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HomeMy WebLinkAbout99-07167I s • ?a V w a? pd 1 • Richard G. Tuttle Atty ID No. 28685 Kolansky & Strauss, P.C. Suite 1300, 1429 Walnut St. Philadelphia, PA 19102 (215) 963-9517 Counsel for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HARSCO CORPORATION, NO. 7/6 7 CG r< - t/a REED MINERALS BUSINESS UNIT OF HECKETT MULTI-SERV DIVISION OF HARSCO CORPORATION 1011 Mumma Road Wormleysburg, PA 17043, Plaintiff, V. THE HANCE CORPORATION 235 East Broadway Westerville, OH 43081 Defendant. NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice is served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the court may proceed without you and a judgment may be entered against you by the court without any further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or other property rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD TO GO TO ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE PA 17013 (717) 249 3166 or 1 800 990 9108 Richard G. Tuttle Atty ID No. 28685 KOLANSKY & STRAUSS, P.C. Suite 1300 1429 Walnut Street Philadelphia, PA 19102 (215) 963-9517 Counsel for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HARSCO CORPORATION, NO. ?} - I ?7 l c t . ( 7f t/a REED MINERALS BUSINESS UNIT OF HECKETT MULTI-SERV DIVISION OF HARSCO CORPORATION 1011 Mumma Road Wormleysburg, PA 17043, Plaintiff, V. THE HANCE CORPORATION 235 East Broadway Westerville, OH 43081 Defendant. C O M P L A I N T 1. Plaintiff Harsco Corporation, t/a Reed Minerals Business Unit of Heckett MultiServ Division of Harsco corporation (hereafter, "Reed") is a Delaware corporation with its principal place of business in Cumberland County, Pennsylvania. 2. Defendant The Hance Corporation ("Hance") is a corporation with a principal place of business in the State of Ohio. 3. Venue is proper in Cumberland County under Pa. R. Civ. P. 2179, because the cause of action upon which suit is brought arose in this County, and transactions and occurrences out of which the cause of action arose took place in this County. 4. Plaintiff Reed manufactures roofing materials. 5. Defendant Hance manufactures industrial conveyors, elevators and related components. 6. By agreement dated on or about November 24, 1998, Hance agreed that it would assemble and deliver conveyors, elevators and related components for use in a headlap plant and a crushing plant to be constructed by Reed in Ione, California. A true and correct copy of said agreement (the "Headlap and Crushing Plants Agreement") is attached hereto as Exhibit A. 7. By agreement dated on or about January 26, 1999, as modified by change order dated March 9, 1999, Hance agreed that it would assemble and deliver conveyors, elevators and related components for use in a color granules plant to be constructed by Reed in Ione, California. A true and correct copy of said agreement, including said change order (the "Color Plant Agreement") is attached hereto as Exhibit B. The Headlap and Crushing Plants Agreement and the Color Plant Agreement are jointly referred to from time to time hereafter as the "Agreements"; the conveyors, elevators and related components described in the Agreements are referred to from time to time hereafter as the "Goods." I 2 8. Hance failed to complete assembly of the Goods in f, G accordance with the requirements and specifications of the I Agreements. 9. Hance failed to make timely delivery of the Goods in accordance with the requirements of the Agreements. 10. As a result of Hance's breach of its obligation to complete assembly of the Goods, Reed was required to pay a third party to complete such assembly. Reed expended at least $60,766.46 to complete the assembly that Hance was required to perform, but failed to perform, under the Agreements. i 11. Each of the two Agreements requires assembly and delivery of item 24C9, a conveyor. Both parties contemplated that item 24C9 would be assembled and delivered only once, and, in fact, Hance delivered only one such item. 12. In the Agreements, the parties inadvertently included said item 24C9 twice, resulting in a stated contract price in the Color Plant Agreement which was $68,960.00 greater than the i I parties' actual agreement as to the total price payable for Goods and services. Reed paid amounts under each Agreement which are in excess of $68,960.00. 13. As a result of the late delivery of Goods required by the Agreements, Reed has incurred various costs, the amount and extent of which are not fully known as of the date hereof. 14. When this dispute arose, Reed withheld $80,123.93 in payments to Hance under the Agreements. Hance is entitled to a 3 F-11"._ credit for such amounts withheld, against the damages claimed by Reed herein. 15. Reed's net damages and expenses established to date, owed by Hance to Reed as a result of Hance's breaches of the Agreements, total $49,602.53, representing (i) Reed's costs and expenses of $60,766.46 to complete assembly of the Goods, plus (ii) $68,960.00 paid in respect of a conveyor which was charged twice, minus (iii) $80,123.93 credit due Hance. 16. Itemized damages arising from Hance's delays in delivery will be determined by Reed and provided to Hance prior to trial of this matter in accordance with the Rules. WHEREFORE, plaintiff Reed demands judgment against defendant Hance in an amount in excess of $50,000, together with interest, attorneys' fees and costs of suit. e' o November 30, 1999 Richard G. Tuttle Kolansky & Strauss, P.C. Suite 1300 1429 Walnut Street Philadelphia, Pennsylvania 19102 (215) 963-9517 Pa. Atty. ID No. 28685 Counsel for Plaintiff Harsco Corporation, t/a Reed Minerals Business Unit of Heckett MultiServ Division of Harsco Corporation 4 V E R I F I C A 1 0 N The undersigned, Michael V. Carpinello, hereby verifies that he is Director of Strategic Planning and Project Management for Reed Minerals Business Unit of Heckett MultiServ Division of Harsco Corporation, plaintiff in this action; that he is authorized to execute this verification on its behalf; and that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief. This verification is executed subject to the provisions of 18 P.S. § 4904, prohibiting unsworn falsifications to authorities. Dated: November 30, 1999 j ti i.? • ®i me Is g• No r7 I0 t. ,N REED•-`wAINEML D"Flic QE TO: P.O. S%0515. Camp H0, PA 17001-0515 ,t r PUflUHAbt.'LR LP= 20-18499 THIS OROER MAGER AWAPPEARON ' DATE 11i'2`.x?8 ALL CORRESPONDENCE, INVOKE i PACKAGES AM MPPING PAPf3i8. TM HANCE CORPOMPM 235 EAST BROADWAY SUPPLIER: WESTERVU E, OH 4=1 " ATRB:-TONYflEtW:. ? PREPAII FREIGHT f REW PANCRALS SHIP 'A HARSCO COMPANY Tp:. HWY 104 (O7<lfti CA96W ATTN: URMCARPN4I:" ?L SALES TAX EXEMPT f mill HS SALES TAX EXEMPTION CESii1FlCJQE ATAMED HIP VIA FOa TGFN& OEIIVERN REQUIRED: EFSTWAY ION CA 1s?5 SEE IST&2ND A=. NW UNR PRICE OmC IOUL ODST GUM. OFSCFtlpnN1 NTM N0. INVF CONS'MUCTION Q DEANERY TO K)W, CA FOR 24' S 3e' O )NVEYORS 848, M0 AND BUCKET ELEVATORS FOR THE CRUSHING AND HEA P PHASES OF 2 P,EED'S PROJECT. G ALL EQVIl 1lT WILL BE bb'1W FACT URED TO RUM MINE ZALS'LYESIGN 4 SPECW"T10NS AND DRAWINGS - S . ' ONY 6ECOMf+RISEDOFTHEUST THEa*wawEi8'FWILi PROi?OSAL.- e . : : 7 Y.F0.64k10ili3ER19810tBA; 'fF.i?'G9QTO8ER•76:19E8':.:-?:,., .,.. •....?....,` " - ... ...... ti 1)E1fltER1fWR3:SElAADE1HTt1E_POW ST?&SECOND' 4D)' MLA? "W. 1V-i'?4h2.-...:.1.'Yt.•MK.:Iftliryr.h'y1:(i.?nin .. v":t :.:?f'r....?er =-r'I YK?Jrl i:'] .: ... N..,?..?Vi?i•Yl' ..,?:1--? -f 9 'Q . ... -•LV w:•:• ::-.?.r[YY••..;, •... ,... .: ._:.....?... _. is ... :, •n:-:• . ..... . .. .. .. ::C e:.. .. r . :._... ..u. J'e.?.Ynu. ..... .. r1Y..J.... au. v.:M ... ?..'ti..Y ir._un. _.: ,. _.. v ttfi. .... -....: _ .w .. . _•..r:••?.rli P?.?a1..n.r':ihV':r v::nf?.. f:.'nl?.,l r!\'.F? :iVgM I.?..:-. -.i ...?.. :. :'wl mow: -... :: 't:'f •ftivtl. MM .. .. n !i h. v:N.?Y'l•nr f.ylq.Tn. 'l !Y?I fu:YY:Y:•-I U. ^.JI - .,, F.. ? f.l Y.'-:YI•••^'f: ?.•^Y11.r I.1^?^I N: • /'M•h •:i.l i'A^]L1FC:V, :HIV lY/r?:-?... 14 i6 16 17 \i ?-I•mM ; ''YY.r•? ....ZLI' '?If•-•• ryG ll?' ?f f.- - ?? ..' 4.N w!'J^ ?' •..ul r. n^N :i.i.<41.-I. :A?n -i,YY uJii ' gy; ? iOD4L• 1 RECENED: XA'.. © a narsco comparV4 CONSTRUCTION AGREEMENT Agreement l Mumma o Road, Worm eysburg, PA 17043 and the Contractor: anece Corporation., 235 East Minerals, O Broadway, Westerville, OH 43081-1656. 1. Project Scope. A) Turnkey construction and completion of 24" and 36" conveyors and bucket elevators for the crushing and headlap phases of our lone, CA Project. All equipment will be manufactured to Reed Minerals' design specifications and drawings. The equipment will be comprised of the list on your proposal , file number L981018A, dated October 18, 1998. 2. Contract- Doc The Contract D execution ocumens consist of this rAgreement, Drnwings. Specifications, - to and Modifications er, Ac ienci after execution of this Agrcc en ; these form tile contract and are as fulrly a part of Agreement the contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. A) This Agreement may not be modified except in writing and ngreed to by both parties. B) All Modifications, changes, deviations must have the written approval of lire owners' designated Project Manager or his designee. Con In lite k described 3. -W-Ork of thisCOntrac? 'Me shall Doc exc pt to the specifically indicatedrin the Colntract Docum n sr to 1 e tie responsib lityrof othe samara s, extent A) The Contractor and is employees are not ran 1l nysens eempl yeas lof lite ions Oco n ty, state, federal and B) The Contractor is obliged to comply with Owner as they relate to safety and health; establish adequate protection of the work against fire, theft and storm damage. 4. Date pgreemenofomme cement and -0 tCand the Contractor shall achieve Compedat of commencement of tion of he entire Project Inot Inter than April 1, 1999.ttrrs 5 Title To Work-Ownership. Title to materials and equipment m¢nu(ncureJ by Contractor will become the property ofthe Owner upon acceptance in writing by the Owner at lire errJ of enclr singe of progress billing. 6. Co_n_tract Sum• The Ow°er shall pay the Conttactor the Contrncl ti? nxrrxnn n0rlllnrsf Contractor's additions successful performance ofthe Contract. The Contract Sum shall be ??--- and deductions as provided in the Contract Documens 7 Pavmens. A) progress Payments. The Contractor will make application to ilia Owners' designated Project Progress Payments will be rbased upon tplt a red lu{wn rarme ioscn aide dated, November 9t, 1998. B) Request for Progress Payment I. Submission of Purchase Order by Reed Minerals will constitute generation of initial invoice. An amount of approximately S 129,450.00 will be due Net 30 days from the date of invoice. C) Request for Progress Payment 2. An amount of approximately S 194,237.50 will be due Net 3 days from the date of invoice. D) Request for Progress Payment 3. An amount of approximately $235,781,25 will be due Net 30 days from the date of invoice. E) Request for Progress Payment 4. An amount of approximately $128,231.25 will be due Net 30 days from the date of invoice. F) Final Payment. The Owner shall make final payment, constituting the entire unpaid balance of the Contract Sum, to the Contractor when: 1. All outstanding liens have been satisfied. correcting work or 2. The Contractor has fully performed the Agreement including any g warranty claim. 3. Final payment, approximately S 161,100.00 will be due Net 30 days from the date o completion and acceptance by Reed Minerals of lire entire Project. 8. Taxes. All applicable sales taxes are included in the Contract Sum. 9. Assignment. Neither the Contractor nor its Subcontractor may assign this Agreement without the specific written approval of the Owner. 10. Termination. Owner may at any time demand that the Contractor terminate work. In such event, any claim arising out of such Termination shall be settled exclusively by Owner reimbursing Contractor for documented costs actually and reasonably incurred by Contractor for materials and work performed (with due allowance for salvage value after the Owner has had full opportunity to recommend a disposition), but in no event shall Owner be responsible for a sum greater than the Contract Sum. 11. Insurance/Indemnity. Contractor shall adhere to and agree to Schedule E ( Insurance Addendum ). 12. Patent Infringement. Contractor agrees to defend and indemnify the Owner against all suits, actions or proceedings brought against the Owner from any patent infringements from equipment suppliers that the Contractor buys from, because of Contractor created infringements of patents. 13. Advertising. The Owner reserves the right to approve, prior to release by the Contractor, information about the Project. 14. Force Maieure. Fires, accidents, labor disturbances, war conditions, nuclear incidents, governmental acts, laws, or regulations causing the cessation of work beyond the control of the parties will permit Owner, at its option, to terminate this Agreement by written notice to Contractor without liability of Owner to Contractor for such termination, beyond provisions of 10. (Termination), if such cause continues for more than thirty (30) days. 15. Arbitration. The Owner reserves the right to direct that settlement of disagreements between the Owner and the Contractor be directed by the Owner through the use of the governing court or through the rules of the American Arbitration Association, as then in force. 16. Governing Laws. The laws of the State of Pennsylvania will govern this Agreement. 17. Warranty. Contractor wan-ants that the equipment and work performed will be in full conformity with Owner's specifications and drawings and that the materials and work will be free from defect for a period of one (1) year from date of occupancy. Contractor agrees that this warranty shall be in addition to any warranties of additional scope given to Owner by Contractor or implied or available by law. 18. Remedies. All remedies provided for in this Agreement are cumulative and are in addition to any other remedies provided at law or in equity. 19. Modification. No waiver, alteration or modification of the terms of this Agreement shall be binding unless in writing and signed by an authorized agent of the Owner. 20. Liens. Contractor shall promptly pay and discharge all claims and demands for work performed and materials and equipment furnished in performance of this Project. Contractor shall famish Owner with complete releases and waivers of all liens that may be filed in connection herewith. Owner reserves the right to satisfy and obtain the release of any liens filed as a result of work performed or materials and equipment furnished in performances of this Project and in such cases to set off such sums. 21. Subcontractors. Contractor agrees to provide Owner with a list of all subcontractors, name and address, who will be performing duties on this Project. Owner reserves the right to accept or reject any subcontractor prior to commencement of this project. 22. Representatives. A. The Owners Representative ( Project Manager) is: Michael Carpinello 1011 Mumma Road Wormleysburg, PA 17043 Tel: 717-972-1145 B. The Contractors Representatives is: Tony Helmic 235 East Broadway Westerville, OH 43081-1656 Tel: 614.882-7400 23. Binding Effect. This Agreement is to be binding upon, and inure to, the benefit of the Owner and the Contractor, and their respective successors, assigns, subcontractors, heirs, executors, administrators, receivers and other representatives. 24. Entire Agreement. This Agreement, including addendum, schedules and including any of its appendices, constitutes the entire Agreement between the parties relative to the subject of the Project and supersedes any previous agreements or understandings. All work performed by the Contractor prior to the execution of this Agreement shall be deemed to have been performed under and in compliance with this Agreement. In Witness Where of, the parties here to have caused this Agreement to be executed by their duly authorized representatives as of the day and year written above. Owner. Contractor: Reed Mine By By t1 C Name ch Name / 'y14198' Title President Title A Witness Witness ..•-21' 98(WED) 08:15 REED Mli'vRALS TEL:31)4 845 9558 N. 1)U1 THE HANCE CORPORATION 235 East Broadway, Westerville, Ohio, 43081-1656 (614) 882-7400 • (800) 783-7400 • Fax: (614) 882-7549 Oct. 18. 1998 REED MINERALS DIV. 1011 Mumma Road Worlsysburg, PA 17043 Attention: Mr. Galan Carr Subject: Revised Pricing on conveyors/Bucket Elevators for Tone. File Number -- L981018A Dear Galan, Thank you for providing the opportunity to work with you and your associates on the material handling portion of the California project. The following list is the revised pricing on the conveyors and bucket elevators discussed last week during our meetings at Evansville. The revised prices include the changes RTP MED to me earlier today on units 36C2,24C1,24C9, B$1 and BE2. As you requested I included the prepaid freight charges and engineering charges from RTP. Also, please remember Galan, the prices include many stems that were not included in our original meetings and estimates. These items include, but not limited too, the following: (1) ^011 speed switch installed on tail section. (2) safety Cable switch with mounting hardware installed- (3) Complete assembly of the head and tail sections. (4) Receiving hoppers or inlet skirts at load points where indicated by Patterson. (5) Head box with discharge chute at discharge end where indicated by Patterson. (6) Installation of troughing, idlers on conveyor frames. (7) Installation of return rolls on conveyor frames. (8) Installation of the conveyor belting on short units. (9) Legs and/or supports where indicated by Patterson. (10) Larger diameter head pulley on bucket elevators. (il) Larger casing size on bucket elevators. (12) Increased packing and shipping cost because units to be shipped assembled. Galan, I offer the following as a pricing guideline for the conveyors and bucket elevators for the first section. AS I understand it, the tripper conveyor is to be added to the color plant portion of the project and will no longer be considered in this part of the project. - Page 1 - -21' 9i (WED) 09:15 REED MINERALS TEL:304 845 9558 Y. 110') L981016A - Page 2 - Oct. 18, 1998 -- CONVEYORS -- Belt C/C Frame Drive 1. D. Quotation Width Length Mat Il. H.P. Price -au-DG-E--r- 0981016A 36" 178-0" Channel S - $ 12,862. - 'ZS°op gs?0oo: t 36C2 Q981018B 36" " 1191-10'1 1 " Truss 10 41,508, 000• X5 3 36C3 Q981018C 36 135 -4 Truss 40 54,237. , f 36C4A Q981018D 36" 221-2" Channel 7.5 13,386. ?S,apD' 36C4B 0981018E 36" 221-2" Channel 7.5 13,386. G 36C5 Q981018F 36" 2191-0" Truss 40 101.075. 5!01°60 7 36C6 Q981018G 36" 2091-3" Truss 40 89,468. ,Se1COO' V 36C7 0981018H 36" 2201-0" Truss 20 80,976. x,000 y 36CBA Q981018i 36" 201-5" Channel 5 15,488_ AS,MO* ,6 36CBB Q981018K 36" 200-5" Channel 5 15,488. g5-,000- n 2401 9981018L 24" 1221-10" Truss 10 65,131. 0j iz 24C3 Q981018M 24" 1491-8" Channel 7.5 41,438. a ?aro 43 2404 0981018N 24" 971-4" Truss 5 37,698. .15,? if 24C5 098101BP 24" 1280-511 Channel 7.5 44,391. 3-,0-6 is, 24C6 Q981018Q 240 . 128'-5" Channel 7.5 44,391. rGb? I6 24C7 Q981018R 24" 511-9" Channel 7.5 23,164. jO,R00 0 2409 Q981018S 24" 1781-3" Channel 7.5 48,968. ,P,600 TOTAL FOR ABOVE CONVEYORS $ 743, 055 -4-/0100A -- BUCKET ELEVATORS -- Bucket Discharge Casing Drive Price I.D. Quotation Size Height Size H.P. j 2456BE1 098101SU 16 X B 1021-10" 22"X56" 30 $ 38,789. {?i L+7o 2 2456BE2 0981018V 16 X 8 561-4" 2211X56" 20 26,977. 30,001" 7 24SGBE3 Q981018W 16 X 8 1051-7" 22"X56" 30 39,979. 0,0A0 TOTAL FOR ABOVE BUCKET ELEVATORS ------------------- $ 105,745. ljoloak;_,) Galan, I look forward to entering your order for these units in the next few days. As I explained to you, we really need to start on these to insure proper flow through the shops and to insure these units will be ready for you in a timely manner. Best Regards, Tony • 1• i• [7 1• es I* 0• • 0 s MAIL NIVOICf IN DIUMJCRE 70: REED MINERAL P.O. Box OS1S. Camp IM, PA 17001-OSIS DATE 1126199 THE HANCE CORPORATION 235 EAST BROADWAY 3UPPuER: WESTERVILLE, OH 43081 ATTN: TONY HELMIC ? PREPAY FREIGHT Nm 20 - 39012 TTOSOROER NUMBER MUSTAPPEAR ON ALL CORRESPONDENCE, OPMCES, PACKABES AND SNiP MPEAS. vcf;f!vYi REED MINERALS SHIP A HARSCO COMPANY 70: HWY 104 ZONE, CA 95840 ATTN: MIKE CQRPINELLO tg SALES -pX EXEMPr #n9MD1113 C( SALES TAX m(EMPTION CERTIRCJVE ATIAf]1ED pP VIA REST WAY FO.B. JONE CA TERMS SEE BELO OELNERY REQUIRED: 2 U IXASN. OESCRIPNON I UNENI. 14Y Na UNIT PRICE M= % I TOME COST 1 CONSTRUCTION & DELIVERY TO ZONE, CA FOR 24" & 30" CO NVEYORS 838,200.00 2 AND BUCKET ELEVATORS FOR THE COLOR OPERATIONS OR 3 REED'S PROJECT. 4 ALL EQUIPMENT WILL BE MANUFACTURED TO REED MINE ALS' DESIGN B SPECIFICATIONS AND DRAWINGS. B THE EQUIPMENT WILL BE COMPRISED OF THE LIST ON Y UR PROPOSAL, 7 FILE NUMBER Q981221 A THRU Q981221S, DATED DECEMBE R 21, .1998. e DELIVERY WILL BE MADE IN THE SECOND 2ND QUARTE OF 1998. 9 PROGRESS PAYMENTS WILL BE BASED UPON THE PAYME T SC DULE D TED 10 JANUARY 4 1991 Al I PROGRESS PAYMENTS MUST BE n 12 13 14 124.21 15 THE SELLER WARRANTS THAT THE {PRODUCTS} SHALL B CAPABLE OF 18 CORRECTLY PERFORMING ALL CALCULATIONS, COMPARI ONS, SEQUENC NG, 17 AND OTHER TYPES OF PROCESSING AS THEY RELATE T CALENDAR DAT S AND 18 DATA-RELATED DATA BEFORE, DURING AND AFTER THE EAR 20001NCLU ING LEAP 19 YEAR CALCULATIONS. WE RECOVED: DN iUML. I 838,200.0 PURCHASE ORDER A?_ C2 ^_ .1 90 a twsco company A`? V- ZIANe , CONSTRUCTION AGREEMENT Agreement made as of 26th day of January in the year 199 between the Owner: Reed Minerals, 1011 Mumma Road, Wormleysburg, PA 17043 and the Contractor: The Hance corporation., 235 East Broadway, Westerville, OH 43081-1656. 1. Pro ee o Turnkey censwctio and completion of 24" and 36" conveyors and bucket elevators for the color opera one, CA Project. All equipment will be manufactured to Reed Minerals' design specifications and drawings. The equipment will be comprised of the list on your proposal, file number Q991221 A thru Q981221 IS, dated December 21, 1998. cations, 2. Contracts Documents. The Contract Documents consist of this Agreement, Drawings Specifications, Specif in i this Agreement Purchase Order, Addenda issued prior to execution of this Agreement, other documents and Modifications issued after execution ex this Agreement, these form the Contract and are as fully a part of the Contract as if attached to this Agreement or repeated heroin. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. A) This Agreement may not be modified except in writing and agreed to by both parties. B) All Modifications, changes, deviations must have the written approval of the owners' designated Project Manager or his designee. 3. Work of this Contract. The Contractor shall fully execute the Work described in the Contract Documents, except to the extent specifically indicated in the Contract Documents to be the responsibility of others. A) The Contractor and its employees are not in any sense employees of the Owner. B) The contractor is obliged to comply with all laws, rules and regulations; county, state, federal and Owner as they relate to safety and health; establish adequate protection of the work against fie, theft and storm damage. 4 Date of Commencement and Completion: The date of commencement of the work shall be the date of this Agreement and the Contractor shall achieve Completion of the entire Project not later than June 1, 1999. a the fend ac of edach stage Contractor will progress herobilling. a he S Title To Work -Ownership. Title to materials and equipment property of the owner upon acceptance in writing y the 6. Contract Sum. The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's successful performance of the Contract. The Contract Sum shall be 5838 2_? subject to additions and deductions as provided in the Contract Documents 7 Payments. A) Progress Payments. The Contractor will make application to the Owners' aes gated Project Manager. The Project Manager must approve each application for progress final pay4 nt progress Payments will be based upon the agreed upon payment schedule dated, January Contractor must submit documentation of proof of purchases and receipt of materials to owner to support issuance of each progress payment. B) Request for Progress Payment 1. Submission of Purchase Order by Reed Minerals will constitute generation of initial invoice. An amount of approximately S55,000.00 will be due Net 30 days from the date of invoice. C) Request for Progress Payment 2. An amount of approximately $148,425.00 will be due Net 30 days from the date of invoice. D) Request for Progress Payment 3. An amount of approximately 5158,425.00 will be due Net 30 days from the date of invoice. E) Request for Progress Payment 4. An amount of approximately 5231,250.00 will be due Net 30 days from the date of invoice. F) Final Payment. The owner shall make final payment, constituting the entire unpaid balance of the Contract Sum, to the Contractor when: 1. All outstanding liens have been satisfied. 2. The Contractor has fully performed the Agreement including any correcting work or warranty claim. 3. Final payment, approximately 5245,100.00 will be due Net 30 days from the date a completion and acceptance by Reed Minerals of the entire Project. 8. Taxes. All app icable sales taxes are included in the Contract Sum. 9. Assignment. Neither the Contractor nor its Subcontractor may assign this Agreement without the specific written approval of the Owner. 10. Termination. Owner may at anytime demand that the Contractor terminate work. In such event, any claim arising out of such Termination shall be settled exclusively by Owner reimbursing Contractor for documented costs actually and reasonably incurred by Contractor for materials and work performed (with due allowance for salvage value after the Owner has had full opportunity to recommend a disposition), but in no event shall Owner be responsible for a sum greater than the Contract Sum. 11. Insurance/Indemnity. Contractor shall adhere to and agree to Schedule E ( Insurance Addendum ). 12. Patent Infringement. Contractor agrees to defend and indemnify the Owner against all suits, actions or proceedings brought against the Owner from any patent infringements from equipment suppliers that the Contractor buys from, because of Contractor created infringements of patents. 13. Advertising. The Owner reserves the right to approve, prior to release by the Contractor, information about the Project. 14. Force Maieure. Fires, accidents, labor disturbances, war conditions, nuclear incidents, governmental acts, laws, or regulations causing the cessation of work beyond the control of the parties will permit Owner, at its option, to terminate this Agreement by written notice to Contractor without liability of Owner to Contractor for such termination, beyond provisions of 10. (Termination), if such cause continues for more than thirty (30) days. 15. Arbitration. The Owner reserves the right to direct that settlement of disagreements between the Owner and the Contractor be directed by the Owner through the use of the governing court or through the rules of the American Arbitration Association, as then in force. 16. Governing Laws. The laws of the State of Pennsylvania will govern this Agreement. 17. Warranty. Contractor warrants that the equipment and work performed will be in full conformity with owner's specifications and drawings and that the materials and work will be free from defect for a period of one (1) year from date of occupancy. Contractor agrees that this warranty shall be in addition to any warranties of additional scope given to Owner by Contractor or implied or available by law. 18. Remedies. All remedies provided for in this Agreement are cumulative and are in addition to any other remedies provided at law or in equity. 19. Modification. No waiver, alteration or modification of the terms of this Agreement shall be binding unless in writing and signed by an authorized agent of the Owner. 20. Liens. Contractor shall promptly pay and discharge all claims and demands for work performed and materials and equipment famished in performance of this Project. Contractor shall furnish Owner with complete releases and waivers of all liens that may be filed in connection herewith. Owner reserves the right to satisfy and obtain the release of any liens filed as a result of work performed or materials and equipment furnished in performances of this Project and in such cases to set off such sums. 21. Subcontractors. Contractor agrees to provide Owner with a list of all subcontractors, name and address, who will be performing duties on this Project. Owner reserves the right to accept or reject any subcontractor prior to commencement of this project. 22. Representatives. A. The Owners Representative ( Project Manager ) is: Michael Carpinello 1011 Mumma Road Wotmleysburg, PA 17043 Tel: 717-972-1145 B. The Contractors Representatives is: Tony Helmic 235 East Broadway Westerville, OH 43081-1656 Tel: 614-882-7400 23. Binding Effect. This Agreement is to be binding upon, and inure to, the benefit of the Owner and the contractor, and their respective successors, assigns, subcontractors, heirs, executors, administrators, receivers and other representatives. 24. Entire Aereement. This Agreement, including addendum, schedules and including any of its appendices, constitutes the entire Agreement between the parties relative to the subject of the Project and supersedes any previous agreements or understandings. All work performed by the Contractor prior to the execution of this Agreement shall be deemed to have been performed under and in compliance with this Agreement. In Witness Where of, the parties here to have caused this Agreement to be executed by their duly authorized representatives as of the day and year written above. Owner: Reed Mine By C4 Name r ruch Title esident Witness Con tor h E By q Name Title .- Witness I H E HAN CE CO KPO RATI O N 235 East Broadway, Westerville, Ohio 43081-1656 (614) 882-7400 • (800) 783-7400 • Fax: (614) 882-7549 Dec. 21, 1998 REED MINERALS DIV. 1011 Mumma Road Worleysburg, PA 17043 Attention: Mr. Galan Carr Subject: Pricing for Conveyors/Bucket Elevators for Color Plant. 'File Number -- L981221A Dear Galan, Thank you for the opportunity to continue to work with you and your associates. This writing provides information on the material handling portion of the color plant for the California project. The following list is the pricing on the conveyors and bucket elevators completed last week during our meetings at Evansville. The prices include the design changes RTP on the various units. As you requested I included the prepaid freight charges to Ione and engineering charges from RTP. I followed the guidelines established on the lap plant portion. As you will recall, these added items include, but not limited too, the following: (1) 110" Speed switch installed on tail section. (2) Safety Cable switch with mounting hardware installed. (3) Complete assembly of the head and tail sections. (4) Receiving hoppers or inlet skirts at load points where indicated by Patterson. (5) Head box with discharge chute at discharge end where indicated by Patterson. (6) installation of troughing idlers on conveyor frames. (7) installation of return rolls on conveyor frames. (8) Installation of the conveyor belting on short units. (9) Legs and/or Supports where indicated by Patterson. (10) Larger diameter head pulley on bucket elevators. (11) Larger casing size on bucket elevators. (12) Increased packing and shipping cost because units to be shipped assembled. Galan, I offer the following as a pricing guideline for the conveyors and bucket elevators for the color plant section. - Page 1 - III L981221A - Page 2 - Dec. 21, 1998 COIMRYORS - - Belt C/C Frame Drive 1. D. Quotation Width Length Mat'l. 11. P. Price '24C8 Q981221A 24" 59'-5" Truss 10 $ 30,190. 124C9 0981221B 24" 179'-3" Truss 10 $8,960. $24C10 Q981221C 24" 146'-4" Channel 10 104,170. '!24C11 0981218D 24" 766'-2" Truss 30 248,160. 524C12 Q981221B 24" 59'-5" Channel 7.5 22,430. d24C13A Q982221F 24" 26'-8" Channel 5 17,580. '24C13B Q981221G 24" 269-8" Channel S 17,580. 124014 Q981221H 24" 50'-5" Channel 7.5 21,570. 124C15A Q98122IJ 24" 95'-0" Truss 10' 45,770. o24C153a 0981221K 24" 95'-011 Truss 10 45,770. ,.24C16A 0981221L 24" 37'-10" Truss 7.5 30,850. l124C16B Q981221M 24" 37'-10" Truss 7.5 30,850. g24C17 -------- 24" --'--^ Truss 000. TOTAL FOR ABOVE CONVEYORS -------------------------- $ -- BUCKET ELEVATORS -- Bucket Discharge Casing Drive I.D. Quotation Size Height Size H. P. 2456BE4 Q981221P 16 X 8 92'-8" 22"X56" 30 7-2456BES Q981221Q 16 X 8 65'-0" 22"X56" 25 3 2456BEGA 0981221R 16 X 8 87'-6" 22"X56" 30 y2456B336B Q981221S 16 X 8 87'-6" 221IX56" 30 TOTAL FOR ABOVE BUCKET ELEVATORS 683,880. Price $ 40,220. 33,940. 40,080. 40, 080. $ 154,320. Galan, I apologize for the delay in getting this data to you and look forward to entering your order for these units soon. Per our earlier telephone conversations, Hance is currently working with RTP on the engineering portion of this project. Hance did issue RTP a purchase order for the engineering design and details on this portion. After reviewing this if you have any questions, please do not hesitate to call me. Let me take this opportunity to with you and your family a very happy holiday season. Best Regards, Tony He mic i i ?33 ? .t i FROM Tony HeImic PHONE NO. : 614 837 7649 9?+UR 14 -rL(F 08; 19 FAX 717, -90 REED 41SERAI-51 >n sow MIIWAW- FY? 11UrACm COmP=W A harsoo company PO Box 0515 Camp Hill, PA 17001-0515 fifProject # Mar. 09 1999 12:54PM PS T f1100i Change Order 020.39012-01 Date 0310911999 The Hance corporation 235 East Broadway Wastervine, OH 43081 Scope of Work: Construction & deitvery of 24"& 38" Conveyors & Elevators For The Color Plant, includes the Tripper Conveyor for the finished goods slice in the Color Plant. of Scope: Change the length of the tripper conveyor from 148'-4" to 104V+t". change Is based on the reduction of the dumber of finish goods silos from 18-12. refiring your March a, 1999 revised pricing for the tripper. Of Reed Minerals Approval: Date: Z& 9y supplier Approval: ?? vrA'??l ,?S DPte:.? 9 9 All additionsi materials ar cervices that incur an Increase in cost on behalf of Reed Minerale most have the approved written consent of both parties prior to the delivery or services Performed. pwlGaoROeR w+ 07.7Y/79tti 7:70Mr V Paul Cottrell, Esquire Atty ID No. 93900 G. Kevin Fasic, Esquire Atty ID No. 77605 First Federal Plaza, Suite 500 P.O. Box 1031 Wilmington, DE 19899 (302) 658-6900 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HARSCO CORPORATION, t/a REED MINERALS BUSINESS UNIT OF HECKETT MULTI-SERV DIVISION OF HARSCO CORPORATION 1011 Mumma Road Wormleysburg, PA 17093 Plaintiff, V. THE HANCE CORPORATION 235 East Broadway Westerville, OH 93081 NO. 99-7167 Civil Term Defendant. ENTRY OF APPEARANCE TO: OFFICE OF THE PROTHONOTARY Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 PLEASE ENTER THE APPEARANCE of Paul Cottrell, Esquire and G. Kevin Fasic, Esquire of Tighe, Cottrell & Logan, P.A., as attorneys for Defendant The Hance Corporation. The Entry of Appearance shall not be considered to be a waiver of any jurisdictional defects in service upon the Defendant. The Defendant specifically reserves all rights to raise any jurisdictional, service, or statute of limitations defects which may be available. TIGH•, TTRELL & LOG N, P.A. Paul Cottrell, Esquire Atty ID No. 43900 G. Kevin Fasic, Esquire Atty ID No. 77605 First Federal Plaza, Suite 500 P.O. Box 1031 Wilmington, DE 19899 (302) 658-6900 Attorneys for Defendant DATED: December 17, 1999 Paul Cottrell, Esquire Atty ID No. 43400 G. Kevin Fasic, Esquire Atty ID No. 77605 First Federal Plaza, Suite 500 P.O. Box 1031 Wilmington, DE 19899 (302) 658-6400 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HARSCO CORPORATION, t/a REED MINERALS BUSINESS UNIT OF HECKETT MULTI-SERV DIVISION OF HARSCO CORPORATION 1011 Mumma Road Wormleysburg, PA 17043 Plaintiff, V. THE HANCE CORPORATION 235 East Broadway Westerville, OH 43081 Defendant. NO. 99-7167 Civil Term CERTIFICATE OF SERVICE I, Patrice Skinner, Secretary to Paul Cottrell, Esquire, hereby certify that two true and correct copies of the Entry of Appearance was served U. S. postage prepaid, this 17th day of December, 1999 upon the following: 1t:. Richard G. Tuttle, Esquire Kolansky & Strauss, P.C. Attorneys at Law Suite 1300 1429 Walnut Street Philadelphia, PA 19102 TIGHE?COTTRELLQ& I OGAN P.A. BY: Vl\1tittC a (= ?1 al.MM4l\ _ Patrice Skinner First Federal Plaza P.O. Box 1031 Wilmington, DE 19899 (302) 658-6400 December 17, 1999 r- i? c: _ :_? c•: u.-' ?_.,; i7.:' ._. •?_? .. ?. U_. J ' r Li - .: •. -",j:l Paul Cottrell, Esquire Attorney I.D. 443400 G. Kevin Fasic, Esquire Attorney I.D. No. 77605 TIGHE, COTTRELL & LOGAN, First Federal Plaza P.O. Box 1031 Wilmington, DE 19899 (302) 658-6400 NOTICE TO PLEAD TO: All parties, you are hereby notified to file a written response to the enclosed New Matter, and New Matter Counterclaim within twenty (20) days from the date of service hereof or a judgment may be e 't I ( st you. s you. Paul - 'Cottrell, Esquire Attorney for The Hance Corporation P. A. Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF HARSCO CORPORATION, t/a REED MINERALS BUSINESS UNIT OF HECKETT MULTI-SERV DIVISION OF HARSCO CORPORATION, Plaintiff, V. THE HANCE CORPORATION, Defendant. CIVIL ACTION - LAW COUNTY, PENNSYLVANIA No. 99-7167 Civil Term Jury Demand DEFENDANT'S ANSWER, NEW MATTER, AND COUNTERCLAIM Defendant, The Hance Corporation ("Hance"), by its undersigned counsel, answers the Complaint of Plaintiff ("Reed") as follows: I. 1. Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, therefore, they are deemed denied. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Denied. 9. Denied. 10. It is denied that Hance has breached any obligation and it is denied that Reed has been damaged by any act or omission of Hance. 11. Admitted. 12. Admitted only that item 24C9 was mistakenly included twice. The remaining allegations of this Paragraph 12 are denied. 13. Denied. 14. Admitted that these monies are owed. It is denied that Reed has been damaged by Hance in any way. 15. Denied. 16. All allegations of this Paragraph 16 are denied. NEW MATTER 17. Plaintiff's claims are time barred under the doctrine of laches or the applicable statutes of limitation. 18. Plaintiff has failed to mitigate the damages alleged. 19. Plaintiff has otherwise failed to state a claim upon which relief can be granted. WHEREFORE, Defendant prays that the Plaintiff's Complaint be dismissed with prejudice and that Defendant be awarded the costs of this action and such other and further relief as this court deems just. COUNTERCLAIM As its Counterclaim against the Plaintiff, Defendant alleges: 20. Hance hereby incorporates Paragraphs 1 through 7 above as if set forth in full as this Paragraph 20. 21. Hance has satisfactorily performed all duties and obligations in connection with the two Agreements with Reed. 22. Despite repeated demands for payment, no action has been taken by Reed to satisfy the outstanding invoices. 23. Reed's failure to make payment upon the outstanding invoices constitutes a breach of contract, with Hance damaged thereby. 24. The outstanding principal sum owed under the Agreements is $33,905.68. 25. The principal sum has been due and owing since September 30, 1999, and Hance is entitled to interest on the principal sum of one and one-half percent per month (18% per annum). Interest is $508.59 per month on the principal sum beginning with October 1, 1999. WHEREFORE, Defendant prays that the Plaintiff's Complaint be dismissed with prejudice and that Defendant be awarded judgment on ii 6 its Counterclaim along with interest and the costs of this action, including attorney's fees, and such other and further relief as this court deems just. DATE: March 3, 2000 TIGHE, TTRELL & LOGAN, P.A. By: Paul Cottrell Attorney I.D. #43400 G. Kevin Fasic Attorney I.D. 477605 First Federal Plaza, Suite 500 P.O. Box 1031 Wilmington, DE 19899 (302) 658-6400 Attorney for Defendant VERIFICATION STATEMENT 1, James Hance, hereby verify that I am Vice President of the ,-az•pa ?Vit+Gid?iJli, I..11c1L ab aucil I am authorized to make this <rPrifirnhinn nn l.nholf that the facto set forth in the f0re4oincr Answer. New MAf't.Ar anti c:ounterciaim are true and correct to the best Of my knowledge, +•A, mat' Ca ail T penalties of 18 Pa.C.S. 4904 relating to ur authorities. Dated: 3? z l z C> CD C) £o/£O'a Lee# St, ZT Zo-£o.oooz 5 Same-, Hanna CERTIFICATE OF SERVICE I, Paul Cottrell, hereby certify that on this 3rd day of March, 2000, two copies of the foregoing Defendants' Answer, New Matter and Counterclaim were mailed, postage prepaid, to: Richard G. Tuttle, Esq. Kolansky & Strauss, P.C. Suite 1300 1429 Walnut Street Philadelphia, PA 19102 PAUL COTTRELL . I Paul Cottrell, Esquire Atty ID No. 43400 G. Kevin Fasic, Esquire Atty ID No. 77605 First Federal Plaza, Suite 500 P.O. Box 1031 Wilmington, DE 19899 (302) 658-6400 Attorneys for Defendant MAR 2 2 2000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HARSCO CORPORATION, NO. 99-7167 Civil Term t/a REED MINERALS BUSINESS Jury Demand UNIT OF HECKETT MULTI-SERV DIVISION OF HARSCO CORPORATION 1011 Mumma Road Wormleysburg, PA 17043 Plaintiff, V. THE HANCE CORPORATION 235 East Broadway Westerville, OH 43081 Defendant. ORDER AND NOW, thiseday of 2000, upon consideration of Defendant's Petition for Leave to Join Additional Defendant, it is hereby ORDERED that said Petition is GRANTED and Defendant has leave to join R.T. Patterson Company, Inc. as an additional defendant. BY THE OUR . 60 J 8'. 38 I'citi\J i ? l!n;\lA F_> r Paul Cottrell, Esquire Atty ID No. 43400 G. Kevin Fasic, Esquire Atty ID No. 77605 First Federal Plaza, Suite 500 P.O. Box 1031 Wilmington, DE 19899 (302) 658-6400 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HARSCO CORPORATION, NO. 99-7167 Civil Term t/a REED MINERALS BUSINESS UNIT OF HECKETT MULTI-SERV Jury Demand DIVISION OF HARSCO CORPORATION 1011 Mumma Road Wormleysburg, PA 17043 Plaintiff, V. THE HANCE CORPORATION 235 East Broadway Westerville, OH 43081 Defendant PETITION FOR LEAVE TO JOIN ADDITIONAL DEFENDANT 1. On November 29--', 1999, plaintiff filed a complaint against defendant. A true and correct copy of said complaint is attached hereto and marked exhibit "A". 2. Settlement negotiations then began and the parties agreed that Defendant need not file an Answer until such time as negotiations reached a stalemate and Plaintiff demanded an Answer. 3. Defendant, The Hance Corporation, filed its Answer, New Matter, and Counterclaim on March 6`", 2000. A true and correct copy of said Answer, New Matter, and Counterclaim is attached hereto and marked exhibit "B" 4. The proposed additional defendant is the R.T. Patterson Company, Inc., a subcontractor to Hance regarding the project at issue. 5. During the settlement negotiations, it became apparent that some of the Plaintiff's claims against Hance involve work of Hance's subcontractor, the R.T. Patterson Company, Inc. It was at that point that Hance realized the necessity of the joinder and involvement of R.T. Patterson Company, Inc., and why this Petition is being made now. 5. The additional defendant will not suffer any prejudice due to joinder at this time. WHEREFORE, it is respectfully requested that an order be entered allowing the joinder at this time. TIGHE, COTTRELL & LOGAN, P.A. By:_ Paul Cottrell, Esquire Arty ID No. 43400 G. Kevin Fasic, Esquire Atty ID No. 77605 First Federal Plaza, Suite 500 P.O. Box 1031 Wilmington, DE 19899 (302) 658-6400 Attorneys for Defendant DATED: March 14, 2000 Paul Cottrell, Esquire Atty ID No. 43400 G. Kevin Fasic, Esquire Atty ID No. 77605 First Federal Plaza, Suite 500 P.O. Box 1031 Wilmington, DE 19899 (302) 658-6400 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HARSCO CORPORATION, NO. 99-7167 Civil Term t/a REED MINERALS BUSINESS UNIT OF HECKETT MULTI-SERV Jury Demand DIVISION OF HARSCO CORPORATION 1011 Mumma Road Wormleysburg, PA 17043 Plaintiff, V. THE HANCE CORPORATION 235 East Broadway Westerville, OH 43081 Defendant. ORDER AND NOW, this day of 2000, upon consideration of Defendant's Petition for Leave to Join Additional Defendant, it is hereby ORDERED that said Petition is GRANTED and Defendant has leave to join R.T. Patterson Company, Inc. as an additional defendant. BY THE COURT: J. Paul Cottrell, Esquire Atty ID No. 43400 G. Kevin Fasic, Esquire Atty ID No. 77605 First Federal Plaza, Suite 500 P.O. Box 1031 Wilmington, DE 19899 (302) 658-6400 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HARSCO CORPORATION, N0. 99-7167 Civil Term t/a REED MINERALS BUSINESS UNIT OF HECKETT MULTI-SERV Jury Demand DIVISION OF HARSCO CORPORATION 1011 Mumma Road Wormleysburg, PA 17043 Plaintiff, V. THE HANCE CORPORATION 235 East Broadway Westerville, OH 43081 Defendant. CERTIFICATE OF SERVICE I, rte.;-'- Esquire, hereby certify that on this 14th day of March, 2000, I caused to be served two (2) copies of the foregoing Petition for Leave to Join Additional Defendant via First Class Mail, upon the following: Richard G. Tuttle, Esquire Kolansky & Strauss, P.C. Suite 1300 1429 Walnut Street Philadelphia, PA 19102 By: Paul Cottrell, Esquire EXIHBIT "A" DEC 09 '99 04:27PIl . MEHERrAN Richard G. Tuttle Atty ID No. 28685 KOLANSKY & STRAUSS, P.C. Suite 1300 1429 Walnut Street Philadelphia, PA 19102 (215) 963-9517 Couneel'for Plaintiff r.o IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HARSCO CORPORATION, t/a REED MINERALS BUSINESS UNIT OF HECKETT MULTI-SERV DIVISION OF HARSCO CORPORATION 1011 mum ma Road Wormleysburg, PA 17043, u -? NO. ?? " ?1 L 7 C?un t lv Plaintiff, V. THE HANCE CORPORATION 235 East Broadway Westerville, OH. 43081 Defendant. C O M P L A I N T I . Plaintiff Harsco Corporation, Business Unit of Hackett MultiServ Division of t/aIReed Minerals (hereafter, "Reed") is a Delaware corporation Wi place of business in Cumberland County, Pennsylva 2. Defendant The Hance Corporation corporation with a principal place of business Ohio. Corporation its principal Hance") is a the State of • DEC 09 '99 04:2EPH E /.-- ----.. ?.SHEP.N.RN P.5 3. venue is proper in Cumberland County under Pa. R. Civ. P. 2179, because the cause of action upon which suit is brought arose in this County, and transactions and occurrences out of which the cause of action arose took place in this County. 4. Plaintiff Reed manufactures roofing materials. 5. Defendant Hance manufactures industrial conveyors, elevators and related components. 6. By agreement dated on or about November 24, 1998, Hance agreed that it would assemble and deliver conveyors, elevators and related components for use in a headlap plant and a crushing plant to be constructed by Reed in lone, California. A true and correct copy of said agreement (the "Headlap and Crushing Plants Agreement") is attached hereto as Exhibit Al. 7. By agreement dated on or about Janui modified by change order dated March 9, 1999, Hanc would assemble and deliver conveyors; elevato components for use in a color granules plant to bi Reed in Ione, California. A true and correc' agreement, including said change order (the Agreement") is attached hereto as Exhibit B. Crushing Plants Agreement and the Color Plant Agree referred to from time to time hereafter as the "1 26, 1999, as agreed that it and related constructed by copy of said "Color Plant Headlap and are jointly ; the conveyors, elevators and related components described in the Agreements are referred to from time to time hereafter as the "Goods." 2 1 ' DEC 09 '99 04:2SP11 ' ?&SHERMAN P.6 8. Hance failed to complete assembly of the Goods in accordance with the requirements and specifications of the Acreements. 9. Hance failed to make timely delivery of the Goods in accordance with the requirements of the Agreements. 10. As a result of Hance's breach of its obligation to complete assembly of the Goods, Reed was required to pay a third party to complete such assembly. Reed expended at least $60,766.46 to complete the assembly that Hance was required failed to perform, under the Agreements. 11. Each of the two Agreements requi delivery of item 2409, a conveyor. Both parties c item 24C9 would be assembled and delivered only on Hance delivered only one such item. 12. In the Agreements, the included said item 24C9 twice, resulting in a stated in the Color Plant Agreement which was $6e,960.00 g parties, actual agreement as to the total price pal and services. Reed paid amounts under each Agreeme excess of $68,960.00. 13. As a result of the late delivery of by the Agreements, Reed has incurred various costs, extent of which are not fully known as of the date 14. When this dispute arose, Reed withhel payments to Hance under the Agreements. Hance ie 3 o perform, but s assembly and Itemplated that and, in fact, inadvertently contract price :eater than the cable for Goods 1t which are in Goods required the amount and hereof. d $80,123.93 in entitled to a II! DEC 09 '99 04:26PN 4 &SHERMAN P.7 credit for such amounts withheld, against the da I ges claimed by Reed herein. 15. Reed's not damages and expenses established to date, I owed by Hance to Reed as a result of Hance's breaches of the Agreements, total $49,602.53, representing (i) Reed's costs and expenses of $60,766.46 to complete assembly of the Goods, plus (ii) $68,960.00 paid in respect of a conveyor which was charged twice, minus (iii) $80,123.93 credit due Hance. 16. Itemized damages arising from Harice's delays in delivery will be determined by Reed and provided to Hance prior to trial of this matter in accordance with the Rules-I WHEREFORE, plaintiff Reed demands judgment against defendant Hance in an amount in excess of $50,0001 together with interest, attorneys' fees and costs of suit. J Novembe Richard G. Tuttle j lt?vwl`X41 Kolansky & Strauss, P.C. :" Suite 1300 1429 walnut Street Philadelphia, Pennsylvania 19102 (215) 963-9517 1 Pa. Atty. ID No. 28685 counsel for Plainti corooration, t/a R Business Unit of H Division of Harsco 4 Harsco Minerals ett MultiServ , 1 . DEC 09 '99 04:29RI I P.9 3SHERMgN V R r v L _Q A T I 0 N The undersigned, Michael V. Carpinello, hereby verifies that he is Director of Strategic Planning and Project Management for Reed Minerals Business Unit of F.eckett MultiServ Division of Harsco Corporation, Plaintiff in this action; that he is authorized to execute this Verification on its behalf; and that the facts set forth in the foregoing Complaint are true and correct to the best i of his knowledge, information and belief. This verification is executed subject to the provisions of 1s F.S. s 4904, prohibiting authorities. Dated: November 30, 1999 DEC 09 1 99 04:29PM R&SHEP.MRN P.9 4 •DEC 09 '99 04:29P[1 k *HERMAN ?'• REW AINE R 4L 'r. _ . M: P.O.s=cMa.Crop M.P*I?Mlmu SUPPUEA: P.10 • ? ' FlRiGIfjlDBlpp 20 -- ISM DAM THIS Of ERKU OM W.WrAPMM ON I1i'25+88 ALL 1ATTMWEGORPORATHM RE€ KWW:RALS FAST BROADWAY A HARSCO COWANY STERU IE, OH 43081 HWY tot WTY7 #SEt#YC' : OKA, CA QSW ATMM6T--C, UO ? PWVY FM6Mff r SALMUX MCB4Pr01 MQWj1t3 - -- QT SALES TAX EXEMPTWN f ERnFfGgp /OTACHEO HP YY1 PIIA --- 1 yms: OELN W UREM SES WAY !O CA - 1995 • CIYAN. • 0E9C7tlPfgN INVEI A=. NY _ Na UNR PLACE mm= 1. CONSTRUCTION & DEIJVERY TO }ONE., CA FOR w & 3r YOR5 I.. /( V W e?I8WN.K 2 AND SOCKET ELEVATORS FOR THE CRUSMNO AND .. P PHASES tbF a REE9'S PROJECT. 4 ALL E CUWW-NT 1M1 :E BE t WWAC .VRGD To REt.D MWE °' OE5leN s SPECF=TMSANDDRAWM3. a ' T1iE bald l Y?iti $ (X iT15F t1F Tm USTON Y PRC43.05AL - ' • 7 I hl w°rw•rv'fC'W l' 1xiL ?VI 1>>Vlf.:'. _ .r.n .wr.n .?r..t• .. . .... r rr .WR MEIV9AOE Qt'IHE`F925T Si} s SECOtQS' QUARIFRS 1fd09. 8 Vv••{xqt N'L. ^!n`nrnr espF.hlfaell,l^?'r byrt .y.;X pnr• 1, _ .. .!'ne xrf..O:S .. ::WR:T C'(::rPti _ •II C..°' „r c • .• ••n v rr.•C ... - cvc xr•r ..a • •• .:r5•r .,r _ • '1:•'.:YI'1?rNJ Ir Wi4Y':r tI1,1PV'CxYflllll l!/Y 1' L.'Yli {` f 8: Y•' . l b • r ! • i f M 1 p ..: •_. ?... .a ..r. rrT'r. _ .-. . 12 it ? ... P"cm Enm Alm A=== .r ., . .. • `•• .. - .r. .!1 M. rn.C r i' nl f\lLTnrU IXrlf rnMrr... r.• wdr?• .,,t. y,l.y x • .. tX" ;x:......po-u.l l.1 1 IT.gT• ^Ti9 •] i'IY.dINM:aIO r p•w;.•.: 14 to n 19 tl' K1 'I • ? • YI ! . ?L r ?' i'rt° :'rYeelw.: r..,a 4^1o-. - .,1"_ ..?. ?? .. r.xbm r SD ^n ...Y.: .L n rrw xas;. _ 11. r?4 MJr]. -. r ..... • _. .. i nr.r i L.sy V Ir Y .ay. Lh:.r i1Ni'. 4 . ry s y _ .. 'rt: _ .. . ® a fiasco coiTiParuia'.. , r ;. 1 ..r. ^. •_ :::: `• . .. -DEC 09 '99 04:30Pr1 1 . '&SHERNAN CONSTRUCTION AGREEMENT P.11 Agreement made as of 24th day of November in the year 1998 between the Owner: Reed Minerals, Iol l Mumma Road, Wonnleysburg, PA 17043 and the Contractor: The Hancc Corporation., 235 East Broadway, Westerville, OH 43081-1656. 1. Protect Scooe. A) Turnkey construction and completion of 24" and 36" conveyors and bucket elevators for the crushing and headlop phases of our lone, CA Project. All equipment will be manufactured to Reed Minerals' design specifications and drawings. The equipment will be comprised of the list on your proposal , file number L981018A, dated October 18, 1998. 2. Contract Documents. The Contract Documents consist of this Agreement, Drawings, Specifications, Purchase Order, Addenda issued prior to execution of this Agreement, other documents listed In this Agreement and Modifications Issued after execution of this Agreemenr, these form the Contract and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract MPMre ats the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or Weemrnts, either written or oral. A) This Agreement may not be modified except in writing and agreed to by both parties. B) All Modifications, changes, deviations must have the written approval of the Owners' designated Project Manager or his designee. 3. Work of this Contract. The Contractor shall fully execute the Work described in ;the Can= Documents, except to the extent specifically Indicated in the Contract Documents to be the responsibility of others. A) The Contractor and its employees are not in any sense employees of the Owner. B) The Contractor is obliged to comply with all laws, rules and rcgulatlons; county, state, federal and Owner as they relate to safety and health; establish adequate protection of the work against fire, theft and storm damage. It 4Lpate of Commencement and Cbmpletion: The date of commencement of the work shall be the'date of this Agreement and the Contractor shall achieve Completion of the entire Project not later than April 1, 1999. 5. Title To Work - Ownership. Title to materials and equipment manufactured by Contractor will become the property of the Owner upon acceptance in writing by the Owner at the end of eacb sage of progress billing. 6. Contract Sum, The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's succ=ful performance of the Contract The Contract Sum shall be S 48 800.00 Dollars subject to additions and deductions as provided In the Contract Documents 7. Payments. A) Progress Payments. The Contractor will make application to the Otvners' designated Project Manager. The Project Manager must approve each application for progress and final payment. Progress Payments will be based upon the agreed upon payment schedule dated, November 9. 1998. B) Request for Progress Payment 1. Submission of Purchase order by Reed Minerals will constitute generation of Initial invoice. An amount of approximately S129,450.00 will be due Net 30 days from the date of Invoice. C) Request for Progress Paymeat2. An amount of approximately S194,237.50 will be due Net 30 days from the date of invoice. D) Request for Progress Payment 3. An amount of approxitnatoly 5235,781 1.25 will be due Net 30 days from the data of Invoice. E) Request for Progress Payment 4. An amount of approximately S128.231.25 will be due Net 30 days from the data of Invoice. F) Final Payment The Owner shall make final payment, eonstitutingthe i tirc unpaid balance of the Contract Sum, to the Contractor whim: 1. All outstanding liens have been satisfied. 2. The Contractor has fully performed the Agreement including any cornering work or warranty claim. 3. Final payment, approximately $161,100.00 will be due Net 30 s from the date of completion and acceptance by Reed Minerals of the entire Project., S. Tages. All applicable sales taxes are Included in the Contract Sum. rte- - 77- .DEC 09 199 04t31pt9 4 ;SHERMAN P 12 Assignment. Neither the Contractor nor its Subcontractor may assign this Agreement without the specific written approval of the Owner. 10. Termination. Owner may at any time demand that the Contractor terminate work. In such event, any claim arising out of such Termination shall be settled exclusively by Owner reimbursing Contractor Far documented costs actually and reasonably incurred by Contractor for materials and work performed (with due allowance for salvage value after the Owner has had full opportunity to recommend it disposition), but in no event shall Owner be responsible for a sum greater than the Contract Sum. 11. Insumnce/lndemniN Contractor shall adhere to and agree to Schedule E ( Insurance Addendum ). 12. Patent infringement. Contractor agrees to defend and indemnify the Owner against all stilts, actions or proceedings broughtagainst the Owner from any patent infringements from equipment suppliers that the Contractor buys from, because of Contractor created infringements of patents. 13. Advertising. The Owner reserves the right to approve, prior to release by the Contractor, information about the Project 14. Force Maieure. Fires, accidents, labor disturbances, war conditions, nuclear incidents, governmental acts, laws, or regulations causing the cessation of work beyond the control of the parties vill permit Owner, at its option, to terminate this Agreement by written notice to Contractor without Ilabllityof Owner to Contractor for such termination, beyond provisions of 10. (Termination), if such cause continues for more than thirty (30) days. 15. Arbitration. The Owner reserves the right to direct that settlement of disagreements between the Owner and the Contractor be directed by the Owner through the use of the governing court i or through the rules of the American Arbitration Association, as then in farce. 16. Governing Laws. The laws of the State of Pennsylvania will govern this Agreement. 17. Warranty. Contractor wan ants that the equipment and work performed will be 6 full conformity with Owner's specifications and drawings and that the materials and wodc will be free from defect for n eriod of one (1) year from data of cimupanty. Cont.metor agrees that this warranty shall be in addition to any warranties of additional scope givento Owner by Contractor or implied or available by law. 18. a edics.' All remedles provided for in this Ae eement are cumulativb and are in addition to any other remedies provided at law or in equity. 19. Modification. No waiver, alteration or modification of the terms of this Agr Tent shall be binding unless in writing and signed by an authorized agent of the Owner. 20. Liens. Contractor shall promptly pay and discharge all claims and demands for, ark performed and materials and equipment famished in performance of this Project. Contractor shall krnlsh Owner with complete releases and walvem of all liens that may be filed in connection herewith. Owner reserves the right to satisfy Sad obtain the raleaso of any liens filed as a result of work performed or raaknals and equipment famished In performances of this Project and in such cases to set Off such sums. 21. Subcontractors- Contractor agrees to provide Owner with a list of ell subcon I ors, name and address, who will be performing duties on this Project Owner reserves the right to accept or reject any subcontractor prior to eommeaeemeat of this project I Z. Retiresmtatives A. The Owners Representative ( Project Manager ) is: Michael Carpincllo 1011 Mumma Road WormIMIn rg, PA 17043 Tel: 717-972-1145 B. This Contractors Representatives is: Tony Hehnic 235 Ernst Broadway Westerville, OH 43081-1656 Tel: 614-882-7400 23. Binding Effect. This Agreement it to be binding upon, and inure to, the Contractor, and their respective successors, assigns, subcontractors, heirs, ex and other representatives.' Of the Owner and the administrators, receivers .DEC H9 199 64r32PM V.SHERMRM P.13 24, Entice Agreement. This Agreement, including addendum, schedules and including any of its appendices, constitutes the entire Agreement between the parties relative to the subject of the Project and supersedes any previous agreements or understandings. All work performed by the Contractor prior to the execution of this Agreement shall be deemed to have been performed under and in compliance with this Agreement. In Witness Where of, the parties here to have caused this Agreement to be executed by their duly authorized representatives as of the day and year written above. Owner: Contractor. I r) By By r, C Reed Mien?e??? Name Name . Tide Title Witness Witness DEC 09 199 04:3FPPI H ' °.SHERMRN P.14 21' MWE?) 09: 15 REED hr ALS TEL: 145 9558 P, 00! THE HANCE CORPORATION 235 Fast Bruedwoy, Westerville, Ohio, 43081-1656 (614) 882-7400 - (800) 783-7400 • Fax: (614) 882-7549 Oct. 38, 1998 AHED MIN=ALS DIY. 1011 Mumma Road Worleysburg, PA 17043 Attention: Mr. Galan Carr Subject: Revised Pricing an conveyors/ Bucket Elevators for.ione. File Number -- L981018A 1` Dear Galan, Thank you for providing the opportunity to work with you and your associates on the material handling portion of Ithe California project. The fallowing list is the revised pricing on the conveyorG and bucket elevators discussed last week during our meetings at Evansville. The revised prices include she changes RTP FAXM to me earlier today on units 36C2,24C1,24q'9, RRI-And- BE2. As you requested t included the prepaid freight charges and engineering charges from RTP. Also, please remember Galan, the prices include many items that were not included in our original meetings and estimates- These items include, but not limited too, the following: I (1) "0" Speed switch installed on tail section. (2) Safety Cable switch with mounting hardware installed. (3) Complete assembly of the head and tail sections. (4) Receiving hoppers or inlet skirts at load points where indicated by Patterson. (5) Read box with discharge chute at discharge end where indicated by Patterson. (6) Installation of t=oughing idlers on conveyor frames. (7) Installation of return rolls on conveyor frames. (8) Installation of tho conveyor belting on short >.ini.ts- (9) Legs and/or Supporte wbAre indicated by Patterson. (10) Larger diameter head pulley on bucket elevators. (11) Larger casing size on bucket elevators. (12) Increased packing and shipping cost because units to be shipped assembled. I Galan, I offer the following as a pricing guidJline for the conveyors and bucket elevators for the first section- As I understand it, the trigger conveyor is to be added Co the color plant portion of the project and will no longer be donsidered in this part of the project- - Page 1 - DEC 09 '99 2,1.98INED) 08:15 L981018A 04:32PM R&SHERMRN REED M11 AL5 TEL: - Page 2 - nn?vnRF __ P.15 845 9558 F. ww Oct. 18, 1998 Belt C/C Frame Drive x,.D. Quotation Width Length Mat 11. H.P. Price 1 36C1 998101SA 3611 171-O„ channel 5 ¢ 12,862. R ? IIS,o?a' r. 39C2 Q981016B 36" 119+-10" Truss 1D 41,SO8. P S poo• 3 3603 9983-0180 36„ 135r-4" Truss 40 , 54.237. f 36C4A 0981018A 3611 221-2" Channel 7.5 13,386. 5- 36C4S 9981018E 36" 220-211 Channel 7.8 13,386• 0 5 6 36C5 Q981018F 36" 2191-0" Truss 40 . 101, 7 7 36CG 098101812 36" 2091-3" Truss 40 89,468. d 36C7 Q982.018H 1 36" 2209-D" Trues 2C` 80,976. ,ou0 ' 36CBA Q981018J 36" 20,-5" Channel. ? 15,488_ ZL51 0 ro 39COB Q981018K 36" 20r-5" Channel 15,488. a?Coo. rr 24C1 Q981018L 24" 1228-10h Truss 10 65,131. sS' iz 24C3 Q983.018M .24" 1491-13" Channel. 7.?5 41,438. R U 24C4 098101825 24" 971-4" Truism 5 37,698. a5,0o'o rf 24CE 0981018P 24" 1281-5" Channel 715 44,391. 3o,0-6 r5 24CE 0981018Q Z4" 1261-S" Channel 7.15 44,391. oooo If. 24C7 Q981018R 24" 51%-9" Channel 7-5 23,164. jp/670 0 24CS 09810185 24" 176 r -3" Channel. 7.1Is 481968 10 ?md TOTAL FOR ABOVE CONWYORS --------='-----------•------ $ 743,055. Sro,ooc? -- BUCKET ELEVATORS -- Bucket Discharge Casing Drive Price S.D. Quotatioa size Height Size i.8. j 24SGBR1 Q981018'Q 16 X 8 1021-10" 22"X56" 30 Q 38,789. `>V,"00 2 2456BE2 0981CIEV 16 X e• 561-411 2Z" X56" 20 26,977. gojWD J 2856823 •,0981018W 16 X 8 105 1-711 22 hXB6h 30 39, 979. 0, 000 TOTAL FOR ABOVN BUCKET ELEVATORS -- I 5 105, 745. 10 ooc') Galan, I look forWard to entering your arde in the next few'days. As x explained to you, we start on these to insure proper flow through the insure these units will be ready for you is a ti these units y need to and to 9. 1w, 8'eo Best Regards, Tony DEC 09 '99 04:33PM I - &SHERMAN ,I„OM IN•13EED MINERAL. MrLOm M: P.O. Bw0515, Cupp HM. PA 17MI-MIS DATE THE HANCE CORPORATION 235 EAST BROADWAY SUPPLIER: WESTERVILLE, OH 43061 ATTN: TONY HELMIC P.17 PURCHASE 01MIM _? ?° - 39012 V2&% AU COMUMMENCC, WAX= PACKAGM ANO MNPPWO PAPM REED MINERALS SHIP A HARSCO COMPANY i0: HWY 104 ZONE, CA 95640 ATTN: MIKE CMRPINELLO Iid SALES W EXE F?D1 Zi 4 SALES TAX EXEM RnON CERfIFIC:4E RTkpiED UP W1 BSSTWAY Fna TERMS DRNEHI' RECUIPED: CLAN. OESCAIPiION VNET Na N0. UNR PRIM Toou_ COST CONSTRUCTION S DELIVERY TO IONE, CA FOR 24" & 36" C ONVEYORS 638,200.00 2 AND BUCKET ELEVATORS FOR THE COLOR OPERATIONS OR REED'S PROJECT. 4 ALL EQUIPMENT WILL BE MANUFACTURED TO REED MINE i ALS' DESIGN a SPECIFICATIONS AND DRAWINGS. 6 THE EQUIPMENT WILL BE COMPRISED OFTHE LIST ON Y UR'PROPOSAL. FILE NUMBER QBB1221ATHRU CM1221S. DATED OECEMB R21, 1M. a DELIVERY WILL BE MADE IN THE SECOND ND QUARTS OF 1998. • 9 OGRESS PAYMENTS WILL BE B SED PO ' T PAYME T SCHEDULE W ri 12 13 14 24.21 16 THE SELLER WARRANTS THAT THE (PRODUCTS} SHALL B CAPABLE OF 16 CORRECTLY PERFORMING ALL CALCULATIONS, COMPARI SONS, SEQUENC G, 17 AND OTHER TYPES OF PROCESSING AS THEY RELATE T CALENDAR DAT S AND A-RELATED DATA BEFORE, DURING AND AFTER THE EAR 2000INCLU ING LEAP ±io ± YtEAR CALCULATIONS. WE AECSVED: UP I •7ow:I B38,200.C n ca ., _ . _ @a hwsco company ? M.. ,Z?, DEC 09 '99 04:34PM i '39HERMAN P.16 CONSTRUCTION AGREEMENT Agreement made as of 26th day of lanual7V in the year 1999 between the Owner. Reed Minerals, 1011 Mumma Road, Wormloysburg, PA 17043 and the Contractor: The Hance Corporation., 235 Fast Broadway, Westerville, OH 43081-16$6. ?,d L. p ,,t t_y ..??• 1. ec e. .. V Tumkry coastruaia end completion of 24"and 36" conveyors and bucket elevators for the color opera one, CA Project All equipment will M manufectuftd to Reed Minerals' design specifiratltms and drawings. The equipment will bo tempt sect of the list an your propose! , Ella number Q981221A thro Q96t2215, dated December 21, 1998. 2. Cooyact D°cumrnb._ The Contract Domhments consist of this Agftemen4 Drawl^8e,aitieah°na, Prushate Onier, Addenda issued prior to execution of ibis Agreemea4 other doeumeats Baud in this Agreement and Modffirations Issued after ex xution ofthis Agreement these form the Contract and are as fully a pertof the Contract as iC attached m this Apaeenornt of repeated heroin. The Contract teprese9ts the emus and integrated agreement between the parties hereto end supersedes prior negetlatoth4 representations or agreements, either wrieen or oral. A) This Agreement may not be modified except in writing and agreed to by both parties. B) All Modifications, changes, deviations must have the written approval of tithe Owners' designated Project Manner or his designee. 3, }York of this Contract. The Contractor shall fully execute the Work described in the Contract Documents, except to the extent specifically indicated in the Contract Documents to be the responsibility of others. A) The Contractor and its employees aft not in any sense employees of the Owner. B) The Connector is obliged to comply with all laws, rules and regulations; county, state, Rdenil and Owner as they relate to safety and health; establish adequate protection of thcl work against fire, theft and storm damage. a Dale of ommcncement and ComAletian The date of commencement ofthe work shall be the date of this Agreement and the Contmororshall achieve Completion of the entire Project not later than lure 1, 1999. 5. Title ToWork -Ownership, Title to materials and equipment manufactured by Cantmctorwill become the property of the Owner upon acceptance in writing by the Owner at the end of each stage of progress billing. 6. Contract Sum. The Owner shall pay the Contractor the Contact Sum in current funds for the Contractor's stweessflrl perfunnance of the Contract. The Contract Sum shall be $938.200,00 Dot subject to additions and deductions as provided In the Contract Documents 7. Payments. . A) Progress Payments. The Contractor will make application to the Owners' designated Project Manager. The Project Manager must approve each application for progress and final paymcnL Progress Payments will be based uport the agreed upon payment schedule dated, January 4, 1999. Contractor must submit doeumcistadou of proof of purchases and receipt of materials to Owner to support issuance of each progress payment B) Request for Progress Payment 1. Submission of Purchase Order by Reed Minerals will constitute ganca don of initial involco. An amount of approximately S55,000.00 will Ac due Net 30 days from the date of Invoice, C) Request for Progress Payment 2. An amount of apprtncimatoly S 148,425.00 will be due Net 30 days from the date of invoice. D) Request for Progress Payment 3. An amount of approximately S158,425.00 .00 will he dote Net 30 days tlvm the date of invoice. E) Request for Progress Payment 4. An amount of approximately 5231,250.00 will be due Net 30 days from the data of invoice. F) Final Payment The Owner shall make feat payment, constituting the entire unpaid balance of the Contract Sam, to the Contactor when: 1. All outstmdahg licas have been satisfied. 2. The Contractor has fully performed the Agreement including any correcting work or ' warranty claim. 1 3. Final payment, approximately S245,100.00 will be due Net 30 days from the date of completion and acceptance by Reed Minerals of the entire Project DEC 09 '99 04:34PM : :.°.SHERMAN P.19 8. Taxe . All Vp',cable sales taxes are included in the Convect Sum $sign this Agreement without the specific 9. ?,?+i¢mne;& Neither the Contractor nor its Subcontractor may written approval of the Ownar. at any time demand that the Cy owner errcimbtate g Coon Ian fsuch or for ?uln d 10. ng t su Termination may and reimb work puts gerformed with event nllawshaltrnce fur arising out of f such TMraioatian shall be settled a :clusl for velyby materials owner costs actually and reasonably incurred by Contractor to recommend a disposition), but ( in no salvage value altar the owner has h fu anP?° Contract Sum. lnswancc Addendum), Owner be responsible for a cum greater a to Schedule E t I. '" ^a Contractor shall adhere to end afireIrcrs that the 12. PaTe"t lnfrinrtem9M Contractor agrees to defend and indemnify the 6wneui ment supplier$ actions or tractor inst the owner from any Patent infringements from eq P ss. proceedings brought ago of Contractor created infringemenu of Pate" Contractor buys from, because rove 13. Advcrtis!M bu The Owner reserves the right to app, prior to release by the Contractor, Information about the Project governmental acts, lq, Force WWI`- Fires, aceidonts, labor disturbances, war toad',t',one nuclear eacta[Ower to Contractor for the eessation of work beyand the control of the parries will permit Owner, at its laws, or regulations causing tit utt by written notice to Commerce without liability optlen, to terminate this Agreem such termination. beyond provisions of 10. (Termination), if such cause continues for Mora than thirty (3 days. ht to d' tart that settlement of disagreements between the Owner 15 Arbitration. The Owner reserves the through the use of the goveming court orlthrough the rules of the and the Contractor be directed by the Own American Arbitration Association. as then in force. 16. Goveminel aws• T1te Ines of the State of Pennsylvania will govern this Agreement. od of 17. WoIi3p V. Contractor warrants ?aad thatthc materials and work will be warrantfull {lwill eabfroru detect for a epee', with Ovrtter's specifications and irnwings that this warranty shall be In Addition to any warranties one (I) year from date of oeetipaaey. Contractor agrees of additional scope given to Owner by Contractor or implied or ale Ica. 13. Rem • s. All remedies provided for in this Agreement are c cumulumulativve e and nro Iaddition bmd' g unless remedies provided at taw Or !it equity. 19. Modifiggip _ No waiver, alteration or modiihfri tiorar of the terms of ibis Agree ored and In writing and signed by six authoti=d agen 20. Liens. Contractor shall promptly paY and discharge ail claims s and de III f umrtsh Oarfwner with materials and equipment famished In performance of this Project. h Owner the right to complete releases and waivers of all licas that may be filed in connection herewith. Owls satisfy and obtain the rcleasa of any liens filed as a result of work performed or mace i la and equipment ?alsbed in Performances of this Project and in such cases to set off such sums. name and address. 21. Subeoritraamrs. Contactor agtecs to provide Owner with a list orall subco ra t m, am subcontractor who will Ixi`petforming duties an this Project Owner reserves the right to accept I prior to wmmiaacaascat of this project. 22. WaMMn ntatlvs? taslve (Project Maanger) ie: A. llte Carpmallo 1011 Mum= Road WcrmleysburE 17043 Tel-. 717-972-1145 B. The Contractors gcpresentadvu is: Tony Helmlo 235 East Broadway I Westerville, OR 43031.1656 Tel: 614.582-7400 23. Binding Effect. This Agreement is to be binding upon, and inure to, the b tois:af the owner and the Contractot, and their respective successors, assigns, subcoatracton, heirs, exewtors? administrntots, teeeivers and other rtpreseatadves. I I P.20 DEC 09 '99 04:3=PM ' !&SHEMOM 24. Entiro Agreement This Agreement, including addendum, schedules and including any of its appendices, constitutes the entire Agreement between the parties relative to the subject of the project and supersedes any pmviout agreements or understandings. Ali work performed by the Contractor prior to the execution of this Agreement shall be deemed to have been performed under and in compliance with this Agreement. In Witness Where of, the parties here to have caused this Agreement to be executed by their duly authorized representatives as of the day and year written above. Owner. Reed Min By Name r rueh Title osid il Witness Co ctor. E By A game Title Witness _ t DEC 09 199 04:35PM .nSHEP.MAN P.21 T E HANCE CORPORATION 235 East Broadway, Westerv(Ile, Ohio 43081-1656 (614) 882-7400 - (800) 783-7400 - Fax: (614) 882-7549 Dec. 21, 1998 REED MINERALS DIV. 1011 Mumma Road worleysburg, PA 17043 Attention: Mr. Galan Carr Subject: Pricing for conveyors /Bucket Elevators for Color Plant. 'File Number -- L981221A Deer Galan, j! Thank you for the opportunity to continue to work with you and your associates. This writing provides information on the material handling portion of the color plant for tkie California project. The following list is the pricing on the conveyors and bucket elevators completed last week during our meetings at Evansville. The prices include the design changes JRTP on the various, unite. As you requested I included the prepaid freight charges to. lone and engineering charges from RTP. 1 followed the guidelines established on the lap plant portion. As you will recall, these added items include, but not limited too, the following: (1) "0" speed switch installed on tail section. 1 (2) Safety Cable switch with mounting hardware installed. (3) Complete assembly of the head and tail eectiorls. (4) Receiving hoppers or inlet skirts at load points where indicated by Patterson. (5) head box with'discharge chute at discharge end where indicated by Patterson. I (6) Installation of troughing idlers on conveyor Frames. (7) installation of return.rolls on conveyor frames. (8) Installation of the conveyor belting on short units. (9) Legs and/or Supports where indicated by Patterson. (10) Larger diameter head pulley on bucket elevators. (11) Larger casing size on bucket elevators. (12) Increased packing and shipping cost because units to be shipped assembled. Galan, I offer the following as a pricing guideline for the conveyors and bucket elevators for the color plant section. . Page 1 - . • DEC 03 '33 04:35PM 4&SHU SAM P. 22 b981220A - Page 2 - Dec. 21, 1998 __ C'014V$XORS -- Belt C/C Frame Arive Z.D. Quotation Width Length mat, 1. H. P• ?24CS Q981421A 24" 59'-5" Truss 10 124C9 42981221B C 241f 2411 X46'-4" Channel 10 y24C10 1?24C1]. 0.981221 0981218D 24" 766'-2" C„ ' Truss Channel 30 7.5 524C12 o24C13A 0981221E 0981221Y 24" 24" - 59 261-8" Channel 5 24C138 Q9811210 24" " 26'-8" 50' -5" Channel ssnel 5 7 •5 524C14 124C15A Q981221H 098122IJ 24 24" 95'=0^ T Truruss 10 . io24C15B Q981221K 24" 24" 95,-0" 37'-10" Tru68 Tru68 10 Is 7.5'; ?24C16A 11 24C16B Q981221L Q961221M 24" 10" 37'- 7 5 24C17 -------- 2411 -_n -.? Truss I TOTAL FOR ABOVE CONVEYORS - ---------- ---------- --- -- BUCAET YLEVATORS - O Bucket Discharge Casing rz Iij Z.D. Quotation Size Height size / 2456B$4 Q981221F 16 X 8 92'-8" 6s'-0^ 22^X56" 221IX56" V 25 X-2456BES Q981221Q 3 16 X 8 16 x 8 87, -6 ° 22XS6" " 3C ?2456886B Q981221S 6 X 8 1 87'-6 X56" 22 3t Price $ 30,190. 68,960. 104,170. 248,160. 22,430. 17,580. 17,580. 21,570. 45,770. 45,710. 30,850. 30,850. 00,01 $ 683,880. Price $ 40,220. 33,940. 40,080. 40, 080. --------------- TOTAL FOR ABOVE SVCKBT ELEVATORS Galan, I apologize for the delay in getting t3 and look forward to entering your order for these 1 Our earlier telephone conversations, Hance is cum With RTP on the engineering portion of this projec issue RTP a purchase order for the engineering des on this portion. After reviewing this..if you have please do not hesitate to call me. Let me take thi, to tvigh you and your family a very happy holiday 9 Beet Regards, Tony $ 154,320. a data to you its soon. Per tly working Hance did sl and details y questions, opportunity DEC 09 '99 04:37PM I :BSHEP.MRN P.23 F?'M t'Tony Nelmic PKNE No. f 614 837 7649 Mar. 09 1999 SZ;S4PM P1 /' +YY !'VN 08:19 F.U 7/r7t..•.BO REED k1NERALS ^• • x'001 IN are QWWAseo eaWrypeWV4 A harrop company PO Box 0616 CalnP HIIi, PA 17001-0515 wprejeet 4 Change order c2clssoj2.01 Data W 03901889 The Hance Corporation 238 East Srcodway Wfftervliie, OH 49081 not eoope of Work; Construction & delivery of 24" a 38° Conveyors $ tnOtudes the Tripper Conveyor for the finished goods sacs in the Color of 3=98. Change the length of the tripper ceitveyor change is based on t119 reduction at ft nunrbar of Onlsh goods slloa De refet®nw your March 4, 1M revised vrfoing for the Wpper. Reed Nnnerals Approval; OstS' Supplier Approval: lFvs Om: J All addltl0rral materlais or AQMcea that lnwr on increan in :oat on behaff of aPPrved written consent of both parses prlor to the delivery or Eervlces porn csocnm rw,vn , For The Color Plant. 148'-4" to 1041-4•. 18-12. 9/9 MirIMIS must have the O%WN eZMXP ANaew„ v EXHIBIT "B" ,gyp 515 Paul Cottrell, Esquire Attorney I.D. #43400 G. Kevin Fasic, Esquire Attorney I.D. No. 77605 TIGHE, COTTRELL & LOGAN, First Federal Plaza P.O. Box 1031 Wilmington, DE 19899 (302) 658-6400 Attorneys for Defendant NOTICE TO PLEAD TO: All parties, you are hereby notified to file a written response to the enclosed New Matter, and New Matter Counterclaim within twenty (20) days from the date of service hereof or a judgment may be ere?i ag rst you. (ni,t ?c •(Ls-p Paul 'Cottrell, Esquire Attorney for The Vance Corporation P n _ r r. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HARSCO CORPORATION, t/a REED MINERALS BUSINESS UNIT No. 99-7167 Civil Term OF HECKETT MULTI-SERV DIVISION OF HARSCO CORPORATION, Jury Demand Plaintiff, v. THE HANCE CORPORATION, Defendant. DEFENDANT'S ANSWER NEW MATTER. AND COUNTERCLAIM Defendant, The Hance Corporation ("Hance"), by its undersigned counsel, answers the Complaint of Plaintiff ("Reed") as follows: 1. Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, therefore, they are deemed denied. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Denied. 9. Denied. 10. It is denied that Hance has breached any obligation and it is denied that Reed has been damaged by any act or omission of Hance. 11. Admitted. 12. Admitted only that item 2409 was mistakenly included twice. The remaining allegations of this Paragraph 12 are denied. 13. Denied. 14. Admitted that these monies are owed. It is denied that Reed has been damaged by Hance in any way. 15. Denied. 16. All allegations of this Paragraph 16 are denied. NEW MATTER 17. Plaintiff's claims are time barred under the doctrine of laches or the anolicable statutes of limitation. 18. Plaintiff has failed to mitigate the damages alleged. 19. Plaintiff has otherwise failed to state a claim upon which relief can be granted. WHEREFORE, Defendant prays that the Plaintiff's Complaint be dismissed with prejudice and that Defendant be awarded the costs of this action and such other and further relief as this court deems just. As its Counterclaim against the Plaintiff, Defendant alleges: 20. Hance hereby incorporates Paragraphs 1 through 7 above as if set forth in full as this Paragraph 20. 21. Hance has satisfactorily performed all duties and obligations in connection with the two Agreements with Reed. 22. Despite repeated demands for payment, no action has been taken by Reed to satisfy the outstanding invoices. 23. Reed's failure to make payment upon the outstanding invoices constitutes a breach of contract, with Hance damaged thereby. 24. The outstanding principal sum owed under the Agreements is $33,905.68. 25. The principal sum has been due and owing since September 30, 1999, and Hance is entitled to interest on the principal sum of one and one-half percent per month (18% per annum). Interest is $508.59 per month on the principal sum beginning with October 1, 1999. WHEREFORE, Defendant prays that the Plaintiff's Complaint be dismissed with prejudice and that Defendant be awarded judgment on its Counterclaim along with interest and the costs of this action, including attorney's fees, and such other and further relief as this court deems just. TIGHE, TRELL & LOG.AN, P.A. By: Paul Cottrell Attorney I.D. #43400 G. Kevin Fasic Attorney I.D. #77605 First Federal Plaza, Suite 500 P.O. Box 1031 Wilmington, DE 19899 (302) 658-6400 Attorney for Defendant DATE: March 3, 2000 VERIFICATION STATEMENT 1, James Hance, hereby verify that I am Vice President of the +iaica CiJiyvi ativia, tiJav ad au(:IL 7 am authorized LO make this TrPri f; ?Afh inn nn l.ch?lf nF' mt,e vo..t" n............«J ?., `___Vverify that the facts set fcrth in the foreaoina Answer.. New rtAr.hAr nnri counterclaim are true and correct to the best of my knowledge, T ttnAo?+ahm_A f-?wt F?ln "t"t----- ?+ i.Ci-J" ? t• " `? -11 Made a18 tiua/'vv.L lu penalties of I$ Pa.C.S. 4904 relating to unsworn fa3 sifinarinn /'n authorities. Dated: 13?11z 0o ,? W? James Hanr.P it.._.:. CERTIFICATE OF SERVICE I, Paul Cottrell, hereby certify that on this 3rd day of March, 2000, two conies of the foregoing Defendants' Answer, New Matter and Counterclaim were mailed, postage prepaid, to: Richard G. Tuttle, Esq. Kolansky & Strauss, P.C. Suite 1300 1429 Walnut Street \ Philadelphia, PA 19102 PAUL COTTRELL 4 f i n ?j CL o n v ^? Richard G. Tuttle Atty ID No. 28685 KOLANSKY & STRAUSS, P.C. Suite 1300, 1429 Walnut Street Philadelphia, PA 19102 (215) 963-9517 Counsel for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HARSCO CORPORATION, NO. 99-7167 Civil Term t/a REED MINERALS BUSINESS UNIT OF HECKETT MUFTI-SERV DIVISION OF HARSCO CORPORATION Plaintiff, V. THE HANCE CORPORATION Defendant. PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM Plaintiff Harsco Corporation, t/a Reed Minerals Business Unit of Heckett Multi-Sere Division of Harsco Corporation (^Reed Minerals"), through its undersigned attorney, makes the following answer to Defendant's New Matter and Counterclaim: REPLY TO NEW MATTER 17. It is denied that plaintiff's claims are time-barred under the doctrine of laches or the applicable statute of limitations, and on the contrary plaintiff's claims are timely. ?m 18. It is denied that plaintiff has failed to mitigate damages; and on the contrary plaintiff used all reasonable efforts to mitigate its damages. 19. It is denied that plaintiff has failed to state a claim upon which relief can be granted, and on the contrary plaintiff's complaint fully and adequately states claims for xecovezy. ANSWER TO COUNTERCLAIM 20. Plaintiff incorporates its contrary assertions to all allegations and denials of defendant. 21. It is denied that Hance has satisfactorily performed all duties and obligations in connection with its agreement with Reed Minerals, and on the contrary Hance has breached such agreement. 22. Admitted in part, denied in part. It is admitted that Reed Minerals has withheld certain payments because of Hance's antecedent breaches; it is denied that Reed Minerals has failed to take any action required of it by law or contract. 23. It is denied that Reed Minerals' refusal to make certain payments constitutes a breach of contract or that Hance has been damaged thereby; and on the contrary, Reed Minerals has not breached its agreement with Hance in any respect, and its refusal to make certain payments were caused by and justified by Hance's antecedent breaches of the agreement between the parties. 2 24. It is denied that Reed Minerals owes $33,905.68 under its contract with Hance; and on the contrary Hance owes Reed Minerals various sums for Hance's breaches of its agreement with Reed Minerals. By way of further answer, Reed Minerals has not breached its agreement with Hance in any respect. 25. It is denied that any amount is due from Reed Minerals to Hance, and denied that any interest is owed thereon; and on the contrary, Hance owes Reed Minerals various amounts for Hance's breaches, which Hance has failed and refused to pay. WHEREFORE, plaintiff Reed demands judgment against defendant Hance in an amount in excess of $50,000, together with interest, attorneys' fees and costs of suit. >-0 . 7,.5rcL April 1, 2000 Richard G. Tuttle Kolansky & Strauss, P.C. Suite 1300 1429 Walnut Street Philadelphia, Pennsylvania 19102 (215) 963-9517 Pa. Atty. ID No. 28685 Counsel for Plaintiff Harsco Corporation, t/a Reed Minerals Business Unit of Heckett MultiServ Division of Harsco Corporation 3 FMS ? ?? Verification I, Michael V. Carpinello, hereby verify that I am Project Manager for plaintiff Reed Minerals; that I am authorized to take this verification on its behalf; and that the facts set forth in the foregoing Answer to Defendant's Counterclaim are true and correct to the best of my knowledge, information and belief. I make this verification subject to the penalties and provisions of 18 P.S. Sec. 4904, prohibiting unswom falsifications to authorities. Dated: March 31, 2000 Michael Car inello CERTIFICATE OF SERVICE Richard G. Tuttle, counsel for plaintiff in the within matter, hereby certifies that the foregoing Plaintiff's Answer to Defendant's New Matter and Counterclaim was served on the following by First Class Mail, sent April 1, 2000: Paul Cottrell Tighe Cottrell & Logan, P.A. First Federal Plaza P.O. Box 1031 Wilmington, DE 19899 Counsel for Defendant The Hance Corporation 12L,-Q- . 7? ?J , LL mz 77 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HARSCO CORPORATION, t'/a No. 99-7167 Civil Term REED MINERALS BUSINESS UNIT OF HECKETT MULTI-SERV DIVI- SION OF HARSCO CORPORATION, Plaintiff V. THE HANCE CORPORATION, Defendant STIPULATION OF DISMISSAL The claims, counterclaims and matters in difference in the above-captioned matter having been amicably resolved by and between the parties, it is hereby stipulated and agreed that the same be and are hereby dismissed with prejudice and without costs against any party. Richard G. Tuttle, Esquire Atty ID No. 28685 Kolansky & Strauss, P.C. Suite 1300, 1429 Walnut St. Philadelphia, PA 19102 Attorney for Plaintiff Harsco Corporation Dated: 3u ? 5- , 2000 G. Kevin Fasic, Esquire Atty ID No. 77605 Tighe Cottrell & Logan, P.A. First Federal Plaza, Suite 500 Wilmington, DE 19899 Attorney for Defendant The Hance Corporation Dated: r 2000 i Li a!L ? ? ? n U