Document O1og8KkDRazeyongp6z1aGYae

1_X--APPDRVOVED TO: Engineering_____ Purchasing Credit------- ----- __ legal -----------------Insurance ----Tca/fic - -- -- CoTipcrellcr Operating Vice President nnvix to ponofASiNc department ASR Page 1 of 4 Lump Sun Construction or Repairs Contract Foret F'D*20 S00 - 10/57 ORDER NO.. CONTRACT FOR Modifications of Slag Dur?.vo Trestle (Insert nauc of job) at AMERICAN SMELTING AND REFINING COMPANIES K1 Faso ... Plant at El Paso, Texas THIS AGREEMENT, made the ?. J nt day of .August , 1970 Southwestern Industrial Contractors by and between l- Riggers,, Inc. > whose address is 1730 Bassett Aye. , El Paso, Texas 79943 ___ (hereinafter called the "Contractor") and AMERICAN SMELTING AND REFINING COMPANY, a corporation of the State of New Jersey, whose address is 120 Broadway, New York , N.Y. and P. O. Box 1111, El Paso, Texas 7Q9?a (Insert address o plant or unit) (hereinafter called the "Owner"). WITNESSETH : The Contractor and.the Owner, for the consideration hereinafter named, agree as follows: Article 1. Scope of the V/ork The Ccntractor 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 Modifications of Slag pump Trestle at the El Paso , ~ (Insert naae of job) plant of the Owner at 1 Paso, Texas- __ , (Insert tovn and state) all in accordance with the requirements and provisions of the attached "General Provisions of the Contract" and the drawings and specifications listed below and those drawings and specifications -which nay 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 0008651 Fags part hereof and, together with this-Agreement, hereinafter referred to collectii ly as the Contract: (List Specifications end Drevingn) Specifications for Modifications of Slag Dump Trestle at El Paso Flant Dated July 20, 1970 Drawing List is a Part of Specifications Article 2. Time of Completion (a) The work to be performed under this Contract shall be commenced September 1, 1970 and shall be completed by January 31, 1971 , wrfcK~an extension ofTirce 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 day3 of any occurrence which in the Contractor^ opinion entitles him to an extension of time for com pletion. (b) Failure to complete the work within the time stated in this Article, including any extension allowed pursuant hereb , shall entitle the Owner to deduct from the moneys due to the Contractor as liquidated damages an amount equal to $for' each calendar' day of delay in the completion of the work. (c) If the Contractor completes the entire work covered by this Contract earlier than the date determined in accordance with Paragraph (a), the Owner^ shall pay the Contractor an additional amount equal to $______ __________ for each calendar day by. which the time of completion so de termine^Tuis'Seen reduced. ASARCO ELP 0008652 Page 3 of k Article 3. The Contract Price The Owner shall pay the Contractor for the performance of this Contract, subject to any additions and deductions herein provided for the sum of Two pjinflrnd TVionsp.nd w*rn r dollars ($ ?,QQ. *-00. flO ), 1awruj' inoneyTMof the United States of America, at the time and in the manner here inafter provided. Article It. 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 ( an %) of the amount thereof, less the aggregate of previous^paymentsj and upon completion of the entire work, a sum sufficient to increase the total payments to Ninety percent ( 90 %) 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. Attide 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, and 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 have been paid, and that the work is 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 3uch 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 les3 than those'.' stated therein. Article 7. Applicable Law This Contract shall be construed and enforced in accordance with the laws of the state where the work hereunder is to be performed. ASARCO ELP 0008653 Page ii of Ji Aytide 8. Entirety Clause This Contract constitutes the entire agreement between the parties, and except as may bo specifically set forth herein no changes can be made herein ex cept 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. SOUTHWESTERN INDUSTRIAL CONTRACTORS AND RIGGERS, INC. ~'Tfontrac`or By ___ Title President AMERICAN SMELTING AND REFINING COMPANT Osmer .Original Signed- By By g I*. eirriscb? _ ' ?ice-Pz'esT3ent ASARCO ELP 0008654. AS&R Form PD 20 General Provisions of the Contract INDEX Article 1. Article 2, Article 3. Article Article 5. Article. 6. Article 7. Article 8. Article 9. Article 10, Article 11. Article 12. Article 13. Article lit. Article 15. Article 16. Article 17. Article 18.- Article 19. Article 20. Article 21. Article 22. Article 23. Article 2lt. Article 25. Article 26. Article 27. Article 28. Article 29. Article 30. Airtide 31. Article 32. Airtide 33. Article 3lt. Article 3$. Article 36. Notice Intent of Contract Documents Drawings and Specifications Order of Completion; Schedules Contractor's Understanding Materials, Appliances and Temporary Facilities Employees of Contractor Patents Surveys, Permits and Regulations Protection of the Public and of Work and Property Inspection of Work Supervision and Superintendence Qualification and Performance of Contractor's Employees Changes in the Work Deductions for Uncorrected Work Correction of Work before Final Payment Correction of Work after Final Payment toner's Right to Terminate Contract Removal of Equipment Use of Completed Portions Payments Withheld Contractor's Liability Insurance Indemnity by Contractor Owner's Responsibility for Certain Casualties Damages to Owner's Property Surety Bonds Liens Assignment Coordination of Work Subcontracts Arbitration Title to the Work Use of Technical Information Cleaning Up Adaptability of Plans and Specifications Engineering Approval :~Page 1 Page 1 Page 1 Pago 2 Page 2 Pago 3 Pago 3 Page li Page Ij. Pago 5 Page $ Pago 6 Pago 6 Page 7 Page 8 Page 8 Page 9 Pago 9 Page 10 Page 10 Page 11 Page 11 Page 11 Page 12 Page 12 Page 12 Page 12 Pago 13 Pago 13 Page llj Page llj. Page 1? Page 1? Page 1? Pago 16 Pago 16 ASARCO ELP 0008655 Page 1 of 16 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 on 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 vjill 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 ll; of these General Provisions. The Contractor agrees to furnish to the Ovmer 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 0008656 Page 2 of 16 B. Any 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 tiro 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 Zt, 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 schedules mutually agreed upon by the Owner and the Contractor. Article . 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, arid 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 0008657 Page 3 of 16 Article 6. Materials, Appliances and Temporary Facilities The Owner trill 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 evidenos as 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 0008658 Adequate sanitary facilities shall be provided and maintained by the Contractor. Article 8. Patents The Contractor shall indemnify and save harmless the Ctracr against and from any and all claims, losses, costs, damages, expenses, actions or other pro ceedings, 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. Article 9. Surveys, Permits and Regulations - i i n i ~i - ii i i mi- - n r- i it - n -- n i~i iti 1 ~ r it- ~i 1 - 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 otherwise specified, 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. Fermits, 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 arid- 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 be.ar all costs arising therefrom. ASARCO ELP 0008659 Pago of 16 Article 10. Protection of the Public and of Work and Property The Contractor shall provide and maintain all necessary watchmen, bar ricades, red lights and warning signs ana take all necessary precautions for the protection and safety of employees on tire 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 loss by reason of. any act or omission of Contractor or any Subcontractor. ":- Xn an emergency affecting the safely 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 0008660 Page 6 of 16 If any work should bo covsred up before examination by Owner without approval or consent of the Owner, it must, if required by--the Owner, be un covered 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 c6st. 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 vrritten request of the Contractor. The Contractor shall use its bost 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 mutually satisfactory solution to such labor problem and, so far as reasonably possible, to protect the Owneragainst delays affecting the work or damage or losses to its other operations. Article 13. Qualification and Performance of Contractors Employees The Contractor shall at all times supply a sufficient number of sldlled workmen to diligently pursue the work. All workmanship and materials shall be the ** best in its class and shall conform to all c.odes, rules, regulations and ordin ASARCO ELP 0008661 Pag 7 of 16 ances applying thereto. 'Where required by such codes, rules, regulations and 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 codes, rules, 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 ltt. 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 trill itemise the changes to be made and upon receipt of written notice of some the Contractor agrees to submit promptly to the Owner, in triplicate, an itemised 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 on 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 pri.ee or increase in the time for completion-shall be valid unless the additional work was so ordered. ASARCO ELP 0008662 Fags 8 of 16 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 omis sions 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 1$, Deductions for Uncorreeted Work If the Owner deems it inexpedient to correct work that has been damaged through 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 all portions of the work, condemned by the Owner as failing to meet contract requirements. The .Contraotor 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, th9 Owner may remove then 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' tins thereafter, the Owner in.ay, ASARCO ELP 0008663 Pago 9 of 3.6 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 remedy 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 corn?* pletion. The Owner shall give notice of observed defects with reasonable promptness. Any dispute under this Article shall be determined by arbitration. Article 18. Corner' s Right to Terminate Contract If the Contractor should ho 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 he 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 ary 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 0008664 Page 10 of 16 materials, 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 generaldamages of the Owner caused by the Contractor|s default, including the expense of finish ing the work and compensation to the Owner for the Owners 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 equipment and 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. TJse of Completed Portions The Owner shall have the right to take possession of and use any ecus' 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 cost of or delays the work, the Contractor shall be entitled to extra compensation in reim bursement 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 0008665 Pngs II of 16 Article 21. Paymen.. Withheld The Owner may withhold all or part of 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 proable 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 witliin the time specified, (e) Damage to the Owners property or the work of another Contractor. Article 22, Contractors Liability Insurance _ Unless otherwise specifically provided, the Contractor shall maintain such insurance as will protect Contractor from claims under Workman's Compensa tion Acts and from claims for damages for personal 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 toner from and against any expense, less or damage on account of any claim, demand or suit made by any person whomsoever, including any employee of the toner, which is in any way caused by or connected with, or grows out of the execution and perform ance of this Contract by the Contractor or any Subcontractor; provided, however, that the Contractor shall not be required to indemnify the CXmer 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 airy such Subcontractor by the toner, and shall indemnify the Owner against all such claims. ASARCO ELP 0008666 Article 2U. Owner's Responsibility fcr Certain Casualties Page 12 of 16 The Owner shall be responsible for all damage to the work arid 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, hail, 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 If the Owner has so requested prior to the signing of this Contract, the Contractor shall furnish 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. liens 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 0008667 Pago 13 of 16 furnish a bond satisfactory to the Owner, to indemnify the Owner against any lien. If any lien remains unsatisfied after ail 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 costs 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, there interference with, the tenor'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 ary 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 oxecution of Contractor's work. ASARCO ELP OOOS668 Pago Hi of 16 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 the 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 responsibili 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 mean 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 he 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 tills 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 0008669 Page 15 of 16 `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) uniess 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. Use of Technical Information All blueprints, drawings, specifications and bills of material furnished to the Contractor by the Owner or prepared by the Contractor under the direc tion of the Owner are and shall at all times remain the properly of the Owner and are considered loaned to the Contractor only for use in the performance of this Contract and the Contractor shall not use or permit the use of ary of them for any other purpose without tire Owner's prior written consent. Said blue prints, drawings, specifications and bills of material shall be treated as con fidential information by the Contractor, who agrees not to disclose, dispose of, reproduce, copy or publish, or permit the reproduction, copying or public ation of them or ary part of them without the written consent of the Owner, , and will take all reasonable precautions to prevent -any such occurrences. Article 3h. 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 ramove all Contractor's ASARCO ELP 0008670 Page 16 of 16 rubbish from and about the site and all Contractor^ tools, scaffolding and surplus materials and shall leave the work "broom-clean11 or its equivalent, unless more exactly specified. Article 3g. 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 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 or 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 he used and the supplier have been approved by the Oimer. During construction, the Contractor shall make no substitutions of material without the prior written approval of the Owner. ASARCO ELP 0008671 AMERICAN SMELTING AND REFINING .IPANY FORM INSURANCE. 1 B=vid 11/56 ____________________________________ lHSURAWCE-CERTlFlCA'i AMERICAN SMELTING AND REFINING COMPANY REQUIREMENTS FOR CONTRACTORS AND SUBCONTRACTORS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE DESCRIBED BELOW HAVE BEEN ISSUED TO THESE POLICIES ARE NOW IN FORCE. COVERING WORK BY THE ASSURED FOR AMERICAN SMELTING AND REFINING COMPANY ON CONTRACT_________________________________________________________________________________________________ ___________ AT ---------------------------------------------------------------------------------------------------:-----:---------------------------------------------------------------------------------- ' IF THESE POLICIES ARE CANCELLED OR CHANGED IN ANY WAY THAT WILL AFFECT THIS CERTIFICATE. TEN DAYS' PRIOR WRITTEN NOT.ICE WILL BE GIVEN BY THIS COMPANY TO AMERICAN SMELTING AND REFINING COMPANY. SAMUEL METZGER. JR.. 120 BROADWAY. NEW YORK. N.Y. KIND OF INSURANCE NUMBER DESCRIPTION OF POLICY EXPIRES LIMITS OF LIABILITY REOUIRED MINIMUM CONTRACTOR'S PUBLIC LIABILITY (COMPREHENSIVE INCLUDING CONTRACTUAL)*- BODILY.INJURY PROPERTY.DAMAGE contractor's PROTECTIVE LIABILITY BODILY-INJURY PROPERTY-DAMAGE EACH PERSON S EACH ACCIDENT S EACH ACCIDENT $ EACH PERSON S EACH ACCIDENT $ EACH ACCIDENT $ $100,000 $300,000 $ 25.000 SI 00.COO $300,000 S 25.000 AUTOMOBILE BODILY-INJURY _ PROPERTY-DAMAGE workmen's compensation AND EMPLOYER'S LIABILITY EACH PERSON S EACH ACCIDENT S EACH ACCIDENT S EACH ACCIDENT $ $100,000 $300,000 $ 25.000 COMPLY V I applicab: STATE LA 3 25.000 DATE L___ '_____ INSURANCE COMPANY CITY . STATE AUTHORIZED REPRESENTATIVE 'The Contractor shall sare harmless and indemnify the Owner from and ejainst any expense, loss or damage on account of ana clain, demand or suit made by any person whoasoerer, including .any employee of the Owner, which is in any way caused by c connected with, or grows out of the execution end performance -of this contract by the Contractor or any.Subcontractor, pr rided, however, that the Contractor shell not be required to indennify the Owner againtt any loss caused solely oy negli gence or willful fault of the Owner or its employees. The Contractor accepts ail risfc ef injury or danageend all respon sibility for any claies for damages whatsoever resulting froa the use, misuse, or failure of rny hoist, riggins* blocking scaffolding, or other like or unlike equipment used by the Contractor or any Subcontractor, eTcn though such equipment be furnished or loaned to the Contractor or any such Subcontractor by the Owner, and shall inaconify the 0*ncr against all such claims. ASARCO ELP 0008672 FORM tt INSURANCE-1 Reviced 11/56 INSURAHCE-CERTIFICA1 AMERICAN SMELTING AND REFINING COMPANY REQUIREMENTS FOR CONTRACTORS AND SUBCONTRACTORS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE DESCRIBED BELOW HAVE BEEN ISSUED TO_______________ acKrt&dewacaaa tategfeglol Caatraefeoce me Blggcgo, aae___________________ THESE POLICIES ARE NOW IN FORCE, COVERING WORK BY THE ASSURED FOR AMERICAN SMELTING AND REFINING company on contract tfaglglaatSoO O OKp ttiep gfafclc: AT_____________ eat pbooc aas IF THESE POLICIES ARE CANCELLED OR CHANGED IN ANY WAY THAT WILL AFFECT THIS CERTIFICATE. TEN DAYS' PRIOR WRITTEN NOTICE WILL BE GIVEN BY THIS COMPANY TO AMERICAN SMELTING ANO REFINING COMPANY. SAMUEL METZGER. JR.. 120 BROADWAY. NEW YORK. N.Y. KIND OF INSURANCE NUMBER DESCRIPTION OF POLICY EXPIRES LIMITS OF LIABILITY REOUIRED MINIMUM CONTRACTOR'S PUBLIC 5 98LIABILITY (COMPREHENSIVE CCRr SU INCLUDING CONTRACTUAL)* BODILY-INJURY PROPERTY-DAMAGE CONTRACTOR'S PROTECTIVE LIABILITY essence &-1-71 BODILY-INJURY PROPERTY-DAMAGE EACH PERSON $ 199#000 EACH ACCIDENT $ 306,000 EACH ACCIDENT $ 100,000 EACH PERSON S 00,000 EACH ACCIDENT $ 360,000 EACH ACCIDENT S 100,000 $100,000 $300,000 $ 25.000 $100,000 $300,000 $ 25.000 AUTOMOBILE BODILY-INJURY PROPERTY-DAMAGE WORKMEN'S COMPENSATION AND/' employer's liability tt>5G7S3 DATE ttsjxit 13, 1970 C2> RlSO CITY STATE 0-1-71 EACH PERSON $ ItfSwyvn EACH ACCIDENT S **&'*** - EACH ACCIDENT S 190,606 $100,000 $300,000 $ 25.000 6-1-71 COMPLY wn APPLICABL STATE LA* EACH ACCIDENT $ 100,000 $ 25.000 Ck^lopetw cwoaity Caspar sax* Eee&gtttn* trexaraoce fesooclatiae INSURANCE COMPANY gr /^. /Uy-i AUTHOR IZED REPRESENTATIVE The Contractor ehell lire heraless end indemnify the Ovner fron end egeinet eny expense, lose or deiiege en eceeunt of ny cilia, demand or suit aide by iny person whomsoever, including my eaployee o the Ovner, which is in my wiy caused by 01 connected with, or grows out of the execution and perforamee of this contract by the Contractor or my Subcontractor; pr< Tided, however, that the Contractor shall not be required to indemnify the Owner against any loss caused solely by negli gence or willful fault of the Owner or its employees. The Contractor accepts all risk of injury or damage and all respon sibility for any'claias for damages whatsoever resulting froa the use, aisuae, or failure of any hoist, rigging, blocking, scaffolding, or other like or unlike equipment used by the Contractor or any Subcontractor, even though such equipment be furnished or loaned to the Contractor or any such Subcontractor by the Owner, end shall indeanify the Ovner against all such claims- ASARCO ELP 0008673 i Bond no. a E 710X7-35 Employers-Commercial Union Companies ,, PERFORMANCE BOND ` The American Institute of Architects, A.I.A. Document No. A-311 September, 1963 Edition KNOW ALL MEN BY THESE PRESENTS: - SOUTHWESTERN INDUSTRIAL CONTRACTORS AND RIGGERS. INC. - . (Here insert the nome end address or (egol titfe of the Contractor} - EL FASO. TEXAS - . , as Principal, .hereinafter and------- AMERICAN-EMPLOYERS' INSURANCE COMPANY--------------------- -------------------------------------- , incorporated under the taws of the state of Massachusetts, with its Home Office in Boston, as Sutety, hereinafter called' Surety, are held and firmly bound unto - AMERICAN SMELTING AND REFINING COMPANY - (Here insert the nome ond eddress or legal title of the Owner) os Obligee, hereinafter colled Owner, in the amount TWO HUNDRED NINE THOUSAND FOUR HUNDRED - ;------------- -----t-w-----------. ------ HnUnr. is209 ,400.00), for the poyment whereof Contractor ond Surety bind themselves, their heirs, executors, administrators, successors ond ossigns, jointly and severally, firmly by these presents. WHEREAS, Contractor has by written agreement dated AUGUST--2,,0th 9--X97Q-------------------------------entered into a contract wit! Owner fr modifications to Slag Trestle for_Asarco,_ El_Paso_Plant in accordance with drawings and specifications prepared by. (Here insert futt name, title and address) which contract is by reference made a part hereof, and is hereinafter referred to as the Contract. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such thot, if Contractor shall promptly and faithfully perform said con tract, then this obligation shall be null ond void; otherwise it shell remom in full force and effect. The Surety hereby waives notice of any alteration or extension of time mode by the Owner. Whenever Contractor shall be, ond declared by Owner to be in de fault under the Contract, the Owner having performed Owner's obli gations thereunder, the Surety moy promptly remedy the default, or shall promptly 1) Complete the Contract in accordance with its terms and condi tions, or 2) Obtain a bid or bids for submission to Owner for completing the Contract in accordance with its terms and conditions, and upon de termination by Owner ond Surety of the lowest responsible bidder, orronge, for o contract between such bidder ond Owner, and make ovaifable as work progresses (even though there should be a defouit or a succession of defaults under the contract or contracts of com pletion arranged under th:s paragraph) sufficient funds to pay the cost of completion less the bolonce of the contract price; but not ex ceeding, including othercosts ond damages for which the Surety may be lioble hereunder, the amount set forth in the first paragraph here of. The term "bolonce of the contract price," os used in this para graph, shall mean the totol omount poyoble by Owner to Contractor under the Contract ond ony amendments thereto, less the omount properly paid by Owner to Contractor. Any suit under this bond must be instituted before the expiration of two (2) years from the date on which final payment under the con tract foils due. No right of action shod accrue on this bond to or for the use of ony person or corporation other thon the Owner named herein or the heirs, executors, administrators or successors of Owner. Signed ond seated this. 16th -day of- SEPTEMBER -A.D. 19. 70 (n the presence of: SOUTHWESTERN INDUSTRIAL CONTRACTORS AND RIGGERS. INC.<Se (Title) V AmericanEmployers' insurance company ' (Surety) ~ (Seal) ' K .A. By: K. 3. Crowell, Attorney in foct ASARCO ELP 0008674 THE HARDEMAN ACT STATUTORY PAYMENT BOND TEXAS KNOT'ALL MEN BY THESE PRESENTS, That we,____ ^^O.UIirjSSlSIllI-JLL'IlUSTRT/VL-COI-ITIlACTOIlS-AIIt X RIGGERS. INC. - cf EL PASO . TEXAS, Original Contractor (hereinafter called the Principal), as Princip smA - AMERICAN EMPLOYERS' INSURANCE COMPANY^- (hereinafter called the'Surety), a's Surety, are held and'firmly bound unto__- AMERICAN SMELTING AND REFTUTKf COMPANY *(hereinafter called the Owner) in the amount TWO HUNDRED NINE THOUSAND F.OUR HUNDRED........................-_____ Dollars (*.209^4110.00 for the payment whereof the said Principal and Surety bind themselves and their heirs, administrators, executors, successc and assigns, Jointly and severally, firmly by these presents. WHEREAS, the Principal has entered into a certain written contract with the Owner, dated the_ 20 th day ofAUGUST10 70- , to make modifications to Ri ng Trpst-T e*________________________________ for Asarco, El Paso Plant____________ which contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT if the said Principal shall prompt! pay claimants for all labor sub-contracts, materials and specially fabricated materials performed or f urnished under or fc virtue of said contract and duly authorized normal and usual extras thereto fnot to exceed 15% of said contract price), then thi obligation shall be void, otherwise to remain in fully force and effect; labor, subcontracts, materials and specially fabricate materials shall be cons'trued in accordance with Article 5452, Vernon's Revised Civil Statutes of Texas, 1925, as amended b the Acts of the Regular Session of the 57th Legislature, 1961. . PROVIDED, HOWEVER, that the Owner having required the said Principal to furnish this bond in order to comply with th provisions of Article 5472d of Vernon's Revised Civil Statutes of Texas, added by Acts of the regular Session of the 57t Legislature, 1961, all rights and remedies on this bond shall inure solely to such claimants and shall be determined L accordance with the'provisions, conditions and limitations of said Article to the same extent as if they were copy at lengt herein. ' IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument, this 16th day of SEPTEMBERiq 70. SOUTHWESTERN INDUSTRIAL CONTRACTORS AND RIGGERS. INC. _____________i_(SEA! The foregoing bond is hereby approved this. By " (Titl AMERICAN EMPLOi^ERS' INSURANCE COMPANY BOSTON. MASSACHUSETTS (Sure Attomey-in-Fs _day of. __________ 19- (Owi By Tri ASARCO ELP 0008675