU#05496
ATTN: Commercial Banking Office
13. 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 Lease 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.
Page 3 of 7
14. 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 amend the Deed of Trust, or assign any rights and/or
obligations thereunder,without the prior written consent of Lessor.
15. This Agreement shall be construed in accordance with the laws of the State of Texas.
Venue for any action arising under the provision 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.
16. 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.
17. Lessor may mortgage or otherwise encumber its interest in the Leased Premises;
however, any such mortgage or other encumbrance shall be subject and subordinate to all rights
of (i) Bank which may then exist or which may come into existence after the date of said
mortgage or other encumbrance, and (ii)Lessee's interest in the Lease and the Leased Premises.
[Signature Pages Follow]
Page 4 of 7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
multiples on this the _day of A VA Ck V] i ,2012.
CITY OF FORT WORTH:
By:
Fernando Costa
Aeti" Assistant City Manager
Date: _ / .?61,t
T
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 o,-0Z7 day of
2012.
-W- EVQNIADANIELS
MY COMMISSION EXPIRES
July 10,2013 otary Public in and for the State of Texas
APPROVED AS TO FORM ATTEST:
AND LEGALITY:
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By: By: 42&�
Charlene Sanders Name: a1\q
Assistant City Attorney City Secretary
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OFFICIAL RECORD
CITY SECRETARY
Page 5 of 7
FT. WORTH, TX
LESS ATTEST:
MEA D LOPMENT, LLC
By: By:
Robert McMu y
Mana er
Date: r! z l 7i
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Robert McMurrey 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
Meacham Development, LLC and that he executed the same as the act of Meacham
Development, LLC for the purposes and consideration therein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE,this o?3 day of
Tc..�.
92012.
. KRISTEN N MARCUM No d ry Public in a for the State of Texas
,.* Notary Public
STATE OF TEXAS
My Comm.Exp.Aug. 13,2012
i
OFFICIAL RECORD
Page 6 of 7 ! CITY SECRETARY
FT. WORTH, TX
BANK: ATTEST:
WELLS FARGO,National Association
By: By:
[Dul on d Signer]
Name: L,, rr
Title: v
Date: I • Z O. 12
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared r-° Cm,=V/ known to me
to be the person whose name is subscrl'bed to the4foregoing instrument, and acknowledged to me
that the same was the act of the W 14 and that he/she
executed the same as the act of the for the purposes and
consideration therein expressed and in the capacity therein s ted.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of
2012.
F�,M, KRISTEN MARCUM
,� . Notary Public
STATE OF TEXAS Notary Public in and for the State of Texas
My Comm.Exp.Aug. 13,2012
OFFICIAL RECORD'
Page 7 of CITY SECRETARY
FT. WORTH, TX
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 1/24/2012
DATE: Tuesday, January 24, 2012 REFERENCE NO.: **C-25414
LOG NAME: 55FTW MEACDEV DEEDWFRGO
SUBJECT:
Authorize Execution of a Written Consent to Deed of Trust Lien by Meacham Development, LLC, in Favor
of Wells Fargo, N.A., for Lease Sites 5-N, 6-N, 7-N, 8-N, 9-N and 10-N at Fort Worth Meacham
International Airport (COUNCIL DISTRICT 2)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a written Consent to Deed of Trust Lien
by Meacham Development, LLC, in favor of Wells Fargo, N.A., for Lease Sites 5-N, 6-N, 7-N, 8-N, 9-N
and 10-N at Fort Worth Meacham International Airport.
DISCUSSION:
On June 10, 2003, (M&C L-13578) City Council approved execution of an improved and unimproved
Ground Lease with Mandatory Improvements with Meacham Development, LLC, for a development
project at Fort Worth Meacham International Airport. Meacham Development, LLC, managed by Robert M.
McMurrey, currently leases Lease Sites 5-N, 6-N, 7-N, 8-N, 9-N and 10-N at Fort Worth Meacham Airport
pursuant to City Secretary Contract (CSC) No. 29135.
On September 19, 2006, (M&C C-21697) City Council approved execution of a Deed of Trust Lien by
Meacham Development, LLC, in favor of GE Commercial Finance Business Property Corporation for long-
term financing of Meacham Development's leasehold for Hangars 5-N through 10-N at Fort Worth
Meacham International Airport. Meacham Development, LLC, has met its obligations with GE Commercial
Finance Business Property Corporation for which a Release of Lien has been issued.
Meacham Development, LLC, has now secured long-term financing with Wells Fargo, N.A., and has
requested the execution of a new Deed of Trust. Accordingly, Meacham Development, LLC, has
requested the City's consent to execution of a Deed of Trust Lien on the premises in order for the Bank to
secure this loan. The Deed of Trust Lien will grant the Bank the right to operate as Lessee or to secure
another tenant in place of Meacham Development, LLC, if approved by the City Council, in the event that
Meacham Development, LLC, defaults on the loan or their Lease with the City of Fort Worth. The Lease
Agreement prohibits Meacham Development, LLC, or Robert McMurrey 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 large airport tenants and City Staff has no
objection to Meacham Development's request.
Fort Worth Meacham International Airport is located in COUNCIL DISTRICT 2.
FISCAL INFORMATION /CERTIFICATION:
The Financial Management Services Director certifies that this action will have no material effect on City
funds.
Logname: 55FTW MEACDEV DEEDWFRGO Page 1 of 2
FUND CENTERS:
TO Fund/Account/Centers FROM Fund/Account/Centers
CERTIFICATIONS:
Submitted for City Manager's Office by: Fernando Costa (6122)
Originating Department Head: Kent Penney (5403)
Additional Information Contact: Jonnie Huitt (5409)
ATTACHMENTS
No attachments found.
Logname: 55FTW MEACDEV DEEDWFRGO Page 2 of 2