Document 7RY8mL8GYdRweBjaEm605Derj

CONSTRUCTION CONTRACT r I JOB DESIGNATION AFE #41335 1 THIS AGREEMENT between COASTAL STATES PETROCHEMICAL COMPANY, o corporation, with its principal office m the Petroleum Tower, whose moiling oddress is P. O. Drawer 521, City of Corpus Chnsti, Nueces County, Texas hereinafter colled " PETRO CHEMICAL", and Berry Contracting Co.whose mailing address ; ' P- 0. Box 4858 _____ CorpUS Chri Sti t TSXdS 7^408, hereinafter called "CONTRACTOR", provides for performance by CONTRAC TOR of the work stipulated below on the terms ond conditiws set forth. ARTICLE I - WORK TO BE PERFORMED CONTRACTOR ogrees to perform the work described below for PETROCHEMICAL in accordance with the specifications, plans, maps, and instructions os set forth in the attached Exhibit "A", incorporated hereto by the signatures of the parties identifying them as a part hereof. Additional detoil as to location moy be obtained by CONTRACTOR from mops in PETROCHEMICAL S Engineering Depart ment. Ail matters not covered in detail herein shall be performed in a manner consistent with the highest standards prevailing for such type of work in the petrochemicol industry. ARTICLE II ALTERATIONS AND EXTRAS PETROCHEMICAL. Ot cny time during the progress of said work, sholl hove the right, without invalidating the agreement, bond, or the original plan*, drawings ond specifications to which they refer, to order extro work or make changes or alter, add to, or deduct from said work, but r> such extra work or change shall be undertaken by CONTRACTOR unless o written order therefor is first given by PETRO CHEMICAL to CONTRACTOR, incorporating therein the increose or decrease, as the some may be, in said ogreement price for such extra work and/or changes ond a revised time for the completion of the work under this Agreement (if a revised time be required). Upon receipt of such written order for extra work, changes or alterations, CONTRACTOR without delay shall do such extro work ond/or make such changes or alterations, ond work and materials sholl be charged to PETROCHEMICAL'S account on a cost-plus basis os set forth in Article XIX below. M will be noted in the attached Exhibit "A" that in certain instances specific materials, products, methods ond services have been specified by brand or trade name partly for the purpose of establishing the effect or standard of quality desired. Upon the prior written approvol of PETROCHEMICAL'S authorized representative, substitutions for such specifically named materials, products, methods or services moy be made; provided the materials, products, methods or services desired to be substituted have been proven to PETRO CHEMICAL'S authorized representative to provide the effect or standard of quality desired, CONTRACTOR sholl handle all moteriols so that they moy be inspected by PETROCHEMICAL'S authorized representative ond should ony materials be found defective or in any way not in accordance with the contract, such moteriof, without regord to the stage of completion, may be rejected by PETROCHEMICAL S authorized representative and, if so rejected, shall be promptly removed from the pre mises by CONTRACTOR installing same and reploced at CONTRACTOR'S sale cost, risk and expense. Re-exammation of questioned work may be ordered by PETROCHEMICAL'S authorized representative, and if so ordered, the work must be uncovered by the CONTRACTOR. CONTRACTOR sholl poy oil costs of uncovering or replacing any questioned work unless the work was covered ofter the inspection and approval of PETROCHEMICAL'S outhonzed representative ond, upon uncovering, is found to be in accordance with the contract documents, in which event such costs of uncovering shall be borne by PETROCHEMICAL. ARTICLE III- MATERIALS AND PERSONNEL CONTRACTOR sholl furnish at its own expense constant supervision, competent foremen, ond ell bonds, permits, licenses, labor, tools, equipment, fuel, moteriols, machinery and transportation, together with all other items which may be necessary m the performance ond completion of the work herein described, except such os moy be specifically provided below to be furnished by PETROCHEMICAL. Unless otherwise specified oil materials sholl be new and of a grade and of a qualify odequole for the required use; ond all materials and equipment used in the construction of this project sholl be adequately inspected and tested by CONTRACTOR in accordance with occepted sfondords at no expense to PETROCHEMICAL, unless otherwise specifically provided. Before ordering any moteriols or doing any work, CONTRACTOR sholl verify all measurements at the site and sholl be responsible for the correctness of some. No extra charge or compensation will be ollowed on account of any difference between actual dimensions and the measurements indicated on the Drawings. Any differences which may be found sholl be submitted to PETROCHEMICAL S authorized representative for his consideration and instructions before proceeding with the work. Upon receipt of notice from PETROCHEMICAL'S authorized representative thor ony material placed in the Project or on the site is not of the quality specified or has been improperly placed, CONTRACTOR shall remove some from the site, of have some replaced as the case may be, within 48 hours after receipt of such notice, at CONTRACTOR'S sole cost, risk and expense. ARTICLE IV- INDEPENDENT CONTRACTOR In the performance of aff work, CONTRACTOR '* on independent contractor, with sole right to supervise, monage, control ond direct the performance of the detoils. PETROCHEMICAL is interested only in the end result to be accomplished, but the end result must meet with the opprovol of PETROCHEMICAL, whose representatives shall be entitled to make such inspections from time to lime as may be necessary to assure such results. ARTICLE V - INSURANCE CONTRACTOR ogrees to carry adequate workmen's compensation ond employers liability insurance covering all persons ond em ployees connected with the work ond olso to corry comprehensive public liability insurance, and automotive public Nobility and property damage insurance m form ond omounts Subject to opprovol of PETROCHEMICAL, to protect against any claims for injuries or death to persons or damages to, or destruction of, property (including existing property of PETROCHEMICAL) sustained n the carrying out of soid work, which insurance shall be written m the minimum omounts set forth m Article XIX below. No work sholl be commenced by CONTRACTOR until after the policy, or policies, evidencing the insurance coverage herein re quired, or, certificates of such insurance providing thot the insuror will give PETROCHEMICAL fifteen (15) doys written notice prior to cancellation, material revision or intention to renew, hove been filed with PETROCHEMICAL. ARTICLE VI . RISK OF LOSS Until written acceptance of the work has been delivered by PE TROCHEMICAL o CONTRACTOR, a* provided m Article X V|| below, oil risk of loss, injury or destruction by any couse other than octs or omissions of PETROCHEMICAL, sholl be borne by CONTRACTOR. Responsibility of CONTRACTOR sholl extend to materials ond equipment, if ony, that PETROCHEMICAL supplied for the 10b. PLAINTIFF'S EXHIBIT CC-326 1903 | i i CED0005439 CONTRACTOR sholl continuously momioin adequate protection of oil the work performed under this CONTRACT aswellas PETRO CHEMICAL'S property od|ocent thereto ond sholl protect PETROCHEMICAL'S property from in|ury or loss arising in connection with this CONTRACT. CONTRACTOR sholl, ol his own expense, replace or repoir ony such damage, injixy or loss, ond in the event CONTRACTOR foils to comply with this provision, PETROCHEMICAL may replace or repair any such damage at CONTRACTOR'S expense. ARTICLE VII - NON-ASSIGNABILITY CONTRACTOR sholl not assign this agreement or subcontract the whole or ony part of soid work without PETROCHEMICAL'S prior written consent. PETROCHEMICAL'S consent to ony such assignment or subcontract sholl not relieve CONTRACTOR, or CONTRAC TOR'S surety, if there be o surety, of the primory responsibility or ony liability for the full ond faithful performance of this CONTRACT according to its terms ond conditions. ARTICLE VIII - OPERATIONS CONTRACTOR sholl commence octual operations immediately upon the execution hereof by PETROCHEMICAL ond CONTRACTOR and sholl prosecute them diligently ond without interruption to completion in a good and workmanlike manner within the period of time set out in Article XIX. ARTICLE IX - DEFAULT Time end quality of work shall be of the essence of this Contract. If CONTRACTOR foils to begin, or having commenced,foils to prosecute the work in a good ond workmanlike monner with reasonable diligence, PETROCHEMICAL may, at its option, upon three days* notice, in writing, to CONTRACTOR, terminate his work.In the event PETROCHEMICAL terminates this Contract then, without prejudice to ony other remedy i moy hove, PETROCHEMICAL may toko control of this work for the purpose of completing the some under the terms hereof, either by its own employees or by other independent CONTRACTORS. If PETROCHEMICAL takes control of this work, CONTRAC TOR sholl be entitled, upon PETROCHEMICAL'S completion of the work, to the difference between the contract price ond the reosonoble cost ond expense incurred by PETROCHEMICAL in finishing said work. If such cost and expense should exceed the contract price, CONTRACTOR agrees to pay the excess to PETROCHEMICAL at Corpus Chnsti,Texosas liquidated damoges agreed upon by the parties hereto in consideration of the difficulty of ascertaining the octual damages by other meons. Provided, however, that if the completion of this Controct is delayed, by PETROCHEMICAL, by general strikes, acts of God, or causality, beyond the control of this CONTRACTOR, then, in such event, the time of completion of this Controct sholl be extended for such additional time os sholl be caused by such delay. Provided, however, that CONTRACTOR herein sholl at the time of such deloy, if any, demond of PETROCHEMICAL, in writing, such addi tional time within which to complete the performcnce of this Controct. ARTICLE X - NOTICES Notices hereunder shall be sent to the respective addresses of the parties, but oil requests given CONTRACTOR'S foreman on the job by PETROCHEMICAL'S authorized representative, as designated in Article XIX, sholl be conclusive. Ora] communications will be sufficient except as to matters required to be in writing by this Controct. ARTICLE XI INDEMNITY CONTRACTOR ogrees to protect, indemnify ond hold PETROCHEMICAL free and harmless from ond against any and all cloims, liabilities, demands and causes of action of every kind ond character (including the omotxits of judgments, penalties, interest, court costs ond legal fees incurred by PETROCHEMICAL in defense of some) arising in favor of governmental agencies or third parties (including em ployees of either patty) on account of taxes, cloims, debts, peisonol injuries, deoth or damoges to poperiy, and without limitation by enumeratianall other claims or demands of any kind, character or noture, orising out of or incidental to the work to be performed by CONTRAC TOR. ARTICLE XII - COMPLIANCE WITH AUTHORITY CONTRACTOR ogrees fo comply with all laws, orders, rules or regulations of ony governmental body, including without limitation, those pertaining to soctol security, safety, health, old oge pension and unemployment compensation. Before final settlement,CONTRACTOR shall sotisfy PETROCHEMICAL af the payment ond release of oil debts, taxes, liens, cloims, charges and obligations oris ing by opera tion of law, or otherwise out of its performance of the work. CONTRACTOR hereby authorizes PETROCHEMICAL to deduct from any omount due CONTRACTOR (whether or not orising out of this agreement) all amounts which moy be payable by CONTRACTOR to PETRO CHEMICAL, ond also, oil amounts for which PETROCHEMICAL moy become liable to o third pcrty by reoson of CONTRACTOR'S octs in performing, or foiling to perform CONTRACTOR'S obligations under this agreement, and in the event that any claim is mode by a third party, the amount or validity of which is disputed by CONTRACTOR, or ony indebtedness shall exist which shall appear to be the basis for a claim of lien, PETROCHEMICAL may withhold from any payment due, without liability for interest because of such withholding, on amount sufficient to Cover such cloim. The failure of PETROCHEMICAL to exercise such right to deduct or to withhold sholl not, however, offect the obligation of CONTRACTOR to protect PETROCHEMICAL as elsewhere provided herein. ARTICLE XIII - INSPECTION OF BOOKS PETROCHEMICAL sholl have the right at all reasonable times to inspect and audit the books of CONTRACTOR perfoining to the work ond services rendered hereunder where such inspection ts reasonably related to such work and services and for a legitimate purpose which sholl be stoted to CONTRACTOR; provided, however, thot CONTRACTOR sholl have the right to exclude the following from in spection; Any trode secrets, formulas, processes ond records of work for others. ARTICLE XIV - PAYMENT PETROCHEMICAL ogrees to poy CONTRACTOR upon completion of the work, or from time to time os moy be provided under Article XVII ond XIX - 6, hereof, for the performance of this Contract, subject to the additions ond deductions provided for herein the sum of money stated under Article XIX - 3 by its check or draft ot Corpus Chnsti, Texos. ARTICLE XV - BILLING, LABOR AND MATERIALS SEPARATELY CONTRACTOR shall bill PETROCHEMICAL separately for charges for labor ond charges for motenol* in order thot PETRO CHEMICAL moy be the ultimate consumer of such motenols ond moy utilize its exemption from the Texos safes and os# tax for materials used m this project. ARTICLE XVI USE AND/OR OCCUPANCY BY PETROCHEMICAL PRIOR TO ACCEPTANCE Alter written notice to CONTRACTOR, PETROCHEMICAL moy use and/or occupy, before final occeptonce of the protect, the whole or any port of the protect for the purpose for which the project is intended, provided that such proposed use and/or occupancy will not, in CONTRACTOR'S opinion, interfere with the completion of the work. Should CONTRACTOR consider thot PETROCHEMICAL'S pro posed use and/or occuponcy would interfere with the completion of the work, CONTRACTOR sholl, within forty-eight hours ofter receiving notice of such intended use and/or occupancy, notify PETROCHEMICAL thereof in writing. |f CONTRACTOR does not timely object to PETROCHEMICAL S proposed use and/or occuponcy, the some shall be considered to be with CONTRACTOR'S consent and not as on interference with the completion of such work. 1903 CED0005440 ARTICLE XVII - ACCEPTANCE AND FINAL PAYMENT Final poyment shall be due thirty doys offer completion of the work, which period sholl be computed from the dote of issuonee of certificate of completion, os provided below, excluding Safurdoys, Sundoys ond legal holidays Upon receipt of written notice thot the work is reody far finol inspection and acceptance, PETROCHEMICAL S authorized repre sentative shall promptly moke on inspection, and when he finds the work acceptable under the Controct ond the Contract fully performed, he sholl promptly issue o finol certificate, over his own signoture, stating that the work provided for in this Controct has been completed ond is occeptod by him under the terms and conditions thereof,"and that the entire balance found to be due the CONTRACTOR, andnoted m said final certificate, is due ond payable. Before issuance of finol payment the CONTRACTOR shall submit evidence satisfactory to PETROCHEMICAL thot all poyralls, material bills ond other indebtedness connected with the work have been paid or otherwise satisfied. If ofter the work has been substantially completed, full completion thereof materially defoyed through no fault of the CONTRAC* TOR, and PETROCHEMICAL so certifies, PETROCHEMICAL sholl, without terminating the Contract, moke poyment of the balance due for that portion of the work fully completed and accepted. Such payment shall be mode under the terms and conditions governing finol pay ment, except that it sholl not constitute a waiver of claims. ARTICLE XVIII - INTERPRETATION This Controct, together with the specifications, plans, maps and instructionsattached or identified separately, constitute the entire agreement between the porties, and no other conversations, bids, memoranda, or other motter sholl vory, alter, or interpret the terms hereof. The side heed coptions in this instrument ore for convenience of the porties in identification of the several provisions and sholl not con stitute a port of the agreement nor be considered interpretive thereof. Failure of PETROCHEMICAL to exercise any option, right or privi lege hereunder, or to demand compliance os to ony obligation or covenont of CONTRACTOR sholl not constitute a waiver of any such right, privilege or option, or of the strict peiformonce thereof, unless woiver is expressly required in such event, or is evidenced by o properly executed instrument. ARTICLE XIX l. COMMENCEMENT DATE: 2. COMPLETION DATE: Immediately upon the execution of this Controct by PETROCHEMICAL and CONTRACTOR. On or before the ^ day of -February 80 3. CONTRACT PRICE: DESCRIPTION AND LOCATION OF WORK: Hundred Sixty Nine n.u. (f 115,869 ) in instollments os provided below. Install pump. piping, instrumentation and electrical in Coastal States Petrochemical Co.'s West Plant Manifold Pit. located on Cantwell Lane in . Corous Christi . Texas 5. PETROCHEMICAL'S AUTHORIZED REPRESENTATIVE: T. C. Covert Progressive payments; on or before the 15th day of each month, PETROCHEMICAL will poy to CONTRAC TOR the sum equal to ninety percent (90%) of the cost to PETROCHEMICAL of the labor pcriormed, material suitably stored on the site and materials built into the project during the preceding calendar month bosed on estimates timely certified by CONTRACTOR ond opproved by PETROCHEMICAL'S authorized represen tative. In no event, however, sholl PETROCHEMICAL pay to CONTRACTOR portiol payments totalling more than ninety percent (90%) of the controct price until the finol completion and acceptance of the project. Upon completion and acceptance of the project, PETROCHEMICAL'S authorized representative sholl issue o "Certificate of Completion," ond thirty (30) days thereafter, in occordanee with V.A.T.S. Article 5469 ond ony amendments thereof, PETROCHEMICAL shall pay to CONTRACTOR the balance due on the contiact price calculated in accordance with the terms and provisions of this controct. WENT. ALTERATIONS AND EXTRAS: 8. INSURANCE CONTRACTOR shall file with PETROCHEMICAL evidence of insurance ot the following minimum omountj; Workmen s Compensation ond/or all other Social insurance n accordance wiirh the sitafutory reqi ments of the state, province or counrry having jurisdiction over CONTRAC-TOR'S employees ore engaged in the work, with Employer's Liability not less than i QQ 1 eoch occ ident. 1903 CED0005441 2. Comprehensive General Bodily 1n|jty ond Property Domoge L'ob!i*y insuronce which shall include covergQe fo* Contractual liability and Contrac'oi's Protective Lioo'lity Th.j insurance shall cover bodily iniury to or death of persons ond loss of O' damgge to property of third parties. Such insurance shall be provi ded rv o Combined Single Limit not less than $30Q i 000 LI_Y_>_ $500j)00- _ o' any one Occident 3. Automobile Bodily Injury ond Property Domoge Liability msuionce which shall include coverage for all owned, non-owned ond hired automotive vehicles used n the performance of the Work. This insurance shall be orronged m a Como<ned Single Limit not less than $500000 C8 OCCUr3DC6 $300,000 aggregate for any one accident. 4. "All Risk*' Oceon Marine Coigo insurance wli.ch sholf include covcaye lor war, strikes, mo's and civ.I commotion, as the loiter penis moy be insured dunng the term of the Work, covering ony ond oil materials ond equipment which moy be m tronjit to the |obs>te by wet morme bottoms, or by air tronsportation, and or by connecting conveyances. Such insurance sholl Be mamtomed to cover limits of risk 5. "All Risk** Installation F looter insurance protecting the respective interest of PETROCHEM1CAL and CONTRACTOR, covering any and oI! loss of or domoge to the Work (eacept for the usual ex clusions oppeonng m such policy form) while m trons't (other than by wet morme or oir transpor tation which is provided for m the paiogroph neat above), while at the rebsite await,nq erection, during erection and until transfer of care, custody ond control of the Work to PETROCHEMICAL os hereinafter provided. This insuronce sholl be maintained ot the value of the Work at nsk.PETRO* CHEMICAL shall be included as an odd<1ionol insured with respect to this contract only. 6. CONTRACTOR'S "All Risks'* insuronce covering loss of or damage to construction equipment ond tools whether owned or on bore rental to CONTRACTOR. Subiogation shall be woived against PETROCHEMICAL prior to cancellation of any policy. 9. INDEX OF SPECIFICATIONS, PLANS, MAPS AND INSTRUCTIONS SET FORTH IN EXHIBIT "A" AS ATTACHEO HERETO AND MADE A PART HEREOF- ( /'/.ww > 1. Coastal States Scope of Work R. 1 <4-3-73.__________ _ ___ 2. Coastal Stapes Drawing Index 3 " 8 - 7 9 ____________ 3-__Drawlmjs per Index above. _ _____ <1.__Coastal States Bill of MateriaJ _3"2-79. _ 5. Coastal States Surface Preparation Painting Schedule <i-3-79. 6-__Coastal States Protective Coating and Wrapping for Underground Pipe. 4-3-79 . . . 7-__ B id Letter to Berry Contract in3_,_da_ted_4'3nZ3j 8. __Bii Proposal from Berry Contracting <4-17-79-__________________ 9. __ GeneraJ Condition of Inquiries Governing Contractors, 10. Safety S Security Regulations Governing Contracto/s................... 1903 CED0005442 THE STATE OF COUNTY OF BEFORE ME, the undersigned authority, on this day personalty appeared. V>-W, ^Auyt .known 1o me to be the person and officer whose name is subscribed to the foregoing instru ment, ond acknowledged to mo thot he executed the some for the purpose ond consideration therein expressed, and m the copoeity therein stored, ond as the act end deed of such Corporation. 7GIVEN UNDER MY HAND AND SEAL OF OFFICE ihi --___ doy of .. isl23. Notary Public, Qsd, -c. i County, Texag d THE STATE OF TEXAS COUNTY OF NUECES 7~c.BEFORE ME, the undersigned authority, on this doy personally appeared . of Coaslol States Petrochemical Compony, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes ond considera tion therein stated, ond as the act ond deed of such Corporation. GIVEN UNDER MY HAND AND SEAL OF OFFICE thi 7 dav of .............. t `v, NotePublic. JOYCE YOUNGER My Commission Expires Texa /f 1903 CED0005443