HomeMy WebLinkAbout13-5213 Supreme Court�of�Pennsylvania
CourtW- CommoiPPIeas For Prothonotary Use Only:
�t I y�i In /.
CiiJ1, Coy-er '
l -;' 1 9� 1 Docket No 1
CUMBERLAND c ` �` County
The information collected on this form is used solely for court administration purposes. This form does not
supplement or replace the filing and service of pleadings or other papers as required by law or rules of court.
Commencement of Action:
S X' Complaint Il Writ of Summons 0 Petition
E Transfer from Another Jurisdiction M Declaration of Taking
C Lead Plaintiff's Name: Lead Defendant's Name:
T Equipment Transport, LLC Bousum Transfer, LLC
ce El within arbitration limits
I Are money damages requested? 'X, Yes �-.� No Dollar Amount
on mount Requ ested: , , outside arbitration limits
O
N Is this a Class Action Suit? Yes 0 No Is this an MDJAppeal? [ Yes El No
A Name of Plaintiff/Appel]ant's Attorney: Christopher R. Nestor, Esq.
0 Check here if you have no attorney (are a Self - .Represented (Pro Se] Litigant)
Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your
PRIMARY CASE. If you are making more than one type of claim, check the one that
you consider most important.
TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS
El Intentional ,E Buyer Plaintiff Administrative Agencies
C? Malicious Prosecution ❑ Debt Collection: Credit Card D Board of Assessment
51 Motor Vehicle Q Debt Collection: Other M Board of Elections
Iy9 Nuisance Dept. of Transportation
Premises Liability ® Statutory Appeal: Other
S Product Liability (does not include
mass tort) k'-1 Employment Dispute:
E Q Slander/Libel/ Defamation Discrimination
C 0 Other: ❑Employment Dispute: Other Zoning Board
T• Other:
I I3 Other:
O MASS TORT
[:] Asbestos
N 0 Tobacco
0 Toxic Tort - DES
n Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS
Q Toxic Waste 0 Ejectment ❑ Common Law /Statutory Arbitration
B n Other: ❑ Eminent Domain /Condemnation _ Declaratory Judgment
f 1 Ground Rent �, Mandamus
D Landlord/Tenant Dispute L11 Non - Domestic Relations
0 Mortgage Foreclosure: Residential Restraining Order
PROFESSIONAL LIABLITY U Mortgage Foreclosure: Commercial 0 Quo Warranto
0 Dental ❑ Partition 0 Replevin
J Legal ❑ Quiet Title 0 Other:
0 Medical E] Other:
E] Other Professional:
Updated 1/1/2011
i
OF THE Pr ?O t J N0�7'
�} p p� �{ p +� y ° A rrt Y
( "MB£RLAfdq COUNTY
PF,M, SYLVAN
Christopher R. Nestor
Pa. I.D. No. 82400
K &L Gates LLP
17 North Second Street, 18th Floor
Harrisburg, PA 17101 -1507
EQUIPMENT TRANSPORT, LLC IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff, PENNSYLVANIA
V. NO. I J -Soc v
BOUSUM TRANSFER, LLC CIVIL ACTION — LAW
Defendant. JURY TRIAL DEMANDED
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 are
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 case may proceed without you and a judgment may be entered against you by the
court without 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 property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS
OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 S. Bedford Street 4� D
CXV
i
Carlisle, PA 17013
717 -249 -3166
AVISO
USTED HA SIDO DEMANDADO /A EN CORTE. Si usted desea defenderse de las demandas
que se presentan mds adelante en las siguientes pdginas, debe tomar acci6n dentro de los
pr6ximos veinte (20) dias despu6s de la notificaci6n de esta Demanda y Aviso radicando
person almente o por medio de un abogado una comparecencia escrita y radicando en la Corte por
escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le
advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede
proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier
otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la
Corte sin mds aviso adicional. Usted puede perder dinero o propiedad u otros derechos
importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO 1NMEDIATAMENTE. SI
USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA
OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN
ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE
QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE
OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE
CUALIFICAN.
CUMBERLAND COUNTY BAR ASSOCIATION
32 S. Bedford Street
Carlisle, PA 17013
717- 249 -3166
Christopher R. Nestor
Pa. I.D. No. 82400
K &L Gates LLP
17 North Second Street, 18th Floor
Harrisburg, PA 17101 -1507
EQUIPMENT TRANSPORT, LLC IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff, PENNSYLVANIA
V. NO.
BOUSUM TRANSFER, LLC CIVIL ACTION — LAW
Defendant. JURY TRIAL DEMANDED
COMPLAINT
Plaintiff, Equipment Transport, LLC, by its undersigned attorneys, K &L Gates LLP, files
this complaint against Bousum Transfer, LLC, and avers as follows:
PARTIES
1. Plaintiff, Equipment Transport, LLC ( "Equipment Transport"), is a Pennsylvania
limited liability company with a principal place of business at 1 Tyler Court, Carlisle,
Pennsylvania 17015.
2. Equipment Transport provides trucking and gas well site support services, primarily
transporting fluids, equipment, and waste materials, including drill cuttings. Equipment.
Transport also provides equipment rental and other services specifically tailored for the natural
gas industry.
3. Defendant, Bousum Transfer, LLC ( "Bousum "), is a Pennsylvania limited liability
company with a registered office address of 6014 Bethel Road, P.O. Box 290, Petersburg,
Pennsylvania 16669.
4. Bousum owns and operates a number of vehicles suitable for the provision of waste
hauling and other services to the natural gas industry.
VENUE
5. Venue with respect to this matter is proper in the Cumberland County Court of
Common Pleas in that it is the county where the causes of action arose and the county where the
transactions or occurrences took place out of which the causes of action arose.
BACKGROUND
6. In December 2012, Bousum requested that Equipment Transport purchase two 110
barrel vacuum trucks (the "Vehicles ") owned by Bousum due to the financial burden on Bousum
of paying the loans secured by the Vehicles and, further, Bousum's desire to purchase and
operate two additional roll -off trucks instead of the Vehicles.
7. On February 1, 2013, Bousum and Equipment Transport entered into an Equipment
Rental and Purchase Option Agreement (the "Agreement "), pursuant to which Equipment
Transport leased the Vehicles from Bousum with the option, but not the obligation, to purchase
the Vehicles. A true and correct copy of the Agreement is attached hereto as Exhibit A.
8. The Agreement provided that the purchase price of the Vehicles was the amount of
the debt secured by the Vehicles at the time of the purchase and, further, that the deadline for
Equipment Transport to exercise its purchase option was April 30, 2013.
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9. In April 2013, Equipment Transport determined that the option price for the
Vehicles was more than it was willing to pay and that it would not exercise its purchase option
unless Bousum either lowered the price or provided additional consideration.
10. On April 23, 2013, Bousum and Equipment Transport entered into a First
Amendment to the Agreement. A , true and correct copy of the First Amendment to the
Agreement is attached hereto as Exhibit B.
11. Under the amended Agreement, Equipment Transport agreed to exercise its
purchase option for the Vehicles on or before April 30, 2013 and, in exchange, Bousum granted
Equipment Transport a right of first refusal ( "ROFR ") to utilize Bousum's services and
equipment ( "Subcontracted Service ") for a period of 5 years at a rate of $85 dollars per hour.
See Exhibit B at ¶ 1.
12. Equipment Transport has fully performed its obligations under the amended
Agreement by tendering the purchase price for the Vehicles to Bousum on or before April 30,
2013.
13. On or about May 22, 2013, Equipment Transport, pursuant to paragraph I.a. of the
amended Agreement, exercised its ROFR by providing telephone notice to Bousum. See Exhibit
• B at ¶ La. ( "Exercise of ROFR ").
14. Bousum, in response to Equipment Transport's May 22, 2013 notice, did not
provide any Subcontracted Services to Equipment Transport within 24 hours as required by
paragraph I.b. of the amended Agreement. See Exhibit B at ¶ I.b. ( "Lessor's Obligation to
Perform ").
15. On May 29, 2013, Equipment Transport contacted Bousum seeking a response to
Equipment Transport's May 22, 2013 exercise of its ROFR.
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16. On May 31, 2013, Bousum sent an e -mail message to Equipment Transport,
wherein Bousum stated:
With regret we will not be able to service your company's needs due to
contractual obligations with Advanced Disposal
Which you are aware of, if you wish you will need to coordinate with Margret
William or Michael Carlini with Advanced Disposal.
Any further correspondents should be directed to my counsel - Thomas
McDowell at tmcdowell @bmzlaw.com
A true and correct copy of Bousum's May 31, 2013 e -mail is attached hereto as Exhibit C.
17. Bousum, to date, has provided no Subcontracted Services to Equipment Transport
in response to Equipment Transport's May 22, 2013 exercise of its ROFR.
COUNT
BREACH OF CONTRACT
18. The averments of the preceding paragraphs are incorporated herein by reference
as though fully restated..
19. Equipment Transport has fully performed its obligations under the amended
Agreement by tendering the purchase price for the Vehicles to Bousum on or before April 30,
2013.
20. Bousum, despite Equipment Transport's exercise of its ROFR, has failed and
refused to provide Subcontracted Services to Equipment Transport as required by the amended
Agreement.
21. Bousum's assertion that Equipment Transport must "coordinate" the provision of
Subcontracted Services with Advanced Disposal is contrary to the terms of the amended
Agreement and demonstrates Bousum's bad faith attempt to avoid performing its obligations
under the amended Agreement.
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22. Equipment Transport's ROM is unconditional and prohibits Bousum from
granting another company priority or parity for Bousum's services. See Exhibit B at ¶ 3
( "Priority of Lessee's ROFR" ).
23. Bousum has no right under the amended Agreement, or otherwise, to require
Equipment Transport to contact or coordinate with any other person or entity prior to its exercise
of the ROFR.
24. Bousum has breached the amended Agreement by failing and refusing to provide
Subcontracted Services to Equipment Transport as required thereunder.
25. As a result of Bousum's failure and refusal to perform under the amended
Agreement, Equipment Transport has suffered significant damages.
WHEREFORE, Equipment Transport demands relief in its favor as follows:
a. specific performance or monetary damages as allowed by law, or both as may be
appropriate;
b. all of the consequential and incidental damages to which it Equipment Transport
maybe entitled;
C. Equipment Transport's attorneys' fees and costs of suit if available by law; and
d. such other relief as the Court deems appropriate.
Respectfully submitted by,
Date: September 4, 2013
Christopher R. Nestor
christopher.nestor @klgates.com
Pa. I.D. No. 82400
K &L Gates LLP
17 North Second Street, 18th Floor
Harrisburg, PA 17101 -1507
-5-
(717) 231 -4500 (tel.)
(717) 231 -4501 (fasc.)
Counsel for Plaintiff,
Equipment Transport, LLC
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VERIFICATION
The undersigned, Brandon Hall, hereby deposes and states that:
1. I am the Vice President of Finance of Equipment Transport, LLC, and I am
authorized to make this Verification on behalf of the company;
2. The facts set forth in the foregoing Complaint are true and correct to the best of
my knowledge or information and belief;
3. This Verification is made subject to the penalties of 18 Pa. C.S. § 4904 relating to
unsworn falsifications to authorities.
Date: September 3 , 2013 zZ i
Name: Brandon Hall, Vice President of Finance
Equipment Transport, LLC
EXHIBIT A
EQUIPMENT RENTAL AND PURCHASE OPTION AGREEMENT
THIS EQUIPMENT RENTAL AND PURCHASE OPTION AGREEMENT is made this
1" day of February, 2013 between Bousum Transfer, LLC, a Pennsylvania limited liability
company having its office at 614 Bethel Road, Petersburg, Pennsylvania 16669 ( "Lessor ") and
Equipment Transport, LLC, a Pennsylvania limited liability company with a principal place of
business at 1 Tyler Court, Carlisle, PA 17015 ( "Lessee ").
WITNESSETH
WHEREAS, Lessor owns two vehicles suitable for transporting fluids, as specifically
identified on Exhibit A hereto (the "Equipment "), and
WHEREAS, Lessor desires to lease the Equipment to Lessee, and Lessee desires to lease
the Equipment from Lessor, upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises and covenants set forth
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Lessor and Lessee agree as follows:
1. Lease. Provided that the Equipment passes Lessee's inspection as provided in
paragraph 7 of this Agreement, Lessor hereby leases the Equipment to the Lessee and Lessee
hereby takes and hires the Equipment from Lessor.
2. Term and Rental Provided that the Equipment passes Lessee's inspection as
provided in paragraph 7 of this Agreement, the term of this Lease shall commence on the date
hereof and shall end on the earlier to occur of (i) the Closing Date, as defined below, or (ii) April
30, 2013 ( "Term "). The rent for the Equipment shall be $6,911.28. Lessee shall pay Lessor rent
and any interest accrued thereon without deduction or offset, on the first day of each month.
Rent will be prorated for partial months. Rent shall be payable at the office of the Lessor set
forth on the face of this lease, or at such other place, or to such other person as Lessor may from
time to time designate in writing.
3. Purchase Option At any time during the Term, Lessee shall have the right to
purchase the Equipment from Lessor ( "Purchase Option ") for the prices set forth in the Purchase
Price Schedule on Exhibit A . Lessee shall have the right to exercise the Purchase Option by
delivering written notice to Lessor stating the date on which it will deliver the purchase price to
Lessor ( "Closing Date "). On the Closing Date, Lessor shall sell to Lessee, and Lessee shall
purchase from Seller, the Equipment free and clear of all liens, claims and encumbrances.
4. Covenant Not To Compete Lessor covenants and agrees that during the Term
and for two (2) years thereafter, Lessor will not directly or indirectly: engage in any Prohibited
Activity (defined below) in any of the following geographic markets: Pennsylvania, Ohio,
Virginia, West Virginia, New York, Maryland, New Jersey, Delaware and Texas, or engage in,
assist, or have any active interest or involvement, whether as an employee, agent, consultant,
creditor, advisor, officer, director, stockholder (excluding holding of less than 1% of the stock of
a public corporation), partner, proprietor or any type of principal whatsoever, in or with any
person, firm, or business entity which, directly is engaged in the same business as that conducted
and carried on by the Lessee, without the Lessee's prior written consent to do so. For purposes
hereof, "Prohibited Activity" shall mean transportation of equipment, transportation of water and
other fluids, transportation of solid and liquid oil and gas well site wastes, well site security,
water transfer, water supply and rig moving; provided, however, that Prohibited Activity shall
not include
(i) the collection, transportation or disposal of Municipal Waste (as defined in 25 Pa.
Code §271.1) generated at locations other than oil and gas well sites, or
(ii) the transportation of any waste from any permitted Transfer Facility (as defined in 25
Pa. Code §271.1) or a wastewater treatment plant owned by a Municipality (as defined in
25 Pa. Code §271.1), or
(iii) the transportation of Municipal Waste or Residual Waste (as defined in 25 Pa. Code
§287.1) originating at oil and gas well sites provided that Contractor is acting solely as a
subcontractor to one of the following entities or one of their respective affiliates or
subsidiaries: Park's Garbage Service, Inc., Advanced Disposal Services, Inc. and Waste
Management, Inc.
5. Warranties Lessor represents and warrants to Lessee that it holds title to the
Equipment and has full power and authority to lease and sell the Equipment to Lessee. Except as
set forth in this paragraph and paragraph 7, the Equipment is rented to the Lessee "as is" and
"where is."
6. Title, Identification, Personal Property During the Term, Lessee shall have the
right to maintain possession and to use the Equipment. Lessor may require plates or markings to
be affixed to or placed on the Equipment indicating Lessor's interest.
7. Use, Inspection Lessee will, at Lessee's sole cost, cause the Equipment to be
operated in accordance with acceptable manufacturer's manuals or instructions, and in
accordance with all applicable governmental regulations. Upon taking possession of the
Equipment, Lessee will inspect the Equipment. Lessee will inform Lessor of the results of its
inspection within 2 business days after such inspection is complete. If Lessee determines that the
Equipment requires less than $1,000 worth of repairs, Lessee will assume possession of the
Equipment in its "as is" condition and the Term will be deemed to have started on the date as of
which Lessee first took possession of the Equipment. If Lessee reasonably determines that the
Equipment requires more than $1,000 but less than $10,000 worth of repairs, Lessee is
authorized to make such repairs and recoup such repair expense by reducing monthly rental
payments over a period of 10 months, whereupon the Term will be deemed to have started on the
date as of which Lessee first took possession of the Equipment. If Lessee reasonably determines
that the Equipment requires more than $10,000 of repairs, Lessee will not be deemed to have
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taken possession of the Equipment and the Term will not be deemed to have started, it being
understood and agreed that the parties will attempt to negotiate terms regarding repair costs,
reimbursements and Commencement Date.
8. Repair oLEqw ment Lessee will keep the Equipment in good repair and
mechanical condition without cost or liability to Lessor. Lessee shall not make substantial
alterations to the Equipment without the prior written consent of the Lessor.
9. Insurance Lessor's Payment Lessee, at its sole cost.and expense, shall procure
and maintain and pay for insurance against loss or theft of or damage to the Equipment, for the
full replacement value thereof naming Lessor as the loss payee. All such insurance shall be in
form and amount and with companies satisfactory to the Lessor in its reasonable discretion.
10. Loss and Damage In the event of Loss or Damage to any unit of Equipment,
Lessee, at its option, shall (a) repair or restore the Equipment to good repair, condition and
working order; or (b) replace the Equipment with similar equipment in good repair, condition
and working order; or (c) pay Lessor in cash a mutually agreed upon appraised value at the time
of loss or damage for such unit. Upon payment described in clause (c) immediately preceding,
this Lease shall terminate only with respect to the unit of Equipment for which Lessee has so
paid, and Lessee shall become entitled to said unit.
11. Lessor's Representations. Lessor represents, warrants, and agrees that it (a) has
full power, authority, and legal right to enter into and perform the Lease and the execution,
delivery, and performance of the Lease have been duly authorized by all necessary corporate or
other legal action on the part of the Lessor, if any, and will not contravene any law, governmental
rule, regulation or order binding on Lessor or the Operating Agreement of Lessor or contravene
the provisions of, or constitute a default under, or result in the creation of any lien or
encumbrance upon the property of the Lessor under any indenture, mortgage, contract, or other
agreement to which Lessor is a party, or by which it may be bound or affected; and (b) all
consents and approvals of, the giving of notice to, registration with, and the taking of any other
action in respect of any federal, state, or foreign governmental authority or agency, necessary, if
at all, to permit the transactions contemplated by this Lease have been properly given; and (c)
the Lease constitutes a legal, valid, and binding obligation of Lessor enforceable against Lessor
in accordance with the terms hereof, and (d) there are no pending or threatened actions or
proceedings before any court or administrative agency which will materially adversely affect the
condition, business, or operations of Lessor or the ability of Lessor to perform its obligations
under this Lease.
12. Default; Remedies If Lessee fails to perform any obligation when the same is
required to be performed and such failure continues without cure for a period of five (5) business
days, then Lessor may, at its option, give Lessee a Notice of election to terminate this Agreement
upon a date specified in such Notice and, upon the date specified in said Notice, this Agreement
shall cease without further Notice or lapse of time. Lessor shall have no other remedy, at law or
in equity, including without limitation, consequential damages.
13. Assignment by Lessee Lessee shall not assign, pledge or hypothecate this Lease
in whole or in part, nor any interest therein, nor shall Lessee sublet or lend any unit of the
Equipment without prior written consent of the Lessor which shall not be unreasonably withheld.
14. Ownership by Lessor The Equipment is, and shall at all times prior to the
Closing Date remain, the property of the Lessor. Lessee shall have only the rights with respect to
the Equipment as expressly set forth in this Lease.
15. Notices All notices required or permitted under this Lease shall be sufficient if
delivered personally or mailed to the party at the address set forth herein, or at such other address
as either party may designate in writing from time to time. Any such notice shall be effective
forty-eight (48) hours after it has been deposited in the United States mail, duly addressed, first
class and postage prepaid.
16. Failure or Indulgence: Not Waiver No failure or delay on the part of the Lessor
in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege.
17. Miscellaneous Any provision of this Agreement which may be determined by
competent authority to be prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective, and the remaining terms of this Agreement shall be construed as
broadly as possible to effect the intent of the parties to the maximum extent possible. A
determination that a provision is prohibited or unenforceable in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. No term or provision
of this Agreement may be changed, waived, discharged, or terminated orally, but only by an
instrument in writing signed by the party against which the enforcement of the change, waiver,
discharge, or termination is sought. The captions in this Agreement are for convenience of the
reference only and shall not define or limit any of the terms or provisions hereof. As used herein,
the term "Agreement" shall include all exhibits and schedules related thereto. This Agreement
shall in all respects be governed by, constructed in accordance with, the laws of the
Commonwealth of Pennsylvania, including all matters of construction, validity and performance.
Time is of the essence hereof.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the
date first above written.
LESSEE: LESSOR:
EQUIPMENT TRANSPORT, LLC BOUSUM TRANSFER, LLC
�+ By:02 Ow7 - By .
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Its: Vi*4.e fees. co T Its: Dtux -l- Sll -T
-5-
EXIIIBIT A
To Equipment Rental Agreement
Dated February 1, 2013, by and between
Bousum Transfer, LLC as Lessor and
Equipment Transport, LLC. as Lessee
Equipment:
Make Model year VIN
Mack GU713 2012 1 M2AX07COCMO11265
Mack GU713 2012 1 M2AX07C2CMO10702 3 S s
Purchase Price Schedule:
Closing Date Purchase Price
Between February 1, 2013 and February 19, 2013 $268,000.00
Between February 20, 2013 and March 19, 2013 $262,444.89
Between March 20, 2013 and April 19, 2013 $256,858.58
Between April 20, 2013 and April 30, 2013 $251,246.90
-6-
r�
EXHIBIT B
FIRST AMENDMENT TO EQUIPMENT RENTAL AND PURCHASE OPTION AGR EEMENT
THIS FIRST AMENDMENT "f0 EQUIPMENT RENTAL AND PURCHASE OPTION
AGREEMENT is made this 23r day of April, 2013 between Bousum Transfer, LLC, a
Pennsylvania limited liability company having its office at 614 Bethel Road, Petersburg,
Pennsylvania 16669 ( "Lessor ") and Equipment Transport, LLC, a Pennsylvania limited liability
company with a principal place of business at I Tyler Court, Carlisle, PA 17015 ( " Lessee ").
WITNESSETH
WHEREAS, Lessor and Lessee entered into an Equipment Rental And Purchase Option
Agreement (the "Agreement") dated as of February 1, 2013, and
WHEREAS, Lessor and Lessee desire to amend the Agreement, upon the terms and
conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Lessor and Lessee agree as follows:
1. Lessee's Right of First Refusal For Lessor's Services. At any time that Lessee is
engaged in transporting Municipal Waste or Residual Waste (as defined in 25 Pa. Code §287.1)
originating at oil and gas well sites, Lessee shall have the right of first refusal ( "ROFR ") to employ
Lessor as a subLessor to perform roll off truck transportation of containerized waste materials
("Subcontracted Services ") for Lessee's customers, under the following terms and conditions:
a. Exercise of ROFR. Lessee may exercise the ROFR at any time, and from time to
time, by notice to Lessor. Notice may be given by telephone, email or first class mail.
b. Lessor's Obligation to Perform.
i. Timing. Lessor shall, within 24 hours of notice from Lessee, provide the
number of Lessor's roll off trucks and drivers specified by Lessee in the Notice.
ii. Provision of Equipment. Lessor shall provide and dedicate such trucks as
Lessee has designated for the period of time required by Lessee. Lessee will have the
right to change the number of roll off trucks it requires from Lessor at any time, and
from time to time, upon 24 hours' notice.
C. Performance of Services. During the Tenn, Lessor will perform Subcontracted
Services as directed by Lessee at the rate of Eighty -Five Dollars ($85) per hour. The
number of hours for which Lessee shall pay Lessor shall equal the number of hours
that Lessee is able to bill Lessee's customers for the Subcontracted Services. Lessor
will provide services during the hours directed by Lessee, it being understood and
agreed that Lessee shall be entitled to direct Lessor to operate twenty -four (24) hours
per day, seven days per week. Lessor shall transport all waste materials from such
sources, and to such destinations, as designated by Lessee. Lessee shall have no
obligation to provide any minimum quantity of work to Lessor hereunder.
d. Billing and Payment. Lessor shall bill Lessee weekly. All billing and supporting
paperwork must be submitted to Lessee by noon each Monday for the time period
through the end of the day shift on the immediately preceding Sunday. A bill not
received by such deadline will be deemed to be received on the first Monday after
receipt. Lessee shall pay Lessor within 21 days of receipt of a properly prepared and
adequately supported invoice.
d. Independent Lessor. In the performance of the services described herein, Lessor
shall be deemed to be, and shall be, an independent Lessor and not a joint venturer,
partner, employee or agent of Lessee. Without limiting the generality of the
foregoing, (i) neither Lessee nor Lessor shall have the power to bind the other,
contractually or otherwise; (ii) Lessor shall be entitled only to the compensation set
forth in paragraph 1 of this Agreement and not to any other benefits; (iii) Lessor will
recruit, interview, test, select, hire and train the personnel to be assigned to perform
work for Lessee at no cost to Lessee; (iv) Lessee has the sole responsibility to
counsel, discipline, review, evaluate, determine pay rates, and terminate the personnel
assigned pursuant to this Agreement; (v) Lessee shall maintain all necessary payroll
and personnel records including, without limitation, log books; (vi) Lessee shall be
solely responsible for any and all (a) state and federal taxes, withholding, FICA,
FUTA, workers' compensation, (b) contributions for unemployment insurance,
retirement benefits, life insurance, pensions, annuities and similar benefits, which
may now or hereafter be imposed by law or collective bargaining agreements with
respect to persons employed by Lessee for performance of services under this
Agreement, and (c) other payments due in respect of the compensation paid to Lessor
by Lessee or by Lessor to any of its employees. Subject to the foregoing. Lessor shall
operate its trucks in accordance with the requirements of Chevron and of Lessee.
e. Satellite Tracking Equipment. Lessee, at its sole expense, shall be entitled to install
satellite tracking equipment on Lessor's vehicles. Lessor will provide Lessee and its
representatives such access to Lessor's vehicles as Lessee requests to install, repair,
un- install and/or re- install such equipment. Lessor will pay Lessee the amount of $55
per month as rent of such satellite tracking equipment. In the event that Lessee's cost
of satellite tracking equipment increases, Lessee shall have the right to increase the
monthly rental charge to Lessor.
2. Term. Lessor's obligation to perform Subcontracted Services shall terminate on the
fifth anniversary of the date hereof ( "ROFR Term ").
3. Priority of Lessee's ROFR. Lessor will not grant to, or suffer to exist for the benefit
of, any person other than Lessee any right to utilize Lessor's assets that has priority over Lessee's
rights hereunder.
4. Exercise of Purchase Option. Lessee will exercise the Purchase Option. Lessee will
deliver to Lessor the purchase price, and Lessor will deliver to Lessee titles to the vehicles, free and
clear of all liens, claims and encumbrances, on or before April 30, 2013.
-2-
5. Compliance with Laws. Lessor shall (and shall cause any Lessor's directors,
officers, employees and agents to) at all times comply with all applicable laws, ordinances,
statutes, rules and regulations, including those relating to wages, hours, fair employment
practices, anti - discrimination, environmental protection and safety and working conditions. In
addition, Lessor shall (and shall cause any Lessor's directors, officers, employees and agents) at
all times to comply with all requirements relating to transportation, including the equipment to be
used in such transportation, of Water. Without limitation, Lessor shall comply with all rules and
regulations applicable to fresh water source sites, waste water source sites, drilling sites and
approved transportation routes. Lessor shall provide Lessee with any requested assistance and
accommodation necessary for Lessee to engage Lessor as its subLessor in compliance with all
laws, regulations, contractual requirements and other applicable requirements.
6. Insurance. Lessor represents that Lessor now carries, and will continue during
the term of this Agreement to carry, Worker's Compensation/Employer's Liability (but only if the
Lessor has one or more employees), and Comprehensive Automobile Liability insurance in the
following amounts:
A. Worker's Compensation - Coverage A Statutory $500,000
Employers' Liability- Coverage B $500,000
B. Comprehensive Automobile Liability
(Owned, Hired, and Non -owned Vehicles):
Bodily Injury $1,000,000 each person
$1,000,000 each accident
Property Damage $1,000,000 each occurrence
Pollution $2,000,000 each occurrence
Said insurance policies (including umbrella policies) shall contain cross liability
provisions and shall name Lessee as an additional insured to policies A and B above with respect
to all activities arising out of the performance of the services under this Agreement. Liability
coverage shall be primary to any insurance maintained by Lessee. Said insurance policies shall
be written by insurance companies satisfactory to Lessee in its sole and absolute discretion. Such
policies shall include, without limitation, the waiver by Lessor's insurance provider(s) of all
subrogation rights. Certificate of Insurance and Endorsements evidencing the above coverage in
form satisfactory to company in its sole and absolute discretion shall be filed with Lessee before
commencing any work hereunder. Such Certificates shall afford Lessee thirty (30) days written
notice of cancellation or material change in coverage and endorsements shall specifically confirm
Contractual Liability Coverage for the indemnificatipn clause in this Agreement and shall
indicate that no act or default shall affect Lessee's right to recover under such policies in case of
loss.
7. Default By Lessee. If Lessee fails to perform any obligation when the same is
required to be performed and such failure continues without cure for a period of fifteen (15)
business days, then Lessor may, at its option, give Lessee a Notice of election to terminate this
Agreement upon a date specified in such Notice and, upon the date specified in said Notice, this
Agreement shall cease without further Notice or lapse of time. Lessor shall have no other
remedy, at law or in equity, including without limitation, consequential damages.
8. Default By Lessor. If Lessor fails to perform any obligation when the same is
required to be performed and such failure continues without cure for a period of five (5) business
days, then Lessee may, at its option, give Lessor a Notice of election to terminate this Agreement
upon a date specified in such Notice and, upon the date specified in said Notice, this Agreement
shall cease without further Notice or lapse of time. In addition, Lessee may pursue any other
remedies that may be available to it under applicable law or in equity as it may deem appropriate
including, without limitation, payment by Lessor of all sums due hereunder and enforcement of
Lessor's covenant not to compete, even after termination of this Agreement.
9. Indemnification by Lessor. Lessor shall defend, indemnify and save harmless
Lessee and its agents and employees from and against any and all liabilities, obligations,
damages, losses, penalties, claims, costs, charges, assessments, fines, and expenses, including,
without limitation, reasonable attorneys' fees, which may be imposed upon or incurred by or
asserted against Lessee and/or its agents by reason of any of the following occurring during the
Term or during any time after the expiration of the Term when the Lessor is rendering services as
a subcontractor to Lessee:
a. Any failure on the part of Lessor to perform or comply with any of the
covenants, agreements, terms, conditions or limitations contained in this Agreement on its part to
be performed or complied with; and
b. Any negligent or willful act or omission of Lessor or any of its servants,
employees, agents, Lessors, invitees or licensees.
This Section 9 shall survive the termination of this Agreement.
10. Binding Effect; Assignment. This Agreement shall be binding upon the parties
and their respective successors and assigns. This Agreement shall not be assigned by either party
without the prior written consent of the other party and any assignment or attempted assignment
without such written consent shall be void.
11. Governing Law. This Agreement shall be governed by the laws of the State of
Pennsylvania.
12. Waivers. Failure of any party to complain of any act or omission on the part of
another party shall not be deemed to be a wavier by the non - breaching party of any of its rights
hereunder. No waiver shall be effective unless it is in writing, signed by the president of the
waiving party, clearly states that the party is waiving a default or performance obligation and
specifically identifies such default or performance obligation. A waiver of a right or remedy by a
party in one instance shall not be deemed a waiver of such right or remedy in any other instance.
-4-
13. Captions. Captions are inserted for convenience of reference and shall not be
part of this Agreement, and will not be used in the interpretation of any provision of this
Agreement.
14. Integration/No Merger. This Agreement contains all agreements of the parties
with respect to the subject matter hereof and shall wholly supersede any and all other agreements,
contracts and understandings with respect to the same. A party's purported reliance upon prior
agreements, contracts, understandings, representations or warranties whether for interpretation or
otherwise, shall be presumed unreasonable.
15. Cumulative Remedies. Unless otherwise stated herein, no remedy or election
under this agreement shall be deemed exclusive but shall be cumulative with all other remedies
at law or in equity.
16. Amendment. This Agreement may not be amended or modified except in a
writing signed by the president of each party. No oral modifications will be enforceable and a
party's purported reliance upon an oral modification, or writing not signed by the president of
each party, will be presumed unreasonable.
17. Counterparts. This Agreement may be signed in counterparts, each of which,
when executed and delivered, will constitute an original.
18. Notices. Notices to either party under or relating to this Agreement shall be in
writing to the address indicated below, or to such subsequent address as either party may specify
by notice to the other, and shall be deemed effective when received, or on the second day
following the date of postmark if sent by prepaid certified mail, return receipt requested:
Notices to Lessor:
Notices to Lessee:
Equipment Transport, LLC
1 Tyler Court
Carlisle, Pennsylvania 17015
Attention: David Florance, President
With a copy to:
Arthur L. Streeter, Esq.
Equipment Transport, LLC
1 Tyler Court
Carlisle, Pennsylvania 17015
-5- �.
19. Severability. The invalidity of any provision of this Agreement, as determined by
a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof
and in the event of such invalidity the same shall be construed as narrowly as possible and the
remainder of this Agreement shall be construed to give effect to the intent of the parties to the
maximum extent possible.
24. Further Assurances. Lessor will, upon by Lessee, execute and deliver to Lessee
such further instruments, including without limitation lien waivers required by Lessee's
customers, and do or cause to be done such further acts as Lessee may request.
21. Remainder of Agreement. Except to the extent amended hereby, the Agreement
remains in full force and effect.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the date
first above written.
EQUIPMENT TRANSPORT, LLC BOUSUM TRANSFER, LLC
1 - By:
y�a
_6_
EXHIBIT C
Kevin McCardle
From- Bousum Transfer LLC <bousumtrucking @vtrocket.com
Sent: Friday, May 31, 2013 9:24 AM
Se
Se - k. mccardie @equipmenttransportlic.com
Cr thomas mcdowell
Subject- Request for services
Mr McCardle,
With regret we will not be able to service your company's needs due to contractual obligations with Advance
Disposal
Which you are aware of, if you wish you will need to coordinate with Margret William or Michael Carlini with
Advanced Disposal.
Any further correspondents should be directed to my counsel - Thomas McDowell at tmcdowell(a;bmz aw.com
Thank you,
Jim Bousum
Bousum Transfer LLC
i
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff -
Jody S Smith '
Chief Deputy ' � ` l r,
h
Richard W Stewart �C r ,VA MA
}}
Solicitor
•;3 F r M�E/FF PENNS YiL7t^ MA
Equipment Transport LLC
Case Number
vs.
Bousum Transfer LLC 2013-5213
SHERIFF'S RETURN OF SERVICE
09/05/2013 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry
for the within named Defendant to wit: Bousum Transfer LLC, but was unable to locate the Defendant in
the Sheriff's bailiwick. The Sheriff therefore deputizes the Sheriff of Huntingdon, Pennsylvania to serve
the within Complaint& Notice according to law.
09/12/2013 10:00 AM-The requested Complaint&Notice served by the Sheriff of Huntingdon County upon James
Bousum, Sr., Owner, who accepted for Bousum Transfer LLC, at 6014 Bethel Road, Petersburg, PA
16669. William G. Walters, Sheriff, Return of Service attached to and made part of the within record.
SHERIFF COST: $37.46 SO ANSWERS,
October 02, 2013 RONW R A� NDERSON, SHERIFF
�D SHERIFF' S OFFICE
HUNTINGDON COUNTY, PENNSYLVANIA
Jfi
_ 241 Mifflin Street
R11 Huntingdon, PA 16652
DIEPI- Telephone: 814-643-0880
William G.Walters,Sheriff
Equipment Transport, LLC
No. 5213 Term:2013
Vs.
Bousum Transfer, LLC
6014 Bethel Road
Petersburg, PA 16669
Now, this 12th day of September 2013 , at 1000 HOURS I served the within
Notice and Complaint upon
Bousum Transfer, LLC at
6014 Bethel Road, Petersburg, PA 16669
by handing to James Bousum, Sr., owner
one true and correct copy/copies of the within Notice and Complaint
and made known to James Bousum, Sr.
the contents thereof.
So Answers,
Sworn and subscribed to
before me thi"-0 William G. Walters, Sheri
= of � �
day
20� A. . Deputy arry R. ressman,Jr.
�
t 1 l�lx1 ,� Chief Deputy/Deputy
ota Costs:
COMONWEALT9 OF PENNSYLVANIA Rec. & Doc. $9.00
NOTARIAL SEAL Service $9�u,
Tammy S.Foor,Notary Public Mileage/Postage $14.80
Huntingon Boro,Huntingdon County Surcharge ---
h<y,;,r , :.ry;n;tober 26,2014
- Affidavit $5.00
Miscellaneous ---
Total Costs $37.80 Paid
.J,; 1 i.,z
2014 FEB k/%N"DUN�� 41
CUMBERL T`r
PENNSYLVANIA
Christopher R.Nestor
Pa. I.D. No. 82400
K&L Gates LLP
17 North Second Street, 18th Floor
Harrisburg, PA 17101-1507
EQUIPMENT TRANSPORT, LLC IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff, PENNSYLVANIA
V. NO. 13-5213
BOUSUM TRANSFER,LLC CIVIL ACTION—LAW
Defendant. JURY TRIAL DEMANDED
PRAECIPE TO DISCONTINUE
Please enter Plaintiff's voluntary discontinuance of the above-captioned matter, without
prejudice, pursuant to Pennsylvania Rule of Civil Procedure 229.
Respectfully submitted by,
Date: February 24, 2014 ,r
ehristopher R. Nestor
christopher.nestor@klgates.com
Pa. I.D. No. 82400
K&L Gates LLP
17 North Second Street, 18th Floor
Harrisburg, PA 17101-1507
(717) 231-4500 (tel.)
(717) 231-4501 (fasc.)
�il �f��l�Si3d Counsel for Plaintiff,
Equipment Transport, LLC
NJ 9Z83JWZ
_!0 +
I
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Praecipe to Discontinue was
served this 24th day of February 2014 by first-class U.S. mail addressed as follows:
Steve S. Snook
BMZ Law
20 South Wayne Street
Lewistown, PA 17044
hristopher R. Nestor