Document rBz9wMvy3RXNMp8kDonBr2G2r

TO AT COPIE? TO subject KAISER ENGINEERS INTER-OFFICE MEMORANDUM x. e. free* DATE Mr 6, 1966 FROM 1. X. Cppeahela Y. X. A* X* XaOhac s*. X. Xarard A. X* Ca--or / A* X. VOrctar at X. Neper ^ B. A* Ya--t X* X. Baraard r, m. XirardiT, 1* Sahiaaos no. A. f. Bel*-- faklaad 6620 Aaerie-- 1--1tin A Xeflalag C--p--j M--ri M I--Iter --d lef1--iy C--tract Attached for eafckacplaf are te felly mwlk mbIm of Aearoe's a--tract -- the chore project dated 20th April, . Alee attaohad are Asareo*a letter dated Ah-- 26, 1966 traa--ittlaf this eeatract to Mr* fenvAt a letter free Mr* larard dated M/ 1, 19(6 ladleatlaf the cadMi-- of the word "affiliated" heteaac the eerde "0--tractor*" aad "eerporcti--" -- hf 7 of the e--tract eader Article J*(h) 6 la the third 11--, aad Asaroo'a letter dated Mjr 9, 1966 c--fltolat the laacrtica* Xerox eeplea of theee copy addressees* distributed hareaith ta the there AVI the Attach* KEN 002534 --AS\AVRyC--O AMERICAN SMELTING AND REFINING COMPANY * PURCHASING DEPARTMENT 120 BROADWAY, NBW YORK, N.Y. 10003 J fAUk HAIIftlSON Vice PMSIDINT June 28, 1966 Hr. J. F. Havard, Manager Mineral Products Department Kaiser Engineers, Inc. 300 Lakeside Drive Oakland, California 94604 Re: Missouri Lead Smelter and Re K.E. Job No. 6620 Dear Mr. Havard; I enclose sixteen copies of contract dated April 20, 1966 covering Kaiser Engineers' services in connection with the construction of our lead plant at Glover, Missouri. All copies have been signed on behalf of Asarco. The changes suggested in your telex of June 22nd have been incorporated except for Article Y which was further modified. These changes in Article Y were given to Mr. Pisacane last week for transmittal to you. It will be appreciated if you will return four fully signed copies to this office. Also, as provided in Article 5 of the principle agreement, we would like four copies of insurance certificate verifying coverage outlined in Article P. I assume this will be in the same form as the certificate dated March 7, 1966 which was forwarded to us by Mr. Fellmeth on June 2nd. The courtesies extended during my recent visit to Oakland were very much appreciated and I am sure the agree* ment will prove mutually satisfactory. Sincerely, JPH/HH ) ccjMessrs .R.L.Hennebach B.J.DiSanto-A/M F.T.Fellmeth-A/M R.C.Skow-A/M ( ( W/out Enc. ( ( 1! KEN 002535 KAISER CENTER 300 LAKESIDE DRIVE. OAKLAND, CALIFORNIA 94604 July 3.j l>.'o To*. J. Paul Harricon, Vice President An.erican C-acltin,; ov.il xlofiniv.z Cc.r.pany Purchasing Euparisi.cat 120 3rO'un,-'.y Lev York, Lev York 1CQ05 Subject: Missouri Lead Cr.ieitcr and Refinery Kaiser Engineers Job iio. <->620 fear Mr. Harrison: In eccorJnr.ee with the instructions in your letter of June 23, 19&, ve attach four copies of the subjact contract which havo been executed in bcLalf of Laiccr Engineers, Inc. Uc find the contract to be in accordance with cur uuuerstan-lings. Vta do wish to call your attention to the arise ion of one word which van inadver tently left out of cur draft of May 7, 1>;6 and thereafter the osdusion vac pei-petuc.tod* On Page 7 of the contract under Article 3.(b) 0 in the third line the word "affiliated*1 should be inserted between the words "Contractor's" and ''corporations". Please coafirta that the omitted word ray be inserted on your copies and 011 ours. Me are arranging to havo the incuj'ance certificate in four copies forvaried to you as you have requested. Those copies will be sent next week. Me thoroughly enjoyed your visit To cur Oakland office and regret that you were unable to stay longer. He too ore certain that the asrccoeat for this project will prove to be mutually satisfactory* to both parties and that American Smelting and Refining Ccr-pacy will be operating a fine facility when the project is corapIctad. bcci V.' E. Cole 4 E. J. Young Sincerely, Kalfin L73h:seu3, u:e. ORIGINAL SIGNED B7 J. F. HAVARD J. ?. llavard, Manager Mineral Projects Eopartment cc; Av* 2. J. EiCanto Mr.. E. T. PcllKOth lNQINIEAlNOaCON3TRUCTION CONTRACTING 3INCS 1014 KEN 002536 ASARCO AMERICAN SMELTING AND REFINING COMPANY PURCHASING DEPARTMENT 120 BROADWAY, New YORK, N.Y. 10005 J MUi HAMISON ICt MtSIfttMT July 5, 1966 VIA AIR MAIL Mr* J, F. Havard, Manager Mineral Projects Department Kaiser Engineers, Inc. 300 Lakeside Drive Oakland, California 94604 Re: Missouri Lead Smelter and Refinery Kaiser Engineers Job No. 6620 Dear Mr. Havard: With reference to the second paragraph of your letter of July 1st, this will confirm our agreement to insert the word "affiliated" between the words "Contractor's" and "corporations" on page 7 of the subject contract in the third line under Article 3.(b) 8. Very truly yours, JPH/HH KEN 002537 CONTRACT FOR LEAD SMELTER AND REFINERY Page 1 of 14 approved DV TO: i AT AMERICAN SMELTING AND REFINING COMPANY' PLANT AT GLOVER. MISSOURI Operating RETURN TO PURCHASING DEPARTVENT THIS AGREEMENT, made the 20th day of April, 1966 by and between KAISER ENGINEERS, INC., whose address is 300 Lakeside Drive, Oakland, California 94604 (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. 10005 (hereinafter called the "Owner"). WITNESSETH: The Contractor and the Owner, for the consideration hereinafter named, agree as follows: Article 1. Scope of Work The Contractor shall furnish all plans, engineering, procurement (as required), labor, materials, transportation, tools, equipment and other facilities, except such items as are being furnished or furnished and installed by the Owner, required for the construction and installation of facilities for a lead smelter and refinery at the property of the Owner at Glover, Missouri, with an estimated ultimate future capacity of approximately 180,000 short tons of lead per year after installation of necessary supplemental facilities. KEN 002538 All to be in accordance with the requirements and provisions hereof and of the attached "General Provisions", the description of facilities set forth below, the list of Owner's drawings attached hereto as Exhibit "A" and the Travel Subsistence and Allowance Policy attached hereto as Exhibit "B", al-1 of which are incorporated herein by reference, made a part hereof and together with this Agreement are hereinafter referred to collectively as the "Contract". The facilities comprising a complete lead smelter and refinery plant including the required auxiliaries with respect to which said services are to be performed are generally described as follows: 1. A concentrate truck unloading dock for transfer of concentrates to gondola type railroad cars. 2. Scale house, truck scale and track scale. 3. A thaw house for railroad cars. 4. A railroad yard system for the plant. 5. An In-plant unloading and reclaim arrangement for sinter charge feed material and blast furnace feed material. 6. A sinter production plant including a feed proportioning system, dust control system, gas handling flues, baghouse and stack and any other related appurtenances. 7. A blast furnace with all the auxiliaries, including a slag granulating and handling system, with a water cooling pond, a blast furnace charge system, dust and fume control system and gas flue system with baghouse, and any other related appurtenances. 8. Auxiliary plant facilities as follows: a. Water storage and distribution system including items required for fire protection and sanitary sewer disposal system. KEN 002539 Page 3 of 14 Bucking and Sampling building and equipment facilities. c. Shop, warehouse, and lunchroom building and equipment facilities. d. Laboratory, office and change house building and equipment facilities. e. A 100 psi air system for the plant. f. Garage for plant locomotive. 9. A complete refinery and shipping facility. 10. Electrical substation,in-plant electricals and yard lighting. 11. In-plant roads and yard paving. 12. A security fence surrounding the plant. 13, Parking areas. 14. The engineering work performed for the Plant will make space provision for future installation of the following additions: a. A sulfuric acid plant for treatment of sinter plant off-gases. b. Ponds and cooling towers. c. Another blast furnace with its auxiliary requirements. d. Extension of the refinery facility in the kettle area. ken 002540 Page 4 of 14 Article 2. Time of Completion The work to be performed under this Contract shall be commenced April 20, 1966 with estimated completion date of December 31, 1967. Article 3. The Contract Price (a) In consideration of the performance of the Contract, the Owner agrees to reimburse the Contractor for all costs and expenses incurred by the Contractor defined in (b) below as "Reimbursable Costs" and to pay the Contractor a Fixed Fee of Four Hundred Twenty-five Thousand Dollars ($425,000) (b) The words "Reimbursable Costs" as used herein shall mean the cost to the Contractor of the following items used or consumed or incurred in performance of the work hereunder, * excluding however, any of such items supplied by Owner: 1. Job Office and all necessary temporary facilities such as buildings, use of land not fur nished by the Owner, access roads and utilities. The costs of these items include construction, furnishings and equipment, maintenance during the period that they are needed, and such demolition and removal as may be ordered by the Owner, title to all such facilities, except KEN 002541 Page 5 of 14 those supplied or obtained on a rental basis with the Owner's consent, shall be and remain in the Owner. 2. All materials whether for temporary or permanent construction. 3. Supplies, services and utilities, fuel, lubricants, power, light, water and telephone service. Rental for plant and equipment which, with the consent of the Owner, is used on a rental basis, at rental rates and terms of use approved by the Owner; If the rental rates do hot include an allowance for running repairs and repair parts needed for ordinary maintenance of the plant and equipment, then such items of cost are to be included as Reimbursable Costs. The actual cost of all necessary tools, plant, machinery and equipment purchased for the work by the Contractor; and the cost' of operation, maintenance and repair (including supplies and spare parts) of all such items, whether purchased for the work by the Contractor or supplied for the Contractor's use by the Owner. Title to all of such items shall be and remain in the Owner and they shall be turned over to the Owner, upon completion of the work, or upon termination of this Contract. KEN 002542 Page 6 of 14 All transportation costs on tools, equipment and materials. All salary and wage costs of Contractor's field personnel engaged in the performance of the work, exclusive of corporate officers unless assigned full time to the work. In determining salary and wage costs of field personnel there shall be added to salaries and wages of field personnel who are not covered by union agreement an amount equal to twenty-four percent (24%) of such salaries and wages.to cover Contractor's cost of payroll taxes, workmen's compensation and employer's liability in surance, group life, hospital and medical insurance, retire ment plans and all sick leave, vacation and holiday allow ances for such personnel. Such percentage shall be subject to revisions resulting from any statuatory increases or de creases in the applicable payroll increments and a single adjustment of the initial 24% after the field staff has been established. Salary and wage costs of Contractor's field personnel who are covered by union agreements shall in clude wages and salaries of such personnel, payroll taxes, workmen's compensation and employer's liability insurance and Contractor's costs incurred for vacations, sick leave, pensions and other employee benefits in accordance with such union agreements. As referred to herein and elsewhere in this Contract "corporate officers" shall mean the Chairman of the Board, the President, Vice Presidents, KEN 002543 Page 7 of 14 the Secretary and the Treasurer of Contractor. 8. All salary and wage costs of Contractor's home and branch office personnel (including personnel on the payrolls of Contractor's corporations on loan for the performance of the work), exclusive of corporate officers and accounting personnel unless assigned full time to the work, for all time expended in the performance of the work, including all * salaries and wages plus an amount equal to twenty and six tenths percent (20.67) thereof, to cover Contractor's cost of payroll taxes, workmen's compensation and employer's liability in surance, group life, hospital and medical insurance, and all sick leave, vacation and holiday allowances for such personnel.. Such percentage shall be subject to revision resulting from statuatory increases or decreases in the applicable payroll increments. 9. Bond premiums and all premiums on public liability, property damage and other insurance normally carried by Contractor for similar work (exclusive of the all-risk insurance to be carried by Owner as provided below) and premiums on other in surance coverage authorized or required by the Owner. The Owner shall obtain all-risk insurance covering the construction of this facility with a policy written in the name of Owner and Contractors and Subcontractors, and Owner's responsibility for any loss sustained under said all-risk policy shall be as set forth in Article R of the General Provisions. KEN 002544 Page 8 of 14 10. All sales, use, excise, privilege, business, occupation, gross receipts and all other taxes paid by the Contractor in connection with the work, but excluding income taxes based on net income derived from this Contract. .11 All fees for permits, licenses and easements, which are required for the prosecution of the work. .12 The actual cost to the Contractor of transportation, travel, living accomodations and board furnished in respect of field personnel in connection with the per formance of. this Contract, and all actual costs of transportation and travel incurred by home and branch office personnel (including corporate officers) who are required to travel in connection with the performance of the contract work (incurred in accordance with the policies and practices which the Contractor uniformly applies throughout its organization). Copy of such policy and mutual agreement clause is attached hereto as Exhibit UB". All subcontracts approved- by the Owner. Losses, damages, costs or expenses of every kind, or any combination thereof, not compensated to Contractor by insurance or otherwise, actually incurred or sustained by the Contractor in connection with the work, including KEN 002545 Page 9 of 14 but not limited to any arising out of Contractor's obligations to Owner under this Contract; provided, however, that such losses, damages, costs and expenses incurred or sustained by Contractor due to the failure of the corporate officers of Contractor or a representative of Contractor having supervision of the work as a whole to exercise the standard of care normally exercised by duly qualified persons in the performance of comparable work shall be reimbursable to Contractor only to the extent the total amount of all such losses, damages, costs and expenses due to all such failures exceeds the amount of Contractor's Fixed Fee. Without limiting the generality of the foregoing, such costs, losses, damages and expenses shall include costs of reconstruction, replacement or correction of work performed by Contractor and Contractor shall be paid for such services, in addition to such costs, an additional fee proportionate to the Fixed Fee set forth above; provided, however, that any such costs which by operation of the above proviso are not reimbursable to Contractor shall not be taken into account in determining the amount of such additional fee. 15. Out-of-pocket expenses, such as telegrams, telephone charges, consultant's fee and other items incidental to the work. KEN 002546 Page 10 of 14 16. Move-in, move-out costs of Contractor's personnel relocated by reason of performance of work under this contract, including traveling, transportation and moving expenses incurred in accordance with the policies and practices Contractor uniformly applies Throughout its organization. (See Exhibit "3") 17. An amount equal to seventy-five percent (75%) of the total salary and wage costs under Paragraph (b) 8 above, to cover overhead costs, including rent, light, heat, water, furniture and equipment, office supplies and local telephone services, accounting expense and retirement plans. 18. Any other cost not specifically listed under this Article 3 (b) but covered elsewhere in this Contract and, subject to the approval of Owner (which approval shall not unreasonably be withheld), such other costs which are reasonable and necessary to the performance of the Contract work. In determining Reimbursable Costs, Owner shall be given proper credit for the following items: i. Such discounts on invoices as may be reasonably obtainable provided that the Owner advances sufficient funds to pay the invoices within the discount period. KEN 002547 Page II of 14 ii. Any amounts received and retained by Contractor on account of sale by Contractor of materials, tools or equipment the cost of which has been reimbursed by Owner and taken over by the Con tractor by arrangement with the Owner for Con tractor's sale at the completion of the work. iii. Any rebates, refunds, returned deposits or other allowances received and retained by Con tractor relating to the work. (c) Reimbursable Costs shall not include, and the Contractor shall not be reimbursed for, the cost of any of the following items incurred by the Contractor: 1. Overhead or general expenses of any kind, except as these may be provided for in (b) above. 2. Interest on capital employed either in plant or in expenditures on the work, except as may be provided for in (b) above. 3. Contributions, bad debts, entertainment expense. 4. Extra cost of any premium time, or overtime in excess of the regular work week unless prior approval for the specific premium time or overtime is given by Owner's project engineer or his authorized field representative. Article 4. Terms of Payment (a) Requests for reimbursement, substantiated by copies of supporting invoices and copies of payrolls or other data, shall be rendered by Contractor to Owner as' mutually agreed but at least monthly to cover withdrawals from the revolving fund provided for in paragraph (b) below during the previous period. Such requests shall be due and payable by the Owner within fifteen (15) days after Owner's receipt thereof subject to the provisions of paragraph (b) below. KEN 002548 Page 12 of 14 (b) It is the intention of the parties that the cost of the work will be financed in its entirety by Owner. In order to accomplish this objective, Owner shall from time to time during the course of the work advance funds to Contractor in amounts to be mutually agreed upon to be used by Contractor as a revolving fund in paying Reimbursable Costs specified in Article 3 hereof, as the same accrue. As payments are made by Owner to Contractor on its requests for reimbursement covering withdrawals from the revolving fund, the amounts so paid shall be deposited by Contractor in said revolving fund to replenish the same. If at any time or from time to time the amount of the revolving fund, in the opinion of the Owner, shall exceed the foreseeable re quirements of Contractor, the Contractor shall pay to Owner such portion thereof as will not be needed, and upon completion of the work and full payment to Contractor,* Contractor shall pay to Owner the full amount then remaining in the revolving fund. All funds received by Contractor for purposes of said revolving fund shall be deposited in a bank account or accounts clearly showing the special character thereof. (c) Ninety percent (90%) of the Contractor's Fixed Fee, provided for in Article 3 hereof, ..shall be paid by Owner to Con tractor in monthly installments as it accrues, based on the per centage of completion of the work as determined by Owner from estimates submitted by Contractor. KEN 002549 (d) Within thirty (30) days after completion of the work and Page 13 of 14 the Owner's acceptance thereof, Owner shall pay to Con tractor the unpaid balance of all costs and expenses re imbursable 'to Contractor hereunder and the unpaid balance of the Fixed Fee. Owner shall accept the work with reasonable promptness after completion. Article 5. Insurance Certificate Prior to commencement of the work hereunder the Contractor shall file with the Owner completed certificates of insurance evidencing insurance coverage provided for here under. Article 6. 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. Article 7. 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. KEN 002550 Page 14 of 14 IN WITNESS WHEREOF, the parties have executed this Contract the day and year first above written. KAISER ENGINEERS, INC. Contractor AMERICAN SMELTING AND REFINING COMPANY Owner KEN 002551 General Provisions of the Contract INDEX Article A. Article B. Article C. Article Article Article Article D. E. F. G. Article H. Article I. Article J. Article Article Article Article Article Article Article Article K. L. M. N. 0. P. Q. R. Article Article Article Article Article Article Article Article S. T. U. V. W. X. Y. 2. Article AA. Article BB. Article CC. Notice Order of Completion; Schedules; Estimates of Expenditures Materials, Appliances and Temporary Facilities Employees of Contractor Patents <' Regulations Protection of the Public and of Work and Property Inspection of Work Contractor's Covenants; Supervision and Superintendence Qualification and Performance of Contractor's Employees Changes Correction of Work After Final Payment Owner's Right to Terminate Contract Removal of Equipment Use of Completed Portions Contractor's Liability Insurance Indemnity by Contractor Owner's Responsibility for Certain Casualties Damages to Owner's Property Liens Assignment Arbitration Subcontracts Title to the Work Confidential Information Records and Accounts Inspection and Audit Cleaning Up Adaptability of Plans and Specifications Purchases and Rental of Equipment and Material Exhibit "A" - List of Prints Exhibit "3" - Travel and Subsistence Allowance Policy Page 1 Page 1 Page 1 Page Page Page Page 2 3 4 4 Page 5 Page 5 Page 6 Page 7 Page 7 Page 8 Page 9 Page 9 Page 10 Page 10 Page 11 Page 12 Page 12 Page 12 Page 13 Page 14 Page 14 Page 15 Page 16' Page 17 Page 18 Page 18-20 Page 21-22 Page 23-25 KEN 002552 Page 1 of 25 GENERAL PROVISIONS Article A. Notice Written notice shall be deemed to have been duly served if delivered by hand or sent by registered mail, postage prepaid, 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 B. Order of Completion; Schedules; Estimates of Expenditures 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. The Contractor will furnish to the Owner, at any time requested by the Owner, a statement of estimated expenditures to be made during any period, in such form and with such itemization as the Owner may request. Article C. Materials, Appliances and Temporary Facilities Unless otherwise specified, all materials incorporated in the permanent work shall be new and both workmanship and materials shall be of the best quality consistent with Owner's requirements and availability. The Contractor shall, if required, furnish satisfactory evidence as to the kind and quality of materials. KEN 002553 Page 2 of 25 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. Should the Owner wish to change the type and character of the facilities to conform to continued usage thereof in other construction or operation/ it shall be its prerogative to change and retain any such facilities. Article D. 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 take such immediate steps as are necessary to change the status of such employee 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; and the costs thereof incurred by Contractor shall be reimbursable under Article 3(b). The Contractor shall at all times enforce strict discipline and good order among his employees, and shall seek to avoid em ploying on the work any unfit person or anyone not skilled in the work assigned to him. KEN 002554 Page 3 of 25 Adequate sanitary facilities shall be provided and maintained by the Contractor. Article E. Patents Contractor in purchasing equipment pursuant to this agreement will include in all purchase orders therefor the following Standard Patent Indemnity Provisions used by Contractor in its normal pur chasing procedures: "Seller represents that it has fully investigated all specifications, including any furnished by Purchaser, in connection with the goods, and based on such investi gation and its past experience and superior knowledge with respect to such goods, has determined that the production thereof will not infringe any patent, trademark or copyright. Seller warrants to Purchaser and its successors in interest that the sale or use of the goods and any services covered by this order, whether manu factured in accordance with Purchaser's specifications or otherwise, do not and will not infringe upon any patent, trademark or copyright and Seller shall indemnify and hold Purchaser and its successors in interest free and harmless from and against any and all "claims, demands, costs and liabilities, including legal expenses, arising out of any such infringement or claim of infringement. Purchaser is relying upon the experience, skill and superior knowledge of Seller with respect to the goods and makes no representation that Seller will be safe in manufacturing the goods as required under this order. In no event shall Purchaser or its successors in interest be liable to Seller for any patent, copyright or trademark infringement or claim thereof." In the event Contractor in the actual performance of this agreement with Owner is notified in writing by any third party of the necessity for acquiring a patent license or immunity under any patent license or immunity which is not acquired pursuant to the aforementioned KEN 002555 Page 4 of 25 Standard Patent Indemnity Provision, Contractor will promptly notify Owner in writing thereof and promptly provide Owner with all relevant facts. The foregoing shall constitute the only obligations of Contractor to Owner with' respect to patent rights and in no event shall this agreement be deemed to have transferred any rights to Owner under any patent rights of Contractor. Article F. Regulations *^ The Contractor shall give all notices and comply with all laws, ordinances, rules and regulations bearing on the conduct of the work. Article G. Protection of the Public and of Work and Property The Contractor shall provide and maintain all necessary watchmen, barricades, red lights and warning signs and take all necessary precautions for the protection and safety of employees on the work, of all other persons and of adjacent 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 the Contractor or any Subcontractor. In an emergency affecting the safety of life or of the work or of adjoining property, the Contractor is, without special in structions or authorization from the Owner, hereby authorized to act at Contractor's discretion to prevent such threatened loss or injury. The Contractor shall also so act if so instructed by the Owner. KEN 002556 Page 5 of 25 Article H. 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 Con tractor 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 practi cable at the source of supply. Article I. Contractor's Covenants; Supervision and Superintendence The Contractor recognizes the relationship of confidence established between the Contractor and the Owner by this Contract which is based on a cost-plus-fee arrangement. The Contractor covenants to use its best skill and judgment in performing the work, to do such work at the lowest cost practicable, and to perform all such work in a workmanlike manner with efficiency and diligence. The Contractor shall maintain a competent staff at all times to supervise the work. The Contractor shall submit to the Owner for approval, prior to the time the Contractor begins performance of the work, a complete organization chart of all key personnel that the Contractor proposes to employ at the site. KEN 002557 Page 6 of 25 The Contractor shall keep on the work, during its progress, a competent superintendent and any necessary assistants, all satisfactory to the Owner. The Contractor shall use its best judgment 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 problems 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 Owner against delays or increases in the cost of the-work or damage or losses to its other operations. Article J. Qualification and Performance of Contractor^ Employees The Contractor shall use its best efforts at all times to supply a sufficient number of skilled workmen to diligently pursue the work. All workmanship and materials shall conform to all codes, rules, regulations and ordinances 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. KEN 002558 Page 7 of 25 Article K. Changes (a) Owner may at any time by written order or authorization issue instructions making changes, additions or deletions in the plans and specifications relating to the work hereunder. Con tractor shall take cognizance of such changes, additions and deletions in performance of its work hereunder. Subjectto the provision of paragraph (b) below, if such instruction results in a material increase or decrease in the amount or character of the work to be done under this Contract the Fixed Fee shall be equitably adjusted. As soon as practicable after Owner's changes, additions or deletions which result in such material increases or decreases. Owner and Contractor shall agree on the amount of any net increase or decrease in the amount of the Fixed Fee. (b) The Fixed Fee provided for herein shall not be adjusted because of errors or omissions in computing the estimated cost of facilities or the estimated time for completion thereof, nor shall it be adjusted because Owner elects to furnish certain of the services described in Article 1 of the Agreement. Article L. Correction of Work after Final Payment (a) Neither the final certificate nor final payment nor any provision in this Contract shall relieve the Contractor of responsi bility for the correction of faulty workmanship performed directly by it. At Owner's request at any time within one year following initial operation of the plant, Contractor agrees to remedy such KEN 002559 Page 8 of 25 faulty workmanship and for any such services Contractor shall be paid therefor in accordance with paragraph (b) 14 of Article 3. The Owner shall give notice of observed defects with reasonable promptness. (b) Provisions approved by Owner concerning warranties and guaranties of work performed by Contractor's subcontractors and vendors, and concerning indemnities, will be included in each applicable subcontract and purchase order for the benefit of Owner, and Contractor shall take such appropriate action as Owner may request in respect of the enforcement of subcontractors' and vendors,' warranties, guarantees, and indemnities. Article M. Owner's Right to Terminate Contract If the Contractor should be adjudged a bankrupt, or make any assignment for the benefit of creditors, or if a Receiver of Contractor's property should be appointed, or if the Contractor files a petition or a Trustee of the Contractor's property should be appointed under the reorganization or readjustment 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 sub contractors or for materials or labor, or disregard laws, ordinances or the instructions of the Owner, or otherwise be guilty of a sub stantial violation of any provision of this Contract which the Con tractor shall have failed to correct promptly after service of written notice thereof by the Owner, then the Owner, may, without ken 002560 Page 9 of 25 prejudice to any other right or remedy, terminate the employment of the Contractor for. Contractor's default and take possession of the premises and of all materials, tools and appliances thereon and finish the work by whatever method Owner may deem expedient. In such case the Contractor shall be reimbursed for (a) all reimbursable costs and expenses incurred.by it in the performance, and prior to termination, of this Contract <for which the Contractor has not theretofore been reimbursed, and (b) for any such costs and expenses incurred within a reasonable time thereafter including relocation of its field personnel and such other costs and expenses as may be approved by the Owner. The Contractor shall also be en titled to receive an equitable portion of the Fixed Fee based upon the actual work performed at the time of termination, less payments on account of the Fixed Fee which have been previously made. If payments previously made on account of the Fixed Fee exceed such proportionate part thereof, the Contractor shall pay to the Owner an amount equal to such excess. Article N. 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 the Contractor's equipment and supplies from the property of the Owner. Article 0. Use of Completed Portions The Owner shall have the right to take possession of and use KEN 002561 Page 10 of 25 any completed or partially completed portions of the work; but such taking possession and use shall not be deemed an acceptance of any work not completed in accordance with this Contract. Article P.. Contractor's Liability Insurance Unless otherwise specifically provided, the Contractor shall maintain such insurance as will protect Contractor from claims under Workmen's Compensation 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 Q. 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 performance of this Contract by the Contractor or any subcontractor; provided, however, that the Con tractor shall not be required to indemnify the Owner against any loss caused solely by the negligence or wilful 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. KEN 002562 Page ii of 25 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, and shall indemnify the 'Owner against all such claims. The indemnification under this Article shall be limited to the recoveries obtained under public liability, property damage and such other insurance as 'is maintained by Contractor^ hereunder at the time such injury or harm occurs, unless such loss is excluded from reimbursable costs under paragraph (b) 14 of Article 3 in which case Contractor shall indemnify Owner without regard to the extent of its insurance coverage. Owner and Contractor hereby release each other from any liability for damage to property howsoever caused in connection with the work hereunder to the extent that the party involved is insured for such damage. If any of the insurance policies of Owner and/or Contractor do not permit release of other persons or firms from liability before a loss, endorsement to such policies shall be obtained from respective insurance carriers as may be necessary to effect a waiver of the right of subrogation by such insurance carriers against the parties to this Contract. Article R. Owner's Responsibility for Certain Casualties The Owner shall be responsible for and shall maintain in surance to cover all damage to the work and to material, temporary KEN 002563 Page 12 of 25 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. Contractor and all subcontractors will be named assureds under such policy. Article S. Damages to Owner's Property i/ The Owner shall obtain all-risk insurance covering the construction of this facility with a policy written in the name of Owner and Contractors and Subcontractors. Article T. Liens The Contractor shall, if any subcontractor refuses to furnish a release or receipt in full, advise Owner and take all necessary steps as directed by Owner in resolving such disputes with any subcontractor in order to protect Owner's property against liens contemplated by this Article. Article U. Assignment Except as provided in Article W, Contractor shall not assign or sublet this Contract in whole or in part, nor shall the Contractor assign any monies due or to become due it hereunder without the prior written consent of the Owner. This Contract may be assigned by Owner to any subsidiary of KEN 002564 Page 13 of 25 Owner provided that in case of such assignment Owner shall remain responsible for the performance by such subsidiary of its obligations hereunder. Article V. Arbitration Any dispute concerning a question of fact arising under this Contract which is not disposed of by agreement of the parties shall be submitted to arbitration upon the written demand of either party within a reasonable time after the parties have failed to reach agreement thereon. No one shall act as an arbitrator who is in any way financially interested in this Contract or is or has been connected or interested in the business affairs of either the Owner or the Contractor. The award of the arbitrator shall be in writing and shall be binding on both parties. Except as and to the extent otherwise provided by the controlling state law: no party may have recourse to legal proceedings (other than to enforce this arbitration Article) unless and until an arbitration award has been made; the award of the arbitrator shall not be open to objection on account of the form of the proceeding or the award; and there shall be one arbitrator who shall be chosen by the American Arbitration Association, whose arbitration rules shall be followed; The arbitrator may consider questions of law in connection with reaching his decisions on questions of fact but nothing herein shall be construed as making final the decision of such arbitrator on a question of law. ken 002565 Page 14 of 25- Article W. Subcontracts The Contractor shall, prior to the issuance of bids, notify the Owner in writing of the names of any subcontractors pro posed for inclusion in such bid list and shallnot award any sub contract 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 unsatisfactory. The Contractor shall include in all subcontracts such terms and provisions as the Owner may require or approve. Nothing in this Contract shall create any contractual-relat ionship between any subcontractor and the Owner. The word "subcontractor", as employed herein, shall mean one having a direct contract with the Contractor for the furnishing of labor and/or materials at the jobsite but doesnot include one who, pursuant to purchase order, furnished material worked to a special design according to the plans or specifications of this work or one who merely furnished material not so worked. Article X. Title to the Work Subject to payment by Owner to Contractor for the costs thereof, title to all work completed or in the course of con struction shall be in the Owner, and title to all machinery, equip ment and materials to be incorporated in the work shall be in the Owner as soon as they are delivered on the site of the job. KEN 002566 Page 15 of 25 Article Y. Confidential Information All plans, drawings and specifications prepared by Kaiser or supplied to Kaiser by Asarco under this Agreement shall be and remain the property of Asarco. Plans, drawings and speci fications prepared by Kaiser may be reused by Asarco, its affiliated companies and licensees; but, except for the herein described Asarco Lead Smelting and Refining facility at the property of Asarco at Glover, Missouri, Kaiser shall have no liability by way of warranty or otherwise on account of such reuse and Asarco shall indemnify and save Kaiser harmless in respect of any liability which may arise against Kaiser at any time in the future on account of such reuse. Anything to the contrary herein notwithstanding, nothing herein shall in any way restrict Asarco's right to use in any way any plans, drawings and speci fications prepared by Asarco or supplied to Kaiser by Asarco. Kaiser agrees to keep in confidence all plans, drawings and specifications prepared by Kaiser or supplied to Kaiser by Asarco/ and all information disclosed to Kaiser by Asarco/relating to updraft sintering, the bell for the vacuum dezincing kettle and crust handling; and, Kaiser further agrees that it will not disclose or use any of said drawings or information without Asarco1s written consent. The foregoing provisions of this paragraph Y shall not apply to (1) information which, at the time of disclosure is in the public domain; (2) information which after disclosure enters the public domain by publication or otherwise except by a breach of ken 002567 Page 16 of 25 of this Agreement by Kaiser; (3) information which at the time of disclosure was in Kaiser's possession or in the possession of any affiliated or associated company of Kaiser; or (4) information which Kaiser can show was acquired by Kaiser after the date of this Agreement from a third party who is lawfully in possession of such information and can lawfully disclose the same to Kaiser. Asarco recognizes that it will be necessary for Kaiser to use certain of said confidential information in order to solicit bids from Vendors and Sub-Contractors for the Asarco Lead Smelting and Refining facility at Glover, Missouri; and, Asarco consents to such use upon the understanding that Kaiser will solicit bids for such proposals only from Vendors and Sub-Contractors from a bidders' list approved by Asarco, and that,prior to any such solicitation, Kaiser will require such bidders to agree to the non-disclosure of such information on terms consistent with Kaiser's obligations to Asarco hereunder. Asarco hereby advised Kaiser that all information relating to Updraft Sintering disclosed hereunder to Kaiser by Asarco has been received by Asarco in confidence from the Broken Hill Associated Smelters Proprietary Ltd. and that Asarco is required to make all reasonable efforts to keep such information secret and confidential so long as it remains unpublished. Article Z. Records and Accounts, Inspection and Audit The Contractor shall keep at the Site, or other location authorized in writing by the Owner, records and books of account KEN 002568 Page 17 of 25 showing the actual costs of all items of freight, cartage, labor, materials, equipment and subcontracts and all other expenditures of whatever nature which enter into the work and will regularly furnish copies of any reports requested by the Owner. The system of accounting and control of accounting to be employed by the Contractor shall be such as is satisfactory to the Owner. All books, records and papers of the Contractor relat ing to such costs shall at all times be available for the in spection and audit of the Owner, and the Contractor shall preserve them to such extent and for such period as may be required by the Owner, but in any event not less than three years after the completion of the Contract. The Contractor shall forward monthly, for audit, to the Traffic Department of the Owner at its New York office, all receipted freight bills, cartage bills, bills of lading and other transportation bills. These shall be-consecutively numbered by the Contractor starting with No. 1. The Contractor further authorizes the Owner, on its behalf, to file and prosecute any overcharge claims against the carriers and there shall be credited to the Owner the amount of all such overcharges which may be collected. Article AA. Cleaning Up The Contractor shall at all times keep the premises free from accumulations of waste material or rubbish caused by Con- KEN 002569 Page 18 of 25 tractor's employees or authorized subcontractors of the work, and at the completion of the work Contractor shall remove all the Contractor's rubbish from and about the Site and all the Contractor's tools, scaffolding and surplus materials and shall leave the work "broom-clean" or its equivalent. Article BE. Adaptability of Plans and Specifications ,/ Except in the case of patented products for which there is no adequate 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, specifications, engineering or planning could not be used with equal facility in connection with the product of all or most manufacturers of such tools, equipment or materials, or any substitute therefor. Article CC. Purchase and Rental of Material and Equipment The Contractor agrees to: (1) Secure in advance the Owner's specific written approval of the final complete form of any rental agreement (including any agreement for rental of equipment owned by the Contractor) before renting, or using on a rental basis, any construction equipment. The Contractor shall endeavor to secure rental agreements from equipment firms that will permit the Owner, at its option, to KEN 002570 Page 19 of 25 purchase the equipment during the construction period or at its termination, at a price (to be set forth in the agreement), less rental paid (after deducting the amounts, if any, expended by the lessor for maintenance or repairs during the period the equipment was under rental on this work); (2) Rent its equipment, if available, at a rental rate of 75% ,/ of the Associated Equipment Distributors rental rates as listed in the annual issue of "Compilation of Rental Rates for Construction Equipment" prepared by Associated Equipment Distributors of Chicago, Illinois. Furthermore, if Owner elects. Contractor shall extend the rental contracts to purchase options with full credit for rent paid applied against purchase price; (3) Purchase no tools, equipment or materials except after invitations for bids have been extended to a reasonable number of responsibile competitive suppliers, and, except as otherwise required by the Owner, to.purchase only upon the basis of the most favorable terms offered, with respect to price, quantity and delivery; (4) Take advantage of all discounts, rebates and allowances including cash discounts, confidential prices, etc., for the benefit of the Owner; (5) Include in all contracts for the purchase of materials, supplies, or equipment, surtaDle provisions designed to obtain for the Owner the benefit of any decrease in (a) cost to the suppliers of items not manufactured by them, (b) labor costs KEN 002571 Page 20 of 25 and (c) suppliers1 prices, or prevailing prices, on comparable items. (a) Consult with and obtain the Owner's Purchasing Department approval before placing orders in excess of $5,000.00. (b) submit inquiries- for proposals and prices to all suppliers which the Owner shall request; (c) if requested to do so, furnish to the Owner for its approval before placement of orders, copies of all proposals and prices received. KEN 002572 B la st Furnace - charge Hopper M oisting Arrangement LO CM CM a tr--o < 64 H a) W O o 02 < Ocs 0w2 hgiA OVD Q O-i CA ' w eu in o C5 as y >5 G Vi CQ Q G SH H 3 fe M PQ fVtl O-i SO G Pv ki 0fftt2 -P G g 6a0 g Vi O >> G 0 a & 1 0 H P 0 O a; CQ sfffGttt E-i G G Pft G ffOtt G O fOt fGt H 02 Vi G > fqt O a> f-pt 02 " fat) Ai ft 60 3 O p P G -p ffGtt co O -P H G P G cd S> G a; 60 P Gw G Vi rH 3 cd ft O rH G / -P ffGtt 0 0 CQ T5 cd c -p ffGtt 0 g -P 03 bO O >> cd P fGt P < Vi rH cd fOt P -P 0 0 ffGtt O 1 1 CO CO c ff0tt G 60 Vi CG H Pi GG O Vi rl ft -P Vl G O 60 Pi U OG & ft O TS G cd G bO 60 rH fGt >> H rH *0 G 0 .O 0G cd rfHa -P co 0 O H P 0bo O 0 cd CQ P P T? < cd rH cd P cd 0 rfHa 0 a 1 1 -P cd cd 0 rH P fa < bO 0 bO rH cd CO P CO O O -P P CQ Q T* 08 cd 0 OP cd O O P fa rfHa 0 -P rH CO -P cd P rH 0 PQ 08 PCQ bO H a o H +5 Vi 0ft O 60 3 H g to 3 ffOtt o g 02 0cHP cPd c0fda G fO6GVt0i CaO fot ft 3> G r-l 05 cGo H 0) 60 Vi 3 02 08 6G0 rGH O H +5 oVi < 6 -COPrOi cPd c0fda G fOGP6t0 -pG I G 6G0 3 Vi co Vi 3G a fGt Vi ffNtt ff<ttU fGt G 04 co 3 Vi TGJ OG Vi G Is fKt a$ s El fffOGGPGGPPttti ffOGGGPGPtti GG fOG6Pt0 fOP6Gt0 G ffOGtt > f<t0 w ft GG fOt -P o o 02 G ffOGtt U afst G & V 60 Vi OfGt 8 foPG13Pt0 ff0GpGtt2 G fOt -p G > fGt w fGGt fOt -P O G 02 ft 3 1 ft 60 ffCtt Ta3 Si u G ifst 02 CO rH H cd -P 0 Q P 0 Td 0 0 fa *.H fa 1 CO rH CQ 0 bO P cd O 0 O cd P Ph P CO cd rH PQ +5 3 0 >> G ft G G H O cd S P 0 -p tH CQ 60 G P H 0 rH B H 0 bO CQ cd 0 PO P cd < P 1 fa P 0 +5 >9 M 0 cd > rH PQ 0 a "P 0 6h p H O cu H cd P p0 00 CQ CQ 1l 00 00 cd cd P * ?P fa fa +5 -P ca CO cd cd rH rH PQ CQ f.C5 11709 ffttO rH CO rH O. OJ OJ rH 0 P m CA q> OJ CM P* ft- P* vD OJ rH C\J OJ rH CV1 p CM P C\J p p p CM on Jf CM O 0 OJ CM >- e- VO VO ft ft p ft ft ft p ft ft ft- O >- CO R O C~* O ftftt- 0 A1-- ft O P P 11 CQ iP ^4 1 CQ CQ Pr 4 w CQ CQ 1---41 CQ 3 1 02 1 02 1 3 S3 CQ r P KEN 002573 U~1 CM KEN 002574 EXHIBIT "B" Page 23 of 25 TRAVEL AND SUBSISTENCE ALLOWANCE POLICY Travel Status and Expenses All Company employees (including officers, executives, ad ministrative heads), who are required to travel in connection with Company business are reimbursed for all actual travel and out-of-pocket expenses meeting the test of reasonableness. An employee shall be considered in travel status when he is beyond a twenty-five (25) mile radius of the office to which he is permanently assigned on a trip approved by the Company and related to the performance of the contract and will be compensated for salary on the basis of an eight-hour day, 40-hour week, schedule unless otherwise specifically approved by the Client. Travel expenses include: .. Actual out-of-pocket costs of meals, gratuities, hotel rooms, laundry and valet services and other associated out-of-pocket expenses. . Actual costs of rail, plane (coach accommodations when possible), bus or other form of public trans portation. . . Actual costs of fuel, lubricants and fees from recognized automobile rental agencies. Expenses of parking, automobile storage, road and bridge tolls, taxi fees, etc. Travel by personal auto mobile is reimbursed at the rate of eight cents per mile. . Actual costs of telecommunications, photostats, blueprints and other engineering materials and supplies and other necessary out-of-pocket expenses, considered reasonable, are also reim bursable. The respective project engineers of Owner and' Contractor shall mutually agree in advance as to the individuals required to travel on duty directly applicable to the job. *..................i .. . i t.. i i \. i i - * i / t * I i / KEN 002575 Page 24 of 23 Moving and Living Expenses . Administrative, technical and supervisory em ployees (and such others as the Owner may speci fically approve) who are directed to and actually report for work under the contract may be allowed actual transportation, traveling and moving ex penses for themselves, members of their household and household effects from their present location to the location of the office to which they are transferred or assigned (other than a temporary assignment) and, upon the termination'of the assignment or the conclusion of the work under the contract, for the actual transportation, traveling and moving expenses of returning themselves, members of their households and household effects to their former location or equivalent distance. . The employee shall be entitled to reimbursement for actual and reasonable expenses for himself and dependents at the new location for a period of time sufficient to enable him,to locate suitable housing and establish residence. Such period of time will not normally exceed thirty (30) days beyond his arrival at the location but the period of time may be extended in cases where there is a critical shortage of adequate housing. . The traveling expense contemplated in the first paragraph of this section (Moving and Living Ex penses) shall be limited to the types of expenses listed under Travel Expenses. The cost of moving household goods and furnishings shall include packing and shipping, by public carrier, together with a reasonable amount of liability insurance and storage.. If the employee does not desire to move his household goods and furnishings, or part thereof,.to the location of his new assignment, he shall be entitled to reimbursement for the cost of storage thereof until his return to his former location. KEN 002576 Page 25 of 25 Moving and Living Expenses - Continued In the event an employee chooses to move his pers.onal housetrailer into the area by licensed common carrier, as an alternative to moving his household goods in accordance with the previous paragraph, he will be reimbursed for the actual expenses incurred in transporting the trailer into the area where he is assigned, plus a reasonable amoujnt of liability insurance. Such employee may be considered in travel status while awaiting the arrival of the trailer but not exceeding one day after its arrival. Reimbursement for transportation of the employee and/or members of his household by public carrier will be for the actual costs thereof. Reimburse ment for transportation by private automobile will be at the rate of eight cents per mile, based on the Rand-McNally Standard Table of Distances, with a variation not to exceed ten percent. Reimburse ment for living expenses enroute will be made only for a reasonable period of time, based upon the most direct route and existing conditions (excluding unauthorized stopovers). . Where the job requirements are such that personnel mentioned in the first paragraph of this section are on temporary assignment (usually defined as six (6) months or less), the employee shall be reimbursed for the type of expenses listed under Travel Expenses. Employee on a temporary assignment to the site shall be entitled to reimbursement of expenses of returning (for personal reasons) to his permanently assigned location or equivalent distance and back to the site during the period of assignment provided the period of assignment is for two months or longer. Period of absence shall be considered approved leave and shall be limited to a reasonable period of time. KEN 002577