Document BvMyMbGw4GyJd5N7VG7VM8mj8

PLAINTIFF'S EXHIBIT Corpus Christ j . Texas 78^408 hereinafter colled " CONTRACTOR ", provides lo performance by CONTRAC TOR of the work '>Djlofed be low on the terms and conditions set forth. ARTICLE WORK r0 3E PERFORMED CONTRACTOR agtees to perform the work descr.bed below fo. PETROCHEMICAL " accordance w.th the specifications, plons, pflB1 oryj ,nsi-,<i ons os set forth m the otloched Exhibit "A", incorporated he-eto by the signatures of tf-e pomes identifying them a* a port hereof. Add.'.onol de*o.l as to location may be obtained by CONTRACTOR from mops m PETROCHEMICAL'S Eng.neenng Departmen, All matter* not covered m detail herein shoU be performed in a manner consistent with the highest standards prevorhng lor och type of work m the petrochemi col tndoStry ARTICLE 11 ALTERATIONS ANO EXTRAS PETROCHEMICAL, at any time during the progress of said work, sh|| have the right, without invalidating the ogreemenr, bond, or the ortgmol plan*. d'owmgs and specifications to which they refer, to order extra work of moke changes or olter, add to, o< deduct from said work, but no such extra work or chonge shall be undertaken by CONTRACTOR unless a written order therefor is first given by PETRO CHEMICAL to CONTRACTOR, incorporating therein the increase or decrease, as the some moy be, in sard agreement price for such extra work and'or changes and o revised time for the completion of the work under this Agreement (*f o revised time be required). Upon receipt of such written order lor e>o work, changes Or alteration*, CONTR ACTOR without delay shall do such extra work and/or make such chonges ar alteration*, ond work ond materials sholl be chorged to PETROCHEMICAL'S account on a cost-plus hosts as set forth in Article XIX oelow. It will be noted m 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 qonlity desired. Upon the prior we.r-en approval cf PETROCHEMICAL'S oulhonxed representative, substitutions for such specifically nomed materials, products, methods or services may he mode, provided the materials, products, methods or services desired to be substituted hove been p'o'cn to PETRO CHEMICAL S authorized representative to provide the effect or standard of quality desired CONTRACTOR sholl handle oil moteriais so thot they may be inspected by PETROCHEMICAL'S outhorned represoniof v* ond should any materials be found defective or in ony way not in accordance with the controct, such material, without regord to the siege of completion, moy oe reacted by PETROCHEMICAL'S authorised representative and, if so reacted, sholl be promptly removed from b* pre mises by CONTRACTOR installing some and replaced ot CONTRACTOR'S sole cost, risk ond expense Re-enannoarion of questioned work may be ordered by PETROCHEMICAL'S oufhon2ed representative and if so ordered, the work must be uncovered hy the CONTRACTOR. CONTRACTOR shall pay oil casts of uncovering or replacing ony questioned work unless the work wo* co-e'ed af*e> the inspection and opprovol of PETROCHEMICAL'S ou'honxed representative ond, upon uncovering. * found to be .n accordance w.ih `he contract documents, in whieji event such costs of uncovering shall be borne by PETROCHEMICAL ARTICLE HI MATERIALS AND PERSONNEL CONTRACTOR shall lurmsh at it* own expense constant supervision, competent foremen, ond oil bonds, permits, licenses, labor, tools, equipment, fjel, materials, machinery and transportation, together with all other items which may be necessory in the performance ond completion of rfie work herein described, except such us nicy be specifically provided below to be furnished by PETROCHEMICAL Unless otherwise specified oil materials shall be new and of a grade and of a quality odequate for the required use, end oil materials and equipment used m the construction of this protect sholl beodequa'ely mspected ond tested by CONTRACTOR to accordance with accepted stendords o' no (.-'perse to PETROCHEMICAL, unless otherwise specifically provided. Bdo'C 0'de> ;ig ony rnorer uls o doing any work, CONTRACTOR sholl verily all measurements at the Site ond shall be responsible for the correctness of same. No extio chorge o- compensation will be ollowed on account of any difierenee between ectuol dimensions and the meosutemenis iryjicoted on the Drawings. Any differences wh.ch moy be found sholl be submitted to PE TROCH EMI CAL'S outhon xed representative for h j consideration and msiiuctions before proceeding with the work. Upon receipt of not.ee from PETROCHEMICAL'S oulhonzed representative thot any moieriol ploced m the Protect or on the site is not of *he quohly specified or has been improperly ploced, CONTRACTOR sholl remove some from the site, or have some replaced as the cose moy be. withm J8 hours ofter receipt of such notice, at CONTRACTOR S sale cost, risk and expense. ARTICLE IV INDEPENDENT CONTRACTOR |n the pctlotmonce ol oil work, CONTRACTOR >s on independent contractor, with sole fight to supervise, manage, control ond dneci the perfoimance of the details. PETROCHEMICAL is interested only .n the end result to be accomplished, but the end result musi meet w/fh fhe opp'ovcl of PETROCHEMICAL, whose representatives sholj be entitled to make such inspections from time tc time os may be neces sory to assure such results. ARTICLE V INSURANCE CONTRACTOR agrees 1o carry odequate workmen's compensation and employers liability insurance covering nil persons ond em ployees connecteo with the wk and also to co'ry comprehensive public liability insurance, and automotive public liability ond property damage insurance m form and omeunts Subiect to oppiovot of PETROCHEMICAL, to protect ogoinst any claims for injuries or ceath to per sons or damages to, or des true fin of, proper ly (including existing property of PETROCHEMICAL ) susloined m the carrying out of said wo'k, which insurance shall be wntren m the mm imum amounts let forth m Af'cle XIX below No work shall be commenced by CONTRACTOR until after the policy, s' policies, evidencing the insurance coverage harem re quired. or, certificates af such insurance providing that the msu'C will give PETROCHEMICAL fifteen (15) days written notice prior to cancellation, -voter,ol revision or ntent.on to renew, have been .led w.rh PETROCHEMICAL. ARTICLE VI RISK OF LOSS Until wr.fren acceptance of the work has been delivered by PE TROCHEWC&L o CONTRACTOR. <* provided m A.t,cle XVII buly*, oil nsk of loss i->|ury or des'rUct>on by -my cause c'her than act* o' onnssion* of PETROCHEMICAL, shall be bo""e by COnTRACTQRRe * pon* ib. I, i v of CONTRACTOR shall extend *o moter.ols ond equipmen*. if any, that PETROCHEMICAL Supplied fo- 'he icb s* Coastal States PetrochemicaI Co. has been changed to Coastal States Petroleum Co. 1903 CED0006016 COM r WaC T on v'>all <-0ni..>uously nn...nj. ' odequoti* protection of oil il - nr pe-fo"v/-J wxi*' CON TRACI js ~ll at PE rRO- Ct`EW:CAL'S D-ox"* ad i oc e nt rhee' and IxjII p'O'uC' PC T ROCHEMlC A L *S p'or-'-'V *'" `"i-"* ** ,0's or.*.aq .a eonncc,,on w.rh .K.s CONTRACT CONTRACTOR sholl. o' h.s o" expense .oploee o epo>' pay such domoje. n,o/y o' \ow. ond ,n t^e *n CONTRACTOR o.lt o comply w.il- -h,c prov.t.on PE TROCHEMlCAL moy .eplace o* -opo" an, sad' Jomuge o* CON TRAC TOR'S e.po-.se ARTICLE V|| NON ASSIGNABILITY CONTRACTOR shall not oss.gn thi* agreement o* subcontract the whole o> ony pail of so*d work without PE -ROCHEMICAL S p.,o< written conten. PETROCffEMfCAL'S content to ov such assignment 0/ subcontract shall '*o rel.eve CONTRACTOR, or CONTRAC TOR'S surety .f there be o *u'efy. of tho primary reponstb<l<>y or any l-ob.l'iy foi he lull and lo.thfyl performance of ' CONTRACT eccwd-ng *o ns te'ott ond conditions. ARTICLE Vit: OPERATIONS CONTRACTOR shall commence octuol operations immediately upon rhe execution hereof by PETROCHEMICAL orvi CONTRACTOR ond sholl prosecute them diligently ond without interruption to completion m a good and workmanlike monner withm me period of time set out m Attic le XIX ARTICLE ix default Time ond quality of work shall be of the essence ol this Conttoct. If CONTRACTOR foils to begin, or having commenced, foils to prosecute the work m o good ond workmonlike manner wi rh reasonable diligence. PETROCHEMICAL may. ot its option, upon 'hree doys " notice, m wni.nj, to CONTRACTOR, ter mi note his work. In the event PETROCHEMICAL terminates this Contract then, without prejudice to any other remedy it may hove. PETROCHEMICAL may toke control of thu work for the purpose of completing the same under the terms hereof, either by its own employees or by oilier independent CONTRACTORS. )f PETROCHEMICAL take* control of this work, CONTRAC TOR sholl be entitled, upon PETROCHEMICAL'S completion oi the work, to the difference between the controct price and the leosonoble cost and expense incurred by PETROCHEMICAL >n finishing so>d work. If such cost ond expense should exceed the controct price, CONTRACTOR agrees to pay the excess to PETROCHEMICAL ot Corpus Christi, Texosas liquidated damages agreed upon by the port.es hereto m cons.deration of the difficulty of ascertoimng the actual damages by other means. Provided, however, rhct ,f the completion oi this Controct * delayed, by PETROCHEMICAL, by general strikes, acts of God, or causality, beyond the control o' this CONTRACTOR, then, m such event, the time of completion of tine Contract sholl be extended for such additional i-n* os sholl be caused by suen delay. Provided, I'owc.C', 'hot CONTRACTOR herein shall o* the time of such deloy, if any, demand of PETROCHEMICAL. ,r> writing, such eddi 11onoI r.s.e wif11111 wt'.ch to complete the performtce of 'I' is Contract. ARTICLE X NOT'CES Notices hereunder shall be sent to the respective oddresses of the part es, but all requests given CONTRACTOR'S foreman on the ioO by PETROCHEMICAL'S authorized representative, os designated in Article XIX, sholl be conclusive. Oral communications will be sufficient except os *o motters required to be in writing by this Contract. ARTICLE XI INDEMNITY C0NTRAC1 CR agrees to protect, indemnify ond hold PETROCHEMICAL free and harmless from ond agomst ony and oil claims, liabilities, demands ond couses of action of every kind ond chorocter (including the amounts of judgments, penolties, interest, court costs ond legol fees incurred by PETROCHEMICAL m defense of some) arising m favor of governmental agencies or third parties 'including em ployees of either potty) on account of taxes, claims, debts, personal injuries, death or domoges to property, ond without limitniion by enu meration all other claims o< demands of any kind, charocter or nature, ai.Sing ou* of or incidental to tha work to be performed by CONTRAC TOR. ARTICLE XII COMPLIANCE WITH AUTHORITY CONTRACTOR ogress to comply with q!| lows, orders, rules or regulations of any governmentol body, including without hmitotion, those pertaining to sociol security, safety, health, old age pension ond unemployment compensotion. Before final sett lement, CONTRACTOR shall sot.sly PETROCHEMICAL of the payment and /eleose of oil debts. >oxes, liens, claims, charges and obligations onsmg by opera* t-on ot low, or otherwise out of its performance of the work. CONTRACTOR hereby authorizes PETROCHEMlCAL to deduct from ony omount due CONTRACTOR (whether or not or.sing out of rh.s agreement) all amounts which may be poyable by CONTRACTOR to PETRO CHEMICAL, and also, all erroutts for which PETROCHEMICAL moy become liable to o third poriy by >eoson of CONTRACTOR'S oct* .n performing, or fg.Lrg to perform CONTRACTOR'S obligations under this agreement, ond in the event rhgt ony claim >s rnede by a third pony, the amount 0r *olidity ol which >s disputed by CONTRACTOR. o any indebtedness sholl exist which sholl appear to be the basis foi a claim ol lien, PE TROCH EM ICAL may withhold from ony payment due, without liability fo interest because of such withholding, on amount sufficient to cover such claim. The failure of PE TROCHE MIC AL 'a cxerc.se such right to deduct or to withhold shall not, however, ol'ec' 'he obligation of CONTRACTOR 0 protect PE TROCHEMlCAL as elsewhere provided here.n. AfUiLEJ<lli . INSPECTION of BOOKS PETROCHEMICAL sholl Hig-rw^t. m g|l urt.sn.if.in t.mes to inspect ond uudit the books of CQNTRACTQR^pcjmmum tu ffie waik ond services rendered hereunder where such inspection is Tegsowo^Iy-related to sueh wu > grid services ond for o legitimate purpose which shell be s'oted to CONTRACTOR, nravidml hneenPr fhar CQNTRAf~ Tflg~~shoi 1 hifv ike i ighr i<s exclude the following from in* ^ \flAPiion. Any.wade seCTels, lormulcs, processes ond recotds of work for others. --------- *-- ARTICLE XIV PAYMENT PETROCHEMICAL oj'ces to poy CONTRACTOR upon completion of the ok, or from time to tune os may be provided under Article XVII and XIX 6, hereof, for the performance of tli.s Contract subject to the additions ond deductions provided for herein the sum ol money stated under Article .OX - 3 by its check or draft at Corpus Chnsii, Texas. ARTICLE XV - BILLING. LABOR AND MATERIALS SEPARATELY CONTRACTOR sholl bill PE TROCHEMlCAL separoiely for charges for lobor ond charges lor mo'eriol* in order that PETRO CHEMICAL noy ho the ultimate consumer ol such n>ote/ials ond moy utilize ns exemption from the Texos soles ond use 'o> for morenol* used m this project ARTICLE XVI USE AND'OR OCCUPANCY BY PETROCHEMICAL PRIOR TO ACCEPTANCE Alter w'.tten notice to CONTRACTOR. PETROCHEMICAL moy use ond o' occupy, before final acceptance ol the proiect, the whole or ony poit ol the protect for the purpose for which the proiect >s intended, prov-ded mot such proposed use ond or occuponcy will no', in CONTRACTOR S opinion, interfere wiih the completion of the work Should CONTRACTOR consider thoi PETROCHEMICAL'S pro posed use ond o> occuponcy would interfere with the completion of 'he wo*k, CONTRACTOR shall, within forty-etghi hour* of'er receiving notice of such imended use ond or occuponcy notify PETROCHEMICAL theieof >n wnt.ng, |f CONTRACTOR does not timely object to PETROCHEMICAL S proposed use ond o* occuponcy, the some sholl be cons deed to be w.ih CONTRACTOR'S consent qnd not as an interference ~ *h tie Completion 0f Such work. 19C3 ? CED0006017 ARTICLE xvii ACCEpTa;KE a.'. ML PAYMENT r,nol p-jfiiK"'** sholl be Jv do> ole> complet'O'i o* 'he work wh.tlt shall be computed horn the du'e -jl nua'K o* cerijicotc of completion, at provided below, excluding Soiu'days. Sunday* and legal holidays Upo1' ece>,j' ot.ce that the work * eod> foi final inspection i"d occepronce. PETROCHEMICAL S authorized epi- seniot.ve sholl pcxno'l* moke or. inspect.on and when be f-nds the work acceptable under 'he Con'rocf ana ihrCoo'-oct fully performed, he shall promptly uvue a l.nol cert.f,cafe, over hit own signature. s'otmg thoi the work prov.ded for .n th.s Connect has been completed ond >1 oeeepted by him under he term* and conditions rbereof, and that the enr.re bolonee found to be due the CONTRACTOR, one noted ,n to.d final certificate >1 due and poyobte Before issuance of f.nal payment the CONTRACTOR shall submit evidence satisfactory to PETROCHEMICAL hot all payrolls, motenol bills ond o'He' indebtedness corrected with the work hove been poid or otherwise sot.slied. If olte th work has been subs'onnally completed, full comole'ion thereof >s molenatly delayed through no foult of the CONTRAC TOR, ond PETROCHEMICAL *o cert.fie*. PETROCHEMICAL sholl, w.thou* terminating the Controcl. moke poyment of the balance due for (hot portion of the work fully completed ond accepted. Such payment sholl be mode under the terms and conditions governing final pay ment, except thoi .1 sholl not constitute a woiver of cfoims. ARTICLE XVIM IN TERPRETATION This Contract together w.ih the specifications. plans, maps and instruct tonsoifoched or identified separately, constitute the entire agreement Between the parties, and no other conversations, bids, memoranda, or other motter shall vary, olfer. et interpret the terms hereof. The side heod coptions <n this inst'umeni ore lor convenience of the potties m .dent.f.cofion of the several provisions and sholl not con stitute a part of the agreement nor be considered interpretive thereof Failure of PETROCHEMICAL to exerc.se any option, right or pr.vilege hereunder, or to demand compliance os to ony obhgol.on or covenont of CONTRACTOR sholl not consfilufe o woiver of ony such right, privilege or option, cr of the strict performance thereof, unless waiver is expressly required m such event, or is evidenced by a properly executed instrument. ARTICLE XIX I. COMMENCEMENT DATE: Immediately upon the exacution of tins Controcl by PETROCHEMICAL ond CONTRACTOR. ?. COMPLETION DATE- On or before the _ .3Q_ day of . November___ 19 80__ , 3. CONTRACT PRICE- 4. DESCRIPTION AND LOCATION OF WORK. Four Hundred Seventy Nine Thousand Five Hundred------------------------------------------------------------- |w % <S__^79,50Q 00 _ ____ ) m installments os provided below. Demolition of the existing Sulfur_ Recover y Plant and construction of the new 140 tpd Sulfur Recovery Plant in the Corpus Christi West Plant Refinery 1ocated on Cantwell Lane.________ _____ ___ 5. PETROCHEMICAL'S AUTHORIZED REPRESENTATIVE-. T. C . Covert- 6 PAYMENT: Progressive poyments, on or belore the 1 Sth day of eoch month, PETROCHEMICAL w.M poy to CONTRAC TOR the sum equal to ninety petcent (90,) of the cost to PE TROCHEMlC A L of the labor performed, mater to i suitably staled on the site and molenols built into the protect dunng the preceding calendar month based on cstimotes t./ncly certified by CONTRACTOR and approved by PETROCHEMICAL'S authorized represen tonve. In no event, however, shall PETROCHEMICAL pay o CONTRACTOR partial payments fofolhng more thon ninety percent (90^5 of the conlroct price until rhe f.nol completion ond acceptance of the protect Upon completion ond occeptonce of the protect, PC TRCCHEMlCAL'S outhgnzed represento' ive shall issue o "Ccrtificotc of Completion,'* ond thirty (30) doys thereoftcr, m occordance with V A T.S. Article 5469 cna ony omendmerts thereof. PETROCHEMlCAL sholl poy to CONTRACTOR *f>e balance due on the con tra; price calculated m occordonce with tlie terms ond provisions of this contract. PAYMENT, alterations and extras Img rotes. CONTRACTOR for procuring materials, as L,V^ 9 INSURANCE CONTRACTOR shod Lie with P TROCH fc MlCAL evidence of msuiance o' the follow mg minimum amounts. I Workmen's Compelsotic< ord o< all other Social uisu'orice in occcrdcnce with the statutory requirenenis of the sta'e. province or country having (unsdi-t on over CONTRACTOR'S employees who ore engaged m me work, with Employer's Liability not less than $ 1 QQ. 000 1903 -3- Car*ipehens > e Gen. J Bodily In ->'v ond Property O' iuol Liabil ty ana ConNodor' cove* bod-iy .n,ury ioo or deoil1 of persons ond loss .ns^roncc shall oe prov dd m o Combined Single Li' 51,000,000 lo' any one accident Lmb< i y ini jiance which shell include Protect'** L'Obili'y. This miwon'e shall or Jomoge to flrop*'ir g* Such I r.oi i,,,i Ih.1.1 51 ,000,000 Bod i 1 y 3. AuiomoO'Ie Bodily Injury ond Property Domoge L'obihty msuronce which shall include for oil owned non-oorned ond h.ied outomotive vehic les uiedd mm tthhee Pp(fe,r,ftor,mrt9aTncrte* ortfnt'ohe* Work. Ih<s insurance: sholl be arranged ms o Cormbined Single L>mit not Less than $1,000,000 ea occurance $1,000,000 Aggreg^^nin;y one accident 4 "All Risk" Oceon Manne Cargo insurance which shall .nclude coveroge fo' wo', s*'kes, riots and Civil commotion, os the loner perils moy be insured durmg the term of the Work. covering any od oil molenals and equrpment which may be >n transit to the |ob$ite by wet mot me bottoms, cm by on transportation, ond'or by connecting conveyances. Such msuronce shall be momtomcd to cover I*ml$ ol nsh 5. "All Risk'* Installation Floater insurance protecting the respective interest of PETROCHEMICAL ond CONTRACTOR, covering ony and all loss of o' damage to the Work (except for the usual ex clusions appearing m such policy form) while in Ironsrt (other than by wet marine or air transpor tation which is provided for in the paragraph next above), while at the jobsite awoitinq erection, during erection and until tronsfer of care, custody and control of the Work lo PETROCHEMICAL os hereinafter provided. This msuronce shall be maintained ot the value of the Work ot nsk.PETRO CHEMICAL shall be included as on additional insured with respect to this confroci only. 6. CONTRACTOR'S "All Risks" msu'once covering loss of or domcge to construction equipment ond tools whethe' owned or on bore rental to CONTRACTOR. Subrogolion shall be waived ogams' PETROCHEMICAL prior to cancellation of ony policy. 9. INDEX OF SPECIFICATIONS, ; PLANS, MAPS AND INSTRUCTIONS SET FORTH IN EXHIBIT "A" AS ATTACHED HERETO A NO MADE A PARTHEREOF ( Pli<t.\r lyp>) i Bid Letter to Berry Contracting, Inc._______________________________ Dated August 1980____________________________ ___________________________ 2. Bid Proposal from Berry Contracting, Inc. Dated August 2S. 1980 3. Genera) Conditions of Inquiries Governing Contractors 4. Safety & Security Regu 1 at ions Govern i ng Contractors. Revised January 21, 1380___________________________________ 5 6 IN WITNESS WHEREOF 'he parties herc'o have caused this mstrunicnt to ba e> ,,_80 red Ih,, 6 day ^November CONTRACTOR BERRY CONTRACTING, INC. ____<>_ //' J SECRE TARY Senior Vice president coastal states Petroleum company ASST. SECRETARV 1903 4- !o s m CED0006019 THE STATE OF COUNTY OF BEFORE Me, 'he undersigned authority, on th.s doy personally appeored_______ 1^-- H , -- -jf- -------- ---------------- of V ._______ ___ known to me lo be the person ond officer who se nome is subscribed to thi toteqonq mstru- m*ni, ond acknowledged to me iho be executed the same for the purpose or*d con* ideronon therein expressed a..d in tli ' cepu'.tty ihetem stated, and as the act ond deed of such Corporation GIVEN UNOER MY HAND AND SEAL OF OFFICE th, ' r* . doy of____?/|?Tl $ L\ ,.<;7 Y- /-- Notary Public, -w- t\ . THE STATE OF TEXAS COUNTY OF NUECES BEFORE ME, the undersigned authority, on this doy personally oppeored T C . CO V6l^t _____________________ ____ President_________________ _____of Cooslo! States PStrOlCUTQ Company, known to me to be the person and officer whose nome is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes ond considera tion therein stated, und as the ocl and deed of such Corporation. given under my hand and seal of office ihi. 10th __ da, of NovembernfiO JOYCE YOUNGER My Commission Expires June 1, 19 1903 CED0006020