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HomeMy WebLinkAbout8054RESOLUTION NO. 8054 A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND ASHLAND CHEMICAL COMPANY RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT AND AUTHORIZING THE TRANSFER OF LAND AND THE EXPENDITURE OF $739,000 THEREFOR FROM THE 1992 -2001 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND WHEREAS, Ashland Chemical Company has expressed a willingness to locate its business activities at the Pueblo Memorial Airport Industrial Park and has committed to employ one hundred thirty -two (132) full time employees, and WHEREAS, Ashland Chemical Company through the Pueblo Economic Development Corporation has made application for funds from the 1992 -2001 Sales and Use Capital Improvement Projects Fund and conveyance of land at Pueblo Memorial Airport Industrial Park, and WHEREAS, the land requested to be conveyed is surplus to the City's needs, and WHEREAS, the City Council is willing to approve such application for funds upon the terms and conditions set forth herein; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The City Council does hereby find and determine that Ashland Chemical Company's application for funds meets and complies with the criteria and standards established by Ordinance No. 5742 and will create employment opportunities justifying the expenditure of public funds. SECTION 2 The Agreement dated February 10, 1997 between Pueblo, a municipal corporation and Ashland Chemical Company and Warranty Deed attached thereto having been approved as to form by the City Attorney, are hereby approved. The President of the City Council is authorized to execute and deliver the Agreement and Warranty Deed in the name of the City and the City Clerk is authorized and directed to affix the seal of the City thereto and attest same. SECTION 3 Funds in an amount of $739,000 are hereby authorized to be expended and made available to Ashland Chemical Company out of the 1992 -2001 Sales and Use Tax Capital Improvement Projects Fund for the sole purpose of reimbursing it for the cost of the job creating capital improvement project described in the attached Agreement. The funds hereby authorized to be expended shall be released and paid by the Director of Finance to or for the benefit of Ashland Chemical Company after receipt (i) by the City Clerk of the documents required to be filed pursuant to paragraph 2(a) of the Agreement and (ii) by the Director of Finance of written requests for payment required by paragraph 2(c) of the Agreement. SECTION 4 This Resolution shall become effective upon final passage. ATTEST: City Cl INTRODUCED February 10, 1997 By Samlps„prspnti nn Councilperson APPROVED: President of t9e City ouncil 3:\ CTTY \AIRPOR7\ASHLAND \RESOLUTN.WPD -2 AGREEMENT THIS AGREEMENT entered into as of re bieK 0 R y 10 , 1997 between Pueblo, a municipal corporation (the "City') and Ashland Chemical Company, a division of Ashland Inc., a Kentucky corporation (the "Company "). WHEREAS, Company has expressed a willingness to locate its business within the Pueblo Municipal Airport Industrial Park, and in furtherance thereof has through the Pueblo Economic Development Corporation made application for funds and land with the City, and WHEREAS, the City has approved such application and will make funds and land available to Company subject to and upon the terms and conditions of this Agreement. 1. The following terms as used in this Agreement shall have the following meaning unless the context clearly indicates otherwise: "Employment Commitment Date" means July 1, 2000. "Facility" means the approximately 200,000 square foot manufacturing facility to be constructed by Company on the Property. "Full -Time Employee" means a person who performs work at the Facility for not less than thirty -two (32) hours per week whether employed by Company or by an outside entity acting as an agency to provide Full -Time Employees for Company. The term "Full -Time Employee" does not include independent contractors or employees of independent contractors except as described herein. "Quarterly Employees" means the sum of the number of Full -Time Employees on each business day of a Quarter divided by the sum of the business days in such Quarter. "Quarter" means three consecutive calendar months. "Property" means the approximately 37.38 acres of land located at Pueblo Memorial Airport described as Lots 6 and 7, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, Colorado. "Railroad Spur" means the railroad spur to be constructed by Company in accordance with plans and specifications to be approved by Company and City. 2. City will make available to or for the benefit of Company funds in the amount of $739,000.00 (the "City Funds'). Company shall spend or cause to be spent City Funds for the cost of the Facility, subject to and contingent upon: (a) Company filing in the office of the City Clerk copies of the following: (i) Company's certificate or other evidence of authority to transact business in the State of Colorado, (ii) certified copy of a Delegation of Authority given to David J. D'Antoni, President of Ashland Chemical Company and Senior Vice President of Company, providing him with authority to execute and deliver this Agreement in the name of Company, and (iii) evidence satisfactory to City that Company is diligently proceeding to construct the Facility and locate its business on the Property. The date of such filings is herein referred to as "Closing ". (b) City and Company acknowledge and agree that Company will engage either a general contractor or construction management team to construct the Facility and that all subcontracts for construction work on the Facility will be awarded after competitive bidding procedures which allow qualified local subcontractors a reasonable opportunity to participate in the competitive bidding procedures. (c) Company filing with the Director of Finance of City written request for payment certified by an officer of Company that the amounts included in the requests for payment have not been included in any prior request for payment and are for the actual cost of the Facility, identifying the costs for which payment is sought, including certificates of the architect and contractor that such improvements have been installed. 3. Company acknowledges that the primary purpose of City in entering into this Agreement and the sole benefit to the City for making funds available to Company hereunder is the creation of jobs. Therefore, Company represents and agrees that it will employ at the Facility one hundred thirty -two (132) Full -Time Employees (the "Employment Commitment") by the Employment Commitment Date and thereafter during the Repayment Period. 4. Notwithstanding anything contained herein to the contrary, if Company shall for any reason default in its Employment Commitment set forth in paragraph 3 hereof, Company shall repay to City a prorata share of the City Funds advanced by City under paragraph 2 hereof based upon the number of Full -Time Employees employed by Company at the Property (the "Repayment Obligation'), as follows: yZ (a) During the seven (7) year period starting on the Employment Commitment Date and ending eighty -four (84) months thereafter (the "Repayment Period ") Company shall pay to City an amount each Quarter equal to the Quarterly Employees less than one hundred thirty -two (132) employed at the Facility by Company multiplied by $199.95 (the "Company's Quarterly Payments "). For example, if for the Quarter ending June 2001 the Quarterly Employees is 100, the amount payable by Company to City on or before July 30, 2001 would be (132 - 100) x $199.95 = $6,398.40. Company's Quarterly Payments and Repayment Obligation shall in no event exceed the amount of City Funds advanced by City under paragraph 2 hereof. (b) Company's Quarterly Payments, if any, shall be paid to the City without notice, demand, deduction or setoff on or before the thirtieth (30th) day of the month after the end of each Quarter during the Repayment Period and for one month thereafter at the office of the Director of Finance of City, 1 City Hall Place, Pueblo, Colorado 81003. All past -due Company's Quarterly Payments shall bear interest at the rate of ten (10) percent per annum until paid. (c) Within thirty (30) days after the end of each Quarter during the Repayment Period and for one calendar month thereafter, Company will submit to City's Director of Finance Company's statements showing the Quarterly Employees for the preceding Quarter and the basis upon which Quarterly Employees and Company's Quarterly Payment were computed certified by an officer of the Company to be true and correct. For purposes of verifying such employment, City shall have access to Company's books and records including payroll records. City will, however, respect the right of employees and Company as to confidentiality of personnel records. All City Funds advanced to Company by City under this Agreement shall be deemed to be a debt of Company payable to City until Company performs and discharges its obligations hereunder including its Repayment Obligation contained in this paragraph 4. 5. (a) City Council of City may, in its sole discretion, relieve Company, in whole or in part, from Company's Repayment Obligation set forth in paragraph 4, if the City Council, after public hearing, finds and determines based upon competent evidence presented at such hearing that Company was prevented from complying with its Employment Commitment by reason of an act of God, or the elements, fire, explosion, strike, insurrection, riot, shortage or unavailability of materials, supplies or labor, interruption of transportation facilities, governmental laws, regulations or restrictions, or other causes beyond Company's reasonable control. The findings and decisions of the City Council shall be final and binding upon Company and City. -3- (b) Prior to instituting any proceedings to enforce Company's Repayment Obligation under paragraph 4, City shall notify Company in writing of its intention to institute such proceedings. If Company desires to seek relief pursuant to paragraph 5(a), Company, within twenty (20) days after receipt of City's notice, shall deliver to City its written request for relief specifying the grounds upon which such relief is sought. Within sixty (60) days after receipt of Company's request, City will schedule a hearing before the City Council and give written notice to Company of the time and place of such hearing. Failure of Company to timely deliver its written request for relief or to appear and submit evidence in support of its request at a scheduled hearing shall constitute a waiver of any right of Company to a hearing before City Council. (c) No delay or failure by City to exercise its right to enforce Company's Repayment Obligation, and no partial or single exercise of that right shall constitute a waiver of that right, unless the City Council otherwise expressly provides in its findings and decision made pursuant to paragraph 5(a). 6. If Closing does not occur on or before March 31, 1997, or such later date as Company and City shall mutually agree, this Agreement shall terminate and City and Company shall be released and discharged from all obligations hereunder. 7. Within thirty (30) days after Closing, City will convey title to the Property to Company by Warranty Deed substantially in the form and content of the Warranty Deed attached hereto as Exhibit A. Company and City agree that the Property will be conveyed and transferred by City and accepted by Company "AS IS" and "WHERE IS" without any representation or warranty by City as to the quality, quantity, or condition of the Property, either environmental or otherwise. Company at its expense will obtain all surveys and title insurance for the Property. Company acknowledges and agrees that (i) City owns the Property subject to restrictions, reservations and conditions ( "Restrictions ") in the deed to the City from the United States of America recorded in Book 1074, Page 87, Instrument No. 819072 of the records of the Pueblo County Clerk and Recorder, and (ii) the construction of the Facility and transfer and conveyance of the Property are subject to the prior approval of the Federal Aviation Administration (the "FAA ") and its issuance of all necessary permits and Deed of Release (in substantially the form and content attached hereto as Exhibit B) therefor. Upon receipt from Company of the necessary plans and description of the Facility, City will file all required applications and documents for FAA's approval, permits, and Deed of Release and will diligently pursue their issuance. 8. During a period of seven (7) years following the conveyance of the Property by City to Company, City, upon request by Company, shall promptly grant 10 and convey an exclusive easement to Company over and across property owned by City (the "Easement") for the purpose of the construction, installation, operation, use, maintenance or removal of the Railroad Spur providing egress and ingress of rail traffic from and to the Property. The Easement shall be subject to the same encumbrances, covenants, conditions, restrictions and reservations contained in the Warranty Deed, Exhibit A. The Easement area shall be comprised of the southerly thirty (30) feet of Lot 8, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, Colorado and such other property adjacent thereto owned by the City and reasonably required by Company for the purposes described above. The Easement shall be appurtenant to, imposed upon, applied to and run with the Property and the Easement area, provided, however, that in the event of abandonment of the Easement for a period of three (3) consecutive years or more, the Easement shall terminate. Company shall restore the Easement area including City's adjoining property damaged during Company's construction, repair or maintenance of the Railroad Spur, and upon termination of the Easement, to or near their original condition as reasonably possible. 9. In the event of any litigation arising out of this Agreement, the court shall award to the prevailing party its costs and reasonable attorney fees. All such litigation shall be filed in the District Court, County of Pueblo, State of Colorado and each party submits to the jurisdiction of that Court. To the extent allowed by law, each party waives its right to a jury trial. 10. This Agreement expresses the entire understanding of the parties and supersedes any and all prior dealings and commitments with respect to the subject matter of this Agreement and may not be amended except in writing signed by City and Company. 11. This Agreement shall be construed in accordance with and governed by the laws of the State of Colorado. 12. The covenants, representations and warranties made by each party herein shall survive the Closing for the benefit of the other party. 13. Company acknowledges and agrees that City reserves the right, without any obligation on its part to do so, to maintain and keep in repair the landing area of the airport and other public areas or facilities at Pueblo Memorial Airport and to develop, modify, change, relocate, abandon, or improve the Pueblo Memorial Airport, or any part thereof as it may determine in its sole and absolute discretion, at any time, and Company further acknowledges and agrees that City has not made, nor by any provision of this Agreement or Warranty Deed shall City be construed to have made any representation or warranty to the contrary with respect thereto. -5- 14. Any notices hereunder shall be sufficiently given if given personally or mailed by first class mail, postage prepaid, addressed: (a) if to City: City Manager City of Pueblo 1 City Hall Place Pueblo, Colorado, 81003, or (b) if to the Company: Ashland Chemical Company, a division of Ashland Inc. Attention: General Counsel 5200 Blazer Parkway Dublin, Ohio 43017 with a copy to: Ashland, Inc. Attention: Director of Corporate Real Estate P. O. Box 14000 Lexington, Kentucky 40512 or to such other address as either party shall specify in written notice given to the other party. 15. Time is of the essence hereof. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns provided Company may not assign this Agreement or any interest herein without the express written consent of the City, which consent shall not be unreasonably withheld, conditioned or delayed. Any assignment or attempted assignment of this Agreement or any interest herein by Company without such consent shall be null and void. Notwithstanding the foregoing, City may withhold its consent to an assignment by Company to a third party which, in the discretion of the City, reasonably exercised, is not financially or otherwise capable of performing Company's commitments and obligations under this Agreement. 16. The person signing this Agreement and Warranty Deed on behalf of Company represents and warrants that such party and Company have the requisite power and authority to enter into, execute, and deliver this Agreement and Warranty ME Deed and that this Agreement and Warranty Deed are valid and legally binding obligations of Company enforceable against Company in accordance with their terms. 17. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Executed by City and Company as of the day and year first above written. [SEAL] PUEBLO, A MUNICIPAL CORPORATION ATTEST: By: �• City 61erk President o the Ci Council ASHLAND CHEMICAL COMPANY, a divisjQn of Ashland Inc. ATTEST: h F By: / / By: Title 1T l S� c C �P� Title: Seni Vice President -7- . reception #: 1161810 Date: D 3Feec19970.00 Time: SC: egg. 2 Pueblo I TD R Fee: 25.0 WARRANTY DEED THIS DEED, made this 1 Ot -h day of FPhniar , 199Z, by and between Pueblo, a Colorado Municipal Corporation, (herein "City ") and Ashland Inc., a Kentucky corporation, (herein "Company "), WITNESSETH: That City for and in consideration of the sum of $10.00 and other good and valuable consideration to City in hand paid by the Company, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey and confirm unto the Company, its successors and assigns forever, all the real property situate, lying and being at Pueblo Memorial Airport, County of Pueblo, State of Colorado, more particularly described as Lots 6 and 7, Pueblo Memorial Airport Industrial Park Subdivision (herein "Property "), with all its appurtenances, and warrant the title to the same, subject to easements, rights of way, conditions, restrictions and reservations of record and easements for existing utilities, sanitary sewer, water, irrigation and natural gas lines on, over or under the Property and to the following covenants, conditions, and restrictions which are and shall be construed to be covenants running with the land described herein and binding upon the Company, its successors and assigns and inuring to the benefit of the City, its successors and assigns. 1. City reserves unto itself and its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Property, together with the right to cause in the airspace above the surface of the Property such noise as be inherent in the operation of any aircraft now known or hereafter used for navigation of or flight in said airspace, and for use of the airspace above the surface of the Property for landin- on, taking off from, or operation on or over the Pueblo Memorial Airport. 2. Company expressly agrees for itself, its successors and assigns to restrict the height of structures, objects of natural growth and other obstructions on the Property, to a height of not more than 4,700 feet above the mean sea level. In the event this covenant is breached, City reserves the right to enter upon the Property and at the expense of the Company to remove the offending structure or object and to cut the offending growth. 3. Company expressly agrees for itself, its successors and assigns, that it will prevent any use of the Property which would interfere with landing or taking off of aircraft at the Pueblo Memorial Airport, or otherwise constitute an airport hazard. 4. The Property and its use are further subject to the following Restrictive Covenants: -, , Book: 2980 Page: 101 Chris C. Munoz Page: 2 of 5 Pueblo Co.C1k.&Rec. (a) The Property may be used only for manufacturing purposes and incidental office uses. The Property shall not be used for smelting or plating operations, or for the storage or processing of putrescible materials, or for any purpose or business which constitutes a nuisance, or which exceeds the state air pollution control standards for the facility on the Property. Gasoline or diesel fuel used in connection with the business conducted on the Property, but not for sale at retail or wholesale, may be stored on the Property in an environmentally sound manner. (b) Outdoor storage shall not be permitted except for storage of equipment, chemicals, liquids and other materials generated in or used in the Facility, to include but not be limited to such storage in above - ground tanks or vessels, in compliance with applicable environmental laws. (c) The Property shall not be subdivided and no building or structure over sixty (60) feel in height shall be installed or constructed on the Property. (d) No structure or building shall be constructed or installed nearer than sixty -five (65) feet of the right of way line of William White Boulevard, or twenty -five (25) feet of the right of way line of any other abutting streets. There must be installed and maintained a minim thirty -five (35) foot strip of living landscaped ground along and adjacent to William White Boulevard, and twenty -five (25) feet adjacent to other abutting streets. Minimum side yards set -backs shall be twenty -five (25) feet. (e) Company shall keep and maintain the Property and all buildings, landscaping and improvements located thereon in a good, clean, safe and orderly condition free of waste, rubbish, debris and trash, and enclose and screen from public view all outside storage areas of the Property. (f) Company shall comply with notifications and review requirements of the Federal Aviation Administration prior to the construction, modification or alteration of any building or structure on the Property. (g) Company shall, at its own expense, cause all utilities and roads used or to be used on the Property to be extended from adjacent streets, installed on the Property, and kept and maintained in good order and condition. Parking areas for vehicles and roads on the Property shall be paved. (h) Company shall pay to City a combined service fee for services and facilities now furnished by City at the Pueblo Memorial Airport, namely: public street maintenance, fire protection, and street lighting based upon $295.00 per acre per annum payable monthly for each acre of land conveyed to Company hereunder. City may, from time to time, reduce or eliminate any or all of the services or facilities presently being furnished and may modify, increase, or decrease the annual combined service fee provided (i) such services and fee shall be nondiscriminatory among other owners of land at Pueblo Memorial Airport IPA Book: 2980 Page: lOP Chris uebloCo.C Page: 3 of 5 receiving such services and facilities, and (ii) such fee shall be reasonable in relation to City's actual cost and expense of furnishing the services and facilities then being furnished. City's cost may include the cost of capital improvements amortized over the useful life of the improvements. If waste water discharged from the Property is transported to and treated at City's waste water treatment facilities, Company and the waste water so transported and treated are subject to the same restrictions, limitations, conditions, fees, and charges as other users of City's sanitary sewer system and facilities. (i) Company shall provide for storm water drainage which shall include the construction and installation of storm water detention facilities on the Property. The detention facility shall be capable of storing the developed on -site runoff from a 100 -year frequency storm The maximum release rate from the detention facility at the ponding depth corresponding to the 100 -year volume shall be .30 cfs /acre and 1.00 cfs /acre for the 100 -year ponding depth. All calculations and details shall conform with the City of Pueblo Storm Drainage Criteria Manual. The point of discharge from the detention facility shall be at a location approved by the Director of Public Works. 0) Before commencing the construction, installation or alteration of any building, structure, parking facility, outdoor sign, or other permanent improvement, or landscaping on the Property, the Company shall submit to and have approved by the City in writing the site plans and plans and specifications therefor. City's approval will not be unreasonably withheld. In the event the City or its designated representatives shall fail to approve or disapprove such plans and specifications within twenty -five (25) working days after they have been submitted to the City, such approval will not be required and this covenant will be deemed to have been complied with. Company shall use its best efforts to assure that all buildings constructed on the Property will be architecturally and aesthetically compatible with buildings constructed at the Pueblo Memorial Airport Industrial Park since 1985. All buildings, improvements and activities on the Property shall be constructed and conducted in compliance with all applicable federal, state and local law, regulations and codes. (k) City reserves the right to waive all or any part of these Restrictive Covenants. 5. This Warranty Deed and conveyance of the Property to Company are made upon the express condition that Company will construct and equip on the Property an approximately 200,000 square foot manufacturing facility (the "Facility ") within two (2) years after the date of this Warranty Deed. If Company does not substantially construct and equip the Facility on the Property within two (2) years after the date of this Warranty Deed, City will have the right of re -entry for nonperformance of this condition and will be entitled to a reconveyance of the Property and delivery of exclusive possession thereto. In that event, Company's reconveyance and delivery of exclusive possession to City of the Property will be conveyed by Special Warranty Deed and will be free and clear of all claims, liens and encumbrances which would be enforceable against the Property and which are attributable to the acts or omissions of Company or those claiming through Company. The two (2) year -3- Book: 2980 Page: 103 Chris C. Munoz Page: 4 of 5 Pueblo Co.C1k.&Rec. period specified above may be extended by instrument duly executed and acknowledged by Company and City and recorded in the records of the Pueblo County Clerk and Recorder. 6. At the request of City, Company shall meet and in good faith confer with City concerning the annexation of the Property to the City when the Pueblo Memorial Airport, or any part thereof, including without limitation the Property becomes eligible for annexation. 7. Invalidation of any one of the foregoing covenants, conditions, restrictions or reservations by judgment or court order or otherwise shall not affect any of the other of said covenants, reservations, restrictions or conditioris which shall remain in full force and effect. 8. City shall have the right to enforce the restrictions, covenants and conditions sr Of bps• niunction or other lawful procedure and to recover damages, costs, expenses, including're attorney fees, resulting from any violation thereof or arising out of their 6nforcemegr, ' .. [ .L �- - �v 116 ATT ST: �. .Assistant SecFetary City Cl ASHLAND INC. 1e B Title: Vice President PUEBLO, a Colorado Municipal Corporation By: G Gt President o the City Council C! Fayette COUNTY OF ) CC MONWEALTH OF FEN'1'UCRY ) SS Book: 2980 Page: 104 Chris C. Munoz Page: 5 of 5 Pueblo Co.clk.&Rec. The foregoing instrument was acknowledged before me this / T day of MOLR A 1991 by 'R. SAwRRN as V1ce — R ReS+6ew and Tmn - rhy S. V as Assistant Secretary of Ashland Inc., a Kentucky corporation. Witness my hand and official seal. My commission expires: Notary PL) C. r,G ;, , A, Largo y t Exp1, J -nmary 6, 2001 LM • O�r�� Notary Public •� * [S �I0TA� r. Ar ,.4T =�6�. •• COUNTY OF PUEBLO ) ) SS STATE OF COLORADO ) The foregoing instrument was acknowledged before me this � ad day of d-rd\ , 199 by . `Q as President of the City Council and as City Clerk of Pueblo, Colorado, a Municipal Corporation. Witness my hand and official seal. My commission expires: (0 17 f3 TA,? F C O V tary Public -5- EXHIBIT B DEED OF RELEASE Thin instrument; it Deed of Release, made by,the United States of America, sauna by and thmush the Federal Aviation Administration, under rind pursuant to the ewers and authority contained in the provisions of Public Law 81-311 (63 Scat. 7Ed), u amended, to the City of Pueblo, a body politlo under the laws of the State of Colorado, W1tIICSxeC� . WHEREAS, The United States of America, acting by and throuGh the War Aascta Administrator, under and pursuant to Reorganization Plan One of 1947 (12 Fed. Rcg, 4534) and the powers and authority contained in the provisions of the Surplus Property Act of 1944, as amended, by Instrument endued "Quitclaim Deed," dated.July 20, 1948, and recorded in Pueblo County, Colorado, In book 1074, page 87, did surrender, transfer, re'ne, reiexse, quitclaim and convey to the City of Pucblo, Colorado, airporr fxcilitles commonly known and designated as Public Memorial Airport, subject to �crtain conditions, reservatians, e and restrictions: and. . WHEREA The City has requested the FAA to execute a . Agreement of Release, whereby it would release the said described property from all the reservations,. restrictions, and conditions is set forth in the said Agreement; and WHEREAS, The City Intends to dispose of said land ' Eme and clear of rho reservations, restrictons, and conditions and rcccive other valuable consideration therefor. NOW THEREFORE, For and In coasideradon of the above - expressed recitals and of the bcneflts to accrue to the United States and to civil aviation, the United States of America upon inclusion by the City of Fur.blo, Colorado, in the Instrumcnit of Transfer conveying title to the hcreineer described rral ' roperry of provisions as follows: (1) That the City oi" Pueblo, Colorado, reserves unto itself, its successors and assigns, for' the use and benefit of the public a right of flight for the passage of aircraft in the airspaoc abuvC the surfkce of the real property hereinafter described, together with the rietit ; co cause In said airspace such noise as may be inherent In -14- Z ,k the operation of aircrA now known or hereafter used, for navigation of flight in the said airxpace, anI morial or use of said airspace for landing on, taking off from oar operating on Puebla Airport (2) Thar the Grimmt expressly agrees for ltsel� its successors and assigns to restrict the height of structures, objects of natural growth and other obstrucdons on the horeinwftcr dcsorlbcd rcat property to a height of not more than 4,700 f6t above sca !cure!, (3) Than the C3run a expressly ags for it3e14 Its successors and assigns to prevent any use of thl ree hereinafter described real property which would interfere with,landing or, taking off of aircraft at the Pueblo Memorial Airport, or otherwise consdtutr. an airport hs>md, hereby releases the mid real property 11om the conditions, reserVations and -restrictions as eontaina~d In the above - mentioned Instrument of Transfer fiom the United states of America to the City of Pueblo, Colorado, dated July ?Q, 1948, which real property is describcd as fbllows; A parcel of land located within the County of Pueblo, State of Colorado, to wit: -15- By its acceptance of thLs Deed of Release the City of Pueblo, Colorado, covenants - and &grew for itself its successon and assigns, to comply with and observe all of the (:ondisions and lhnitatlons hereof, which 'are expressly limited to the above - described real Property. IN WITNESS )VEREOF the United States of America has oaused this Deed of Release to be executed m of the _ _ day of — 19_, UNITED STATES OF AMERICA M$knagmr, Alrp its Dlvislon Northwest Mount*ln Region Federal AYlation Adttminfstratfod 'Accepted: .City of POW, Colorado By -16- Ashland qq qEEW W ASHLAND INC. - P.O. BOX 14000 - LEXINGTON, KENTUCKY 40512 - PHCNE C605) 057 -7777 W. MIKAIL LOAR General Manager Corporate Real Estate Department Telephone: (606) 357 -7527 Facsimile: (606) 357 -7869 E -Mail: wmioar@ashland.e-mail.com February 25, 1997 Via UPS Thomas E. Jagger, Esq. Office of City Attorney 127 Thatcher Building Pueblo, Colorado 81003 FEB 2 6 Re: Agreement - Pueblo / Ashland Inc. Chemical ECD Facility Dear Mr. Jagger: Please refer to Paragraph 2(a) of subject Agreement regarding the "Closing ". In compliance with Ashland Inc.'s filing requirements as set forth in this Paragraph, I am attaching the following: 1. Ashland Inc. Assistant Secretary's Certificate dated February 21, 1997 regarding Power of Attorney given to D. J. D'Antoni, et al. 2. State of Colorado Department of State Certificate dated February 4, 1997 as to the good standing of Ashland Inc. 3. Copy of Ashland Chemical Purchase Requisition No. 046270 -80820 dated January 18, 1997 issued to E. E. Reed Construction Company for site development at Pueblo. 4. Copy of Ashland Chemical Purchase Order No. 46270 -80820 dated February 21, 1997 issued to E. E. Reed Construction Company regarding site development and construction at Pueblo. 5. Copy of Contract for Labor, Supervision and Materials dated March 1, 1995 by and between Ashland Chemical Company and E. E. Reed Construction Company. February 25, 1997 Page Two Upon Pueblo's receipt of the Deed of Release from the FAA, we would like to proceed toward consummation of the conveyance of the Pueblo property to Ashland Inc. Please contact me as soon as possible so we might arrange for this conveyance. If you have any questions, please feel free to call me. Very truly yours, W. Mikail Loar cc: James Spaccamonti (via facsimile) President - PEDCO 301 North Main Street Pueblo, Colorado 81003 H. Crome D. R. McCune M. Pregent W. R. Palmer r ASHLAND INC. Assistant Secretary's Certificate I, Thomas F. Davis, an Assistant Secretary of Ashland Inc., a Commonwealth of Kentucky corporation (the "Corporation), do hereby certify as follows: 1. Attached as Exhibit A is a true, correct, and complete copy of Article V, Section 4 of the By -laws of the Corporation as in effect on the date hereof and as the same have at all times been in effect without amendment, waiver, rescission or modification since September 19, 1996. 2. Attached hereto as Exhibit B is a true and correct copy of resolutions duly adopted by the Board of Directors of the Corporation at a meeting duly called and held on September 19, 1996; at such meeting a quorum was present and acting throughout; and such resolutions have not been amended or rescinded and are in full force and effect on the date hereof. 3. Attached hereto as Exhibit C is a certificate of incumbency setting forth the names, titles, and facsimile signatures of certain officers and agents of the Corporation, and such officers and agents have held such positions since on or before October 1, 1996. 4. Attached hereto as Exhibit D is a true, correct, and complete copy of a Power of Attorney, dated as of January 1, 1997, from Paul W. Chellgren, President and Chief Executive Officer of the Corporation, to D.J. D'Antoni, T.F. Davis, J.A. DuQuin, R.K. Fleming, and W.R. Palmer, and such power has not been amended, rescinded, or revoked and is in full force and effect on the date hereof. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the Corporation on this 2Ay of February , 1997. e Thomas F. Davis Assistant Secretary [SEAL] TFD:DRM:O1S2839 EXHMI r A SECTION 4. Duties and Functions. (A) Chairman of the Board. The Chairman of the Board, if' present, shall preside at all meetings of the shareholders and the Board. If designated by Board resolution, he shall be Chief Executive Officer of the Corporation, and if so designated, shall be vested with executive control and management of the business and affairs of the Corporation and have the direction of all other officers, agents and employees. He shall perform all such other duties as are incident to the office or as may be properly required of him by the Board, subject in all matters to the control of the Board. (B) lice Chairmen of the Board. The Vice Chairman of the Board with seniority of office, in the absence of the Chairman of the Board, shall preside at all meetings of the shareholders and the Board. Each Vice Chairman of the Board shall have such power,, authority and duties as may be delegated to him from time to time by the Board or the Chairman of the Board. (C) The President. The President. in the absence of the Chairman of the Board and all the Vice Chairmen of th-- Board. shall preside at all meetings of the shareholders and the Board. If designated by Board resolution, he shall be Chief Executive Officer of the Corporation. and if so designated, shall be vested with executive control and management of the business and affairs of the Corporation and have the direction of all other officers, agents and employees. He shall have such power,. authority and duties as may be delegated to him from time to time b% the Board or the Chairman of the Board. (D) E.terutirc IJc•e Presidents. The Executive Vice Presidents shall have such powers. authority and duties as may be delegated or assigned to them from time to time by the Board. the Chairman of the Board, anv Vice Chairman of the Board or the President. (E) Senior l ire Presidents. The Senior Vice Presidents shall have such powers. authority and duties as may be delegated or assigned to them from time to time by the Board. the Chairman of the Board. any Vice Chairman of the Board or the President. (F) Admi ;r.cnarire lira Presidents. The Administrative Vice Presidents small have such powers. authority and duties as ma\ be delegated or assigned to them from time to time b% the Board. the Chairman of the Board. anv Vice Chairman of the Board or the President. (G) I ire Presidcnr.r. The Vice President, shall have such powers, authority and duties as may be delegated or assigned to them from time to time by the Board. the Chairman of the Board. an Vice Chairman of the Board or the President. (H) Scrrcrar.r. The Secretary shall attend to the giving and serving_ of all notices required by la" or these B\ - lays: shall be the custodian of the corporate seal and shall affix and attest the same to all papers requiring it: shall have responsibility for preparing minutes of the meetings of the Board and shareholders: and shall in general perform all the duties incident to the office of the Secretary. subject in all matters to the control of the Board. (1) Treasurer. The Treasurer shall have custody and control of the fund, anti securitie, of the Corporation and shall perform all such other duties as are incident to hi, office or that ma\ 110 prOt)erl\ required of itim i)\ the Board. the Chairman of the Board, any Vice Chairman of the Board or the President. (J) Comroller. The Controller shall maintain adequate record, Of all asset,. liabilities and transaction, of the Corporation: shall see that adequate audits thereof are currently and re;_ularl\ made: shall have general supervision of the preparation of the Corporation's balance sheets. inconic accounts and other financial statement, or records: and shall perform such Other dutie, as shall. from time to time. be assigned to him h\ the Board. the Chairman of the Board. any Vice Chairman of the Board or the President. These duties and pokers shall extend to all subsidiary corporations and so tau as the Board. the Chairman of the Board. any Vice Chairman of the Board or the President may deem practicable. to all affiliated corporations. !Kt Auditor. The ALldi[Or shall revie%% the accounting. financial and related operations of the Corporation and shall be responsible for measuring the effectiveness of various control, established for the Corporation. Hi duties shall include. �yithout limitation. the appraisal of procedure,. verifying the extent of compliance with formal controls and the prevention and detection of fraud or dishonesty and such other duties as shall. from time to time. he assigned to him by the Board. the Chairman Of the Board, any Vice Chairman of the Board or tine President. These duties and po\%ers shall extend to all sub,idiar\ corporations and so far as th Board. any Chairman of the Board. any Vice Chairman of the Board or the President may deem practicable. to all affiliated Corporations. V EXHIBIT B EXCERPT FROM MINUTES OF DIRECTORS' MEETING ASHLAND INC. September 19, 1996 Next, Chairman Hall announced that he felt it was appropriate that the Board entertain a motion to elevate Mr. Chellgren to the position of Chief Executive Officer 5134 effective October 1, 1996. He asked Mr. Feazell to further explain what was required to carry out this action. Mr. Feazell explained that an amendment to the By -laws was required in order to transfer the CEO responsibilities from Chairman to President. Also, the Board will need to adopt a resolution changing the existing Financial Approval Authority. Finally, the Board should adopt a resolution empowering the Core Group (in addition to Mr. Chellgren as CEO) to take certain action necessary to run the Corporation on a day -to -day basis. Thereupon, after a period of discussion, on motion duly made and seconded, the following resolutions were unanimously adopted: AMENDMENT TO THE BY -LAWS RESOLVED, that Section 4 of Article V of the By -laws is hereby amended to read as set forth on Exhibit A; RESOLVED, that pursuant to Section 4 of Article V of the By -laws, the President is hereby designated as the Chief Executive Officer of Ashland effective as of October 1, 1996. 'EXHIBIT A Subsections (A) and (C) of Section 4 of Article V of Ashland's By -laws are hereby amended to read as follows: (A) The Chairman of the Board. The Chairman of the Board, if present, shall preside at all meetings of the shareholders and the Board. If designated. by Board resolution, he shall be Chief Executive Officer of the Corporation, and if so designated, shall be vested with executive control and management of the business and affairs of the Corporation and have the direction of all other officers, agents and employees. He shall perform all such other duties as are incident to the office or as may be properly required of him by the Board, subject in all matters to the control of the Board. (C) The President. The President, in the absence of the Chairman of the Board and all Vice Chairmen of the Board, shall preside at all meetings of the shareholders and the Board. If designated by Board resolution, he shall be Chief Executive Officer of the Corporation, and if so designated, shall be vested with executive control and management of the business and affairs of the Corporation and have the direction of all other officers, agents and employees. He shall have such powers, authority and duties as may be delegated to him from time to time by the Board or the Chairman of the Board. r ASHLAND INC. Certificate of Incumbency and Specimen Signatures JOHN R. HALL Chairman of the Board N PAM W. CHELLGRIN President and Chief / Executive Officer i J. NA.RVIN QJIN Senior Vice President and Chief Financial Officer IMES R. BOYD Senior Vice President; Group Operating Officer JOhi1 A. EROTHERS Senior Vice President, Group Operating Officer DAVID J. D'AMIONI Senior Vice President; President, Ashland Chemical Company r til THCMAS L. FEAZELL Senior Vice President, General Counsel and Secretary JO -?v F. P=1 US Senior Vice President; President, Superkr�erica Group 0-1;nRLES F. POTTS Senior Vice President; President, APAC, inc. G. T_ WILKINSON Senior Vice President; President, � Ashland Exploration, Inc. /' ROEERT E. YANCEY, JR. Senior Vice President, Group Operating Officer; President, Ashland Petroleum Company HARRY M. ZACHEM Senior Vice President 1 �,� �• RENN'r'I'H L. AL'LIN Administrative Vice President and Controller PHILIP W. BLOCK Administrative Vice President �� JOHN W. DANSBY Administrative Vice President and Treasurer SEAN T. CRID24INS Vice President and General Tax Counsel WILLIAM G. HADDEL ND Vice President (4 Il I', �. • _lam f. AI /v_ Y, .f l A WIL'-LZ M P. HARM Vice President JAMES D. LACY ANDREW C. MEKO JAMES J. O'BRIEN CARL A. PECKO WILLIAM R. SAWPU N JP2.1ES G. STIEPHENSON TIMOTHY J. BERRY TH.dYMS F. DAVIS PAUL S. MEYER RIC:� -uRD P. THO? AS T. CODY WALES J. MIC-1AEL WILDER LILLIAN D. WILLIAMS CHARLES M. H —MRICK DANIEL B. HUFIR�IAN C .ARLES H. SEAL JAMES D. NE ;Q4AN FRED E. LUTZEIER Vice President Vice President Vice President; President, The Valvoline Company Vice President Vice President; President, Ashland Services Company; Chief Information Officer Vice President - Law Assistant Secretary Assistant Secretary Assistant Secretary Assistant Secretary Assistant Secretary Assistant Secretary Assistant Secretary Assistant Treasurer Assistant Treasurer Assistant Treasurer Transfer Agent Auditor i EXHIBIT D LIMITED POWER OF ATTORNEY ASHLAND INC. to D. J. D'ANTONI, T. F. DAVIS, J.A. DuQUIN, R.K. FLEMING, and W. R. PALMER Dated January 1, 1997 Expires June 30, 1997 KNOW ALL MEN BY THESE PRESENTS: That ASHLAND INC., a corporation organized and existing under the laws of the Commonwealth of Kentucky (the "Corporation ") acting by and through its duly authorized President and Chief Executive Officer, Paul W. Chellgren, has and does hereby appoint D. J. D'Antoni, T. F. Davis, J.A. DuQuin, R.K. Fleming and W. R. Palmer, or any of them, its true and lawful Attorneys -in -Fact with power and authority, for and on behalf, and in the name of, the Corporation, during the period hereinafter specified and subject to the restrictions and limitations set forth in this power, to make, execute and deliver, any and all agreements, deeds, mortgages, bills of sale, and other related instruments and documents in connection with the location of an Electronic Chemicals Division facility within the Pueblo Colorado Municipal Airport Industrial Park, with certain funding and land being made available to Ashland through the Pueblo Economic Development Corporation and the City of Pueblo, on such terms and conditions as any of them may approve, such approval being evidenced by such attorney's execution of any of the documents previously listed. Such attorney shall also have the power and authority to do and take all action as might be necessary or advisable with respect to the closing of the transaction hereinabove described. This Power is subject in any case and in all matters to the control of the Chief Executive Officer of the Corporation, and the right of the Chief Executive Officer to revoke this power, upon written notice to the Attorneys filed with the Secretary of the Corporation. The Attorneys herein designated shall be authorized to act hereunder from the date hereof only so long as such Attorneys shall remain an employee of the Corporation or a subsidiary of the Corporation, or until June 30, 1997, or until such time as this instrument has been revoked, annulled, and set aside by an instrument of revocation whichever may first occur. IN WITNESS WHEREOF, the Corporation has caused this Power of Attorney to be executed on its behalf, and its Seal to be affixed and attested in the County of Greenup, Commonwealth of Kentucky, as of the 1st day of January, 1997, by the undersigned, Paul W. Chellgren, duly authorized President and Chief Executive officer of the Corporation, and Thomas L. Feazell, duly authorized Secretary of the Corporation. ATTEST: Thomas L. Feazell /"; Secretary DRM:poj :01.532836; 010'796 ASHLAND INC. By: - q . Paul W. Chellgren President and L \` Chief Executive Officer i I I I A 1111111't1w111 According to the records of this office ASHLAND INC. (KENTUCKY CORPORATION) file # 871045439 was filed in this office on MARCH 22, 1951, and has complied with the applicable provisions of the laws of the State of Colorado and on this date is in good standing and authorized and competent to transact business or to conduct its affairs within this state. Colorado hereby certify that PURCHASE REQUISITION PAGE QUALITY ASSURANCE REQUIRED BY AFE NUMBER DETAIL PREFIX ACCOUNT SUFFIX R/C CODE Hugh R Crome 366203 56001 366203 130002 784 039609 LOCATION DEPARTMENT DATE REQUISITION NUMBER Dublin, Oh Engineering 01/18/97 046270 -80820 SUGGESTED VENDOR SHIP TO EE Reed Construction Company Ashland Chemical Company 1001 Capital of Texas Hwy, So WILLIAM WHITE BOULVARD Suite 222, Bldg M PUEBLO CO 81107 Austin TX 78746 Contact: Pat Norman (S12) 306 -8888 Fax: ( 512 ) 306-8889 ATTENTION: Hugh R Crome E#: 5130 TERMS F.O.B. VIA FREIGHT RATE STATE TAX SHIP ON ARRIVE ON ® EXEMPT r CHARGE QUANTITY CODE DESCRIPTION UNIT PRICE 1 Lot 02 Provide all necessary materials, labor, and supervision for the site development, construction of the building shell including HVAC, plumbing, fire protection, nc. other miscellaneous work as determined in the scope cf work shown on construction documents prepared under Purchase Order #10959- 80808. The Contract Drawing list and scope document will become part of this contract when finalized by receipt of a building permit from the City of Pueblo. The contract is on a not to exceed basis. The contractor will invoice all direct costs with a 7.80% addition for overhead and fee. All savings from the not to exceed amount will be shared 50/50 between Ashland Chemical and the contractor. Do not show contract amount on Purchase Order. Purchasing to add comments 015, 356, and 364. Is a contract required for this order? ❑ YES O NO If a quotation was obtained, was more than one requested? ❑ YES ❑ NO Has a quotation on this requisition been obtained? ❑ YES _ NO If low bid is not acceptable or if only one quotation was obtained, explain: If no quotation, why? ❑ Catalog price used ❑ Verbal price obtained ❑ Insufficient time ❑ Specifications incomplete ❑ Item /service proprietary COPY OF REQUISITION TO CONFIRMS TO DATE ❑ CONFIRMING PROJECT TITLE OR NEEDED FOR THIS PURPOSE ENGINEERING ASSIGNMENT NO. New Plant - Pueblo, CO 5130 ORIGINATED BY \ - CATEGORY CODE APPROVAL SIGNATURE (MUST HAVE F.A.A.I Hugh R Crome {% 005 EMPLOYEE NO. SE N A APPROVAL IIF HEQUIREDI \ v -.. , -=10. THIS PURCHASE ORDER constitutes an offer by ASHLAND CHEMICAL Ashland Chemical COMPANY ( "BUYER ") to purchase from "SUPPLIER" (as indicated below) the goods described herein upon the TERMS AND CONDITIONS CON - Ashland Chemical Company TAINED ON THE FACE AND BACK HEREOF. Di 4og �f � blan� 6 2 0 PI,..._..I SEE BELOW E E REED CONSTRUCTION COMPANY 1001 CAPITAL OF TEXAS HIGHWAY SOUTH SUITE 222 BLDG M AUSTIN, TX 78746 NET 30 DAYS 1 ills numuet IIII 1 appear on al packages, correspondence, invoices packing lists, Bills of Lading (followin( the description of Articles). PURCHASE ORDER NO. 46270 -80820 PAGE 1 DATE FEB 21 , 1997 ASHLAND CHEMICAL COMPANY ECD LOCATION WILLIAM WHITE eCULEVARD PUEBLO$ CO 81107 L ATTN: HUGH CROME) E5130 HIP TO A I1 I V SALES OR USE TAX 05/21/97 SEE aELOW I JOBSITE ( Inls UIIer snail Ile Jc Ceplea Only by file ex cluslve rneoloas ano on In(! feints .ivo cunniuons Set twin Mellon. ,Ind any UHUtlH I'` I.tU by ntempled R l e Sl am P. ) I c ce p a m Ih ht"s oilulher roan one specified Below snail hive no I e ss I of er ns effect w d IF SLIER desuys m a lq er and to conlrarl Willi BUYER uu nn Inc xp nn;e e .In r,unoiUOns contained rusty l then JUPPUt R snarl (,it execunf ana return to BUYER wnhoul any ni,,ahnn wnalsuevtn a copy of me P,nchase 1 UPP Otdet. nr fur ;hlo goods to nnulg to file desbnptlon and specifications set Imfh above plovwild however. Ihal this S U LL I VAN T IMOTHY P . Veer a valtrl for a,IUteen I1 1) days lnun le date hereof runless ntherwlse nrovlded abuvel and d not ,Incepted by A S H L A N C H E �) I C A L C O M P A N Y iUPFLIER w 11u such bole. it ;hah exprle ana be r8Yuked end BUYER pilau have nn obhgalurn wile Iespecl Iu any snhseoln nM atlelnok"I accenianc, it flits Utter by SUPPLIER P O B (] X 2 2 1 4 1 IF '01'PI If It eu ufrs nut ntlunls to BUYER I eupv ut It Pn n'nas„ II„PS H,ln Inv III in s of nooini woos .nats+teve ,m.n anetenIns ,, II n1wauons snad be deenteu olupasals to 11 ml, P�nduse Ulder ano ' Bah be C D L U M B U S, 0 H 4321 6 dccepled b/ ; EH only DY a written aCknowledgernenl executed by BUYER ;oenln[Jlly relenng to suds alterations or Inoddicabalts 614-7q0-31 1 2 E X T 3112 1324 nnTr• QUANTITY ORDERED ACI ITEM/ PROD.CODE DESCRIPTION OF GOODS PRICE TO PROVIDE LABORI SUPERVISION AND MATERIAL FOR THE SITE DEVELOPMENT, CONSTRUCTION OF THE BUILDING SHELL INCLUDING HVAC, PLUMBING, FIRE PROTECTION, AND OTHER MISCELLANEOUS WORK AS DETERMINED IN THE SCOPE OF NORK SHOWN ON CONSTRUCTION DOCUMENTS PREPARED UNDER PURCHASE ORDER V10959- 80808. THE CONTRACT DRAWING LIST AND SCCPE DOCUMENT WILL BECOME PART OF THIS CONTRACT WHEN FINALIZED BY RECEIPT OF A BUILDING PERMIT FROM THE CITY OF PUEBLO. THE CONTRACT IS UN A NOT TO EXCEED 9AS I S. THE CONTRACTOR WILL INVOICE ALL DIRECT COSTS WITH A 7.d0% ADDITION FOR OVERHEAD AND FEE. ALL SAVINGS FROM THE NOT TO EXCEED AMOUNT WILL BE SHARED 50/50 BETWEEN "OTISE ORDER PLACED WITH SUPPLIER PHONE NO I Thus Oiler dues not constitute an acceptance of any prior offer to sell or quotation . ana any such oller or quotation Is In, 'ejected. ( Inls UIIer snail Ile Jc Ceplea Only by file ex cluslve rneoloas ano on In(! feints .ivo cunniuons Set twin Mellon. ,Ind any UHUtlH I'` I.tU by ntempled R l e Sl am P. ) I c ce p a m Ih ht"s oilulher roan one specified Below snail hive no I e ss I of er ns effect w d IF SLIER desuys m a lq er and to conlrarl Willi BUYER uu nn Inc xp nn;e e .In r,unoiUOns contained rusty l then JUPPUt R snarl (,it execunf ana return to BUYER wnhoul any ni,,ahnn wnalsuevtn a copy of me P,nchase 1 UPP Otdet. nr fur ;hlo goods to nnulg to file desbnptlon and specifications set Imfh above plovwild however. Ihal this S U LL I VAN T IMOTHY P . Veer a valtrl for a,IUteen I1 1) days lnun le date hereof runless ntherwlse nrovlded abuvel and d not ,Incepted by A S H L A N C H E �) I C A L C O M P A N Y iUPFLIER w 11u such bole. it ;hah exprle ana be r8Yuked end BUYER pilau have nn obhgalurn wile Iespecl Iu any snhseoln nM atlelnok"I accenianc, it flits Utter by SUPPLIER P O B (] X 2 2 1 4 1 IF '01'PI If It eu ufrs nut ntlunls to BUYER I eupv ut It Pn n'nas„ II„PS H,ln Inv III in s of nooini woos .nats+teve ,m.n anetenIns ,, II n1wauons snad be deenteu olupasals to 11 ml, P�nduse Ulder ano ' Bah be C D L U M B U S, 0 H 4321 6 dccepled b/ ; EH only DY a written aCknowledgernenl executed by BUYER ;oenln[Jlly relenng to suds alterations or Inoddicabalts 614-7q0-31 1 2 E X T 3112 1324 nnTr• THIS PURCHASE ORDER constitutes an offer by ASHLAND CHEMICAL Ashland Chemical COMPANY ( "BUYER ") to purchase from "SUPPLIER" (as indicated below) 1 q4EEEPW the goods described herein upon the TERMS AND CONDITIONS CON- Ashland Chemical Company TAINED ON THE FACE AND BACK HEREOF. DV6-2C y V-12Id33'20 - SEE BELOW F_ E E REED CONSTRUCTION COMPANY 00000r 1001 CAPITAL OF TEXAS HIGHWAY SOUTH SUITE 222 BLDG M AUSTIN, TX 78746 This number MUST appear on packages, correspondence, invoices packing lists, Bills of Lading (followin( the description of Articles). PURCHASE ORDER NO. 46270 -3 0820 PAGE 2 DATE FE3 21 1 1997 ASHLAND CHEMICAL COMPANY ECD LOCATION WILLIAM WHITE 3OULEVARD PUEBLO) CO 91107 L ATTN: HUGH CROME, E5130 .R MS SHIP TU ARRI SALES OR USE TAX F.O.B. NET 30 DAYS 05/21/97 SEE eEL!]W JOBS [TE VIA this 011er sndll be accealed only by the exclusive rne.Ihods and on the terms and conditions set Inrrll herein, and any UHUtH HLAUtU BY attempted acceptance by J m ethod other than ogle, specified below shall have no force or e,Ileci 1324 J IF SUPPLIER desires m dcGlpt this Offer and to contract with BUYER upon the express Ioris and conditions contained i �ueem nten. SUPPLIER snao Ial execute and return to BUYER without any alteration wrtatsdever d Copy of the Purchase LL I V A N M . Order or Ib snip goods ronlommnq to the, description and specifications set lorth above. provided. however, that this _ over a vadd for nmrteee 'r al days ham the date hereof runless otherwise onrvrded above uw it nnl accepted by A $ HL A N CH E M I C A L C OM P A N Y iUPPLIER .10110 sucn hrne d shall exuue and be revoker) and BUYER shall nave no obligation .,In respect to any ;ubsequebl anentmeu ay.eutanee of this U ter by SUPPLIER P 0 B 0 X 221 9 J. IF SUPPLIER executes dnrl returns to BUYER a copy of this Purcfrase Order with dny drteldllpnS ur nruartrCatrdns „ndts0ever sucn aderabans or modlficabons shah be deemed ploposals m revise this Purcndse Order and snag be C OLUM B US i OH 432 1 6 accepted by BUYER omy by a written acknowledgement executed by BUYER. soeUllcally relenng to such aherdhons of md oreabons. 614 -790-31 1 2 E X T 31 1 2 QUANTITY ORDERED ACI ITEM/ PROD.CODE DESCRIPTION OF GOODS PRICE ASHLAND CHEMICAL AND THE CONTRACTOR. ALL WORK TO EE PERFOR (YED IN ACCORDANCE WITH TERMS AND CONDITIONS OF THE BASIC LETTER A REEMENT CONTRACT DATED: 3/1/95 THIS PURCHASE ORDER i ISSUED SOLELY FOR THE PURPOSE OF ESTABLISHING A PURCHASE ORDIr..R :N UMBER AGAINST WHICH INVOICES MAY SE RENDERED AND PA 0. THE TERMS ANO CONDITIONS APPEARING IN SAID CONTRACT SHALL PREVAIL. ALL SALES TA ES, LABO I MATERIAL, EQUIPMENT RENTAL ND FREIGHT CHARG TO BE STATED SEPARATELY ON CONTRACTORS INVOICE(S). *APPLICATIO OF SALE TAX AS DETERMINED IN CONTRAC . CONTRACTOR 4 S'UMES RE PONSIBILITY FOR, INDEMNIFIES AND DEFENDS ASHLA CHEMICAL COM ANY AGAI ST PROPERTY DAMAGE AND PERSONAL INJURY ARISIN FROM WORK PERFORMED U OER THIS PURCHASE ORDER. := BECAUSE_ ASHLAND CHErICAL COMPANY PAYS TWICE PER MONTH ORDERS SHU IING "NET 30 CAYS" NILL BE PAID 1 3ETWEEN 40 AND 55 DAYS F OM THE DATE OF THE INVOICE. fr)74,'" ORDER PLACED WITH SUPPLIER PHONE NO I Thus Otler does nor constitute an acceptance of any prior offer to sell or qualabon, and any such offer or quotation is nere by relecte . this 011er sndll be accealed only by the exclusive rne.Ihods and on the terms and conditions set Inrrll herein, and any UHUtH HLAUtU BY attempted acceptance by J m ethod other than ogle, specified below shall have no force or e,Ileci 1324 J IF SUPPLIER desires m dcGlpt this Offer and to contract with BUYER upon the express Ioris and conditions contained i �ueem nten. SUPPLIER snao Ial execute and return to BUYER without any alteration wrtatsdever d Copy of the Purchase LL I V A N M . Order or Ib snip goods ronlommnq to the, description and specifications set lorth above. provided. however, that this _ over a vadd for nmrteee 'r al days ham the date hereof runless otherwise onrvrded above uw it nnl accepted by A $ HL A N CH E M I C A L C OM P A N Y iUPPLIER .10110 sucn hrne d shall exuue and be revoker) and BUYER shall nave no obligation .,In respect to any ;ubsequebl anentmeu ay.eutanee of this U ter by SUPPLIER P 0 B 0 X 221 9 J. IF SUPPLIER executes dnrl returns to BUYER a copy of this Purcfrase Order with dny drteldllpnS ur nruartrCatrdns „ndts0ever sucn aderabans or modlficabons shah be deemed ploposals m revise this Purcndse Order and snag be C OLUM B US i OH 432 1 6 accepted by BUYER omy by a written acknowledgement executed by BUYER. soeUllcally relenng to such aherdhons of md oreabons. 614 -790-31 1 2 E X T 31 1 2 " "- "� �.. THIS PURCHASE ORDER constitutes an offer by ASHLAND CHEMICAL Ashland Chemical COMPANY ( "BUYER ") to purchase from "SUPPLIER" (as indicated below) qq� the goods described herein upon the TERMS AND CONDITIONS CON - Ashland Chemical Company TAINED ON THE FACE AND BACK HEREOF. Div4r6 y�tgland, 1n� 2 0 V 'r tl g U Vs , SEE 3ELOW This number MUST appe, packages, correspondence, invl packing lists, Bills of Lading (followinc, the description of Articles). PURCHASE ORDER NO. 46270 -608 PAGE 3 LAST PAZ; DATE FEB 21 , 1997 F_ E E REED CONSTRUCTION COMPANY ACI ITEM/ PROD.CODE ASHLAND CHEMICAL COMPANY PRICE 1001 CAPITAL OF TEXAS '' ECD LOCATION MUST APPEAR ON ALL PACKING SLIPS AND BILLS HIGHWAY SOUTH ee,= Inen SIIPPI IFR shalt tat execute 1110 return to BUYER wllnout tiny oterdb0o wnalsoever d cupy of the Purchase WILLIAM WHITE BOULEVARD ER TO IN URC PROMPT PAYMENT OF YOUR IN SUITE 222 BLDG M S U LL I V A PUEBLO, CO 81107 #366203 Tier 1s Valfd tar lourleen 1 t.n hays horn pie dale hereof runless otherwise Drav lea doovel .md It not accepted by AUSTIN TX 78746 ', IfPPLIER -'thin Slllll "'Ile It mall e.11110 did ce I lled dll0 BUYER 5Odll hale 110 IIblllfallnll with lespuct to ally QUALITY ASSU ANCE IS 9EQUIRED L ATTN: HUGH CROME, E5130 :RMS HUGH R CROME SHIP r O APR V SALES OR USE TAX 2 2 1 q F.0 E. wrldllueyer such anelauuns of mon0lcauons Snall be deem pruposals to le,lstr his Purchase Order and snail be NET 30 DAYS * 05/21/97 SEE BELOW I JOBSITE NUMBER TO: )UTE VIA tie 11 11 linty ny III1 CA IU1111 In"It"I all nil ole norl5 "In "Inclllnlls "M 101111 herein J01 ally QUANTITY ORDERED ACI ITEM/ PROD.CODE DESCRIPTION OF GOODS PRICE THE FOLLOWINC AFE NUMBER MUST APPEAR ON ALL PACKING SLIPS AND BILLS OF ee,= Inen SIIPPI IFR shalt tat execute 1110 return to BUYER wllnout tiny oterdb0o wnalsoever d cupy of the Purchase LADING IN OR ER TO IN URC PROMPT PAYMENT OF YOUR IN DICE: S U LL I V A TIMOTHY P . #366203 Tier 1s Valfd tar lourleen 1 t.n hays horn pie dale hereof runless otherwise Drav lea doovel .md It not accepted by ', IfPPLIER -'thin Slllll "'Ile It mall e.11110 did ce I lled dll0 BUYER 5Odll hale 110 IIblllfallnll with lespuct to ally QUALITY ASSU ANCE IS 9EQUIRED 8Y: vlu ,1!lUU;nt anenlpleu r. .eplance If In's 011e1 fly 'iUllpt IF 11 HUGH R CROME 1 II ,;PI'I IlH r. 1:1.,1,, �. - 1 ll;lul rls a 1111YFH a , It nn, P111 l,lin se ill�lel n.ln ally 11n�lahull, �t1 nInUIIII.,mllns P Q BOX 2 2 1 q wrldllueyer such anelauuns of mon0lcauons Snall be deem pruposals to le,lstr his Purchase Order and snail be SEND ALL INVICICES AND CORRESPONDENCE INVOLVING THIS PURCHASE ORDER NUMBER TO: ASHLAND CHEMICAL COMPANY ENGINEERING DEPARTMENT, DA3 ATTN: D NNA KROHN P 0 BOX 2219 COLUMBU , OH 43216 FINAL PAYMENT OF INVOICES WILL NOT BE MADE UNTIL RECEIPT OF FOUR COPIES OF OPERATION AND MAINTENANCE MANUALS1 SPARE PARTS LISTS INSTALLATION INSTRUCTIONS FOR THE EQUIPMENT OR MATERIALS ORDEREDI AND AS BUILT DRAWINGS ARE PROVIDED. CONFIRMING — 00 NOT D PLICATE 'IOTIC= ORDER PLACED WITH SUPPLIER PHONE NO I Th1s' Uller does not constitute an acceptance of any prior offer to sell or lluulanon, and any such idler or pu0tatlon Is hereby relected. tie 11 11 linty ny III1 CA IU1111 In"It"I all nil ole norl5 "In "Inclllnlls "M 101111 herein J01 ally UHUtH HLAL tU BY a(Ie lllpled 1CCeplanCN by f 111 e,IhOd olhe! Ih1n one ""Clll below Sllalt tlaVn 1111 force rlr elle,el I IF SUPPLIER Uesues to Iccept Vls tiller and to contract wnh BUYER upon the e erm xpress ts .uN Cdndloons contained �� 1 3 2 4 4 ee,= Inen SIIPPI IFR shalt tat execute 1110 return to BUYER wllnout tiny oterdb0o wnalsoever d cupy of the Purchase Older or tin snip quous comurminq to the descnpimn and specaicanaos set form .Above plllVl led nnwever nlal this S U LL I V A TIMOTHY P . Tier 1s Valfd tar lourleen 1 t.n hays horn pie dale hereof runless otherwise Drav lea doovel .md It not accepted by ', IfPPLIER -'thin Slllll "'Ile It mall e.11110 did ce I lled dll0 BUYER 5Odll hale 110 IIblllfallnll with lespuct to ally A S HL A N CHEM C O M P A N Y vlu ,1!lUU;nt anenlpleu r. .eplance If In's 011e1 fly 'iUllpt IF 11 • 1 II ,;PI'I IlH r. 1:1.,1,, �. - 1 ll;lul rls a 1111YFH a , It nn, P111 l,lin se ill�lel n.ln ally 11n�lahull, �t1 nInUIIII.,mllns P Q BOX 2 2 1 q wrldllueyer such anelauuns of mon0lcauons Snall be deem pruposals to le,lstr his Purchase Order and snail be COLUM O H 43216 • 1 dcci led by BUYER only by a written acxnowleagernenl executed by BUYER. ape GllCally leterlhu to such alterations of lnbmllcabo °s. 614-790-3112 E X T 3112 --f— DEPT. PLANT c A ! cr , I R /C CODE p( ✓�� ORIGINATOR . 1 ,2 A2 C M ASHLAND CHEMICAL COMPANY P.O. Box 2219 • Columbus, OH 43216 • (614) 889 - 3333 CONTRACT FOR LABOR, SUPERVISION AND MATERIALS E. E . REED CONSTRUCTION COMPANY Name of CONTRACTOR 8000 CENTRE PARK DRIVE, SUITE 102 AUSTIN, TEXAS 78754 Mailing Address of CONTRACTOR This Agreement shall be effective for the term beg ning as of the 1St day of March 199 5 and ending �l(� I "� K��! 1990 , and is intended to eliminate the necessity of preparing individual contracts on future occasions that we might wish to arrange with you to furnish labor, materials, and supervision, or any of them, to Ashland Chemical Company ( "OWNER "). Any purchase order of OWNER, specifications, plans or schedules approved in writing by OWNER and CONTRACTOR shall be considered part of the Agreement. 1. SCOPE OF WORK Subject to the terms and conditions of this Agreement, CONTRACTOR under- takes to provide OWNER with the work or services described in any purchase orders which may be issued by OWNER and accepted by CONTRACTOR from time to time during the term of this Agreement (the "Work "). 2. TERM Work shall be started and shall be substantially completed on the dates speci- fied in any applicable schedule delivered by OWNER to CONTRACTOR. Not- withstanding anything above to the contrary, unless CONTRACTOR is otherwise advised by OWNER in writing, the term of this Agreement shall be extended until completion of any work or services in progress. 3. COMPENSATION workers compensation insurance, payroll taxes, overhead and profit, etc. must be itemized. (c) Subject to Paragraph b above, OWNER shall pay CONTRACTOR's in- voice in accordance with OWNER's payment terms. S. CHANGES IN THE WORK OWNER may require CONTRACTOR to make minor changes in the Work which do not involve extra cost. Otherwise, no changes (except emergency work necessary to protect life or property) shall be made without a written change order which shall include OWNER's agreement to any extra charges. CONTRACTOR shall permit and facilitate the inspection of the work by OWN- ER at any time and it is agreed that OWNER's engineer may from time to time furnish additional instructions or drawings necessary for the proper execution of this Work. (a) It is agreed that any Work to be furnished during the term of this Agree- ment shall be furnished for the following lump sum amount or at the rates set forth on Exhibit A attached hereto. (b) No overtime work or premium rates will be paid or authorized by CON- TRACTOR unless OWNER has expressly approved such payment in writing; provided that persons expressly designated in writing by OWNER for such pur- pose may give oral approval to spot overtime work. (c) In the event of time and material work, CONTRACTOR must give thirty (30) days advance written notice if it changes rates. No rate change or cost change will be effective until accepted by OWNER in writing. Such change will not apply to any Work in progress at time of notice without OWNER'S written consent. 4. PAYMENT (a) For lump sum work, CONTRACTOR shall have the right to request that the OWNER make partial payments: provided, however, that OWNER shall have the right to withhold up to and including of the amount of any invoice submitted to OWNER by CONTRACTOR for labor, supervision and materials furnished by the CONTRACTOR up to the time of completion and, if applicable. _ of the total contract price set forth above. Payment of said retainage shall be due upon OWNER'S acceptance of all work. (b) Each invoice must, in addition to total charges, show separately on its face the labor costs or equipment costs, as applicable, material costs, and any ;applicable freight charges and sales and use taxes. For reimbursable work, tune sheets, equipment logs, material tickets, or similar supporting documenta- tion must be signed by OWNER'S representative. This substantiation or any other evidence the OWNER may require shall be attached to the invoice In ad- drtton, any applicable markups such as fringe benefits, unemployment taxes, 6. SURETY BONDS Unless specifically waived by OWNER in writing, CONTRACTOR at its own ex- pense shall furnish a surety bond in the amount of the contract price in a com- pany acceptable to OWNER covering the faithful performance of all of CONTRACTOR's obligations hereunder, including, but not limited to, payment of all sums which become due hereunder, and CONTRACTOR shall not begin any work required hereunder until such bond is furnished to OWNER. 7. WARRANTY (a) CONTRACTOR represents and warrants that it is experienced in the Work to be undertaken on behalf of OWNER and possesses the skills to com- plete the Work. (b) The Work shall be performed in a good and workmanlike manner by qualified, careful and efficient workers in accordance with the Agreement, in strict conformity with the best standard practices and in a manner protective of its employees, the public and the environment. CONTRACTOR further guaran- tees all Work to be performed against defects resulting from poor workmanship or materials furnished by CONTRACTOR for a period of one (1) year from the date the Work is completed and accepted by OWNER. In the event any Work proves unsatisfactory within the period specified above, without waiving any other rights or remedies OWNER may have at law, CONTRACTOR covenants and agrees to make good such defects and any damage to other work or mate - - al caused by the defects or by the repairing of such defects at CONTRAC- TOR's expense without cost to OWNER. 8. PERMITS, LICENSES AND FEES Unless in its notification of work OWNER agrees to the contrary, CONTRACTOR shall secure all permits and licenses necessary for the accomplishment of the WORK to be done hereunder and shalJ comply with all local laws and regulations arid, if anything herein contained is at variance with any law or regulation. then the CONTRACTOR shall notify the OWNER's engineer and receive written instructions before proceeding with the Work. 9. WORK TO BE PERFORMED BY OWNER (a) OWNER shall furnish CONTRACTOR with a description and scope of each project where appropriate, furnish drawings, specifications, changes and field engineering. OWNER will have the right, at any time and from time to time, to submit revised drawings and specifications. (b) OWNER's obligations hereunder to CONTRACTOR shall be strictly lim- ited to the payment for labor, materials, and supervision actually furnished by CONTRACTOR under the terms of this Agreement. 10. COOPERATION WITH OTHER CONTRACTORS AND OWNER The OWNER reserves the right to let other contracts in connection with this Work or work related thereto and CONTRACTOR shall cooperate with all other contractors and shall properly coordinate its Work with theirs. CONTRACTOR shall cooperate fully with OWNER in performing the Work to be done hereun- der and shall not interfere with OWNER's operations. 11. LIENS (a) In consideration of the contract price to be paid CONTRACTOR hereun- der, CONTRACTOR hereby waives any claim to a lien against the property of OWNER which it now has or which may hereafter arise out of, or during the performance of, this Agreement. CONTRACTOR shall make reasonable efforts to obtain a similar waiver of lien from any subcontractor, materialmen or others providing work or service hereunder and shall immediately advise OWNER in writing in the event any such persons refuse to furnish a waiver of lien. (b) Upon notification by OWNER, or upon CONTRACTORSs independently learning of a lien or threatened lien or right of any kind which has been placed upon or against the Work of the real property upon which the Work is situated, by CONTRACTOR' laborers, materalmen, subcontractors or other creditors, CONTRACTOR shall immediately: (1) pay and discharge the underlying obligations or alleged obligations of the claimed lien; or (2) (i) provide security sufficient and satisfactory to OWNER, or (ii) obtain a waiver of lien from such parties as may be satisfactory to OWNER. CONTRACTOR' failure to comply with the provision of this Paragraph 11(b) within five (5) days of the date CONTRACTOR learns or should have learned of the claimed liens shall constitute a material default hereunder and shall enti- tle OWNER to pay and discharge all such liens or alleged liens and deduct all such payments from any amounts due CONTRACTOR hereunder whether or not such liens are valid, and shall further ernitts OWNER to such remedies as are provided herein or by law. (c) Before making any payment hereunder, OWNER may require that CON- TRACTOR furnish a full and complete waiver or release of liens from each sub- contractor, materialman, artisan, or mechanic retained by CONTRACTOR waiving or releasing any liens or claims whatever against the Work to be per- formed herein. 12. TERMINATION (a) Notwithstanding anything herein to the contrary and for causes including but not limited to those set forth in Paragraph 19 below or for its convenience, OWNER may without prejudice to any other right or remedy terminate the em- ployment of CONTRACTOR in whole or in part at any time by written or tele- graphic notice to CONTRACTOR which notice shall state the extent and effective date of the termination. Upon the giving of such notice OWNER may take possession of the premises and of all materials, tools and appliances thereon belonging to OWNER and finish the Work by whatever method OWN- ER may deem expedient or elect not to complete the Work. On the effective date thereof, CONTRACTOR shall (a) stop all Work and place no further or- ders or subcontracts, (b) terminate work orders and subcontractors outstand- ing, and (c) take any necessary action to protect property in CONTRACTOR' possession in which OWNER has or may acquire an interest. In the event of a termination under this paragraph, OWNER shall pay CONTRACTOR for any and all labor, materials and supervision performed to date of termination. (b) Notwithstanding anything herein to the contrary, if relief has been or- dered under the Bankruptcy Code with respect to CONTRACTOR, or if CON- TRACTOR should make a general assignment for the benefit of its creditors, or if a trustee. receiver, custodian or similar officer should be appointed on ac- count of insolvency, or should CONTRACTOR fail, neglect or refuse to perform any or all Work, or if a lien has been placed upon or against the Work or the real property upon which the Work is situated and is not discharged or satisfied as provided in Paragraph 11 above, or CONTRACTOR assigns any monies due or to become due hereunder without the previous written consent of OWN- ER, or at any time OWNER believes, in its discretion, that the work is unrea- sonably delayed for any reason or any of the provisions of this Agreement are being willfully violated or executed carelessly, or that CONTRACTOR is acting in bad faith, or if the Work is partially or totally delayed by any labor dispute be- tween CONTRACTOR and its employees or between CONTRACTOR and its employees and any other contractor and its employees or any Work stoppage or slowdown by CONTRACTORSs employees for a period of ten (10) calendar days, then OWNER or its representatives may notify CONTRACTOR in writing and request that it immediately remedy the deficiency or delay; and, if the same shall not be remedied within twenty -four (24) hours of notice being deliv- ered, then OWNER may without prejudice to any other right or remedy termi- nate the employment of CONTRACTOR and take possession of the premises and of all materials, tools and appliances thereon and finish the Work by what- ever method OWNER may deem expedient. In such case, CONTRACTOR shall not be entitled to receive any further payments until the Work is finished and releases or waivers of all liens have been obtained, or the applicable statu- tory time for filing a lien has passed. If the unpaid balance of the contract price shall exceed the expenses of finishing the Work, including compensation for additional managerial and administrative services, such excess shall be paid to CONTRACTOR. If such expenses shall exceed such unpaid balance, CON- TRACTOR shall pay the difference to OWNER. If it is determined, however, that CONTRACTORS failure to perform is not due to the breach, fault or negli- gence of CONTRACTOR (other than insolvency or an act of bankruptcy) such cancellation shall be deemed to have been made pursuant to Paragraph 12(a) hereof. 13. SUSPENSION (a) OWNER may suspend the Work in whole or in part at any time by writ- ten or telegraphic notice to CONTRACTOR stating the extent and effective date of such suspension whereupon CONTRACTOR shall suspend the Work to the extent specified. If the suspension is for causes including, but not limited to, the existence of a condition described in Paragraph 19 hereof, such sus- pension shall continue until such cause or condition ceases to exist or OWNER notifies CONTRACTOR to resume performance under this Agreement or OWNER terminates this Agreement in accordance with Paragraph 12 hereof, whichever is the earliest to occur. If suspension is for the convenience of OWNER and such suspension continues for twenty (20) working days, CON- TRACTOR shall have the right to terminate this Agreement in whole or in part by written or telegraphic notice to OWNER which notice shall state the extent and effective date of the termination. In such event this Agreement shall termi- nate in accordance with the provisions of Paragraph 12 hereof. (b) During the period of suspension, CONTRACTOR shall protect and care for the Work on hand. If the cost of the Work, including the cost of additional la- bor, supervision and materials made necessary by the suspension, is in- creased or decreased by the suspension, CONTRACTOR shall give OWNER a written estimate of the increase or decrease in the cost of the Work resulting from such change. IF OWNER accepts the estimate, OWNER shall issue a written purchase order per Paragraph 5. If OWNER and CONTRACTOR cannot mutually agree on such amount within ten (10) working days from the date of OWNER's notice of disagreement with CONTRACTOR's original esti- mate, either party shall have the right to terminate this Agreement in whole or in part by notice to the other party which notice, as provided in Paragraph 23 hereof, shall state the extent and effective date of the termination. In such event this Agreement shall terminate in accordance with the provisions of Para- graph 12 hereof. 14. CONFLICTING PROVISIONS The terms, provisions, covenants, or conditions herein shall control in the event of any conflict with any provision, term, covenant or condition in any of the documents attached hereto and made a part hereof, or any work orders, purchase orders, requisitions, or any other forms or documents. 15. INDEMNIFICATION CONTRACTOR agrees to protect, indemnify, hold harmless and defend OWNER, its subsidiaries and related companies, and officers, directors, employees, workmen, agents, servants and invitees of OWNER, its subsidiaries and related companies, from and against all losses, damages, demands, claims, suits and other liabilities (including attorney fees and other expenses of litigation) because of (i) bodily injury, including death at any time resulting therefrom, (ii) damages to all property, including loss of use thereof and downtime, (iii) contamination of or adverse effects on the environment, including the cost of cleanup, (iv) violation of or failure to comply with any applicable law, regulation, rule or order. which occur. either directly or indirectly in connection with performance of the Work or by reason of CONTRACTOR rind its employees, workers, agents, ser- vants, subcontractors and vendors heng present on OWNER's premises, ex- cept to the extent the liability, loss or damage is attributable to and caused by the sole and exclusive negligence of OWNER, and (v) infringement of patent, trade secret or proprietary rights of any third party by any device, process or material not specified by OWNER. CONTRACTOR's agreement to protect. indemnify, hold harmless and defend as set forth in the immediately preceding sentence shall not be negated or re- duced because CONTRACTOR's insurance carrier denies insurance coverage for the claim and /or refusal to defend CONTRACTOR or OWNER. In addition, CONTRACTOR will pay all costs and expenses, including attorney fees and all other expenses of litigation incurred by OWNER to enforce the foregoing agreement to protect, indemnify, hold harmless and defend OWNER. 16. INSURANCE Without limiting, negating or reducing CONTRACTOR's undertaking to protect, indemnify, hold harmless, reimburse and defend OWNER and other parties as provided in Paragraph 15 hereof, and as part of the consideration for any sums paid CONTRACTOR by OWNER hereunder, CONTRACTOR shall at its own cost and expense procure and keep in force and effect the insurance listed be- low with insurance carrier(s) acceptable to OWNER. Before commencing any Work, CONTRACTOR shall furnish OWNER with Certificates of Insurance at- tested by a duly authorized representative of the insurance carrier(s) evidenc- ing that the required insurance is in force and effect and that such insurance will not be cancelled or materially changed without giving OWNER at least 30 days prior written notice. In the event CONTRACTOR fails to furnish OWNER with acceptable Certificates of Insurance before the time named in this Agree- ment for commencing Work, OWNER shall have the right to terminate this Agreement. (a) Worker's Compensation and Employer's Liability Insurance: CONTRACTOR and all subcontractors retained by or through CONTRACTOR, and all their employees, workers, agents, and servants shall comply with all re- quirements of the worker's or workmen's compensation laws of the state or states or other governmental authority in which CONTRACTOR or any subcon- tractor retained by or through CONTRACTOR is performing any work hereun- der. In addition, CONTRACTOR shall carry Employer's Liability Insurance covering all operations and work hereunder in an amount not less than $1,000,000 per occurrence. All such Worker's Compensation and Employer's Liability Insurance shall expressly provide that all rights of subrogation against OWNER are waived. (b) General Liability Insurance and Automobile Liability Insurance (occurrence form): (1) General Liability Insurance, including Blanket Contractual Liability, Products and Completed Operations Liability, XCU Hazards and Broad Form Property Damage, covering all Work hereunder, with limits of not less than the following: (i) Comprehensive General Liability - $1,000,000 for all liability arising out of injury to or death of one or more persons, in any one occurrence, and $1,000,000 for all liability arising out of damage to or destruction of property, including loss of use thereof and downtime, in any one occur- rence: or (ii) Commercial General Liability - $2,000.000 Combined Single Limit for all liability arising out of injury to or death of one or more persons, in any one occurrence and for all liability arising out of damage to or destruction of property, including loss of use thereof and downtime, in any one occurrence, with a General Annual Aggregate riot less than S4,000,000. (2) Automobile Liability Insurance on all motor vehicles owned, hired, or non - owned. which may be used or connected with any of the work hereun- der, with limits of riot less than $1.000.000 for all liability arising out of injury to or death of one or more persons, in any one occurrence and $1,000.000 for all liability arising out of damage to or destruction of property, including loss of use thereof and downtime, in any one occurrence. The policy or policies providing for such insurance shall be endorsed to specifically include the liability assumed by CONTRACTOR under this Agreement in Paragraph 15 above in the amounts shown in this Paragraph 16 In addition, such insurance shall specifically name OWNER as an additional insured party and shall be primary to any and all other insurance of OWNER with respect to any and all claims and demands which may be made 10alnSl OWNER for hodily injury or death resultinq therefrom. including injury to or death to CONTRACTOR and its employees, workers, agents and servants. and for property damage. Such insurance shall specifically provide that It ap- plies separately to each insured against which claim is made or suit is brought, except with respect to the limits of the insurers liability, and that all rights of subrogation against OWNER are waived. (c) The above insurance requirements are minimum requirements and shall not limit CONTRACTOR's liability to OWNER in any manner. 17. RECORDS (a) CONTRACTOR agrees to retain all records and accounts related to charges or CONTRACTOR invoices for a period of at least three (3) years from the completion date of any Work performed. (b) CONTRACTOR shall permit OWNER access to, either in the field or at the home office, for review and audit, at all reasonable times, all records and accounts relating to costs and expenses invoiced to OWNER under this Agreement. 18. INDEPENDENT CONTRACTOR CONTRACTOR is an independent contractor. OWNER shall exercise no con- trol over the method and means of accomplishing the Work other than to see that the desired results are achieved at the lowest possible cost to OWNER. 19. FORCE MAJEURE Except for the payment of any sums due, neither party shall be responsible for any failure to fulfill any term of this Agreement, if fulfillment has been delayed, hindered or interfered with or prevented by any circumstances whatsoever, which are not within the control of the party in question and could not have been prevented or overcome by the exercise of due diligence by the party concerned. 20. COMPLIANCE WITH LAWS AND REGULATIONS (a) CONTRACTOR agrees to comply with the Federal Social Security Act, the state and Federal Unemployment Insurance Acts, the Americans With Disabilities Act, state workers compensation laws, wage and hour laws, any and all applicable sales, use, and gross receipts tax laws and regulations, ap- plicable safety and health laws, standards and regulations, any applicable envi- ronmental laws and regulations, and all other applicable laws, regulations, guidelines, permits, licenses and approvals concerning the Work and CONTRACTOR assumes exclusive liability for the reporting and payment of any and all contributions and taxes required thereby. (b) CONTRACTOR shall execute OWNER's Exhibit B covering certain Equal Employment Opportunity Provisions and Certification of Nonsegregated Facilities. (c) CONTRACTOR shall abide by OWNER's safety and health regulations while performing any Work and shall execute Exhibit C, OWNER's Safety and Health Practices, 21. ASSIGNMENTS AND SUBCONTRACTS CONTRACTOR shall not assign this Agreement or sublet the Work as a whole or part without the prior written consent of OWNER. 22. GOVERNING LAW This Agreement shall be construed, and the rights of the parties shall be determined, in accordance with the laws of the State of Ohio. 23. NOTICES All notices required under this Agreement shall be in writing and if to OWNER, shall be sufficient in all respects if delivered in person or sent by registered or certified mail, return receipt requested, or by telex, telecopy or other facsimile to the addresses above or such other addresses as may be designated from time to time. 24. CONFIDENTIALITY Any technical information, experience or data concerning Company's business, including without limitation its services, plans. programs. plants. processes, products, costs. equipment. operations or customers. which may come within the knowledge of CONTRACTOR, its officers or employees in the performance of this Agreement shall be treated as confidential property of Company and hall not be used by CONTRACTOR except for the benefit of Company in the lurtherance of this Agreement: and shall riot be disclosed to others, including �jovernmental agencies or other authorities dunng or subsequent to the term of This Agreement without in each instance secunnq the prior written consent of Company. Any such information provided by Company to CONTRACTOR in writing or other tangible media shall be returned to Ashland upon termination of this Agreement. 25. OWNERSHIP OF WORK PRODUCT CONTRACTOR hereby agrees to transfer to Company the entire right, title and interest to any copyrights in any work produced by CONTRACTOR under this Agreement. CONTRACTOR further agrees to execute any documents which may be necessary or appropriate to allow Company to perfect its interest in the copyright for such works. CONTRACTOR shall not be entitled to any additional payment or compensation for assisting and cooperating with the Company in obtaining these copyrights. 26. DRAWINGS All drawings and documents prepared by CONTRACTOR in connection with its performance of the Work are the property of OWNER and are not to be used on other projects except by agreement of OWNER in writing. All such drawings and documents shall be transmitted to OWNER at the completion of the work. 27. ENTIRETY OF AGREEMENT This agreement is intended by the parties as the final, complete and exclusive statement of the terms, conditions and specifications of their agreement and is intended to supersede all previous agreements and understandings between the parties relating to its subject matter. No prior stipulation, agreement, under- standing or course of dealing between the parties or their agents with respect to the subject matter of this Agreement shall be valid or enforceable unless em- bodied in this Agreement. No amendment, modification, termination notice or waiver of any provision of this Agreement shall be valid or enforceable unless in writing and signed by the party to be charged. This Agreement shall super- sede, and shall not be modified or amended in any way by the printed terms of any purchase order, proposal, quotation or other document which may be is- sued by either party covering work or services rendered. Title: Executive Vice President 28. WAIVER The failure of any party to insist upon strict performance of any of the terms, conditions and provisions of this Agreement shall not be deemed a waiver of future compliance therewith by the party by which the same is required to be performed hereunder and shall in no way prejudice the remaining provisions of this Agreement. 29. BINDING EFFECT All rights conferred by this Agreement shall be binding upon, inure to the bene- fit of, and be enforceable by or against the respective successors and assigns of the parties hereto. 30. SEVERABILITY If any provision of this Agreement, or the application of any such provision to any person or in any circumstance is held invalid, the application of such provi- sion to any other person or in any other circumstance, and the remainder of this Agreement, shall not be affected thereby and shall remain in full effect. 31. HEADINGS The headings in this Agreement are inserted for convenience only and shall not effect the construction hereof. 32. GENERAL Although this Agreement contemplates notification by OWNER and acceptance thereof by CONTRACTOR, both in writing, before commencement of Work, it is specifically understood and agreed that any Work performed by CONTRAC- TOR for OWNER hereafter shall be under the terms hereof, unless (and only to the extent that) by specific written agreement other terms inconsistent herewith are agreed upon by the parties hereto with respect to such work. ASHLAND CHEMICAL COMPANY By: (T Title: l . 4 Itins (09/93) CONTRACTOR: Exhibit "A" Contract between Ashland Chemical and E. E. Reed Construction Company t. Article 4, Paragraph (b) Pay requests will be submitted and paid from AIA Document G702 and G703. 2. Article 4, Paragraph (c) Contractor shall be paid within fifteen (15) days of receipt of invoice. 3. Article 6 A performance and payment bond is not required for this project. 4. Article 11, Paragraph (c) Lien waivers will be furnished from major subcontractor and /or suppliers after E. E. Reed Construction receives payment from Ashland. Subcontractor lien waivers will be furnished to Ashland before the next partial draw is paid. 5. Article 12, Paragraph (a) In the event of termination, E. E. Reed will be reimbursed for all costs of termination, including, but not limited to, material ordered but not delivered to jobsite and expenses for the shut down. Ashland Chemical Company\ E. E. Recd Construction dddomoblim Ashland Chemical Ashland Chemical Company Address Reply: Division of 5200 Paul G. Blazer Ashland Oil, Inc. Memorial Parkway Dublin, OH 43017 Phone: (614) 889-3333 SUBJECT: CONTRACTOR SAFETY AND HEALTH REGULATIONS TO: Accident, fire and exposure prevention are essential elements in the operation of all Ashland Chemical Company (herein called "Ashland ") plants. All personnel, inde- pendent contractors and visitors, while within the confines of our plants, are re- quired to wear certain protective equipment and comply with established safety and health regulations. Independent contractors, performing work or services at any company facility under contract from Ashland, are expected to perform all work or services in a safe, healthful and efficient manner, so as to prevent injury to their employees or damage to their equipment and to protect Ashland's employees and property. All independent contractors, under their contract with Ashland, have agreed to ad- here to and abide by the General Fire, Safety and Health Regulations promulgated by Ashland with respect to contractor work. The purpose of this memorandum and the Regulations attached hereto is to familiarize the contractor with these Regula- tions so he may become aware of the requirements expected of him and take steps to educate his employees with respect to their on- the -job conduct. To promote safe work and to develop safety and health awareness in the workpeo- pie, we feel that safety meetings are important. A short "tailgate" meeting each morning will contribute greatly to this. Naturally, follow -up by supervisors during daily contact should be done. After you have had an opportunity to review the attached Regulations, representa- tives of this Department will be happy to discuss with you any questions you may have concerning your particular work or service. CONTRACTOR: SIGN HERE (Return copy of form) I have read and understand the Contractor Safety and Health Regulations cited above, and I c5'that As nd has advise me, in accordance with the Federal Hazard icat' Standard, as the hazards, if any, as- sociated with chemid in the workplac o which the Contractor's employees may be e Bill Zapal SIGNED FOR CONTRACTOR BY Executive vice Presid t TITLE E. E. Reed Construction C ompany NAME OF CONTRACTING FIRM 4/3/95 DATE 99895 (09/93) GENERAL FIRE, SAFETY AND HEALTH REGULATIONS CONTRACT WORK 1 Smoking is absolutely prohibited at all times in loca- SMOKING tions where No Smoking signs are exhibited. No smoking is permitted inside the plant property fenced area other than in designated smoking areas and the company lunchroom. A special smoking area may be arranged by Ashland's safety personnel for contract employees due to location and number of employees. ■ 2 . A permit to perform hot work of any kind is required FIRE PROTECTION at all locations in the plant other than in Company shop buildings. Special hot work permits can be ob- tained for contractor welding at fabrication sites; however, all other hot work will require a hot work permit which can be obtained from a person desig- nated by local safety personnel, and in no event will hot work be performed until such permit is granted. The contractor shall furnish approved fire extin- guishers for fire protection. if this equipment is to be furnished by Ashland pursuant to the contract, it may be obtained from the local safety personnel. Company fire equipment located throughout the plant should be used only in the event of a fire. This fire equipment must be kept in place and free from obstructions at all times. The plant fire water systems are reserved for fire fighting purposes. If abnormal circumstances make it necessary that fire water be used for filling tanks, etc., special arrangements must be made with the company. ■ 3_ The contractor shall be expected to maintain a clean HOUSEKEEPING work place at all times for the safety of his employ- ees, Ashland employees and others. A clean and tidy plant is a safe plant. Do not permit any refuse to accumulate. Pile material neatly and safely, keeping material a safe distance from fire fighting equipment, roads, sewer manholes, side- walks and operating facilities where employees have to travel to perform their work assignments. Do not leave tools and loose materials on steps, walkways, platforms or on elevated equipment. Place proper guard rails or barricades around openings, trenches and objects that protrude into walkways or road- ways. The contractor is required to furnish labor needed to keep area clean, including workers' lunch refuse. ■ q The contractor shall be expected to perform safe SAFETY work at all times. All personnel within the confines of our plants, including visitors and contractors and their employees, agents or representatives, are re- quired to wear safety hats and proper eye protec- tion. It is the responsibility of the contractors to insure personal protective equipment is provided and worn by their employees. To prevent personal injury, scaffolding and shoring should be provided where work to be performed re- quires it, to protect against falls, falling objects and cave -ins. Regulation handrails, toe boards and lad- ders must be provided where necessary or required. When working above ground, safety belts shall be worn as required. Do not throw or drop tools or equipment. Install signs and rope off areas in which there is danger from falling objects. Guy wires, hoisting cables or tackle lines shall not be anchored to in- service pipe lines or equipment vulnerable to stress. Electrical equipment tie -ins must be coordinated with Ashland's operations. Electrical problems should be worked out to the best safe advantage by the contractor's and company's electrical depart- ments. Electric lockout procedure shall be followed when working on any electrical equipment. A vessel entry permit must be obtained by contrac- tor foremen for work to be performed in tanks, ves- sels, sewer manholes and similar confined areas. Only authorized contractor vehicles will be permitted in the plant. No vehicle shall be driven in excess of 15 miles per hour. Special permits will be required when vehicles are needed in operating unit areas, inside tank dike walls, etc. ■ 5 . All contractors will conform to and comply with the OSHA guidelines and regulations promulgated by OSHA pursuant to the Occupational Safety and Health Act as well as all other applicable Federal, State and local laws and safety and health regulations. All refer- ences contained within this statement of safety and health regulations as to proper equipment and as to methods of operation are based upon the Regula- tions and Standards recited in the Federal Occupa- tional Safety and Health Act, and promulgated pursuant thereto. ■ g . It is understood that the above general rules and reg- GENERAL ulations, plus other specific safety and health prac- tices that may be instituted from time to time, are included in the conditions agreed to by the contract at the time of signing the contract for the work in- volved. ■ 7 . Ashland has an affirmative duty, imposed by the FEDERAL HAZARD Federal Hazard Communication Standard (48 FR 53340), to fully advise contractor as to the hazards, COMMUNICATION if any, of exposure to chemicals associated with con - STANDARD tractor's work in the workplace. Ashland shall com- REQUIREMENTS ply with this requirement by providing all necessary information with respect to such hazards to appro- priate Contractor's representative before Contrac- tor's employees are permitted on -site to commence work. ■