Document 6LZrD9zZ3KDkEjrmVpYQ27J4

^ jirrnjviu BY --------- ---- Pvre)iii| - -- Cr4it Lnc*i Inavruet -- Traffic_____' Coaptrol lar Oparatiag Vice Prii4at . - -. -- - - -- - ----------- - -- - REIUPN TO PURCHASING DEPARTMENT PLAINTIFF'S EXHIBIT Page 1 of 4 AS&R "Lump Sums" Construction or. Repairs Contract Form PD-20 2/73 ORDER. NO. // M - /6>?3 CONTRACT FOR ERECTION OF 540,000 ACFM SUCTION BAGHOUSE (Insert name of job) at ASARCO Incorporated's at El Paso, Texas ---------- ^ - , Plant THIS AGREEMENT, made the 15thday of September t 19 76 by. and between QPe^-> ^nc. , whose address is 1149 Ellsworth, Suite 210, Pasadena, Texas 77506(hereinafter called the "Contractor") and ASARCO Incorporated a corporation of the State of New Jersey, whose address is 120 Broadway, New York, N.Y. 10005 and El Paso Plant; P.0. Box 1111; El Paso, Texas 79999 (Insert address of plant or unit) the "Owner'.'), _(hereinafter called WITNESSETH: The Contractor and the Owner, for the consideration hereinafter named, agree as follows: Article 1. Scope of the Work The Contractor shall furnish all plans, shop drawings, field engineering, labor, materials, transportation, tools, equipment and other facilities, except such items as are hereinafter listed as being furnished or furnished and installed by the Owner, required for Erection of 540,000 ACFM Suction Baghouseat the El Paso (Insert name of job) _ plant of thhe. nOw,nBerr at El Paso, Texas (Insert town and State) all in accordance with the requirements and provisions of the attached "General Provisions of the Contrac*-" and the drawings and specifications listed below and those drawings and specifications which may be supplied by the Owner or prepared by the Contractor at the Owner's direction subsequent to the execution hereof and approved by the Owner, all of which are Incorporated herein by reference, made a ASARCO ELP 0007006 Page 2 of 4 part hereof and, together with this Agreement, hereinafter referred to collective ly as the Contract: (List Specifications and Drawings) Wheelabrator-Frye Drawings .2333-9-100,Rev. 3 2333-9-101,Rev. 1 2333-9-102,Rev. 3 2333-9-200 2333-9-201 2333-9-202 2333-9-220 2333-9-221 2333-9-260 2333-9-270,Rev. 1 2333-9-271,Rev. 1 2333-9-280,Rev.. 1 2333-9-281,Rev. 1 2333-9-310 2333-9-320,Rev. 2 2333-9-340 2333-9-500,Rev. 2 2333?-9-910,Rev. 2 2333-9-911,Rev, 2 2333-9-922 2333-9-926 2333-9-930 2333-7-400, Rev. 1 2333-7-401, Rev., 2 2333-7-410 2333-7-420, Rev. 3 2333-7-470, Rev. 2 2333-7-501 C.F. Opel, Inc.' - Proposal- dated Augu t 12, 1976, Pages 1 and 2 Included in this ___.. Contract as Pages 2A and 2B of 4 Article 2. Time of Completion - (a) ,The work to; be performed under this Contract shall be commenced approx imately November 1.1976 and shall be completed by March 31, 1976 , .with an extension-of time for completion equal to any time lost due to causes which were beyond the control of the Contractor and which were not the result of his fault or negligence. Like extension of time for completion shall also be allowed for any delays'"in. the progress of'the work caused by strikes and other * labor disputes, act or neglect of the Owner or of his employees or by other Con tractors employed by' the Owner, act of Government, delay in the furnishing of plans and necessary.information by the Owner, or by any other cause which in the opinion'of the Owner entitles the Contractor to an extension of time, The Con tractor 'shall notify the Owner in writing within five days of any occurrence which in the Contractor's opinion entitles him to an extension of time for com pletion.' - Failure to complete the work within the time stated in thisrCTe, including a'n^>tension allowed pursuant hereto, shall entitlntJia-Owfierto deductl from the moneys duet3~-fche^Contractor as liquidated damggas-^n^amount equal to $ for each caleSfec^iay of delay^ia-tHe^completion of the work. (c) If the Contractor^eofllpTetes the enttre^work covered by this Contract earlier than the dag-dCermined in accordance with Paragreph__(a), the Owner shall payha--(h5ntractor an additional amount equal to $ ~~ for each-calendar day by which the time of completion so determined has beerT^reduged^ asarco elp 0007007 y Page 2A of 4 C. F. OPEL, INC. INDUSTRIAL , . ENGINEERING CONSTRUCTION MAINTENANCE August 12, 1976 CONFIDENTIAL Mr. F. 0. Wittwer Purchasing Agent ASARCO Incorporated 120 Broadway New York, New York 10005 Subj: Your Request for Quotation on 540,000 ACFM Suction Baghouse EA-21-EP, N.Y. 363, PLT 610 Copper Converter Building Evacuation System File 8.19.2 Dear Mr. Wittwer: In response to-your subject request dated July 14, 1976, we hereby submit our firm lump sum price, of THREE HUNDRED AND SIX THOUSAND TWO HUNDRED AND SIXTY DOLLARS ($306,260) to furnish all structural erection, mechanical installation and electrical installation necessary to- complete the job within one hundred (100) working days.- .This completion period assumes a starting date of November 1, 1976, and we will be able'to begin work in the field at your direction. This bid is based on all ASARC0 furnished materials being available to OPEL as required. In the event work is requested beyond that described in the current scope of your specifications, we would propose to perform the extra work based upon the following rates: (1) Materials -- The direct invoice cost of the materials to be Incorporated Into the work plus a purchasing and expediting fee of....................................................................... .. (2) Subcontracts -- The net cost of subcontracts plus a fee of......... ........................... ....................... ................................. (3) Construction Equipment -- Net construction equipment cost, whether hourly, weekly, monthly, plus.................... (a) If OPEL owned equipment, billing rate will be determined by OPEL's in-house published rate sheet. 10Z 5Z 8Z HOUSTON: Suite 210 / Diamond Shamrock Suilriinn l P**< ASARCO ELP 0007008 ASARCO Incorporated August 12, 1976 Page 2 Page 2B of 4 (b) If third party rental, rate will be the vendor in voiced amount, and will be compatible with local area rates. (4) Payroll Taxes and Compensation Insurance -- Reimbursible at OPEL's net cost computed at direct straight time labor plus..................................................'............................................ 17.56% (5) Fringe Benefits -- Fringe benefits are reimbursible at net cost and in accordance with prevailing craft rates published for the plant location. (6)- Overtime -- Should ASARCO request OPEL to work crews overtime, ASARCO will reimburse, at cost, overtime premiums and any supportable related costs. (7) Direct Labor'-- Straight, time direct labor at cost,.plus the following: . .(a) Small tools at............... .......................................... .............. '(b) Consumable supplies at....................................................... ' (c) Supervision, field accounting, office supplies, "temporary construction,'etc., at.................................... (d)- Contractor's home office overhead at.,...,................. (e) Contractor's profit at........................................................ 3% 5% 7% 12% 10% All of your drawings are ,enclosed with this bid and, as Instructed, we have retained no'copies for-our files. Thank you.for the opportunity of permitting us to furnish you with this quotation. V Richard P. Todar Executive Vice President RPTp cc: Mr. E. H. Haug, Director of Engineering Mr. W. R. Kelly, Manager Mr. Lindsey Greentj Field Construction Engineer Bill Dalton ASARCO ELP 0007009 Page 3 of 4 Article 3. The Contract Price The Owner shall pay the Contractor for the performance of this Contract, subject to any additions and deductions herein provided for the sum of Three hundred six thousand,two hundred sixty dollars ( $ 306,260.00 ), lawful money of the United States of America, at the time and in the manner here inafter provided. Article 4. Progress Payments - As soon as practicable after the first day of each calendar month the Con tractor shall present to the Owner an invoice equal to the percentage of the total amount of the Contract which has been completed from the start of the job up to the end of the preceding month plus the cost of materials suitably stored at the site thereof, together with such supporting evidence as may be required by the Owner. Subject to verification of such invoice by the Owner, the Owner as soon as practicable after receipt thereof shall pay the Contractor Ninety percent ( 907.) of the amount thereof, less the aggregate of previous payments; and upon completion of the entire work, a sum sufficient to increase the total payments to one hundred percent ( 100 7.) of the contract price. In the event at any time prior payments by the Owner equal such percentage of the contract price, no further payments shall be made until final payment is due. Article 5. Acceptance and Final Payment (a) Upon receipt of written notice, from the Contractor that the work is ready for final inspection and acceptance, the Owner shall promptly make such in spection, 'hhd if and when" it finds the work acceptable under the Contract and the Contract fully performed it shall promptly issue a final certificate stating that the work provided for in this Contract has been completed. The entire balance shall be paid to the Contractor by the Owner within 30 days after the date of said final certificate. . (b) ; Before issuance of the final certificate, the Contractor shall sub mit evidence satisfactory to the Owner that all payrolls, material bills, and other indebtedness`connected with the work has been paid, and that the work i3 free of all liens''and encumbrances. In the case of disputed indebtedness or liens the Contractor may submit, in lieu of evidence of payment, a surety bond satis factory to the Owner, guaranteeing payment of all such disputed accounts when ad judicated. Article 6. Insurance Certificate 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 than those stated therein. Article 7. 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. In particular, but without limiting the scope of the foregoing, the Contractor shall, and shall cause any Sub contractor to, comply with" the terms and provisions of the Occupational Safety and Health Act of 1970 and all applicable rules, regulations, orders and occupational ASARCO ELP 0007010 ?age 4 of 4 safety and health standards promulgated under and issued pursuant to such Act in the discharge of its duties and obligations hereunder. Article 8. Applicable Law. The Contract shall be construed and enforced in accordance with the laws of the state where the work hereunder is to be performed. Article 9. 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 auth orized agents. - IN WITNESS WHEREOF, the parties have executed this Contract the day and year first above written. C. F. Opel, Inc. Contractor By Titla ASARCO Incorporated Owner 0 Director of Purchases ASARCO ELP 0007011 AS&R Form PD 20 General Provisions of the Contract INDEX Article 1. Notice Article 2. Intent of Contract Documents Article 3. Drawings and Specifications Article 4. Order of Completion; Schedules Article 5.. Contractor's. Understanding Article 6. Materials,. Appliances and Temporary Facilities Article 7. Employees of Contractor Article 8. Patents Article '9. Surveys, Permits and Regulations Article 10.'^Protection of the- Public and of Work and Property Article 11. Inspection of Work -Article 12. Supervision and Superintendence -Article 13.-' Qualification and Performance ofContractor's Employees Article 14. Changes in.the. Work Article 15.' Deductions for'Uncorrected Work Article 16.. Correction of Work before Final Payment * Article 17. Correction of Work after Final Payment Article .18. Owner's Right to Terminate Contract Article 19.` Removal'of Equipment Article 20. Use of. Completed Portions Article 21. Payments-Withheld Article 22. . Contractor's Liability Insurance Article 23. Indemnity by Contractor Article 24. Owner's Responsibility for CertainCasualties Article 25. Damages to Owner's Property Article 26. Surety Bonds Article 27. Liens Article 28. Assignment Article 29. Coordination of Work Article 30. Subcontracts Article 31. Arbitration Article 32. Title to the Work Article 33. Technical Information Article 34. Cleaning Up Article 35. Adaptability of Plans and Specifications Article 36. Engineering Approval Page 1 Page 1 Page . 1 Page 2 Page 2 Page 3 Page 3 Page 4 Page 4 Page 5 Page 5 Page 6 Page 6 Page 7 Page 8 Page 8 Page 9 Page 9 Page 10 Page 10 Page 11 Page 11 Page 11 Page 12 Page 12 Page 12 Page 12 Page 13 Page 13 Page 14 Page 14 Page 15 Page 15 Page 16 Page 16 Page 17 ASARCO ELP 0007012 Page 1 of 17 . Article 1. Notice Written notice shall be deemed to have been duly served If delivered by hand or sent by registered mail, in each case to the address or addresses of each party set forth on the first page of this Contract or at such other address subsequently designated by either party. Article 2. Intent of Contract Documents In case of conflict between plans and specifications, the specifications shall govern. The intention of this Contract is to include all labor and mater ials, equipment and transportation necessary for the proper execution of the work. Work not specifically shown- on the drawings or enumerated herein but that is reasonably necessary for the proper completion of the project shall be provided by the Contractor the same as if shown bn the drawings or enumerated herein. Materials or work described in words which so applied have a well-known tech nical or trade meaning.shall be held, to refer to such recognized standards. Article 3.' Drawings and Specifications The Owner agrees to furnish without charge to the Contractor, five sets of specifications and prints of all drawings listed in the specifications. Where revised or additional drawings and specifications are prepared as hereinafter provided the Owner will furnish three sets of same to the Contractor. The Owner agrees to furnish supplemental drawings as may be required to clarify the contract drawings. Supplemental drawings shall not enlarge nor de crease the scope of the work. Where alterations in the contract drawings and specifications affect the extent of the work, the changes shall be governed as provided in Article 14 of these General Provisions. The Contractor agrees to furnish to the Owner for approval three sets of prints of the following drawings before proceeding with the work covered therein: A. All of the Contractor's drawings which are made for this job. ASARCO ELP 0007013 Page 2 of 17 B. My shop drawings, detail sheets or erection diagrams required for any phase of the work. C. Certified dimension sheets, wiring diagrams and per formance curves covering any equipment purchased by the Contractor for the job. The Contractor shall make any corrections required by the Owner in draw ings submitted for his approval. The Owner's approval as to design of such draw ings shall not relieve the Contractor of responsibility for errors or discrepan cies of any sort. The Contractor also agrees to furnish to the Owner five sets of operation and Installation instructions and parts lists for all equipment furnished by the Contractor, not later than "the date the equipment is shipped, including two cer tified copies of dimension sheets, wiring diagrams and performance curves of same. "As soon as the drawings referred to in subparagraphs A and B above are completed, checked and approved, the Contractor shall furnish three complete final sets of prints to the Owner. Article 4. Order of Completion; Schedules The Contractor shall complete any portion or portions of the work in such order of precedence as the Owner shall require, and the times of completion of the various portions or divisions of the work will be determined by the schedules mutally agreed upon by the Owner and the Contractor Article 5. Contractor's Understanding - The Contractor shall satisfy itself as to the nature and location of the work, the character of equipment and facilities needed preliminary to and during the prosecution of the work, the general and local conditions, and all other matters which can in any way affect the work under this Contract. The Contractor may examine such logs of test borings and/or records of such other underground or submarine exploration as may be available. ASARCO ELP 0007014. Page 3 of 17 Article 6. Materials. Appliances and Temporary Facilities The Owner will not supply electricity, water, light, power, steam, com pressed air or other utilities required for construction purposes unless speci fically so provided in the Contract. Where such items are not supplied by the Owner they shall be furnished by the Contractor, and the Contractor shall, in either case, be required to make the necessary connections, provide approved shut-off and safety devices and furnish and install all temporary lines re quired to bring them to the point of use. Unless otherwise specified, all materials incorporated in the perm anent work shall be new and both workmanship and materials shall be of the best quality. The Contractor shall, if required, furnish satisfactory evidence a3 to the kind and quality of materials. . The'Contractor shall construct and maintain all necessary temporary facilities for the'completion, of the work. Upon completion .of the work all such facilities shall, unless the Owner shall otherwise direct, be removed from-the premises and the site cleared. Article 7. Employees of Contractor 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 contributions 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 regula tions so as to relieve the Owner from any and all liability therefor and from the responsibility of making reports or keeping records with respect thereto. The Contractor shall at all times enforce strict discipline and good order among his employees, and shall seek to avoid employing on the work any unfit person or anyone not skilled in the work assigned to him. ASARCO ELP 0007015 Page 4 of 17 Adequate sanitary facilities shall be provided and maintained by the Contractor. Article 8. Patents The Contractor shall indemnify and save harmless the Owner against and from any and all claims, losses, costs, damages, expenses, actions or other pro* ceedlngs, growing out of or resulting from the 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 drawings or specifications furnished by the Owner. t Article 9. Surveys,~ Permits and Regulations If' involved in .the subject matter of this Contract, the base lines and ~mean datum will.be established by the Owner; the control lines and levels and all general layout work will be the responsibility of the Contractor. All con trols established by the Contractor shall be preserved and maintained through out the life of the Contract. Unless otherwisespecifled, the Owner shall furnish all land surveys required;. Permits.and licenses of a temporary nature necessary for the pro secution of the work shall be secured and paid for by the Contractor; Permits, licenses and easements .for any permanent structures or any permanent'changes in existing facilities shall be secured and paid for by the Owner, unless other, wise specified. The Contractor shall give all notices and comply with all laws, ordin ances, rules and regulations bearing on the conduct of the work as drawn and specified. If the Contractor observes that the drawings and specifications are at variance therewith. Contractor shall promptly notify the Owner in<writing, and any necessary changes shall be adjusted as provided in the Contract for changes in the work. If the Contractor performs any work knowing it to be con trary to any such law, ordinance, rule or regulation, and without such notice to the Owner, Contractor shall bear all costs arising therefrom. ASARCO ELP 0007016 Page 5 of 17 ' Article 10. Protection of the Public and of Work and Property The Contractor shall provide and maintain all necessary watchmen, barr ricades, red lights and warning signs and take all necessary precautions for the protection and safety of employees on the work, of all other persons and of ad jacent private and public property. 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 los3 by reason of any act or omission of Contractor or any Subcontractor. In an emergency affecting the safety of life or of the work or of ad joining property, the Contractor is, without special instructions or authoriza tion- from the Owner,.hereby authorized to act at Contractor's discretion to pre vent such threatened loss or injury. Contractor shall also so act if so in structed by the Owner. ..Any 'compensation claimed by the Contractor on account of emergency work of this nature' shall be determined by mutual agreement and failing which, by arbitration. Article 11. Inspection of Work The Owner and its representatives shall at all times have access to the work and the Contractor shall provide safe and proper facilities for such access and for inspection. If the specifications, the Owner's instructions, laws, ordinances, or any public authority require any item of material, equipment or work to be specially tested or approved, the Contractor shall give the Owner timely notice in writing of its readiness for inspection, and if the inspection is by another authority than the Owner, of the date fixed for such inspection. Inspections by the Owner shall be promptly made, and where practicable at the source of supply. ASARCO ELP 0007017 Page 6 of 17 If any work should be covered up before examination by Owner without approval or consent of the Owner, it must. If required by the Owner, be tuxcovered for examination and properly covered again at the Contractor's expense. Even though the Owner has examined a particular item of work, the Owner may order re-examination of such work, and if so ordered, the work must be uncovered by the Contractor. If such work is found to be in accordance with the Contract, the Owner shall pay the cost of re-examination and replacement. If such work is not in accordance with the Contract, the Contractor shall pay such cost. Article 12. Supervision and Superintendence The Contractor shall maintain a competent staff at all times to super vise. the work. The Contractor shall keep on the work, during its progress, a competent superintendent and any necessary assistants, all satisfactory to the Owner. Directions by. the Owner may be given to the superintendent and shall be binding on the Contractor. Directions shall be confirmed in writing upon the written request of the Contractor. The Contractor shall U3e its best judgement and skill in dealing with labor matters, and take all reasonable steps to avoid labor disputes. In the event of any strike or threat of strike, slowdowns, featherbedding, or other like practices; the Contractor shall apprise the Owner of all relevant facts and implications of the particular labor problem involved, and shall consult in good faith with the Owner in an endeavor to reach a mutally satisfactory solution 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 operations. Article 13, Qualification and Performance of Contractor's Employees The Contractor shall at all times supply a sufficient number of skilled workmen to diligently pursue the work. All workmanship and materials shall be the best in its class and shall conform to all codes, rules, regulations and ordin ASARCO ELP 0007018 Page 7 of 17. ances applying thereto. Where required by such codes, rules, regulations ordinances, all workmen engaged In such work shall present evidence by certificate or otherwise that they are qualified to do the work In conformity with such codas, miles, regulations and ordinances. If any conflict occurs between the above mentioned codes, rules, etc., and the specifications or the drawings, the code requirements shall govern. Article 14. Changes in the Work 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. If such extra work or changes involve a change in cost or In the time required for completion, the contract price shall be increased or decreased by the fair value thereof and the' time 'for completion shall be increased or decreased by the reasonable time allocable thereto. ' The Owner will Itemize the changes to be made and upon .receipt of written notice of same the Contractor agrees to submit promptly, to.the Owner, in triplicate, an itemized statement of the ex tension or reduction .in the' time for completion of this Contract which the Con tractor deems such reasonable time, and his calculation of the adjustment in the contract price, resulting from the changes or extra work. This must be done before work bn. the changes is begun unless the Owner gives written order to proceed Immediately. In case the parties shall be unable to agree upon the increase or decrease, in the time for completion or in the contract price, resulting from such extra work or changes, the Contractor shall nevertheless proceed with the work, including such extra work or changes, and the dispute shall be settled by arbitration. No extra work or change shall be made except by written order of the Owner, and no claim for an addition to the contract price or increase in the time for completion shall be valid unless the additional work was so ordered. ASARCO ELP 0007019 Page 8 of 17 If the Contractor, In the course of the work, finds any discrepancy between the' plans and the physical conditions encountered or any errors or omissions in plans or in the layout as given by survey points and Instructions, the Contractor shall Immediately inform the Owner, in writing. After such, discovery, no work shall be done by the Contractor involving such discrepancy, error or omission until authorized by the Owner; otherwise it will be done at the Contractor's risk. If the correction of such discrepancies, errors or omisaions involves an increase or decrease In costs or time of completion, the con tract price or time of completion shall be adjusted accordingly in the manner provided above as in the case of-a change in the work. Article 15. Deduction for Pncorrected Work If the. Owner deems it inexpedient to correct work that has been damaged througt the fault or neglect of the Contractor, or that was not done in accord ance .with^the-Contract,, an amount to compensate the Owner fully for such damage or non-compliance shall be deducted from the contract price. If the parties can not agree on the amount of such deduction, it shall be determined by arbitration Article 16, Correction of Work before Final Payment At' any and all times before final payment. Contractor shall promptly re move from the premises all materials, whether incorporated in the work or not, and take' down ail portions of the work, condemned by the Owner as failing to meet contract requirements. The Contractor shall promptly replace and reexecute the Contractor's own work in accordance with this Contract and without expense to :the Owner and shall bear the expense of making good all work of other Contractors destroyed or damaged by such removal or replacement. If the Contractor does not remove such condemned work and materials within 10 days after written notice, the Owner may remove them and may store the material at the expense of the Contractor. If the Contractor does not pay the expense of such removal within ten days time thereafter, the Owner may, ASARCO ELP 0007020 Page 9 of 17 upon ten days' written notice, sell such materials at auction or at private sale and shall pay to the Contractor the net proceeds thereof, after deducting all the cost and expense that should have been borne by the Contractor. The Con tractor waives all rights to claim damages for sale of materials at auction or private sale. Any dispute under this Article shall be determined by arbitra tion. Article 17. Correction of Work After Final Payment Neither the final certificate nor final payment nor any provision in this Contract shall relieve the Contractor of liability for faulty materials or workmanship and the Contractor shall replace such materials and renmdy such workmanship and any defects due thereto and pay for any damage to other work resulting therefrom,' which shall appear within one year from the date of com pletion. The Owner shall give notice of observed defects with reasonable promptness.' Any dispute under this Article shall be determined, by arbitration. Article 18; Owner's Right to Terminate Contract If the Contractor should be adjudged 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 files a petition or if a trustee of the Contractor's property should be appointed under the reorganization or re adjustment provisions of the Bankruptcy Act, or if the Contractor at any time should refuse or neglect, to supply enough properly skilled workmen or proper materials, or if he should fail to make prompt payments to Subcontractors or for material or labor, or disregard laws, ordinances or the instructions of the Owner, or otherwise be guilty of a substantial violation of any provision of the contract which he shall have failed to correct promptly after service of written notice thereof by the Owner, then the Owner may, without prejudice to any other right or remedy, terminate-the employment of the Contractor for the Contractor's default and take possession of the premises and of all ASARCO ELP 0007021 fage 10 of 17 material, tools and appliances thereon and finish the work by whatever method the Owner may deem expedient. In such case, the Contractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the contract price shall exceed all the general damages of the Owner caused by the Contractor's default. Including the expense of finish ing the work and compensation to the Owner for the Owner's managerial and administrative services, such excess shall be paid to the Contractor. If such damages shall exceed such unpaid balance, the Contractor*shall pay the difference to the Owner. In the event the Contractor and the Owner are unable to agree upon the amount to be paid or reimbursed the dispute shall be settled by arbitration. .Article 19. ' Removal of Equipment - In the case of termination of this Contract before completion from any cause whatever, the Contractor shall promptly remove any part or all of Con tractor 's equipmentand supplies from the property of the Owner, failing which the Owner shall have the right to remove such equipment and supplies at the ex pense and at the. risk of the Contractor, without liability of the Owner for any damage to,. or loss/of the same. Article 20. U3e of Completed Portions- The Owner shall have the right to take possession of and use any com pleted or partially completed portions of the work, notwithstanding the time for completing the entire work or such portions may not have expired; but such tak ing possession and use shall not be deemed an acceptance of any work not completed in accordance with this Contract. If such prior use increases the coat of or delays the work, the Contractor shall be entitled to extra compensation in reimbursement thereof, or extension of time equal to the delay or both, as the parties may agree upon, and failing agreement the dispute shall be determined by arbitration. ASARCO ELP 0007022 Article 21. Payments Withheld Page 11 o 17 The Owner may withhold all or part o any progress'or final payment to the extent necessary to protect the Owner from loss or damage on account of: (a) Damaged or defective work not remedied. (b) Claims filed or reasonable evidence indicating probable filing of claims by other parties against the Contractor or Owner. (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 completed for the balance then unpaid or within the time specified. (e) Damage to the Owner's property or the work of another Contractor Article 22. Contractor's Liability Insurance Unless otherwise specifically provided, the Contractor shall maintain such insurance as will protect Contractor from claims under Workmen's Compensa tion Acts and from claims for damages for personnal injury, including death, which may arise from operations under this Contract, whether such operations be by the Contractor or .any Subcontractor or anyone directly or indirectly employed by either of them. Article 23.~ 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 perform* ance of thi3 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 or willful fault of the Owner or its employees. The Contractor accepts all risk of injury or damage and all responsi bility 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 equip ment be furnished or loaned to the Contractor or any such Subcontractor by the Owner, and shall indemnify the Owner against all such claims. ASARCO ELP 0007023 Page 12 of 17 Article 24. Owners 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, windstorm, smoke, hall, aircraft, explosion, vehicles, riot or civil commotion. Article 25. Damages to Owner's Property * 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 Contractor, any Sub contractor or of the employees of the Contractor or any Subcontractor. Where such damage includes damage to the work it shall be repaired at the expense of the.Contractor. . Article 26. Surety Bonds - - Ifj.the-Owner has so requested prior to the signing of this Contract, the Contractor shallfurnish bond covering the faithful performance of this Contract and the payment of all obligations arising thereunder, in such form as the Owner may prescribe and with such sureties as it may approve. If such bond was. required by. instructions given previous to the receipt of bids, the premium shall be paid by the Contractor; if subsequent thereto. It shall be paid by the Owner. . Article 27. Lien3 Neither the final payment nor any progress payment shall become due until the Contractor, if required, shall deliver to the Owner a complete release of all liens arising on account of labor, materials, machinery or equipment in respect of which such payment is to be made, or receipts in full in lieu thereof and, if required in either case, an affidavit that so far as Contractor has knowledge or information the releases or receipts Include all the labor and materials for which a lien could be filed; but the Contractor may, if any Subcontractor refuses to furnish a release or receipt in full. ASARCO ELP 0007024- . Page 13 of 17 furnish a bond satisfactory to the Owner, to indemnify the Owner against any lien. If any lien remains unsatisfied after all payments are made, the Con tractor shall refund to the Owner all monies that the latter may be compelled to pay in discharging such a lien, including all cost3 and a reasonable attorney's fee. Article 28. Assignment ; The Contractor shall' not assign nor sublet this Contract in whole or in part, nor shall the Contractor assign any monies due or to become due it here under without the prior written consent of the Owner. Article 29. Coordination of Work The Contractor shall conduct the work so as to cause a minimum of inter ference with the Owner's operations. Where interference with the Owner's oper ations becomes absolutely necessary, permission shall be requested by the Con tractor not less than seventy-two (72) hours in advance. When other Contractors or the Owner's forces are working on the job on the'immediate premises, .the Contractor agrees to so schedule the Contractor's work as' not to make it necessary for the Contractor to cut into or otherwise alter any work that has been completed by such other persons. If the Contractor fails to do so, then the Contractor shall replace or repair the damaged work at Contractor's own expense and in a manner satisfactory to the Owner. If any part of the Contractor's work depends for proper execution or results upon the work of any other person, the Contractor shall'.inspect and . promptly report to the Owner any defects in such work that render it unsuitable for such proper execution and results. Contractor's failure so to inspect and report shall constitute an acceptance of such other work as fit and proper for the reception of Contractor's work, except as to defects which may develop in such other work after the execution of Contractor's work. ASARCO ELP 0007025 Page 14 of 17 Article 30. Subcontracts The Contractor shall, as soon as practicable after the execution of this Contract, notify the Owner In writing of the names of any Subcontractors proposed to be employed in any part of the work and shall not employ any such Subcontractor without the prior approval of jthe Owner in writing and shall terminate the employment of any which the Owner may at any time object to as incompetent or unfit. The Contractor agrees to require each Subcontractor to execute a con tract in writing binding such Subcontractor to the terms of this Contract inso far as applicable to his work, and requiring such Subcontractor, to the extent applicable, to assume toward the Contractor all the obligations and responsibill- ties that the Contractor assumes toward the Owner, unless specifically noted to - the contrary in a written subcontract approved in writing by the Owner. '-'The Contractor, shall be fully responsible to the Owner for the acts and . omissions of all Subcontractors and of persons directly or indirectly employed by them; Nothing in- this Contract' shall create any contractual relationship between any -Subcontractor - and the Owner. The word--".Subcontractor", as employed herein, shall TMn one having a direct contract with the Contractor, including one who furnished material worked to a special design according to the plans or specifications of this work, but excluding one who merely furnished material not so worked. Article 31. Arbitration All disputes which are herein stated to be subject to arbitration shall be submitted to and determined by arbitration. Demand for arbitration shall be filed in writing by either party with the other within a reasonable time after cause thereof has arisen and in no case later than the time for final payment.No one shall act as an arbitrator who is in any way financially interested in this Contract or is or has been connected or interested in the business affairs of either the Owner or the Contractor. The award of the arbitrator shall be in ASARCO ELP 0007026 Page IS of 17 . writing and shall be binding on both parties. .Except as and to the extent other wise provided by the controlling state law: no party may have recourse to legal proceedings (other than to enforce this arbitration Article) unless and until an arbitration award has been made; the award of the arbitrator shall not be open to objection on account of the form of the proceeding or the award; and there shall be one arbitrator who shall be chosen by the American Arbitration.'Association, whose arbitration rules shall be followed. Article 32. Title to the Work Title to all work completed or in the course of construction shall be in 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 33. ' Technical Information . The"Term "technical information" as used in this agreement includes but is not limited to technical data, reports, models, drawings, specifications, operating manuals', designs, computations, formulas, apparatus, processes, pat entable or unpatentable .inventions and other engineering data. You agree to accept ASARCO13 decisions as to whether any particular information is technical information- or is technical information which has been made or conceived under this" agreement.,' . It is understood that in the course of your performance hereunder you may learn or have access to technical information of ASARCO. You agree that you and your personnel will keep in confidence all such technical information of ASARCO and that you and your personnel will not use or disclose the same without ASARCO's written consent, either during the term of this agreement or at any time thereafter. You agree to disclose to ASARCO ail technical information made or conceived by you or. your personnel In performance, or resulting from performance, under this agreement. You agree that all such technical information made or conceived by you or your personnel shall become and remain the free and unrestricted property of ASARCO and that you shall assign or .cause the same to be assigned to ASARCO. ASARCO ELP 0007027 Page 16 of 17 You agree that you and your personnel will keep In confidence all such technical Information made or conceived by you or your personnel and that you and your personnel will not use or disclose the same without ASARCO's written consent, either during the term of this agreement or at any time thereafter. You agree, upon the request and at the expense of ASARCO, to make or cause your personnel to make applications for Letfers Patent in such countries as ASARCO may designate on those of the aforesaid assigned inventions which ASARCO believes to be patentable; and to assign all such applications to ASARCO or its order; and to give ASARCO, its attorneys and solicitors all reasonable assistance in preparing such applications, and in prosecuting such applications in the patent office or offices involved and in defending and enforcing any patent that may be --issued upon any such application; and to execute all papers that may be reasonably required in the prosecution of such applications or to ve3t in ASARCO or its assigns said inventions'; applications and Letters Patent. Article 34. Cleaning Up . ' .The Contractor ,shall at all times keep the premises free from accumu lations of waste material or rubbish caused by Contractor's employees or the work,- and at the .completion of the work Contractor shall remove all Contractor's rubbish from-and; about the site and all Contractor's tools, scaffolding and surplush materials and shall leave the work "broom-clean" or its equivalent, unless more exactly specified. Article 35. Adaptability of Plans and Specifications Except in the case of patented products for which there is no ade quate substitute, the Contractor will not, without the prior written approval of the Owner, prepare any drawings or specifications or do any engineering or planning for the prospective use or installation of any tool, piece of equipment, or material in the work which is of such a character that such drawings, specifi cations, engineering or planning could not be used with equal facility in connec- ASARCO ELP 0007028 Page 17 of 17 tion with the product of all or most manufacturers of such tools equipment or materials, or any substitute therefor. Article 36. Engineering Approval The Contractor agrees to order no material hr equipment and to do no actual construction* and to permit no work to be done by any Subcontractor or * supplier of materials or equipment until the drawings relating thereto* the lists and specifications of materials* the equipment to' be used and the supplier have been approved by the Owner. Curing construction* the Contractor shall no substitutions of material without the prior written approval of the Owner. ASARCO ELP 0007029 ,, AMERICAN SMELTING AND REFINING COMPANY FORM tt INSURANCE-1 R.ri., /73"1NSURANCE.CERTIFICATE AMERICAN SMELTING AND REFINING COMPANY REQUIREMENTS FOR CONTRACTORS AND SUBCONTRACTORS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE DESCRIBED BELOW HAVE BEEN IRSIIFn Tn C. F- OpftT , Inc.______________________________________________________________________________________________ THESE POLICIES ARE NOW IN FORCE, COVERING WORK BY THE ASSURED FOR AMERICAN SMELTING AND. REFINING COMPANY ON contract Potl. i ng.f-aJ_tafcji nn _nf_ T Oi-jr-T_om.i nalnn gygtftTD__________-- at --El Paao Smelting-Works,--El - Paao, Texas------------------------------------------------------------------------------- IF THESE POLICIES ARE CANCELLED OR CHANGEO IN ANY WAY THAT WILL AFFECT THIS CERTIFICATE. TEN DAYS' PRIOR WRITTEN NOTICE WILL BE GIVEN BY THIS COMPANY TO AMERICAN SMELTING AND REFINING COMPANY. attn__ Mn. R. Kelly---------------------plant manager. KINO OF INSURANCE NUMBER DESCRIPTION OF POLICY EXPIRES LIMITS OF LIABILITY , .Ji* * :* -RCOUIRED MINIMUM CONTRACTOR'S PUBLIC LIABILITY (COMPREHENSIVE INCLUDING CONTRACTUAL)* B001LY.INJURY PROPERTY.DAMAGE CONTRACTOR'S PROTECTIVE LIABILITY CLNE D71 68 3( 10/30/76 EACH OCCURRENCE S EACH OCCURRENCE S 300, 000 50,6o6 5300.000 5 25.000 BODILY.INJURY PROPERTY-DAMAGE AUTOMOB 1LE' CLNE D71 68 3< EACH OCCURRENCE S EACH OCCURRENCE S 300,000 50,boo S300.000 $ 25.000 BODILY.INJURY PROPERTY-DAMAGE CLNE D71 68 3< EACH PERSON S each occurrence s each occurrence s 100, 000 300,000 ' 5100.000 5300.000 S 25.000 WORKMEN'S COMPENSATION 30,000 COMPLY WITH A NO WCPNE 1D67 SO 10/30/76 applicable STATE LAW employer's liability each occurrence s 5 25.000 ----------------------------------------------------------------------------------------------------------------------xuu, UUU----------------------------1---------- DATE 8/24/76 Ttati state ,, Northern ***vuoOTC*pXSenipany of Aaerice -COMMERCIAL ONION ASSURANCE COMPANIES -DESERT AMERICAN /tNSUPANCE #GE$CY connected with, or grove out of tha execution and performnee of this contract by the Contractor or any Subcontractor; pro* ridad, hovsrer, that the Contractor shall not ba requirad to indaatnify tha Owner against any loan earned aolaly by negli* ganca or willful fault of tha Omar or ita eaployeea. Tha Contractor accapta all risk of injury or danaga and all respoa* aibility for any claim for damgaa whatsoever raaultiog fro* tha uae, aisuee, or failure of any hoiat, rigging, blocking* scaffolding, or othar lika or unlike equipaent used by tha Contractor or any Subcontractor, even though such equipasnt ba furaishad or loaned to tha Contractor or any such Subcontractor by tha Omar, and ahall indsanify tha Omar against all I such claim, I ASARCO ELP 0007030