Document 4QYGwQkkG3gx4zr44MpYv29yx

Rerised 3/63 TO: APPROVED BY 1I Optratinf RETURN TO PURCHASING DEPARTMENT PLAINTIFF'S EXHIBIT Page 1 of 7 Construction or Ropoir Contract Form PD-19 Under $100,000.00 ORDER NO. CONTRACT FOR Enclosing KiLiae Car .Loading Point* (Inert naae of job) AMERICAN SMELTING AND REFINING COMPANY'S El PasoPlant atEl Paso. Taxas (Insert town and state) THIS AGREEMENT, made tha 15th____day of-------September__, 19__ 70, Southwestern Industrial by and hptwaen Contractors and Riggers. Inc.___________________ whose address is 1730 Bassett Ave.,P.O. Box 1611 El Paso, Texas 7994ShprAinaf*tpr called the "Contractor") and AMERICAN SMELTING AND REFINING COMPANY, a corporation of the State of New Jersey, whose address is 120 Broadway, New York 5, N. Y. and P O. Box 1111, El Paso, Texas 79999(hereinafter called the (Insert address of plant or unit) "Owner"). WITNESSETH: The Contractor and Owner agree as follows: Article 1. Scope of the work The Contractor shall furnish all shop drawings, field engineering, labor, tools, equipment, transportation, materials and other facilities, except such items as are hereinafter listed as being furnished or furnished and installed by -s Enclosing HiLine the Owner, for_______ Car Loading Point!(hereinafter called the "work") (Insert nane of job) at the El Po plant of the Owner at______^ Paao, Texas (Insert town & state) in accordance with the drawings and specifications listed below, all of which are incorporated herein by reference and made a part hereof: (List Spec 1fiestions end Drseings) As Per Southwestern Quote of 9 September 1970 DMART 147 Page 2 of 7 Article 2. Time of Completion The work shall be commenced September IS. 1970 and shall be substantially completed--------- September 30.--L9.7..0---------- Article 3. Payment (to be deleted if progress payments are to be made) The Owner shall pay the Contractor for the performance of this Contract, the sum of Six Thousand Five Hundred >nd Fifty-----------------------------------------dollars, (.f 30 nn), lawful money of the United States of America within .days after satisfactory completion of the work and sub mission by the Contractor of evidence (including, if requested, complete releases of all liens arising out of or in connection with the work by all persons, firms or corporations on whose behalf such liens could be or were filed) satisfactory to the Owner that all charges for labor and material incorporated in the work and all other indebtedness connected with the work for which liens could be filed have been paid and that the work is free of all liens and encumbrances. *^bticle 3. Payments (to be deleted if progress payments are not to be made) The Owner shall pay the Contractor for the performance of this contract, the sum of dollars, ), lawful money of the Unite^States, as follows: On or about the calend^'raonth, commencing , IS____ , the Owp^r shall pay the Contractor .per cent (_ . %) based jem the contract prices, of the labor and materials incorporated in ti?K wphk and of materials suitably stored at the site thereof up to the end of theNiext preceding calendar month, as estimated by the Owner, less the aggj>^gate\jf previous payments; and upon com pletion of the entire work, a sum/gufficientto increase the total payments to per cental%) oi\the contract price. Final payment of the remaining L-/%) of the contract price shall be due davp/'after completion of the work. Before each such payment is due, the Contractor sh^ll submit evidence satisfactory to the Owner (including, if requested, partial waivers, or in the case of final pp^ment, complete releases, of all liens arisingNmt of or in connection with the work by all persons, firms or corporations on'^hose behalf such liens/dould be or were filed) that all charges for labor and material in corporated in the work and all other indebtedness (except, in the caseNof pay ments xither than final payment, indebtedness not then due) connected withShe work-^for which liens could be filed have been paid and that the work is free'of all liens and encumbrances. Page 3 of ? Article 4. Payments Withheld The Owner nay withhold all or part, of any payment to the extent neces sary to protect the Owrv-r from loss or damage on account of (a) damaged or de fective work net remedied, (l) claims filed or reasonable evidence indicating nrcbatle filing of claims by other parties against the Contractor or the Ow:a r (c) failure of the Contractor to make payments properly to Subcontractors or for material or labor, (d) a reasonable doubt that this contract can be comr.ieted for the balance then unpaid, cr (e) damage to the Owner's property or the work of another contractor. Article 5. Liens If any lien remain unsatisfied after payment of the full contract rric-. ::as been made, the Contractor shall refund to the Owner all moneys that the letter may be compelled to pay in discharging such lien, including all costs and a reasonable attorney's fee. The Contractor shall, at any time requested b\ the Owner, deliver a bond satisfactory to the Owner indemnifying it against any lien and expenses occasioned thereby. Article 6. Title to the Work Title to all work completed-or in the course of construction shall be :r. the Owner; and title to all machinery, equipment and materials to be in corporated in the work shall be in the Owner as soon as they are delivered on the site of the job. Article 7. Inspection and Repair The Contractor shall provide safe and proper facilities at all times for the inspection of the work by the Owner, and shall as soon as practicable after written notice from the Owner, at the Contractor's expense, replace and repair any materials or portions of the work which the Owner shall deem defec tive and make good all work damaged or destroyed thereby, whether or not there shall be a dispute with respect to any of the foregoing. Any such dispute shall be settled by arbitration. Article 8. Protection by Contractor The Contractor at all times shall maintain adequate protection of the work from damage and shall protect the Owner's property and all persons thereon from injury, damage or loss by reason of any act or omission of the Contractor or any Subcontractor. The Contractor shall be responsible, and reimburse the Owner, for any loss or expense to the Owner arising from damage to the work or other property of the Owner caused by the wrongful act or neglect of the Con tractor, any Subcontractor or the employees of the Contractor or any Subcon tractor. Where such damage includes damage to the work it shall be repaired at the expense of the Contractor. The Contractor shall use its best judgement and skill in dealing with labor matters, and take all reasonable .steps to avoid labor dispute. In the event of any strike or threat of strike, slowdowns, featherbedding, or other like practices, the Contractor shall apprise the Owner of all relevent facts and implications of the particular labor problem involved, and shall consult in good faith with the Owner in an endeavor to reach a mutually satisfactory solu tion to such labor problem and, so far as reasonably possible, to protect the Owner against delays affecting the work or damage or losses to its other oper ations. Page 4 of 7 Article 9. Contractor's Liability Insurance The Contractor shall maintain such insurance as will indemnify it against claims under workmen's compensation acts and against any other claims for damages for personal injury, including death, which may arise from opera tions under this contract, whether such operations be by the Contractor or any Subcontractor or anyone directly or indirectly employed by either of them. Prior to commencement of this work the Contractor shall file with the Owner completed certificates of insurance in form of "Insurance Certificate" attached and shall provide insurance coverage in amounts not less then those stated therein. Article 10. Indemnity by Contractor The Contractor shall save harmless and indemnify the Owner from and against- any expense, loss or damage on account of any claim, demand or suit made by any person whomsoever, including any employee of the Owner, which is in any way caused by or connected with, or grows out of the execution and per formance of this contract by the Contractor or any Subcontractor; provided, however, that the Contractor shall not be required to indemnify the Owner against any loss caused solely by the negligence of willful fault of the Owner or its employees. The Contractor accepts all risk of injury or damage and all responsibility for any claims for damages whatsoever resulting from the use, misuse, or failure of any hoist, rigging, blocking, scaffolding, or other like or unlike equipment used by the Contractor or any Subcontractor, even though such equipment be furnished or loaned to the Contractor or any such Subcon tractor by the Owner, and shall indemnify the Owner against all such claims. Article 11. Owner's Responsibility for Certain Casualties The Owner shall be responsible for all damage to the work, and to material, temporary structures, and equipment (excluding construction equipment not owned by the Owner) at the site of the job, which is caused by fire, wind storm, smoke, hail, aircraft, explosion, vehicles, riot or civil commotion. Article 12. Compliance with Laws and Ordinances The Contractor shall give all notices and comply with all laws, ordinances, rules, and regulations, bearing on the conduct of the work as drawn and specified. If the Contractor performs any work contrary to any such law, ordinance,- rule or regulation, he shall bear all costs arising therefrom. If for any reason the Contractor's or any Subcontractor's employees or agents acquire a status imposing liability on the Owner for employer's con tributions or taxes under the Federal Insurance Contributions Act, the Federal Unemployment Tax Act, any State Unemployment Tax Act, or any other Act, the Contractor shall be exclusively liable for, and shall indemnify the Owner against, the same and agrees to comply with all such laws and regulations so as to relieve the Owner from any and all liability therefor and from the re sponsibility of making reports or keeping records with respect thereto. Article 13. Patents The Contractor shall indemnify and save harmless the Owner against and from any and all claims, losses, costs, damages, expenses, actions or other proceedings, growing out of or resulting from infringement of any patent by the Contractor or any Subcontractor in the performance of this contract, except that this provision shall not apply to patented articles or processes specified in drawing or specifications furnished by the Owner. " pw r\ f Article 14. Changes in the V.'ork The Owner, without invalidating this contract, may at any time order extra work or make changes by altering, adding to or deducting from the work. Such order may be made the Cvum-r tr. "it: cv:r. behalf or at the request of t::e Iontractor, upon discovery by the Contractor of any discrepancy between the plans and the physical conditions encountered. If such extra work or changes involve a change in cost, the contract price shall be increased or decreased by the fair value thereof. The Owner will itemize the changes to be made and upon receipt of written notice of same, the Contractor will submit promptly to the Owner, in triplicate, an itemized statement of his calculations of the adjustment in the contract price resulting from the changes or extra work. This must be done be fore work on the change is begun unless the Owner gives written order to proceed immediately. No work or change shall be made, except by written order of the Owner and no claim for an addition to the contract price shall be valid unless the additional work was so ordered. Any dispute under this Article shall be subject to arbitration. Article 15. Owner's Right to Terminate Contract If the Contractor should be aapucg-d a bankrupt, or make an assignment for the benefit of creditors, or if a receiver of the Contractor's property should be appointed or if the Contractor filer, a petition or if a trustee of the Contractor's property should be appoint'-! und*-r th- reorganization or readjust ment provisions of the Bankruptcy Act, fir if th- Contractor at any time should refuse or neglect to r,:: : ly r.ouoh proof ri workmen or proper materials, or if he should fail to make prompt rayr.rr: to Subcontractors or for material or labor, or disregard laws, ordinances instructions of the Owner, or otherwise be guilty of a substantial violation of any provision of the contract which he shall hav-~ : 1 - : to rorr-et promptly after service of written notice thereof by the Owner, th-.n th*- Owner may, without prejudice to any other right cr remedy, terminate *--m; layment of tn- >.ntractor for the Contractor's de fault and take poss-scl of the prem:v--s and of all materials, tools and ap pliances thereon am finis!, th- work by whatev-r method the Owner may deem ex pedient. In such cast, th- .`outractcr snail not b" entitled to receive any further payment until the -wire is finis::-. j. If the unpaid balance of the con tract price shall exceed all tit-- general damages of the Owner caused by the Con tractor's default, including the expense cf finishing the work and compensation to the Owner for the Owner's managerial and administrative service, such excess shall K- paid to the Contractor. If such damages shall exceed such unpaid bal ance, thir Contra etc:' snail pay the difference tc the Owner. In the event the Contractor and th-.- Owner are u.nabi-.- to agree upon th-_- amount to ce paid or re imbursed the- d!route snail re- settled by arbitration. Article It. ~'orre ct i on ?: V.trk after Payment Neither payment n-r any provision in this contract shall relieve the Contractor of re-sponsibility :cr faulty materials cr workmanship and the Con tractor shall remedy any defects due thereto and pay for any damage to other w:rk result::.;- :r snail appear v:i-dp-ear from th- :ate- of completion of the- Contractor's work hereunder. The Owner shall give notice of observed defects with reasonable promptness. Any dispute under this Article shall be subject to arbitrat: o J Page 6 of 7 Article 17. Arbitration i All disputes which are herein stated to be subject to arbitration shall be submitted to and determined by arbitration. Except as andL.'to the extent otherwise provided by the controlling state law, no party mojfflbave recourse to legal proceedings (other than to enforce this arbitration Arl*cle) unless and until an arbitration award has been made. There shall be oneiarbitrator who all be chosen by the American Arbitration Association, whose arbitration rules shall be followed. Article 18. Subcontracts The Contractor will not employ any Subcontractor without the prior written approval of the Owner and the Contractor shall require each Subcontractor to execute a contract in writing containing provisions similiar to all provisions of this contract which are in any way applicable to such Subcontractor and which will obligate such Subcontractor to comply with and perform all such provisions herein. Nothing herein shall create a contractual relationship between any Sub contractor and the Owner. Article 19. Assignment The Contractor shall not assign nor subcontract this contract in whole or in part nor shall the Contractor assign any moneys due or to become due Contractor hereunder without the prior written consent of the Owner. Article 20. Coordination of Work The Contractor shall conduct the work hereunder so as to cause a minimum of interference with the Owner's operation. Where interference with the Owner's operations become absolutely necessary, permission shall be requested by the Contractor not less than seventy-two (72) hours in advance. Article 21. Undertakings by the Owner The Owner agrees to obtain and pay for any permits, licenses and ease ments required for permanent structures or changes, and, to the extent practic able without interference with operations, to furnish the Contractor, free of charge, for its use during construction, electricity, water, steam and compress ed air required for construction purposes, at the voltage and pressure currently available at Owner's said plant, to a point adjacent to or within feet of the site, but the Contractor will be required to make the necessary connections, provide approved shut-off and safety devices and furnish and install all tempo rary lines required to bring them to the point of use. Article 22. Applicable Law This contract shall be construed and enforced in accordance with the laws of the state where the work hereunder is to be performed. Article 23. Entirety Clause - This contract constitutes the entire agreement between the parties, and except as may be specifically set forth herein no changes can be made herein except by an agreement in writing duly executed by the parties or their duly authorized agents. Article 24. Additional Provisions (Add auch additional proriaiona, if any. aa the particular job requirea). * Page 7 of 7 IN WITNESS WHEREOF, the parties have executed this contract the day and year first above written. SOUTHWESTERN INDUSTRIAL CONTRACTORS AND RIGGERS, INC. Contractor ByTitle President AMERICAN SMELTING AND REFINING COMPANY Owner By. AMERICAN SMELTING AND REFINING LuMPANY FORM tt INSURANCE-1 devised 11/So INSURANCE-CERT!'- .TATE AMERICAN SMELTING AND REFINING COMPANY REQUIREMENTS FOR CONTRACTORS AND SUBCONTRACTORS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE DESCRIBED BELOW HAVE BEEN ISSUED TO ______ Iwmwriftaw K THESE POLICIES ARE NOW IN FORCE, COVERING WORK BY THE ASSURED FOR AMERICAN SMELTING AND REFINING COMPANY ON CONTRACT gjS >0*0^ IMO**I ________________________________________ IF THESE POLICIES ARE CANCELLED OR CHANGED IN ANY WAY THAT WILL AFFECT THIS CERTIFICATE. TEN BAVi PRIOR WRITTEN NOTICE WILL BE GIVEN BY THIS COMPANY TO AMERICAN SMELTING AND REFINING C ?.= ANY. SAMUEL METZGER. JR., 120 BROADWAY, NEW YORK, N.Y. KIND OF INSURANCE NUMBER DESCRIPTION OF POLICY EXPIRES LIMITS OF LIABILITY - L -l, I RE CONTRACTOR'S PUBLIC LIABILITY (COMPREHENSIVE INCLUDING CONTRACTUAL)* BOD ILY- INJURY PROPERTY-DAMAGE CONTRACTOR S PROTECTIVE LIABILITY BODILY-injury '`>ROPEP'r<'-CAi.iACt AUTCMi'P I I E BOD IL v- ' Njiipv PROc PTY-DAMAGE I ! WORKMEN'S COMPENSATION AND EMPLOYER'S LIABILITY DAT C ITY STATE AUTHORIZED REPRESENTATIVE The Contractor shall save harmless and indemnify the Owner from and against any expense, loss or damage on sc~.`.r- o i an'- clam., demand or suit made bv any person whomsoever, including any employee of the Owner, which is in any was csc-ec ns r cnnnected with, or grows out of the execution and performance of this contract by the Contractor or any Subcot: , pro- Tided, however, that the Contractor shall not be required to indemnify the Owner against any loss caused scltl- l.s reel;- ` i gence or willful fault of the Owner or ita employees. The Contractor accepts all rash of injury or damage and ali respon sibility for any claims for damages whatsoever resulting from the use, misuse, or failure of any hoist, rigging, hioching, scaffolding, or other like or unlike equipment used by the Cnntrsctor or sny Subcontractor, even though such equipre" by furnished or loaned to the Contractor or any such Subcontractor by the Owner, and shall indemnify the Owner against nl such claims.