owned or under the control of the Contractor which are located at Lynn Lake and/or Sherridon. ARTICLE 2. Condition precedent. The Contractor represents that delivery to the Government of the refined metals as hereinafter provided for shall be contingent upon the completion of a construction program which the Contractor shall endeavor to accomplish or cause to be accomplished by or in the interest of the Contractor by not later than January 1, 1954, and which shall principally consist of the following: (a) The construction of a branch railroad line by the Canadian National Railways from the Contractor's mine at Sherridon, Manitoba, Canada, to Lynn Lake, Manitoba, Canada, site of a nickel-copper deposit currently under development by the Contractor and situated approximately 150 rail miles north of Sherridon, and (b) The obtaining by the Contractor of certain funds needed to finance the development and the completion of a construction program including the construction of a nickel refinery to be located in Alberta, Canada. It is understood that the General Services Administration shall have no contractual interest in or responsibility for the fulfillment of the condition set forth in this paragraph. (c) It is agreed that the Contractor will keep the Government fully informed of its progress in fulfilling the objectives referred to in paragraph (a) and (b) of this Article. It is further agreed that should said construction program be delayed beyond January 1st, 1954, and should the Contractor, as a result thereof, fail to commence deliveries of metals under the terms of this contract before December 31st, 1954, the Government will have the right to terminate the contract without cost to the Government. ARTICLE 3. Quantity. (a) The Contractor shall deliver to the Government a minimum quantity of 50,000,000 pounds of refined nickel and the Contractor may at its option deliver to the Government an additional 30,000,000 pounds of such metal; provided, in the event that the Contractor elects to deliver such additional quantity, notice thereof shall be given the Government in the manner prescribed in Article 8 (c) hereof. (b) The Contractor shall deliver to the Government 12,500 tons (25,000,000 pounds avoirdupois) of electrolytic copper wire bars hereunder. (e) The Contractor shall deliver to the Government 750,000 pounds avoirdupois of refined cobalt metal hereunder. A variation in the quantity of each metal deliverable under the contract, not exceeding 1%, will be accepted as full compliance with the contract quantities specified in paragraph (a) through (c) above. ARTICLE 4. Quality. (a) The nickel to be furnished under this contract shall conform to the following chemical and physical requirements: 1. Chemical Requirements: Nickel (Ni) plus Co.. Cobalt (Co). Iron (Fe). Sulphur (S). Carbon (C)- 2. Physical Requirements: The nickel shall be in the form of discs, approximately 21⁄2" in diameter and 1" thick, weighing 1 pound each or in such other form as may equally be acceptable to the General Services Administration. The material shall have a clean surface, free from dirt, slag or other foreign material. (b) The electrolytic copper wire bars to be furnished under the contract shall conform to the chemical and physical requirements of the American Society for Testing Materials Specification B-5, latest revision in effect on the date of each delivery. All material shall be in the form of 250 pound wire bars. (c) The refined cobalt metal to be furnished under the contract shall be suitable for the production of ferrous and nonferrous alleys. 1. Chemical Requirements: Each lot of cobalt metal shall conform to the following: 2. Physical Requirements: The cobalt shall be supplied in the form of rondelles, discs, lump and/or granular form. All material shall pass a two and three-quarter inch (23⁄43⁄4 ́ ́) screen and none shall pass a 6-mesh Tyler Standard Screen. All material in any one lot shall be of the same approximate size. ARTICLE 5. Inspection. (a) The metals refined and produced hereunder shall be inspected prior to shipment by an inspector-representative of the Government and a representative on behalf of the Contractor. Such inspection shall be accomplished concurrently and in such a manner as not to interfere with the manufacturing process or delivery schedules of the Contractor. However, the Government inspectorrepresentative for the purposes of this Article shall, upon presentation of proper credentials, have free access to the premises of the Contractor during usual working hours and shall be afforded the full cooperation of the Contractor for the accomplishment of these purposes. (b) It shall be the firm obligation of the Contractor to notify the Government not less than ten (10) days prior to the anticipated availability of a lot of nickel, copper or cobalt metal for inspection and shipment. ARTICLE 6. Sampling, analyzing and weighing. In order to assure that the metals produced hereunder shall comply with the specifications set forth in Article 4 hereof, all metals shall be sampled and analyzed in accordance with the following: (a) Sampling and analyzing of nickel shall be performed by the Government or its designated representative in accordance with the methods prescribed by the American Society of Testing Materials Specification B-39-22, latest revision, as far as is applicable to chemical requirements. (b) With respect to copper wire bars, sampling and examination for physical defects shall be performed at the Contractor's designated refinery. For purposes of sampling and analyzing, the size of the lot shall be agreed upon between the said representatives of the Contractor and the Government, but shall not be greater than a furnace charge (approximately 350 tons) and not less than fifty tons. Whenever possible, the Government representative shall be present during the pouring of a furnace charge from which deliveries are to be made hereunder. The Government representative shall witness the selection of three wire bars taken at intervals during the pour from which samples for chemical analysis will subsequently be taken. The Government representative shall also witness the taking of a sample from the furnace ladle and the pouring of the test billet from which a standard wire will ultimately be drawn for resistivity test. In the event that the Government representative is unable to be present during any pour from which a lot is to be delivered hereunder, he shall be entitled to select three wire bars from each lot of fifty tons or more which shall provide the metal necessary for chemical analysis and resistivity testing. The samples above referred to for chemical analysis shall be secured from the three bars obtained from each lot as described above by drilling five holes 1⁄2 inch in diameter at points equally spaced between the ends of the bars. The drillings so obtained shall be thoroughly mixed to make up a sample. The billet prepared from each lot as provided for above shall be swedged out into a rod which shall be drawn into a sample wire for resistivity testing. Notwithstanding the foregoing, it is understood that the analysis and testing of samples shall be in strict accordance with Specification B-5 of the American Society for Testing Materials. (c) As to refined cobalt metal, the lot size for purposes of inspection shall be not more than 100,000 pounds maximum nor less than a minimum car lot. Sampling and examination for physical quality shall be performed at the Contractor's designated producing plant. Sampling shall be done by the Contractor's representative in the presence of the Government inspector in accordance with good commercial practice and in a manner mutually agreeable to both parties. (d) Each composite sample of nickel, cobalt, and copper shall be divided into three equal parts, one to be retained by the Contractor and two (2) by the Government, one of which shall be forwarded for Government analysis and testing and the other sealed and held by the Government as an umpire sample if necessary. (e) In the event of disagreement on chemical analysis the umpire sample shall be submitted to a mutually agreed upon umpire whose determination shall be final. The cost of the umpire shall be paid by the party against whom the determination is made. (f) The Government shall reject all material which does not comply with contract requirements and shall be reimbursed by the contractor for all costs incurred by the Government in connection with rejected material. The Contractor shall replace all material rejected with material meeting the contract specifications. (g) Contractor's or Refiner's certified weight certificates shall govern as to quantity. Cost of weighing, if any, shall be for the Contractor's account. ARTICLE 7. Packaging. (a) The nickel discs shall be packed in wooden kegs of standard weight. Kegs shall be loaded into the common carrier's conveyance and braced to the satisfaction of the authorized representative of the appropriate common carrier. (b) The copper wire bars shall be loaded in the manner prescribed in illustration No. 4, Pamphlet No. 37, of the Association of American Railroads, issued July 1944, except that steel strapping will not be required. However, the wire bars shall be sufficiently blocked at each side of the doorway in order that the doorway area will remain clear during a rough haul. This shall be accomplished in accordance with prevailing United States commercial practice. A copy of the said publication will be made available to the Contractor. (c) Cobalt metal shall be packed in steel drums, hardwood barrels and/or kegs of standard weight, but all containers comprising any given lot shall be of the same nominal size and shape. The following information will be marked on the side of each container: Cobalt Metal Form discs (rondelles, lump, granular) Country of Origin Contract Number Lot Number (Supplier's) Net Weight (d) All cost of packaging and loading into common carrier's conveyance shall be for the account of the Contractor. ARTICLE 8. Delivery. (a) Delivery of all metals hereunder shall be made during the five-year period January 1, 1954, through December 31, 1958. (b) Delivery of nickel and cobalt shall be made f. o. b. Common Carrier's Conveyance, Contractor's refinery, which refinery shall be established at Edmonton, Alberta, Canada, or such other location in Alberta as Contractor may determine. Delivery of copper shall be made f. o. b. Common Carrier's Conveyance at refinery or plant located at Copper Cliff, Montreal East, and/or from the Contractor's refinery above named. (c) With respect to nickel, as far as possible the Contractor shall, subject to the provisions of Article 2 hereof, make deliveries in minimum quarterly quantities of 2.500.000 pounds unless some other schedule of deliveries is mutually agreed upon between the parties hereto; provided, however, that should the Contractor and the Government fail to agree upon a revised schedule, the said minimum quarterly quantities shall remain in effect. However, at least 30,000,000 pounds shall be delivered during the first three years of the contract period. The Contractor shall have the right of anticipating deliveries and of completing delivery of the total minimum or maximum contract quantity in a shorter period than is presently provided. In the event the Contractor elects to exercise this right, notice to that effect shall be furnished to the Government as far in advance as is possible, stating the quarterly periods to be affected. Not later than 30 days prior to the first day in each calendar quarter, the Contractor shall advise the Government of the amount which is proposed to be delivered during each month of that calendar quarter, specifying what proportion of such delivery shall apply to the minimum contract quantity and what proportion shall apply to the optional quantity of the contract. (d) The rate of delivery for copper and cobalt metal subject to the provisions of Article 2 hereof, shall be, as far as possible, in equal quarterly quantities, unless some other schedule of deliveries is mutually agreed upon between the parties hereto; provided, however, that should the Contractor and the Government fail to agree upon a revised schedule, the said minimum quarterly quantities shall remain in effect. In this connection, the right is also reserved by the Contractor to anticipate deliveries and to complete delivery of the total tonnage in a shorter period than the contract period. (e) On the basis of the notice of availability received from the Contractor as provided for in Article 8 (c) hereof, the Government shall furnish shipping instructions to the Contractor by not later than the fifteenth day of the month preceding the indicated month of shipment. The Contractor, acting as Forwarding Agent for the Government, but without remuneration for such services, shall attend to the shipment of all materials in accordance with shipping instructions furnished by the Government and shall provide the Government with all necessary shipping documents. The Contractor will make no charge for the clerical work of preparing such documents, but should there be incurred any charges such as consular fees or any charges incidental to the storage of material, or should the Government request the Contractor to pay freight charges from f. o. b. cars at the refinery to destinations to be designated by the Government, such cash outlays shall be for the account of the Government. (f) In the event the Government fails to issue the shipping instructions referred to in paragraph (e) of this Article 8 then immediately following the termination of such calendar month, the Contractor shall cause storage certificates or their equivalent to be issued in favor of the Government covering the tonnage for which it has not received shipping instructions. The issuance of such storage certificates shall constitute good delivery under this contract. The Contractor will provide free storage for one calendar month, but should the Government not take physical delivery by then, the Government shall be liable for any just and reasonable storage or other charges assessed against or incurred by the Contractor arising from failure to take delivery. Upon subsequent receipt of shipping instructions covering the quantity of material so held in storage, or any part thereof, the Contractor shall load such material in railroad cars and ship in accordance with such Government shipping instructions. The cost of such loading shall be for the account of the Government. ARTICLE 9. Price. (a) The unit price to be paid the Contractor at point of delivery for each commodity shall be the average price for Nickel, Copper and Cobalt respectively in United States dollars as published by the E&MJ Metal and Minerals Markets for the month of delivery and as set forth in the following: 1. Said price for nickel shall be the average price for the month of delivery for "NICKEL-per lb., electrolytic cathodes, f. o. b. Port Colborne, Ontario, contract price," less any U. S. import duty to a maximum of 11⁄4¢ per pound included in such Port Colborne price as duty paid. 2. As to copper, the price shall be the average price quoted for the month of delivery for "COPPER; Electrolytic, Domestic Refinery." plus the monthend differential quotation for "delivered prices in New England above refinery basis." 3. With respect to cobalt, the price shall be the said average published price for month of delivery for "COBALT-per lb., rondelles or granules f. o. b. N. Y. or Niagara Falls." (b) Any U. S. duty or taxes existing now or hereafter imposed on the metal covered by this contract shall be for the account of the Government. The Government shall arrange for customs entry of all metals into the United States. The aforesaid prices are payable on tonnages delivered f. o. b. Common Carrier's Conveyance, Contractor's refinery, in the case of nickel and cobalt, and at Montreal East and/or Copper Cliff and/or Contractor's refinery, in the case of copper. (c) If during the life of this contract the price of nickel, copper or cobalt should be placed under control by the United States Government, and/or the Canadian Government, acting in their sovereign capacity, to such an extent that the Contractor in all good faith should believe that any quotation referred to above ceases to represent a free market quotation, then, upon the written request of the Contractor, the Contractor and the Government shall negotiate promptly with respect to the price or prices to apply to deliveries thereafter to be made under the contract. In the event of the parties being unable to agree on a revised price or prices under the contract as hereinabove provided, the Contractor shall have the right by notice in writing to the Government, to cancel the contract without cost to either party as to all material not delivered under the contract upon the date of such notice of cancellation and on which the Contractor is not in default. ARTICLE 10. Payment. Payment for all deliveries accepted under the contract shall be made by United States Government check promptly upon receipt by the Government of properly certified invoices, showing marks, pieces, and weights, accompanied by certified weight certificates. ARTICLE 11. Certification of invoices. Each invoice shall have printed, stamped or typed thereon the following certifications, to be signed by the Contractor's duly authorized representative, with his title indicated: "I certify that the above bill is correct and just; that payment therefor has not been received; and that the material covered by this invoice is of Canadian origin." ARTICLE 12. Taxes and charges. All Canadian taxes, general or local, now or hereafter imposed, in connection with the material sold hereunder or the production, extraction, processing, sale exportation, proceeds or value thereof, shall be for the account of the Contractor. ARTICLE 13. Warranty. The Contractor warrants that all material sold hereunder shall be free and clear of all claims of third parties. The Contractor shall indemnify, hold harmless and defend the Government against all claims and demands with respect to such material. ARTICLE 14. Notices. All notices and communications required in connection with the contract shall either be in writing or by telegraph, and if intended for the Government shall be sent to it at 7th and D Streets SW., Washington 25, D. C., and if intended for the Contractor shall be sent to it at 25 King Street West, Toronto 1, Canada, or to such other address as either party may hereafter specify to the other in writing. ARTICLE 15. Distribution of documents. The Contractor shall furnish documents in the quantities specified and make distribution as follows: (a) To be mailed to the Examination Branch, Accounts and Reports Division, General Services Administration, 7th and D Streets SW., Washington 25, D. C. (1) Original and two (2) copies of properly certified invoices. (2) Two (2) certified copies of weight certificates prepared as required in this contract. (3) Other documents as required by this contract or otherwise requested by specific shipping instructions. (b) To be mailed to Director, Storage and Transportation Division, Emergency procurement Service, General Services Administration, 7th & D Streets, SW., Washington 25, D. C. (1) One (1) certifed copy of weight certificate. (2) Two (2) memo copies of Government or Commercial Bill of Lading. (3) Other documents as requested by specific shipping instructions. (c) To be mailed to the Collector of Customs at the United States Port of Entry through which material is to be entered and imported into this country. (Address is furnished with shipping instructions.) (1) One (1) memo copy of Government or Commercial Bill of Lading. (2) One (1) copy of Commercial Invoice. (d) To be mailed to the storage depot indicated in the shipping instructions issued by the Storage and Transportation Division. (1) One (1) certified copy of weight certificate. (2) Other documents as requested by specific shipping instructions. ARTICLE 16. Covenant against contingent fees. The Contractor warants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty the Government shall have the right to annul this contract without liability or in its discretion to deduct from the contract price or consideration the full amount of such commission, percentage. brokerage, or contingent fee. ARTICLE 17. Disputes. Except as otherwise specifically provided in this contract, all questions of fact involved in disputes arising under the contract shall be decided by the Contracting Officer, whose decision shall be in the form of written findings of fact. Whenever a contractor is aggrieved by such decision, he may, at his election: (1) Within thirty (30) days from the date of mailing or otherwise furnishing a copy of such findings to the contractor, appeal in writing to the Administrator of General Services, or his duly authorized representative, whose decision shall be final and conclusive upon the parties hereto; or (2) Pursue any rights that he may have against the United States by law. In the meantime, the contractor shall diligently proceed with the performance of the contract. |