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HomeMy WebLinkAboutResolution - 3597 - Agreement - FWCFC & NSS Co Inc - Subordinationg Lien To FWCFC, EAD, LIA - 04_25_1991 (2)LLC:js RESOLUTION Resolution No. April 25, 1991 Item #19 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: ........ ... ... ._ . 3597 i THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock an Agreement with Far West Commercial Finance Company and Nortec Speciality Steels Co., Inc., formerly known as Texas General Steel Company, subordinating the City's statutory and contractual landlord's lien against the personal property of Nortec Speciality Steels Co., Inc., which is located in Buildings 710, 712, 714 East Airport District, at Lubbock International Airport in favor of Far .Best Commercial Finance Company. Said Agreement is attached hereto and incor- porated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 25tn ATTEST: 'Rane to Boy , ary APPROVED AS TO CONTENT: r ern E. ase, Director of Aviation APPROVED AS TO FORM: in a L. C ama es, Assistant City ;Attorney day of April , 1991. a XB.�C7. McMINN, MAYOR Resolution No. 3597 April 25, 1991 Item # 19 LLC : j s THE STATE OF TEXAS § COUNTY OF LUBBOCK § LANDLORD/MORTGAGEE WAIVER WHEREAS, Far West Commercial Finance Company (hereinafter called "Lender") has or is about to enter into a security transac- tion with NORTEC SPECIALTY STEELS CO., INC., formerly known as Texas General steel Co., Inc., a Texas corporation (hereinafter called "Debtor") covering, in part, all equipment, trade fixtures, furnishings, machinery, inventory and other personal property of the Debtor, whether now owned or hereafter acquired and the pro- ceeds and products thereof (hereinafter collectively called "Personal Property"), and WHEREAS, the Personal Property, in part, is now or may be located in the future at: Buildings 710, 712; 714 East Airport District, Lubbock International Airport, Lubbock, Texas 79401. WHEREAS, the undersigned has an interest in the Premises as Owner and Lessor or Mortgagee. NOW THEREFORE, in consideration of any.financial accommoda- tions extended or to be extended by Lender to Debtor, and other good and valuable consideration, the undersigned Lessor and/or Mortgagee agrees as follows: A. It waives and relinquishes all rights of levy or dis- traint for rent or other payments payable with respect to the Personal Property while Debtor is indebted to Lender. B. The Personal Property may be installed on or otherwise affixed to the Premises and shall not be deemed a fixture or part of the real estate but shall at all times be con- sidered personal property. C. The undersigned disclaims any interest in the Personal Property while Debtor is indebted to Lender, and agrees to assert no claims to the Personal Property while Debtor is indebted to Lender. D. The undersigned Lessor and/or Mortgagee agrees that Lender or its representatives may enter upon the Premises at any time to inspect,_ repair, assemble, have appraised, or remove the Personal Property and may advertise and conduct a public auction or private sale thereon. At the option of Lender, said Personal Property may remain upon - said Premises (without Lender being deemed to be taking possession of said Premises), for a period of ninety (90) days after the receipt by Lender of written notice from the undersigned directing removal. During said ninety (90) day period Lender shall pay rent to the undersigned Lessor in an amount equal to the rental provision con- tained in Lessor's lease with Debtor, pro -rated on a per diem basis to be determined on a thirty (30) day month but without incurring any other obligations of Debtor. E. The undersigned Lessor agrees to gave notice within ten (10) days of any default by the Debtor of any of the. provisions of said Lease to: Far West Commercial Finance Company 11835 West Olympic Blvd., Suite 1200 Los Angeles, California 90064 Upon receipt of said notice, Lender shall thereupon have twenty (20) days to cure said default. The failure of Lender to cure the default shall not otherwise affect its rights under this Agreement, other its rights under this paragraph E. This waiver is binding upon the undersigned, its successors and assigns and inures to the benefit of Lender, its successors and assigns. EXECUTED this 25th day of April 1991. ATTEST: C.� Ran to Boyd, City Se retary AP ROVED AS TO CONTENT: Bern E. Case, Director of Aviation CITY OF LUBBOCK: BY • e. 3C ` C. McM NN, MAYOR APPROVED AS TO FORM: Linda L. Chamales, Assistant City Attorney 23597 Lubbock International Airport Route 3, Box 3B9 Lubbock, Texas 794O1 [BOB] 767-203E3 Mr. Tom clay Manager Security Project Bechtel Corporation P.O. Sox 193965 San Francisco, CA 94119-3965 April 8, 1991 RE: Contract for Engineering & Management of Construction Services between the City of Lubbock and Bechtel Corporation Dear Tom: Since August, 1989, the City of Lubbock has in good faith attempted to negotiate a contract with Bechtel. Numerous letters and drafts have passed between your office and mine, without success. In view of the March 31, 1992 FAA deadline for completion and installation of the secu- rity system, immediate action must be taken. To this end, the City of Lubbock makes the following requests: 1) Face to face negotiations are imperative. Please arrange for a Bechtel representative (with authority to complete contract negotiations) to meet with City officials at Lubbock International Airport, as soon as possible. 2) Attached to this letter (Exhibit A) is a list of clauses from your March 14, 1991 draft which, as written, the City of Lubbock cannot approve. Please review these clauses as a starting point for negotiation. Time is running out for coming to an agreement. We must insist that you notify us prior to April 18, 1991, whether or not, you will be sending a representative. The contract must be finalized by May 3, 1991; if a mutually acceptable contract cannot be reached by this date, the City of Lubbock will consider all prior agreements terminated and of no further force or effect. If you have questions or need additional information, please let me know. C.c. 'knr, �0 Sincerely, Bern E. Case, AAE Director of Aviation x EXHIBIT A Clauses from Bechtel's proposed draft contract dated March 14, 1991, to which the City of Lubbock could not agree: IX.C. Except as provided in Paragraph 8. of this Article, Bechtel's liability to Owner for any cause or combination of causes is, in the aggregate, limited to the lesser of an amount equal to fifty percent (50%) of the Compensation paid to Bechtel, or $100,000. IX.E. Bechtel's liability for loss of or damage to the Project or other property of Owner or in the custody of Owner shall be limited to those payments made on Bechtel's behalf by the insurers affording the insurance described in Section B. of the Article entitled INSURANCE and Owner hereby releases Bechtel from any loss, damage or expense in excess of those payments. IX.E. In no event shall Bechtel, or its subcontractors, or suppliers of any tier providing equipment, materials or services for the Project be liable to Owner for consequential loss or damage, including, but not limited to, loss of use or loss of revenue, and Owner hereby releases Bechtel, its officers, agents and employees and such subcontractors and suppliers therefrom. IX.H. Owner's remedies specified in this Contract are the sole and exclusive remedies of Owner for liabilities of Bechtel to Owner arising out of or in connection with this Contract. ix. I. The indemnities, releases from liability and limitations on liability expressed in this contract shall apply even in the event of the fault, negligence in whole or in part, strict liability, breach of contract, or otherwise, of the party released or whose liability is limited and shall extend to the related entities and its and their directors, officers and employees. X.B. During the performance of the Services and for such addi- tional period as hereinafter specified, the Owner shall take out, carry and maintain, or cause to be taken out, carried and maintained, the following Project Insurance: 1. Third Party Losses and Damages Comprehensive Personal In"iury and Prooerty Damage Liability Insurance, including contractual and completed operations coverage, but excluding coverage for automobiles owned or hired by Bechtel. The policy limit will be a combined single limit for personal Injury and Property Damage of not less than $2,000,000 each occurrence, insuring Owner and Bechtel each as a Named Insured, including their officers, directors, employees and related entities, with a cross -liability or severability of interest clause, and covering against liabilities arising out of or in any way connected with the Project, including personal injury claims against any insured by employees of any other insured. Such insurance shall state that it is primary and that any other insurance carried by Owner or Bechtel shall be specific excess and not contribut- ing therewith. This insurance shall not contain any exclusion which denies coverage because liability for injuries to persons or damage to property arises out of the preparation of maps, plans, designs, specifica- tions, or the performance of inspection services or out of any other Services to be performed by Bechtel under this Contract. This insurance shall be main- tained in force until three (3) years after Acceptance or Termination of the Services. As an alternative to this policy providing coverage for,said period of three (3) years following final acceptance or termina- tion of the Service, Owner may provide equivalent insurance for the same period protecting Bechtel under Owner's Operating Liability Insurance. Owner shall provide such protection of Bechtel under Owner's Oper- ating Liability Insurance to the extent of the statute of limitation in the jurisdiction in which the Project is situated. Builder's Risk or Course of Construction Insurance. Builder's Risk or Course of Construction Insurance, insuring on an "All Risks" basis with a limit of not less than the full insurable replacement cost of the Project subject to deductible amounts as selected by Owner, and covering the Project and all materials and equipment to be incorporated therein, including prop- erty in transit or elsewhere (other than property insured under Paragraph B.3. below) and insuring the interest of Owner, Bechtel and its related entities, contractors and subcontractors of all tiers. Such insurance shall state that it is primary, shall include coverage for physical damage resulting in any way from the Services and shall include an insurer's waiver of subrogation or right of recourse in favor of each party insured thereunder. Furthermore, such insurance shall remain in effect until the entire Project is completed and accepted by the Owner. Note: This list is not, of course, all inclusive, but it does serve as a starting point for negotiation.