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Case 6:03-cv-01467-WEB Document 1-1
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TRIPLETT, WOOLF & GARRETSON, LLC FILED


2959 NORTH ROCK ROAD, SUlTE 300
WICHITA, KS 67226 APP DeC:::T ;:'J. _ __
(316) 630-8100
ZOO] NOV 20 A 10: 31

Plaintiff,

vs. Case No.

Delaware Corporation, 03CV 5068


Pursuant to Chapter 60,
Kansas Statutes Annotated
- - - - - - - - - - - - - - - - , .. ----- _---------
..
PETITION
COIvlES NOW Plaintiff, Corporate Lodgillg Consultants, Inc. ("CLC"), and for its cause

of action against Defendant Bombardier Aerospace Corporation, Inc. ("Bombardier") alleges and

states the following:

1. CLC is a Kansas corporation organized and existing under the laws of the State of

Kansas with its principal place of business in Sedgwick County, Kansas.

2. Bombardier is a Delaware corporation organized and existing under the laws 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,

Richardson, TX, 75080.

3. Jurisdiction is proper pursuant to K.S.A. § 60-308(b )(5).

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4. Venue is proper in this Court pursuant to K.S.A. § 60-604(2)-(3).

5, On May 8, 2001, CLC and Bombardier entered into a System Lodging

Agreement, hereinafter referred to as the "Agreement." A copy of the Agreement is attached

hereto as Exhibit "A."

6. Pursuant to the Agreement, Bombardier agreed to utilize CLC's services to locate

and secure hotel rooms for Bombardier's employees or designees. Bombardier agreed to pay

CLC the amount of $4.41 per hotel night.

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.

8. Pursuant to Paragraph 1(i) of the Agreement, the savings calculated in the

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.

9. Pursuant to Paragraph 2(b) of the Agreement, Bombardier expressly agreed that

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.

11. The Agreement provided in part:


3. Term, Revision or Termination
T1IIS AGREEMENT shall commence on June 11 th, 2001 and shall
continue in effect for a minimum period of not less than thirty-six

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(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.

COUNT I - BREACH OF CONTRACT - WRONGFUL TERMINATION

12. CLC incorporates by reference paragraphs 1 through 11 of its Petition as if fully

set forth herein.

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

Paragraph 3 of the Agreement.

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

for the month of March 2003 is attached as Exhibit "B."

16. CLC always saved Bombardier substantially more than Ten percent (10%) per

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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

approximately Thirty percent (30%).

17. Bombardier's wrongful termination has caused CLC damage in the approximate

alTIount of One Hundred Seventy-One Thousand Three Hundred Seventy-Three Dollars

($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.

COUNT II - BREACH OF CONTRACT - NON-EXCLUSIVITY

18. CLC incorporates by reference paragraphs 1 through 17 of its Petition as if fully

set forth herein.

19. Bombardier specifically agreed in Paragraph 2(b) of the Agreement that

"substantially all of [Bombardier's] flight crew lodging [would] utilize hotels provided by and

billed through CLC."

20. Notwithstanding the fact that CLC saved Bombardier each month on hotel rates,

a substantial amount of Bombardier's employees or designees failed to utilize hotels provided by

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

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($235,016) in fees between July 2001 and September 2003 when Bombardier breached the

exclusi ve dealing provision of the Agreement as set forth in Exhibit C.

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.

COUNT III - BREACH OF CONTRACT- LATE FEE

22. CLC incorporates by reference paragraphs 1 through 21 of its Petition as if fully

set forth herein.

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.

25. Pursuant to Exhibit "D," Bombardier incurred approximately Seventy-Four

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.

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Respectfully submitted,

:::Z=Z0N,LLC
James A. Walker, #09037
Attorneys for Plaintiff

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Exhibit A

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rQ,sn"t by;) BUSINESS JET SOLUTIO! 972 720 2558; 05/0
C)·
SYSTEM L.ODGING AGREEMENT: .
'. ·THJS. AGREEMENT. ~de on the 8" day ~f. May 2001. by and between Corporate Lodging
ConsuJtants. Inc. 'C'CLC")-Jocated at f3110 E. 3.2nd Stree,tNorth. WIchJta t Kansae 67226-2614, and Bombardier
Aerospace· Corporation dIP!a Bom~ardler Business Jet SoJution~ Inc. (~on1pa'ny'j located at 14651 DaUas
Parkway. Suite 600. Dalta$t TX 75240. .. '.. .' .
. '. . . . ' .
. WHEREAS COMPANY desires to utiljze the services provi~ed by. CLe' to enable' COMPANY to
efficJent1y rocate ~~d secure over:njg~~ lodging fa~JfIties (-HOTELS") for use by CO~PANY'S flJQht cr~ or
other persons as COMPANY may designate. .
. .
WHEREAS., It is tn~ intendon of both .COMPANY and' CL.C Jhat THIS AGR~EMENT wiU da~b. the
aeivices to be p~ovidfJd to COMPANY by CLC and the le~ of payment of CLe's compensatjon for aak1
5~rvlCeS~ '. . . . .

NOW. THEREFORE, ~or 'and In c;orisideration of th~ ~utual e()venants cOntained ·herein. tha p~rtles
agre~· as.foUows: . .

1. CLC agrees to: .


a) 'Use Its best effolta 10 locate HOTELS 'With favorable rates and 'otherwise satlsfactory to COMPANY in
locationa Et~ required for ~~e by COMPANY ~mploye'es or des;gnee&" .
b) ." Provide ~ eomplete U~tJng of an HOTELS currently approved by etc and CO~PANY fot us~ by
COM FlANY· employees or ~eslgn~es... ~81d Ustlng shall Indude HOTEL a~dN36ses, locations .and phone
numbors to be used by COMPANY as Its approved hotel Ir$tfng.. ClC $hall provJde $sicf fi~ng$ quarterly at no
-.charge·to 'COMPANY and! 'or to. a COMPANY d.esignated travel age.ocy, after executing a confidentiality
agreeme~t with said travel. agency. .

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;

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SeRt .py': BUSINESS JET SOlUTIL 972 720 2556;' 05/l Oy7; 47 i ~#2a8;Page 3/4
. \..)

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. '

2. COMPANY agrees to: ' ' , : ' '. .


a) 'Promptly approve or dJsapprove HOTELS p~vlded by eLC for.p~sibJa COMPANY use.

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. .

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. ~ent ,by: BUSINESS· JET SOlUTl 972 720 25f56;

3. Term, RevfsJon or Terminatlon '. ' : .', ,


THJS AGREEM5NT shalt commence on June 11 th t 200.1 and shalJ continue in effect for a minimum
period of not Je~s ,than thirty-she (38) months. At any tfme, the terms and condltlons her'9of may be revIsed
, upon the mu~a' wrytten agreement of both partJes.

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. . . '

s. .Enti.... AgrtHlm,e~t . ' . '


THIS AGREEMENT supers~das aU prior negotiations or agreemehts between the ~rtles.(whether
written or qraJ) ,r&Ja~g to the subject matt$r hereof and is Intended as the· .entire and complete statement of
the terms ot :agreement between the Parties.

written. .
iN WITNI;SS. WHEREO'F" the parties have executed THIS AGREEMENT
' . , . . ' ,.'
as·.of the date ffrst
.
above'

. Bomwdlar Aerospace Corporation d/b/a


Bombardi.,. BUflin~ Jet Solutions; J&:1c.

SY__~~~;-~~~____________
KEVIN, BAUER NAME TIM c., It6fZJ£L
Vice President. Salefi & MarketIng .' TJTLe VP t-UGIf) (jPBl~

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