Académique Documents
Professionnel Documents
Culture Documents
lLI1LIL\JIJ.)
Case 6:03-cv-01467-WEB Document 1-1
l't.'t't r';\.\
Filed 12/24/03 Page 3 of 12
Plaintiff,
of action against Defendant Bombardier Aerospace Corporation, Inc. ("Bombardier") alleges and
1. CLC is a Kansas corporation organized and existing under the laws of the State of
the State of Delaware with its principal place of business in Collin County, Texas. It can be
served with process through Michael McQuay, 3400 Waterview Parkway, Suite 400,
and secure hotel rooms for Bombardier's employees or designees. Bombardier agreed to pay
7. CLC specifically agreed to use its best efforts to negotiate and obtain low hotel
rates for Bombardier and to provide Bombardier monthly Savings Reports identifying the
lowered rates and the savings accrued for Bombardier each month.
monthly Savings Report, were detennined by subtracting the base rate from the current rate. The
base rate was generally the amount Bombardier paid prior to contracting with CLC and the
current rate was the rate negotiated by CLC and obtained for the benefit of Bombardier.
substantially all of its flight crew lodging would utilize the hotels provided by and billed through
CLeo
10. :Bombardier also specifically agreed to pay CLC within seven business days after
receiving an invoice from CLC for Bombardier's hotel charges and CLC's fees. Moreover,
Bombardier agreed to pay a 1.5% late fee if it failed to pay the invoices within seven business
days.
(36) months. At any time, the terms and conditions hereof may be
revised upon the mutual written agreement of both parties. Either
party may cancel THIS AGREEMENT upon thirty (30) days
written notice for cause. Cause shall be defined as occurrences
where:
1) CLC abandons the work or delays in performance of
the lodging services for an unreasonable length of time,
and/or:
2) Either party breaches or fails to comply with any of the
provisions hereof.
If during the fourth full month of this agreement CLC has not
saved [Bombardier] at least 10% (net of fee) during the prior
month, [Bombardier] may cancel this agreement upon a thirty (30)
day written notice.
13. Bombardier terminated the Agreement in a letter dated July 2, 2003. The letter
stated that "Bombardier no longer believes that CLC has used its best efforts nor will CLC use
its best efforts in the fuhrre to secure the most competitive hotel rates for the personnel of
Bombardier. "
14. However, Bombardier wrongfully terminated the Agreement because CLC fully
performed its obligations under the Agreement and thus, term.ination was not proper pursuant to
15. Pursuant to its obligations, CLC provided Bombardier monthly Savings Reports,
indicating the dollar amount and percentage CLC saved Bombardier each month on hotel rates as
compared to the rates Bombardier had paid prior to the Agreement. A copy of a Savings Report
16. CLC always saved Bombardier substantially more than Ten percent (10%) per
month during the term of the Agreement. Specifically, CLC saved Bombardier a total of Two
Million One Hundred Fifty-Three Thousand Six Hundred Forty-Eight Dollars ($2,153,648)
between July 2001 and August 2003. Exhibit "C" provides a detailed accounting of the exact
amount CLC saved Bombardier each month on hotel rates and the weighted average was
17. Bombardier's wrongful termination has caused CLC damage in the approximate
($171,373).
WHEREFORE, CLC prays for judgment against Bombardier in the amount of $171,373,
said sum representing the amount ofCLC's lost fees as a direct result of Bombardier's wrongful
termination of the Agreement, for pre-judgment and post-judgment interest as allowed by law,
for its costs, and for such other and further relief as this Court deems just and equitable.
"substantially all of [Bombardier's] flight crew lodging [would] utilize hotels provided by and
20. Notwithstanding the fact that CLC saved Bombardier each month on hotel rates,
and billed through CLC and thus, Bombardier breached the exclusive dealing provision of the
Agreement.
21. CLC lost approximately Two Hundred Thirty-Five Thousand Sixteen Dollars
($235,016) in fees between July 2001 and September 2003 when Bombardier breached the
WHEREFORE, CLC prays for judgment against Bombardier in the amount of$235,016,
said sum representing the amount of CLC's lost fees as a direct result of Bombardier's breach of
the exclusive dealing provision, for pre--judgment and post-judgment interest as allowed by law,
for its costs, and for such other and further relief as this Court deems just and equitable.
23. Pursuant to Paragraph 2(d), Bombardier specifically agreed to pay CLC within
seven business days after receiving an invoice from CLC for Bombardier's hotel charges and
CLC's fees and pay an addition 1.5% late fee if it failed to pay the invoices within seven
business days.
24. Bombardier only paid CLC on time in December 200 1, May 2002, and
November 2002.
Thousand Four Hundred Thirty-Six Dollars ($74,436) in late fees between July 2001 and August
2003.
WHEREFORE, CLC prays for judgment against Bombardier in the amount of $74,436,
said sum representing the amount of Bombardier's unpaid late fees for its breach of Paragraph
2( d) of the Agreement, for pre-judgment and post-judgment interest as allowed by law, for its
costs> and for such other and further relief as this Court deems just and equitable.
Respectfully submitted,
:::Z=Z0N,LLC
James A. Walker, #09037
Attorneys for Plaintiff
Exhibit A
NOW. THEREFORE, ~or 'and In c;orisideration of th~ ~utual e()venants cOntained ·herein. tha p~rtles
agre~· as.foUows: . .
c). . Appr~e and ~~horiza for u5tl onjy. the HOTELS P~viOU~ .~p~rOv~d by COMPANY. '. The parties
agree that ClC shaO have no retpcnalblll.ty for the safety of COMPANY'$ 'employees In connectJon WIth ClC
. providing ~ervic9 hereunder and tha~ Cl.C makes no warranties' or representations of 'any kind with respect to
the safety of any Hotel facilities. servlce$. grounds. transportation 'servlces or surrounding areas. .
. .-.... . . ..
dJ Provi~e pJa&tJo Identificat[Qn cardS for use by COMPAN'tS 8mPk?~ees ~nd desi~neefi .. t nD charge.
e) Use Its best efforts't,?'negoti~:1te for ~d obtain the lowest ralSs at aU HOTELs Zlpproved by COMPANY
and to provide to COMPANY' monthty -Savings R8~rts" listing the lowered rates .and savings 8CCn.led for
COMPANY~
f). AQ:apt'and process bUJJrigs from HOTEI.;.S for COMPANY JodQing expenSes and provJde t() COMPANY
a single, 'consolldated weekly or &emi~nth'Y .Iodging. invoice, Induding i.nformation ss may be agreed upon
by the Parties. }n the event elC provides electronic equip~nt or EDI.blUing capability to HOTELS. CLC may
collect a .typical credIt card precessing feo from
. partjcipatJng'. HOTELS.
. . .
. . .
g) . To promptly. disburse elf paYl,'nents to HOTELS uPon receJpt of payment from COMPANY and to pay
HOTELS for all biUlngs for which COMPANY has p~id CLeo In the event that·CLC prepays HOTELS prior 10
receipt of payment 'from COMPANY, CLe reserves the right to charge HOTEL a factOring 1ee for prepayment
services.
h) To provide the aervices of the Help Desk' for emergency hotel reservation needs. Emergency hotel
reservation needs are deftned. as those requIred Within 48 hours or less lead-time or when a contracted hotet
Is unavellab'e.· Hours of operation are 24-hours-a--day. 7-days-a-week. If a direct.blH hote4 is not available, HIe
COMPANY"s corporate credit card will be required for g.uaran.roe and blUing arrangemt!!"ta;
I) For the puipose of calcuJatJng 'savings, bass rates wiU be established. at COMPANY's FBO destinations
uscog ·the following gu,1deUnf!S: " " . . " .
, , .' 1) A base rate ,Is' established by usjng the curr9nt rate, or the r.ast fC}le (plus appUeabla taxes) paJd
at'a HOTEL by" COMPANY if paid wlthio the last thrM (3) months· poor to implementing THIS
AGREEMENT'.· T.his,informa,t1on is to ba supplied by COMPANY at program'lnception .~'nd verfned by
CLC,', ' . " ,', . .
. 2) , if there is no such, preViOUS rate p~id, th~ .bass ra[8 Js'the midpoint of the pubJfsh~ FBD ratss.
3) .' In order to compensate for lhe effact of Inflation. ,at the end of eaoh tweJ~a {12} month term of
this AGREEMENT, the 'base rates will be adjusted In aCcordance.with. the InftatJonary, rate as reported
by Sm'lh Travet· Research. '
b) . " . Ref&r all: Jnquirie~ from ~OTELS regardjn~i COMPANY lodging ·to eLC for'co~s;deration exert aU and
reasonable effort to li!nsure that COMPANY's flight crews utiJize HOTelS provld~ by.eLC. Pricing and terms
of THIS AGREEMENT, are set with t~8 agreement of the parties that substanHally' aJJ of COMPANY~ nIght
CfEYW 'kJdgJng wilt utnf2a hotels provided by imd blUed :through ClC..
c)' ,. Consider aU forms, reports. ~oter' j~ngs1: hotel:rates, hotel contracts, prooe,u8s and procedures
provided by eLC hersun~er (h~reinaf'ter jointly referred to as ~Proprieta.ry Intonnatiof1=) ate the·,excfus~
property of CLe, at an times. COMPANY is only authorized to usa ~ajd Proprietary fnformatiofl. for the
purposes contemplated by THIS AGREEMENT. COMPANY shalt not reproduce or release this Proprietary
Information to other ·~rsons without .the prior written 'consent ~r CLC. It)8 undenrtood the purpose of this
~ection is' to protect ',CLC .and to prevent the releas~ and utilization of Proprietary' Information by ClC's
competitors or po~entfaJ competitors.' . ' ."
d) " P~omptry pay CLC by electronic transfer Wi1hi!" se~en (7) bU51ness· days of receipt of GlC rnvoi~ for aU'
valid hotel charges billed to COMPANY. Payments not.made within agreed terms wIll Incur a one and on&-haJf
percent (~4'5%) late fee. COMPANY is, so1aly ~pof)sjbJe for aU HOTEt charges Incurred' on behalf of
, COMPANY employees ~r designeess and indemnifies and hDlds CL.C harmless from any and an tlabUIty for
sud") charges~ including attomey's fees required to defend or p~e any
action. to coIJer:;t on ~uch oharges.
, prov{ded such liability fa not· the tesuft of eLC's gross n&gUgence or wfllful m~sco~duct
e) Regard pfasnc 'ide~tiflc3tI€?n' ca~s supplied by CLC as beIng solery the propany of CLeo and that aU
said cards lfJr9 subject. to .Immediate canceJlaUon upon notiw from ClC. COMPANY shall' lmmediatety
dIscontinue use of said cards anc;f cause tti~m to be rehimed to CLC, upon CLe's written notfce.
. " . ' . .
f) Pay to CLC In
Consid8ratJo~ for services provided hereIn an amount ~~a" to 54.41 per approved
HOTEL· single day ~arge for each stay by .COMPANY emploYr:te:s or designees. Such amount w;H be added
by CLC to net room charges payable by CLC to HOTELS ~nd billed ~y:Ct..C 10 COMPANY. If such fees'equaf
less than $1.000 par month, a mJnJmum tee of $1.000 will be charged that month ($1,000 per bjJljng locatJon if
ClC biBs to ~uJtip'e focations). Con~Jderadon Is based upon a long-term contract., .
g), Notify elC mmed'ately 01 the loss 'or theft of any CLC identiflcation card~, For' Hotels that do not
transmit charges sJectronJcaJJy to CLew COMPANY shan remain responsible for use of an
personalIZed cards
wnW two (2) PusJne$$ days after J'ece.ipt by CLC 01 'I!rltten notice 'by regi8te~d or cerUnCtd man or fitcsimiJa of .
said loss or theft. For temporary (non-personaJIzed) cards COMPANY shan ramain re5pcniible for the USB of
these cards for the dori;3tion of THIS AGREE~ENT. .
Ejth~r party may cancej THIS AGREEMENT u'pon thirty (30) daYs written 'JlOt~ for cause. cause shan be
defined &5 occurrences where: .. .. . .
, 1) , ClC abandons t~e w~k or de'~ys In performance or '~he'lod9ing servJces for an unreafSonabJa length of
time~ and/or: .. . . ..
2) Either ,party breaChe~ or faits to comply wIth any of the provtslons hereof.. ,
If durinQ tha fourth full'mo~th ~f i.his agr,ernent c~ci: has not saved COMPANY at least 10% (het of
'fee) during t~ prlpr month, Company m~y cancel this agreement upon a thirty (30):da~~n~,notica.
It, at any time during the term ofthj~ agt••~Bnt. THE'COMPANY, acting' .rone or in ,;onJunctJon
wIth an 'atnllate, increases ·the transaction volume of thla contract'to a fevel excaeding, 51'~O
,tran$actJons per month; COMPANY and CLC agru ~·r.negotl8ta th8,.$4.41 TransJlCtfcn ,~t'Je'~ In
section ~(f) above.. If, ~ft.r' good faIth' negotJatJon, the parties are unable to rea~h an 3g1lloment In
writing as 'to the naw' negotiated TransactIon' Fee. ,COMPANY' reserves the rIght ·to tennlnate THJS
AGREEMENT upon 30 days prior wrJtten notice, but only attar the Jnitl~1 twelve (12) months Of 'THIS
AGREEME,NT. '
4. LlabJlity " ,
company and CLC agree to hold eaCh other harmless from any and' alf I~es. Incldenta. or
consequential damaS·es. wnl~h are alleged to aJise' directly' or tndtrealy out of the perlormanqe or fsHure to
, perform 'any $ervJ~· or obllga-oons under THIS AGReeMENT, ~gWT.fIe88 of the nature of the' daim or the
theory 'Of ,recovery a.&eerted against qLC or Company. induding claims t~at CLC or Company was at fault,
negllgent, 'or stria,lIy liable. . . '
written. .
iN WITNI;SS. WHEREO'F" the parties have executed THIS AGREEMENT
' . , . . ' ,.'
as·.of the date ffrst
.
above'
SY__~~~;-~~~____________
KEVIN, BAUER NAME TIM c., It6fZJ£L
Vice President. Salefi & MarketIng .' TJTLe VP t-UGIf) (jPBl~