Document YDOp3MM10x2VpxerBgea1VKE0

Revised 3/63 TO: APPROVED BY PLAINTIFF'S EXHIBIT Page 1 of 7 Construction or Repai Contract Form PD-1< Under $100,000.00 ORDER NO. Operating RETURN TO PURCHASING DEPARTMENT CONTRACT FOR Enclosing HiL,ine Car Loading PointB (Insert name of job) AMERICAN SMELTING AND REFINING COMPANY'S. El PasoPlant at_________________ El Paso. Texts______________________ (Insert town and state) THIS AGREEMENT, made the. 15th day 0f____September , 19__ 70, Southwestern Industrial by and het.ween Contractors and Riggers. Inc., whose address is 1730 6a8sett Ave. , P. O. Sox 1611, El Paso, Texas 7994^51*0inafter called the "Contractor") and AMERICAN SMELTING AND REFINING COMPANY, a corporation of the State of New Jersey, whose address is 120 Broadway, New York 5, N.Y. and P. O. Box till, El Faso, Texas 79999(hereinafter called the (Insert address of plant or unit) "Owner"). WITNESSETH: The Contractor and Owner agree as follows: Article 1. Scope of the work The Contractor shall furnish all shop drawings, field engineering, labor, tools, equipment, transportation, materials and other facilities, except such items as are hereinafter listed as being furnished or furnished and installed by Enclosing HiLine the Owner, for_______Car Loading Points(hereinafter called the "work") (Insert name of job) at the______El Pasoplant of the Owner at__________________ El Paso, Texas (Insert town & state) in accordance with the drawings and specifications listed below, all of which are incorporated herein by reference and made a part hereof: (List Specifications and Drawings) As Per Southwestern Quote of 9 September 1970 ASARCO ELP 0008678 Page 2 of 7 Article 2. Time of Completion The work shall be commenced September 15. 1970 and shall be substantially completed--------- r--21L--19.70---------------------------- Article 5. Payment (to be deleted if progress payments are to be made) The Owner shall pay the Contractor for the performance of this Contract, the sum of Six Thousand Five Hundred and Fifty______ ___________________ dollars, ($; Aumv on), lawful money of the United States of America within 30 .days after satisfactory completion of the work and sub mission by the Contractor of evidence (including, if requested, complete releases of all liens arising out of or in connection with the work by all persons, firms or corporations on whose behalf such liens could be or were filed) satisfactory to the Owner that all charges for labor and material incorporated in the work and all other indebtedness connected with the work for which liens could be filed have been paid and that the work is free of all liens and encumbrances. */thticle 3, Payments (to be deleted if progress payments are not to be made) - The Owner shall pay the Contractor for the performance of this contract, the sum of dollars, ), lawful money of the Uni^ecf^States, follows: day of each calend^r'month, commencing , 19____ , the Owpdr shall pay the Contractor <fo) based zfi the contract prices, of the labor and materials incorporated in tnfc.'wp?K and of materials suitably stored at the site thereof up to the end of the\next preceding calendar month, as estimated by the Owner, less the aggj^gate X)f previous payments; and upon com pletion of the entire work, a sum/SfofficientXo increase the total payments to per cent ________________________________________ %) oi\the contract price. payment of the remaining ( / fo) of the contract price shall be due davg-'after completion of the work. Before eachsfoch payment is due, the Contractor shqll submit evidence satisfactory to the Owner (including, if requested, partialwaivers, or in the case of final pp^ment, complete releases, of all liens arisingSmt of or in connection with the work by all persons, firms or corporations onSrfiose behalf such liens/dould be or were filed) that all charges for labor and material in corporated in the work and all other indebtedness (except, in the case'-of pay ments /dther than final payment, indebtedness not then due) connected withHhe worjj/for which liens could be filed have been paid and that the work is freeS-of all liens and encumbrances. ASARCO ELP 0008679 Page 3 of 7 Article 4. Payments Withheld The Owner nay withhold all or part, of any payment to the extent neces sary to protect the Owner from loss or damage on account of (a) damaged or de fective work net remedied, (i) claims filed or reasonable evidence indicating nrobable filing of claims by other parties against the Contractor or the 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 com pleted for the balance then unpaid, or (e) damage to the Owner's property or the work of another contractor. Article 5. Liens If any lien remain unsatisfied after payment of the full contract price ::as been made, the Contractor shall refund to the Owner all moneys that the latter may be compelled to pay in discharging such lien, including all costs and a reasonable attorney's fee. The Contractor shall, at any time requested b\ the Owner, deliver a bond satisfactory to the Owner indemnifying it against any lien and expenses occasioned thereby. Article 6. Title to the Work Title to all work completed-or in the course of construction shall be 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 7. Inspection and Repair The Contractor shall provide safe and proper facilities at all times for the inspection of the work by the Owner, and shall as soon as practicable after written notice from the Owner, at the Contractor's expense, replace and repair any materials or portions of the work which the Owner shall deem defec tive and make good all work damaged or destroyed thereby, whether or not there shall be a dispute with respect to any of the foregoing. Any such dispute shall be settled by arbitration. Article 8. Protection by Contractor The Contractor at all times shall maintain adequate protection of the work from damage and shall protect the Owner's property and all persons thereon from injury, damage or loss by reason of any act or omission of the Contractor or any Subcontractor. The Contractor shall be responsible, and reimburse the Owner, for any loss or expense to the Owner arising from damage to the work or other property of the Owner caused by the wrongful act or neglect of the Con tractor, any Subcontractor or the employees of the Contractor or any Subcon tractor. Where such damage includes damage to the work it shall be repaired at the expense of the Contractor. The Contractor shall use its best judgement and skill in dealing with labor matters, and take all reasonable .steps to avoid labor dispute. In the event of any strike or threat of strike, slowdowns, featherbedding, or other like practices, the Contractor shall apprise the Owner of all relevent facts and implications of the particular labor problem involved, and shall consult in good faith with the Owner in an endeavor to reach a mutually satisfactory solu tion to such labor problem and, so far as reasonably possible, to protect the Owner against delays affecting the work or damage or losses to its other oper ations. ASARCO ELP 0008680 Page 4 of 7 Article 9. Contractor's Liability Insurance The Contractor shall maintain such insurance as will indemnify it against claims under workmen's compensation acts and against any other claims for damages for personal injury, including death, which may arise from opera tions under this contract, whether such operations be by the Contractor or any Subcontractor or anyone directly or indirectly employed by either of them. Prior to commencement of this work the Contractor shall file with the Owner completed certificates of insurance in form of "Insurance Certificate" attached and shall provide insurance coverage in amounts not less then those stated therein. Article 10. Indemnity by Contractor The Contractor shall save harmless and indemnify the Owner from and against any expense, loss or damage on account of any claim, demand.or suit made by any person whomsoever, including any employee of the Owner, which is in any way caused by or connected with, or grows out of the execution and per formance of this contract by the Contractor or any Subcontractor; provided, however, that the Contractor shall not be required to indemnify the Owner against any loss caused solely by the negligence of willful fault of the Owner or its employees. The Contractor- accepts all risk of injury or damage and all responsibility for any claims for damages whatsoever resulting from the use, misuse, or failure of any hoist, rigging, blocking, scaffolding, or other like or unlike equipment used by the Contractor or any Subcontractor, even though such equipment be furnished or loaned to the Contractor or any such Subcon tractor by the Owner, and shall indemnify the Owner against all such claims. Article 11. Owner's Responsibility for Certain Casualties The Owner shall be responsible for all damage to the work, and to material, temporary structures, and equipment (excluding construction equipment not owned by the Owner) at the site of the job, which is caused by fire, wind storm, smoke, hail, aircraft, explosion, vehicles, riot or civil commotion. Article 12. Compliance with Laws and Ordinances The Contractor shall give all notices and comply with all laws, ordinances, rules, and regulations, bearing on the conduct of the work as drawn and specified. If the Contractor performs any work contrary to any such law, ordinance, rule or regulation, he shall bear all costs arising therefrom. If for any reason the Contractor's or any Subcontractor's employees or agents acquire a status imposing liability on the Owner for employer's con tributions or taxes under the Federal Insurance Contributions Act, the Federal Unemployment Tax Act, any State Unemployment Tax Act, or any other Act, the Contractor shall be exclusively liable for, and shall indemnify the Owner against, the same and agrees to comply with all such laws and regulations so as to relieve the Owner from any and all liability therefor and from the re sponsibility of making reports or keeping records with respect thereto. Article 13. Patents i The Contractor shall indemnify and save harmless the Owner against and from any and all claims, losses, costs, damages, expenses, actions or other proceedings, growing out of or resulting from infringement of any patent by the Contractor or any Subcontractor in the performance of this contract, except that this provision shall not apply to patented articles or processes specified in drawing or specifications furnished by the Owner. ASARCO ELP 0008681 Pafp b 'yf 7 Article 14. Cham.es 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. Such order may be made the Cwr.'-r tr. it: ov;r, behalf or at tr.e request of tr.e ?ontractor, uponvdiscovery by the Contractor of any discrepancy between the plans and the physical conditions encountered. If such extra work or changes involve a change in cost, the contract price shall be increased or decreased by the fair value thereof. The Owner will itemize the changes to be made and upon receipt of written notice of same, the Contractor will submit promptly ,to the Owner, in triplicate, an itemized statement of his calculations of the adjustment in the contract price resulting from the changes or extra work. This must be done be fore work on the change is begun unless the Owner gives written order to proceed immediately. No work or change shall be made, except by written ord'e-r of the Owner and no claim for an addition to the contract price shall be valid unless the additional work was so ordered. Any dispute under this Article shall be subject to arbitration. - Article 15. Owner's Right to Terminate Contract If the Contractor should be aajujg-d a bankrupt, or make an assigmnent for the benefit of creditors, or if a receiver of the Contractor's property should be appointed or if the Contract-or filfr- a petition or if a trustee of the Contractor's property should be appoi;.*-'-! und'-r ih` reorganization or readjust ment provisions of the Ban.erup toy Act, or it' th- Contractor at any time should refuse or neglect to ly -`nonyj. prow rly .`..uu workmen or proper materials, or if he should fail to marie prompt rayrvrrr *-o Subcontractors or for material or labor, or disregar; laws, ordinances instructions of the Owner, or otherwise be guilty of a substantial violation of any provision of the contract which he shall hav-- I'nilei to corr-ct promptly after service of written notice thereof by the Owner, th-n Own-.-r may. without prejudice to any other right or remedy, terminal-- loynont of t;.-- Contractor for thr.- Contractor's de fault and take toss-sc 1 ), of th-.- premises and of all materials, tools and ap pliances thereon am finis:, th- work by whatev--r method the Owner may deem ex pedient. In such cas-_, t-hr- .'om.ractor shall not be entitled to receive any further payment until the w:rk is finished. If the unp-aid balance of the con tract price shall exceed all tit-- general damages of the Owner caused by the Con- . tractor's default, including the expense of finishing the work and compensation to the Owner for the Owner's managerial and administrative service, such excess shall be paid to the Contractor. If such damages shall exceed such unpaid bal ance, the Contractor small :'a,y the- difference to the Owner. In the event the Contractor and th-.- Owner are unable to agree upon the amount to be paid or re imbursed the dispute si.all he settled by arbitration. Article if. Correct ion or V.'crk after Payment Neither payment nor any provision in this contract shall relieve the Contractor of responsibility for faulty materials or workmanship and the Con tractor shall remedy any defects due thereto and pay for any damage to other work resulting ::.er- fr . wrick shall appear v;i*hin one year from the date of completion of the- Contractor's work hereunder. The Owner shall give notice of observed defects with reasonable promptness. Any dispute under this Article shall be subject to arbitration. ASARCO ELP 0008682 J0 Page 6 of 7 1 Article 17. Arbitration i ' All disputes which are herein stated to be subject to arbitration shall be submitted to and determined by arbitration. Except as and^to-the extent otherwise provided by the controlling state law, no party mayghave recourse to legal proceedings (other than to enforce this arbitration Article) unless and ;4^;..ntil an arbitration award has been made. There shall be oneTarbitrator who rlpl^Bhall be chosen by the American Arbitration Association, whose arbitration rules ||?- uhall be followed. ^ Article 18. Subcontracts The Contractor will not employ any Subcontractor without the'prior written approval of the Owner and the Contractor shall require each Subcontractor to execute a contract in writing containing provisions similiar to all provisions of this contract which are in any way applicable to such Subcontractor and which will obligate such Subcontractor to comply with and perform all such provisions herein. Nothing herein shall create a contractual relationship between any Sub contractor and the Owner. Article 19. Assignment : The Contractor shall not assign nor subcontract this contract in whole or i part nor shall the Contractor assign any moneys due or to become due Contractor hereunder without the prior written consent of the Owner. Article 20. Coordination of Work The Contractor shall conduct the work hereunder so as to cause a minimum of interference with the Owner's operation. Where interference with the Owner's operations become absolutely necessary, permission shall be requested by the Contractor not less than seventy-two (72) hours in advance. Article 21. Undertakings by the Owner The Owner agrees to obtain and pay for any permits, licenses and ease ments required for permanent structures or changes, and, to the extent practic- ' able without interference with operations, to furnish the Contractor, free of charge, for its use during construction, electricity, water, steam and compress ed air required for construction purposes, at the voltage and pressure currently available at Owner's said plant, to a point adjacent to or within feet of the site, but the Contractor will be required to make the necessary connections, provide approved shut-off and safety devices and furnish and install all tempo rary lines required to bring them to the point of use. t Article 22. Applicable Law ; This contract shall be construed and enforced in accordance with the laws j: of the state where .the work hereunder is to be performed. ... ' Article 23. Entirety Clause - This contract constitutes the entire agreement between the parties, and except as may be specifically set forth herein no changes can be made herein except by an agreement in writing duly executed by the parties or their duly authorized agents. Article 24. Additional Provisions (Add such additional proriaiona, if any, an--the particular job requires). : ASARCO ELP 0008683 Page 7 of 7 IN WITNESS WHEREOF, the parties have executed this contract the day and year first above written. SOUTHWESTERN INDUSTRIAL CONTRACTORS AND RIGGERS, INC. Contractor ByTitle_____________ President AMERICAN SMELTING AND REFINING COMPANY Owner By. ASARCO ELP 0008684- AMERICAN SMELTING AND REFINING COMPANY FORM # INSURANCE-1 Revised l!/5e INSURANCES EH T !' CAT 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 _____ MjWftrttC-TrfMr* mmi tvr. THESE POLICIES APE NOW IN FORCE, COVERING WORK BY THE ASSURED FOR AMERICAN SMELTING AND REFINING COMPANY ON CONTRACT . Par? AT glSwauagloiito t : ______ ~ IF THESE POLICIES ARE CANCELLED OR CHANGED IN ANY WAY THAT WILL AFFECT THIS CERTIFICATE. TEN C-AVi PRIOR WRITTEN NOTICE WILL BE GIVEN BY THIS COMPANY TO AMERICAN SMELTING AND REFINING CC-V-ANY. SAMUEL METZGER, JR., 120 BROADWAY, NEW YORK, N.Y, ``tT' KIND OF INSURANCE NUMBER DESCRIPTION OF POLICY EXPIRES LIMITS OF LIABILITY c L-u <RD M.N 5 MuM CONTRACTOR * S PUBLIC LIABILITY (COMPREHENS!VE INCLUDING CONTRACTUAL)* BODILY.INJURY X\-i property.qamage contractor's PROTECTIVE LIABILITY CVwU-'jYIlCv 6-i-VI BOOH INJURY .eROPL PYf D AMACi EACH PERSON $l3,y'>3 EACH ACCIDENT EACH ACCIDENT S MS),l}$ EACH RRSCN jtovj'XX.' EACH ACCIDENT $ Aa*-.' EACH ACCIDENT SWV: 000 S2:>O.C>jO t Pt'.OX SK< CO" C , %.* S Or OO AUTOMo? HE eOD 1L v - INJilPV i fc~'r v-aiy 5 - PROpcPTY-DAMAGE WORKS<LN*S COMPENSATION AND employer's liability we--:#?.**. DATE Id, i*?C- C ITY Ves STATE - Ti EACH' PERSON S. EACH ACCIDENT S EACH ACCIDENT S 4 ' iSUivatory tututi EACH ACCIDENT $'00.^01 jfStiisryrfjy 'i'+xao it&ivfiiS ti Ina'JJc.-.:v INSURANCE COMPANY \_ _______ AUTHORIZED REPRESENTATIVE $:c< ' $ 2C0.CC S 25 ,f,O0 COv`"i . ^ j. An' S 2b.0C0 The Contractor shall sre harmless and indemnify the Owner from and against any expense, loss or danas on acr.urt of ar.y claim, demand or suit made by any person whomsoever, including any employee of the Owner, which is in any wav cai.*ee <,r connected with, or grows out of the execution and performance of this contract by the Contractor or any Subcontractor, pro vided, however, that the Contractor shall not be required to indemnify the Owner against any loss caused sole!' Lv ncc,jgence or willful fault of the Owner or its employee*. The Contractor accepts all risk of injury or damage and all respon sibility for any claims for damages whatsoever resulting from the uae, misuse, or failure of any hoist, rigging, blocking, scaffolding, or other like or unlike equipment used by the Contractor or any Subcontractor, even chough such equip^e*" be furnished or loaned to the Contractor or any aucb Subcontractor by the Owner, and shall indemnify the Owner against a.I such claims. ASARCO ELP 0008685