THIS AGREEMENT, made and entered into as of this
day of October, 1972, by and between COTTER CORPORATION, a New
Mexico corporation (“Cotter”) and B & K CONSTRUCTION COMPANY,
INC., a Missouri corporation (“B & K”) ;
WHEREAS, Cotter owns an amount of mineral residue
(the “Mineral Residue”) stockpiled at 9200 Latty Avenue,
Hazelwood, Missouri (the “Plant”), and
WHEREAS, Cotter and B & K desire to contract with’
regard to moving the Mineral Residue from the Plant and
restoration of the surface area of the Plant after such removal, and
WHEREAS, because much of the Mineral Residue consists
of radioactive materials, moving the same and restoration of
the Plant after removal may only be done under license (the
“License”) from the United States Atomic Energy Commission (the
WHEREAS, Ryckman, Edgerley, Tomlinson & Associates,
Inc. (“RETA”) consulting environmental engineers has, on
behalf of Cotter, applied to AEC for a License, such application
being in the form of .a “Proposal for Decontamination of Latty
Avenue Storage Site, Hazelwood, Missouri” (the “Proposal”),
a copy of which is attached hereto as Exhibit A,
NOW, THEREFORE, Cotter and B & K agree as follows: SE
I. WORK TO BE PERFORMED. COMPENSATION Zsn
1. As hereinafter used, the term “Work” shall
include all labor and the furnishing of any equipment, material, ~
supervision or advice necessary to perform the tasks described
herein and in the Proposal and the License.
2. All Work shall be performed strictly in accordance
with the Proposal and the License and under the supervision of
RETA, although such supervision by RETA shall not alter the
status of B & K as an independent contractor.
3. The Work shall consist of three categories,
which categories and the compensation to be paid B & K for each
are as follows:
a) Hauling of Radioactive Mineral Residue — the
cost of hauling and dumping all radioactive Mineral Residue
(including contaminated topsoil) at the Weldon Springs
dispoal area shall be $3.25 per ton.
b) Loading and Shipment of Mineral Residue — the
cost of loading Mineral Residue on rail cars for shipment
i) Per ton, $1.80 until 7500 tons have been
loaded and shipped and thereafter
ii) Per ton, 80£ for the balance.
•All shipments shall be C.O.D. Cotter’s siding, Canyon City,
c) Surface Restoration— any necessary surface
restoration and backfil will be compensated for by the ^
prices for the rest of the Work except that D & K shall ra.
be paid $1.85 per ton for procuring and dumping topsoil
if the stockpile of topsoil at the Plant is insufficient
for the purpose. 7
4. B & K agrees, if requested by Cotter/ to perform
any other jobs (“Additional Work”) requested by Cotter or
RETA which may. be necessary to restore the Plant as required
by the Proposal or the License and any such Additional Work
shall be compensated for on the basis of the cost thereof to
B & K plus a fee of 20%.
1. Cotter agrees, upon the execution and delivery
hereof, to advance B & K the sum of $10,000 (the “Advance”)
which amount will be in trust for application against costs
accruing to B & K in performance of the Work.
2. B & K will arrange for the renting of a scale
to be used at the Plant for the weighing of Mineral Residue
to be dumped at the Weldon Springs disposal area and for the
weighing of any topsoil to be dumped at the Plant by B & K.
The cost of use of the scale shall not exceed 2jzf per ton and
shall be paid by Cbtter.
3. B & K will arrange for the attendance of a bonded
and qualified scale operator to operate the scale at the Plant.
The cost of the scale operator shall be paid by B & K.
4. Not more frequently than weekly, B & K shall
draw on the Advance for the number of tons of Mineral Residue
or topsoil hauled, loaded, shipped or procured and dumped, as
the case may be. The amount of each draw shall be at the rate
specified in Article II of this Agreement for the number of
tons hauled or procured as reflected by weight tickets issued
by the scale operator at the Plant or by the railroad carrying
Mineral Residue. No part of the Advance shall be applied to
the cost of Additional Work.
5. Contemporaneously with each draw, B & K will
forward all weight tickets vouching for the amount of the draw
to Cotter. Cotter will, after verifying the amount of the
draw vouchered, reimburse B & K for 90% of the draw except
that, when RETA certifies that 85% of the Work has been done,
the retained amount of each reimbursement shall be reduced to 5%.
6. When B & K determines that the Work is substantially
complete, it shall prepare and submit to RETA a list of remaining
tasks to be performed. Upon certification by RETA to Cotter
of the accuracy of B & K’s representation of substantial
completion, Cotter shall pay B & K an amount which, when
aggregated with all payments previously made to B & K, shall
equal 95% of the aggregate of all draws approved by Cotter for
7. Upon certification by RETA that the Work has
been completed, Cotter shall make final payment to B & K, such
final payment to include all retained amounts. If the final
payment due is less than the amount then remaining in the Advance
account, B & K will reimburse Cotter accordingly.
III. INSURANCE –
1. B & K will, during the effectiveness of this
Agreement, carry adequate insurance for workmen’s compensation,
2E disability, employee bodily injury, occupational sickness or i—
disease, personal injuries and property insurance in addition to
any insurance required by the Proposal and the License.
2. Cotter will maintain its own liability insurance ^
to protect it against claims arising from operations under this
Agreement and property insurance covering the Plant.
IV. DEFAULTS AND TERMINATION
1. The following, in addition to any other occurrence
which may, according to law, be a default hereunder, shall
severally be termed events of default (or an “Event of Default”):
a) If B & K does not proceed diligently with
b) If the Work does not conform with the
requirements of the Proposal and the License.
c) If B & K files or suffers to be filed a
petition in bankruptcy or makes a general assignment
for the benefit of its creditors or suffers the appointment
of a receiver for all or any part of its property.
d) If B & K fails or refuses to make prompt
payment to any subcontractors, laborers or materialmen.
e) If the Work is stopped for a period
exceeding 30 days by an order of any court or administrative
agency of competent jurisdiction.
2. Upon the occurrence of any Event of Default as
that term is hereinabove defined, Cotter may order the Work
stopped whereupon B & K will cease performance and will remove
all of its property and equipment from the Plant. Cotter
shall thereupon have the right to complete performance of
the Work, or to arrange with another contractor for completion SE
of the Work. Retainage amounts shall be applied against the xs
cost of completing the Work to the extent that such costs
exceeds costs herein specified and B & K shall remain liable (_>en
for any damages attributable to its default. rva
V. MISCELLANEOUS PROVISIONS
1. B & K shall be responsible for maintaining and
supervising all safety precautions and programs in connection
with the Work, particularly those precautions and programs
specified by the Proposal and License.
2. In the event, during performance of the
Work, any changes in the Proposal or the License should occasion
an adjustment in costs apecified in Article I hereof, Cotter
and B & K agree to negotiate an adjustment in costs in good faith.
Whether or not a change in the Proposal or License occasions a
change in costs shall be determined by RETA. No change in costs
shall be made and all Work shall be performed at the costs
specified in Article I hereof unless Cotter and B & K have
previously agreed upon an adjustment.
3. B & K agrees to protect, indemnify and hold
Cotter harmless against all claims, damages, losses and expenses
(including attorney’s fees) arising out of or resulting from
performance of the Work but only to the extent that any such
claim, damage, loss or expense is attributable to:
a) Bodily injury, sickness, disease or
death, or injury to or destruction of property.
b) A negligent act or omission of B & K
or any of its subcontractors, agents and employees.
gtlg However, this indemnification shall not extend to any occasion p
JCa otherwise indemnified against to the extent such claim, damage,
loss or expense is attributable to actions taken by B & K in
accordance with the Proposal, the License, or instructions of <^ en Cotter or RETA provided that such is. the primary cause of the Co injury or damage. .;.-•... .. .. x -4» This Agreement shall be-governed-by the law. • •• .. - of the State of Missouri in all respects. 5. This Agreement shall not be assigned without the written consent of both parties hereto and Cotter shall have no obligation to recognize any assignment of any invoice or payment hereunder due from Cotter to B & K. 6. The rights and remedies specified herein shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise available in law or at equity. 7. Cotter shall furnish or cause to be furnished at the Plant the railroad cars required for loading of the Mineral Residue in accordance with a railcar schedule requested by B & K. 8. If required by the terms of the License or the Proposal, security guards shall be furnished by Cotter at Cotter's expense. 9. Any notices required or given in connection with this Agreement shall be valid and sufficiently made and given if mailed, postage prepaid as follows: To B & K, Attention: Robert S. Davis, Jr., Vice President 4140 Cypress Road St. Ann, Missouri 63074 To Cotter, Attention: Mr. David Marcott Box 751 Canyon City, Colorado 81212 Copies of any notices given hereunder shall also be given to s: Ryckman, Edgerley, Tomlinson & Associates, Inc., Attention: Mr. ' Phillip K. Feeney, Project Manager, 12161 Lackland Road, St. Louis, Missouri 63141. _ CjJ 10. If either party is unable, wholly or in part, en -=~ to carry out its obligations under this Agreement by Force Majure, -7- the party so unable to perform shall give the other party prompt written notice with a statement of the reasons why performance is impossible. Notwithstanding anything herein to the contrary, this Agreement shall not thereupon be terminated but the obligations of the party asserting the Force Majure, insofar as effected by the Force Majure, shall be suspended during the continuance thereof and so long as the party asserting Force Majure diligently seeks to correct the conditions making performance impossible. The term "Force Majure" as used herein, shall mean an act of God, strike, lockout or other industrial disturbance, act of the public enemy, blockade, riot, lightning, fire, storms, flood, explosion, governmental restraint, action by the United States Government through the AEC or any other agency regulating or interfering in any way with any of the parties' rights and obligations under this Agreement and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably under the control of the parties. IN WITNESS WHEREOF, this Agreement has been executed as of the day and year first above written. B & K CONSTRUCTION COMPANY, INC. Bv: '£-**> ^