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Appendix
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2120 - Served
2220 - Not Served
2320 - Served
By
Mail
2420
- Served By Publication
SUMMONS
2121 - Served
2221 - Not Served
2321 - Served
By
Mail
2421 - Served By Publication
ALIAS- SUMMONS
2/28/11) CCG
NOO
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT,
CH NCERY
DIVISION
ALTOM TRANSPORT INC.
Name all parties)
v.
WESTCHESTER FIRE INSURANCE COMPANY and MICHAEL STAMPLEY
: L 1 t : ~ C H 1 7 5 6 6
CALENDAR/ROOM
06
TIME
~
N
D e c l a r a t o r y Jdgmt
. ___________________________
~ v 0t IL ;oo
RE EUVED
STATE OF ILLINOIS
OCT 3 2014
DEPT. OF
INSURANCE
CHICAGO ILLINOIS
( )SUMMONS
QALIAS
SUMMONS
To each Defendant:
YOU ARE SUMMONED and required to file an answer to the complaint in this case, a copy
of
which i
hereto attached,
or
otherwise file your appearance, and pay the required fee, in the Office
of
the
Clerk
ofthis Court
at
th
following location:
0
Richard J. Daley Center, 50
W.
Washington, Room :8 :0=2 J Chicago, Illinois 60602
0 District 2 - Skokie
5600 Old
Orchard
Rd.
Skokie, IL 60077
0
District 5 - Bridgeview
10220
S.
76th Ave.
Bridgeview, IL 60455
0 District 3 - Rolling Meadows
2121
Euclid
Rolling Meadows, IL 60008
0
District 6 - Markham
16501
S.
Kedzie Pkwy.
Markham, IL 60428
0 District 4 - Maywood
1500 Maybrook
Ave.
Maywood,IL 60153
0
Child Support
28 North Clark St., Room 200
Chicago, Illinois 60602
You must file within 30 days after service
of
this Summons, not counting the day
of
service.
IF YOU FAIL
TO
DO SO, A JUDGMENT BY DEFAULT MAY BE ENTERED AGAINST YOU FOR THE RELIEF
REQUESTED IN THE COMPLAINT.
To the officer:
This Summons must be returned by the officer
or
other person to whom it was given for service, with endorsemen
of service and fees, if any, immediately after service. I f ervice cannot be made, this Summons shall be
returned
so endorsed
This Summons may not he served later than 30 days after its date.
Atty.
No.:._5_8_13_9
Name: Emerson Law Group P.C.
Atty. for: Plaintiff Altom Transport, Inc.
Address: 541 West Diversey Parkway Suite 21 0-A
City/State/Zip: Chicago IL
60614
Telephone:
312-758-4301
WITNE SS --------------- -----
Clerk of Court
Date of servic9:Cnmnnr R ROWiU 0CJ 3 0 01
; ::.
:z
0
Other (specifY)
{ W:
.
U1
0'\
Service via email from the opposing party/counsel
will
be
accepted at:
by consent pursuant to Ill. Sup. Court Rules
11
and 131.
ProSe Only:
0
I have read and agree to the terms of the
Clerk s Office Electronic Notice Policy
and choose to opt
in to electronic notice from the Clerk's office for this case
at
this email address:
DOROTHY BROWN, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
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) : ~ v ( : ( 11 v
RE EDVED
STATE OF
ILLINOIS
OCT 3 ) 2014
DEPT. OF
INSURANCE
CHICAGO
ILLINOIS
IN THE CIRCUIT COURT
OF COOK COUNTY
ILLINOIS
COUNTY DEPARTMENT CHANCERY DIVISION
ALTOM TRANSPORT, INC.,
Plaintiff,
v.
WESTCHESTER FIRE INSURANCE
COMPANY,
and
MICHAEL STAMPLEY,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
No.:
20VCH17566
CALENDAR/ROOM
06
TIME 00 :00
Dec l a r a t o ry Jdgmt
COMPLAINT
FOR
DECLARATORY
JUDGMENT
Plaintiff, ALTOM TRANSPORT, INC. ( Altom Transport ), by and through its
undersigned attorneys, states the following for
its
Complaint for D e c l a r a t o r y : ~ u d g m e n t aiSinst
:,r:
--
- C
WESTCHESTER FIRE INSURANCE COMPANY ( Westchester ) : a n d ~ . M I C 1 3 1 A E I T ;
:- :;j :.:.: : 1
-
w ~ = =
STAMPLEY ( Mr. Stampley ), pursuant to 735 ILCS 5/2-701: ;;j
_
.
0
;;;
.':J:
Altom Transport
is
a corporation licensed to do business in
,_he
"State
of::flli JP. s
_ ;,
I
and does business in Cook County.
.t:
2.
Westchester is
an
insurance company licensed to transact business
in
the State of
Illinois and does business in Cook County. This declaratory action concerns coverage
obligations owed by Westchester to Altom Transport under Westchester insurance policy
number G250209QA 004 with a policy period of August 3, 2013 to August 3, 2014.
3. Mr. Stampley
is
a resident of Cook County
in
the State of Illinois. As the Plaintiff
in
an
underlying lawsuit more fully described below, Mr. Stampley is named as a necessary
party-defendant to this declaratory action.
4.
Venue
is
proper
in
this Court pursuant to 735 ILCS 5/2-101 and 102.
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5. An actual and justiciable controversy exists between Altom Transport and
Westchester as to whether Westchester owes insurance coverage obligations to its policyholder,
Altom Transport.
6
Altom Transpmt is a federally licensed tank-truck motor carrier (U.S. DOT
Number 297572 and MC-187735) and hauls liquid commodities (such as petroleum products and
chemicals) throughout the United States, Mexico and Canada.
7 Altom Transport has both employee drivers and owner-operator drivers. The
owner-operators lease their own trucks and services to Altom Transport
as
independent
contractor drivers. Altom Transport and the owner-operators enter into lease agreements for
Altom Transport's use
ofthe
owner-operator's truck and services.
8 Mr. Stampley was an owner-operator driver for Altom Transport from September
28, 2012 to March 24, 2014. As such,
Mr.
Stampley and Altom Transport entered into a lease
agreement for use
of
Mr. Stampley 's truck and driving services. A copy of the lease agreement
is attached as Exhibit A. An Illinois ICC EL-l Form identifying (a) Mr. Stampley and (b) his
2007 Peterbilt tractor was approved by and filed with the ICC on October 10, 2012 and listed
Stampley's payment as 70%
or
sic) gross and/or (other terms). The lease agreement referred
to the signed and filed EL-l as Appendix A to the lease.
9 The lease agreement with Mr. Stampley was terminated by Altom Transport on
March
24,2014
for service related failures. Three (3) months later, Mr. Stampley filed a lawsuit
against Altom Transport in the United States District Court for the Northern District
of
Illinois,
Eastern Division, No. 1:14-cv-03747 (the Stampley Action ). The Complaint was filed on May
21,2014.
2
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I
0
The Stampley Action was filed by Mr. Stampley individually and on behalf of a
purported class of former and undisclosed Altom Transport owner-operator drivers. The
Complaint was titled Class Action Complaint for Declaratory and Injunctive Relief and
Damages . The Stampley Complaint is attached as Exhibit
B
II. Pursuant to the lease agreement and ICC
EL-l,
Mr. Stampley was to be paid 70%
of the gross Altom Transport received from Mr. Stampley's truck and services. In his
Complaint, Mr. Stampley generally claims that he and other owner-operator drivers similarly
situated should have been paid an additional percentage (70%) of funds stemming from expenses
such as internal and external tank-trailer washes and that Altom Transport wrongfully withheld
such payments.
12 In the bulk tank-truck motor carrier industry tank washes are routinely required to
ensure that residue from a prior shipment does not contaminate the subsequent load placed
in
the
tank trailer. These services are performed by outside vendors -- not Altom Transport and not the
drivers. Mr. Stampley makes his claim despite the fact that Altom Transport owns all the tank
trailers provided to Mr. Stampley and others,
and
that the tank wash and other tank-trailer related
charges are expenses incurred by Altom Transport that are then passed through to the shipper (or
other party) for reimbursement.
13 Mr. Stampley alleges three causes of action in his Complaint: I) that the lease
agreement used by Altom Transport was improper and wrongful insofar as it did not conform
with the Federal Motor Carrier Safety Administration Truth-in-Leasing Act, 49
USC 14102 and
49 C.F.R Section 376.12; (2) that Altom Transport wrongfully failed to pay Mr. Stampley and
other owner-operators a 70% share of tank-related expense
items-
including tank wash charges;
3
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(3) and that Altom Transport purportedly wrongfully enriched itself by not paying Mr. Stampley
and other drivers the 70% of these charges. Mr Stampley is seeking monetary damages, non
monetary damages and/or injunctive relief. Altom Transport has denied all
of
Mr. Stampley's
claims.
14 On
May 23, 2014 Altom Transport immediately tendered the Stampley Action to
Westchester, requesting that Westchester provide it with a defense and indemnity.
15
Westchester denied Altom Transport's tender and request in correspondence
of
July 14,2014. Westchester relied upon various exclusions in its policy as grounds for its refusal
to
defend or indemnify Altom Transport. Westchester's denial letter
is
attached as Exhibit C.
16
Westchester has neither defended Altom Transport under a reservation
of
rights
nor filed a declaratory judgment action seeking a judicial determination of its obligations to
Altom Transport.
17. As a result of Westchester's refusal to defend, Altom Transport retained counsel,
has funded its own defense in the Stampley Action, and has now been forced to initiate this
declaratory action.
18. On October, 14, 2014, Mr. Stampley's counsel made a written final time-
demand for settlement
in
the amount
of 1.9
million. A copy
of
this letter
is
attached
as
Exhibit
D
19. The $1.9 million settlement demand was within Westchester's policy limits and
was set to expire on October 17, 2014 at 9:00a.m.
20. In correspondence dated October 15, 2014, Altom Transport tendered the $1.9
settlement demand from Mr. Stampley to Westchester requesting that Westchester reconsider its
4
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28. The Westchester policy is a claims made policy, meaning it covers claims made
during the policy period.
29. The Westchester policy contains the following insuring agreement:
3.
The Insurer [Westchester] shall pay the Loss of the Company
[Altom Transport] which the Company becomes legally obligated
to
pay by reason of a Claim first made against the
ompany
during the Policy Period or,
if
applicable, the Extended Period,
and reported to the Insurer pursuant to subsection E 1 herein, for
any Wrongful Act taking place prior to the end of the Policy
Period.
30. The Westchester policy includes the following relevant definitions:
1. Claim means:
c A civil proceeding against any Insured seeking
monetary damages or non-monetary or injunctive
relief, commenced
by
the service of a complaint
or similar pleading;
9.
Wrongful Act means any actual or alleged error, omission,
misleading statement, misstatement, neglect, breach ofduty
or act allegedly committed or attempted by
c the Company, but only with respect to Insuring Clause 3
of this Coverage Section.
Endorsement No. 14 to the Westchester policy amends the definition
of
Loss in
relevant part
as
follows:
Loss means damages, judgments, settlements, pre-judgment or
post-judgment interest awarded by a court ....
31. The Westchester policy includes the following relevant duty to defend coverage:
6
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I. It shall be the duty o the Insurer and not the duty o the
Insureds to defend any Claim. Such duty shall exist even
i any o the allegations are groundless, false or fraudulent.
The Insurer s duty to defend any Claim shall cease when
the Limits o Liability have been exhausted by the payment
o Loss including Costs, Charges and Expenses.
COUNT I
(Wrongful Refitsa o Duty to Defend)
32. Altom Transport re-alleges the allegations contained in Paragraphs through
31
o
its Complaint for Declaratory Judgment as
i
fully set forth herein.
33. The Stampley Action alleges a Loss by the Company as those terms are defined
in the Westchester policy.
34 The Stampley Action alleges a Claim as that term
is
defined in the Westchester
policy, and the Claim was made within the Policy Period.
35 The Stampley Action alleges a Wrongful ct by the Company as those terms are
defined in the Westchester policy.
36. The allegations o the underlying Complaint fall within, or potentially within, the
coverage provided by the Westchester policy. Therefore it
is
the mandatory duty o Westchester
( not the duty o the Insured ) to defend any Claim. Under the express language o the policy,
Westchester has this duty to defend even i the underlying allegations are groundless, false or
fraudulent.
37. To the extent Westchester relies on policy exclusions to deny coverage, it
is
Westchester's burden o establishing that the applicability o those exclusion(s) is clear and free
from doubt. Westchester has not met this burden.
7
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38 The allegations contained in the Stampley Action are covered, or at the very least
potentially covered, by the Westchester policy and, as such, Westchester owes a duty to defend
Altom Transport in the Stampley action.
WHEREFORE, Altom Transport respectfully requests that this Court find that the
Westchester policy provides coverage for the Stampley Action; that Westchester owed Altom
Transport a duty to defend; that Westchester breached its contractual obligation to defend Altom
Transport, and that Westchester is obligated
to
reimburse Altom Tranport its defense costs paid
to date to be incurred in the future.
ount II
Imposition o Estoppel)
39 Altom Transport re-alleges the allegations contained in Paragraphs 1 through 38
o its Complaint for Declaratory Judgment as
i
fully set forth herein.
40. The allegations contained
in
the Stampley Action fall within or potentially within
the coverage afforded to Altom Transport under the Westchester policy. As such Westchester
owed Altom Transport a duty to defend.
41. However, on July 14,2014, Westchester denied it owed any coverage obligations
to Altom Transport stemming from the Stampley Action.
42. Westchester did not defend Altom Transport under a reservation o rights or file a
declaratory judgment action to secure a determination
o
any coverage obligations, as required
under Illinois law.
43. Westchester s denial o coverage was incorrect and it wrongfully failed to initiate
a declaratory judgment action to conclusively determine its coverage obligations to Altom
8
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Transport. As such, under clear and unequivocal Illinois law, Westchester is now estopped from
asserting any defenses to coverage for the Stampley Action.
WHEREFORE, Altom Transport respectfully requests that this Court find that
Westchester has breached its duty to defend the Stampley action, and that it is estopped from
asserting any coverage defenses now or in the future.
OUNT III
Section 215 ILCS 5/155 Claim)
44. Altom Transport re-alleges the allegations contained in Paragraphs 1 through 43
o its Complaint for Declaratory Judgment as i fully set forth herein.
45. Westchester s (1) wrongful denial
o
coverage; (2) failure to defend under a
reservation
o
rights or file a declaratory judgment action; (3) complete disregard
o
Altom
Transport s communication requesting a reconsideration o the denial o coverage and settlement
within the policy limits; (4) forfeiture o the oppmtunity to settle within the policy limits on
behalf
o
Altom Tranport; and (5) exposing its insured to an excess settlement or judgment,
constitute unfair and improper claim practices pursuant to Section 215 ILCS 5 55
o
the Illinois
Insurance Code and entitles Altom Transport to all available relief thereunder.
9
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WHEREFORE, Altom Transport respectfully requests that this Court find that
Westchester has engaged in unfair claims practices and is liable for damages under 215 ILCS
5/155 including, but not limited to, an award o its attorney s fees and costs.
Eric J Emerson
Brett
L
Warning
Emerson Law Group P.C.
561
West Diversey Parkway
Suite 210-A
Chicago, Illinois 60614
312.758.4301
Firm ID 58139
Respectfully Submitted,
ALTOM TRANSPORT INC.
10
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ALTOM TRANSPORT, INC.
Independent Contractor Agreement
For Owner-Operator
THIS
AGREEMENT is made this 28TH day ofSEPTEMBER 2012, in the State of
Illinois, County of Cook, by and between ALTOM TRANSPORT, INC., a regulated for
hire motor carrier, an Illinois corporation ( ALTOM
TRANSPORT ) and
MICHAEL
STAMPLEY( CONTRACTOR ), as follows:
WHEREAS ALTOM TRANSPORT is engaged in business to provide trucking
service for different customers and intends
to
contract with CONTRACTOR in the
performance
of
certain tasks;
WHEREAS ALTOM TRANSPORT's principal place ofbusiness is located at the
following address:
4243
S.
Knox Avenue
Chicago, Illinois 60632
(800) 327-8903
WHEREAS
CONTRACTOR's principal place of business is located at the follow-
ing address:
15129 South
Grant Street
Dolton, Illinois 60419
708-849-6265
WHEREAS CONTRACTOR is doing business as a [check one]:
D Partnership X Sole Proprietorship
Corporation
PAGE OF
PAGES)
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- .,
Now
THEREFORE
in consideration o the mutual covenants herein contained, the
sufficiency
o which
is
acknowledged,
it is
agreed
as
follows:
During the term
o
this Agreement, CONTRACTOR shall provide ALTOM
TRANSPORT
transportation related services and the use
o
the equipment set forth
below or in an appendix (the Equipment ). CONTRACTOR represents and warrants
that CONTRACTOR has title to or is authorized to contract the Equipment and services
to ALTOM TRANSPORT. Upon taking possession
o
the Equipment from
CONTRACTOR, ALTOM TRANSPORT shall furnish to CONTRACTOR a receipt for
Equipment, which shall constitute the receipt required by 49 C.F.R. 376.1l(b). Upon
termination o this Agreement, CONTRACTOR shall execute a similar receipt for
equipment
as
the written receipt for the return o the Equipment by CARRIER to
CONTRACTOR; provided, however, that the Agreement and ALTOM TRANSPORT's
obligations thereunder shall expire upon the written notice
o
termination regardless
o
whether CONTRACTOR submits the receipt required under this provision.
Year Make Serial No.
Unit
2007 PETERBILT
1XP5DB9X27N730834
B439
1 Effective Date
This Agreement shall become effective upon signing by both parties and
shall remain in effect for one (1) year from date
o signing, and shall automatically
renew for additional like periods.
2. Termination
This Agreement may be terminated:
A Without cause, upon either party giving the other thirty (30) days'
prior written notice; or
B For cause, immediately, upon material breach
o
any term
o
this
Agreement by either
o
the parties.
C
Upon termination o this agreement CONTRACTOR understands
and agrees that the business, contacts, policies, manuals, literature,
price lists, marketing strategies, customer lists, procedures, systems,
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'
records and any and all information, o any type, pertaining to the
operations o ALTOM TRANSPORT, whether or not contributed by
CONTRACTOR, in whole or in part, are or become the proprietary
information and property o ALTOM TRANSPORT.
CONTRACTOR agrees to maintain the confidentiality
o
all
such
information and documents. On termination or cancellation o this
Agreement, for uny reason, CONTRACTOR shall promptly return
all
such documents, literature and information to ALTOM
TRANSPORT and CONTRACTOR shall immediately discontinue
use o or reference to ALTOM TRANSPORT's name and
identification and immediately remove any and all signs and U.S.
Department o Transportation ( DOT ) permit numbers which refer
to ALTOM TRANSPORT. ALTOM TRANSPORT may withhold
final settlement from CONTRACTOR pending full compliance with
this condition.
3
Registration/Licensing o ALTOM TRANSPORT
A ALTOM TRANSPORT is a for hire motor carrier authorized to
transport property pursuant to licenses issued by the FMCSA and
other federal and state operating authorities and licenses.
B ALTOM TRANSPORT will use said Equipment in its business as a
motor carrier, under its various certificates or permits which it now
holds or which it may subsequently acquire, where such are
required.
Such Equipment furnished to ALTOM TRANSPORT
shall be exclusively used in ALTOM TRANSPORT's business to
the extent required by
all
applicable laws and regulations. Said
Equipment shall, during the term o this Agreement, be under
ALTOM TRANSPORT's exclusive possession, use and control,
to
the extent contemplated by and required by all applicable federal and
state laws and regulations relating to the operation o leased motor
vehicle equipment by motor carriers. The above is not intended to
prevent Contractor from entering into contracts with other
companies to the extent that such agreements
do
not conflict
with this contract or any other agreements between the parties
to
this agreement. ALTOM TRANSPORT assumes full responsi-
bility for the operation o said Equipment
as
to all third parties and
the public at large. However, this shall in no way modify, alter or
affect CONTRACTOR's status as an Independent Contractor and
not
an employee o ALTOM TRANSPORT. Nothing in this Agree-
ment shall be deemed
as
a delegation o ALTOM TRANSPORT's
PAGE 3 OF PAGES)
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duties
as
a common or contract carrier to CONTRACTOR insofar
as
the public or any governmental or regulatory body may be
concerned. The terms o this Agreement are merely an assignment
and distribution o various costs arising out o the operations to be
conducted pursuant to this Agreement, between the parties to this
Agreement.
4 Ownership
o
Equipment
The CONTRACTOR declares that it holds title to (or is otherwise legally
entitled to lease) said Equipment and does lease
to
ALTOM TRANSPORT the
Equipment described in the Illinois Commerce Commission ( ICC ) Equipment
Lease form attached to this Agreement as Appendix A, and made a part hereof.
5
Name
on
CONTRACTOR s Equipment
The CONTRACTOR agrees to display ALTOM TRANSPORT'S business
name on all Equipment covered by this Agreement. Any such display o business
name and address shall comply with applicable law and with the rules and
regulations
o
the DOT.
6 Availability and Scheduling
The CONTRACTOR is not required by ALTOM TRANSPORT to perform
services or be available to perform services at specific times or according to a
schedule or for a number o hours specified by ALTOM TRANSPORT. However,
pickup or delivery times specified by a shipper, receiver, broker, or other party
that owns or controls a shipment shall not be deemed specified by ALTOM
TRANSPORT.
7 Licensing and Operating Costs
A LICENSES. The CONTRACTOR shall pay all costs o licensing
and operating the Equipment (except when federal or state law or
regulation requires
ALTOM TRANSPORT to pay), and no costs o
such licensing or operating shall be separately reimbursed by any
other person or entity. CONTRACTOR shall have and maintain a
current and valid Commercial Drivers License ( CDL ) along and
shall at all times comply with the DOT standards, rules, and
regulations.
B
EQUIPMENT. The CONTRACTOR agrees that the Equipment
described herein will be kept and maintained in first -class condition
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,
and repair at CONTRACTOR s sole expense. CONTRACTOR
agrees
to
pay all o the expenses incurred in operating the Equipment
which
is
the subject o this Agreement, without limitation, including,
but not limited
to,
those items enumerated in 49 C.F.R. 376.12(e),
including but not limited to, cost
o
fuel, fuel taxes, empty miles,
permits o all types, tolls, ferries, detention, accessorial services,
base plates and licenses, and the unused portion o such items.
CONTRACTOR shall also ensure compliance with registration with
the International Fuel Tax Association and compliance with all
applicable rules and regulations. Upon failure o CONTRACTOR to
make such payments,
ALTOM TRANSPORT may avail itselfo any
remedies described in Paragraph 2) herein or elsewhere in this
Agreement.
C.
SAFETY COMPLIANCE
CONTRACTOR warrants that the Equip-
ment leased herein complies with all
o
the required safety rules and
complies with all rules and regulations o the United States
Department
o
Transportation, and any and all federal, state or local
regulatory bodies having jurisdiction over the operation o said
Equipment, and that all taxes, o any nature, assessable against the
leased Equipment or
its
operation have been paid. All costs incurred
in connection with causing the Equipment leased hereunder to
comply with said rules and regulations and any loss, damage or
expense o any nature, whatsoever, which shall result from
CONTRACTOR s failure to ensure such compliance, shall
be
borne
by CONTRACTOR. Upon failure o CONTRACTOR to promptly
and immediately ensure such compliance and pay such costs or
expenses, ALTOM TRANSPORT may, at its exclusive option,
effect such compliance, pay such costs or expenses, and deduct the
amount o such payment, together with any administrative expenses
incurred in
so
doing, from any monies due or which may become
due to CONTRACTOR pursuant to this Agreement. Before making
any such deduction, ALTOM TRANSPORT shall give CON-
TRACTOR an itemized statement, setting forth the amount and allo-
cation o any such deductions.
D LICENSE PLATES
CONTRACTOR shall purchase and pay for all
license plates necessary for the operation o the Equipment leased
herein, in
CONTRACTOR s name, and said license plate(s) shall
remain the sole property o CONTRACTOR. Alternatively, at
ALTOM TRANSPORT s election, ALTOM TRANSPORT may
purchase such license plate(s) for the Equipment leased herein in
ALTOM TRANSPORT s name, and said license plate(s) shall then
PAGE 5
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. .
E.
F.
remain the sole property o ALTOM TRANSPORT. In such event,
CONTRACTOR shall reimburse ALTOM TRANSPORT for the
cost o all license plate(s). Then, upon cancellation o this
Agreement,
to
the extent that such license plate(s) are unexpired and
ALTOM TRANSPORT
is
able to receive a refund for the unexpired
portion thereof or actually uses said license plate(s) in its business,
in any manner, CONTRACTOR shall receive a pro rata refund for
the unexpired portion o said license plate(s), to the extent that
CONTRACTOR has already paid ALTOM TRANSPORT for said
unexpired portion o said license plate(s).
CHARGES. Neither CONTRACTOR nor any personnel furnished by
CONTRACTOR shall charge any purchases, o any nature,
to
ALTOM TRANSPORT. Should CONTRACTOR or its personnel,
in violation
o
this Paragraph, charge any purchases to ALTOM
TRANSPORT, ALTOM TRANSPORT shall have the right to set off
and deduct the amount o any such charges, together with any
administrative expenses incurred, from any monies due or which
may become due to CONTRACTOR pursuant to this Agreement and
to avail itself o any other remedies described elsewhere in this
Agreement ALTOM TRANSPORT shall provide CONTRACTOR
written itemization and documentation o
all
charge backs where
such documentation
is
necessary to verif y the validity o the charge.
ADVANCES.
In the event that ALTOM TRANSPORT shall be re
quired to make any advances or payments for and/or on behalf o
CONTRACTOR s obligation for necessary operating expenses or
repairs on said Equipment, then ALTOM TRANSPORT shall have
the right to withhold an equivalent sum, plus any administrative
expenses asserted by ALTOM TRANSPORT in making such
advances, as a set-off, from funds due CONTRACTOR as rental
payment hereunder, or from any other sums which ALTOM
TRANSPORT may owe to CONTRACTOR, to secure the repay
ment o any such advances or payments. ALTOM TRANSPORT
shall provide CONTRACTOR written itemization and
documentation o all charge backs where such documentation is
necessary
to
verif y the validity o the charge. CONTRACTOR
hereby authorizes irrevocably any agent o any court o record to
appear for CONTRACTOR in such court and confess judgment,
without process, in favor o ALTOM TRANSPORT, for such
amounts o any advance or payment which ALTOM TRANSPORT
has made on behalf o CONTRACTOR which remains unpaid,
together with reasonable costs o collection, including attorneys
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fees, and to waive and release all errors which may intervene in any
such judgment, hereby ratifying and confirming all that said attorney
may do by virtue hereof.
G
ALTOM
TRANSPORT
NOT
LIABLE ALTOM TRANSPORT
shall not, in any way, be liable for fire, theft, loss or damage to the
Equipment leased hereunder, unless the cause
of
such loss was
solely that
of
Altom Transport.
H. INSURANCE It is recognized that the
DOT
and various other
regulatory bodies require the carrier under whose certificates or
permits leased Equipment is being operated to be responsible
to
the
public with respect to such Equipment while same is being operated
under its authority. ALTOM TRANSPORT will file, or has on file,
with the
DOT
and any other regulatory body having jurisdiction over
its operations, evidence
of
insurance in such amounts as may be
required
by
law or regulation
of
said agencies, and will continuously
maintain in effect insurance in such amount.
I.
VEHICLES
CONTRACTOR shall ensure that all Equipment and
Vehicles utilized pursuant to this agreement shall at all time adhere
to applicable DOT standards. CONTRACTOR agrees to hold
harmless and indemnify ALTOM TRANSPORT for any non
compliance violations with the above standards.
J CHARGEBACKS. ALTOM TRANSPORT shall charge back to
CONTRACTOR at the time
of
payment or settlement, any liability
or expense ALTOM TRANSPORT has incurred or paid that, under
this Agreement or any addendum to this Agreement,
CONTRACTOR is obligated to bear. Such expenses shall be
deducted from the amount
of
CONTRACTOR s compensation and
shall include those expenses set forth in this Agreement. The
amount
of
each item to be charged back to CONTRACTOR shall be
computed based on the actual cost or expense incurred by ALTOM
TRANSPORT and any administrative fee or mark-up disclosed in
this Agreement or any addendum thereto. ALTOM TRANSPORT
shall provide CONTRACTOR written itemization and
documentation
of
ail charge backs where such documentation
rs
necessary to verify the validity
of
the charge.
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8. Insurance/Benefits/Warranties
A.
INSURANCE COVERAGES. CONTRACTOR shall carry, at its own
expense, the following insurance coverages with the described
minimum limits:
1
Non-Trucking Liability. CONTRACTOR shall procure,
carry, and maintain public liability and property damage
insurance which shall provide coverage
to
CONTRACTOR
whenever the Equipment is not being operated
on
behalf of
ALTOM TRANSPORT in a combined single limit ofnot less
than One Million Dollars ( 1,000,000) for injury or death to
any person or for damages to property in any one occurrence.
In addition, such coverage shall be primary to any other
insurance that may be available
from
ALTOM
TRANSPORT. CONTRACTOR shall be responsible for all
deductible amounts and for any loss or damage in excess
of
the policy limit.
2 Workers Compensation Coverage. CONTRACTOR shall
maintain workers' compensation coverage and Occupational
Disease coverage for CONTRACTOR, its agents, servants
and employees.
As
an independent contractor,
CONTRACTOR is aware that costs and liabilities associated
with work related injuries are the sole responsibility
of
the
CONTRACTOR. f CONTRACTOR fails to keep in
force/said insurance, contractor thereby elects to opt out of
the state workers compensation act of the state(s) in which
contractor operates.
3) Other Insurance. In addition to the insurance coverages
required under this Agreement, it is CONTRACTOR'S
responsibility to procure, carry and maintain any fire, theft,
uninsured and/or underinsured motorist, and physical damage
(collision), or other insurance coverage that CONTRACTOR
may desire for the Equipment or for CONTRACTOR's health
care or other needs.
As
provided in this Agreement,
CONTRACTOR holds CARRIER harmless with respect to
loss of or damage
to
CONTRACTOR's Equipment, trailer, or
other property, and CARRIER has no responsibility to
procure, carry, or maintain any insurance covering loss of or
damage to CONTRACTOR's Equipment, trailer, or other
property. CONTRACTOR acknowledges that CARRIER
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may, and CONTRACTOR hereby authorizes CARRIER to
waive and reject no-fault, uninsured, and underinsured
motorist coverage from CARRIER s insurance policies
to
the
extent allowed under Illinois law (or such other state law
where the Equipment
is
principally garaged), and
CONTRACTOR shall cooperate
in
the completion o
all
necessary documentation for such waiver, election, or
rejection.
B.
CERTIFICATES
O
INSURANCE CONTRACTOR will furnish
ALTOM TRANSPORT an insurance certificate for all required
coverages shown above naming ALTOM TRANSPORT
as
an
additional insured on the Non-trucking liability coverages.
C.
o
BENEFITS
CONTRACTOR further understands and agrees that
CONTRACTOR and CONTRACTOR s subcontractors, agents or
employees are not entitled
to
any employee benefits granted
to
ALTOM TRANSPORT s employees, and CONTRACTOR shall
indemnify and hold
ALTOM TRANSPORT forever harmless from
any and all liabilities (including expense and attorneys fees) and all
costs, loss, expenses or damages arising from employee
compensation or benefits, unemployment, Social Security or any
other tax deduction or any employee benefits including, but not
limited to, group accident and health insurance or any workers com
pensation or occupational disease claims, injuries to or omissions
o
CONTRACTOR or CONTRACTOR s subcontractors, agents or
employees for failure to comply with the terms and obligations o
this Agreement.
D CONTRACTOR NOT COVERED
It is
expressly understood and
agreed that, because o CONTRACTOR s independent contractor
status, ALTOM TRANSPORT is not obligated to carry any
insurance covering CONTRACTOR, including workers
compensation and occupational disease insurance, and that
CONTRACTOR shall be responsible for the payment
o
premiums
on any health, liability, or accident insurance carried by CON
TRACTOR for
its
protection, or the protection o its subcontractors,
agents and employees.
E. DRIVERS QUALIFIED CONTRACTOR warrants that CONTRAC
TOR will furnish to operate all Equipment leased pursuant to this
Agreement only drivers or personnel who are qualified and
competent. CONTRACTOR agrees that all drivers and personnel
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furnished will be required
to
meet all o the rules and regulations o
the United States Department o Transportation, and any other
regulatory body having jurisdiction as to safety, hours o service,
inspection and maintenance, the taking o physical examinations,
and furnishing a certificate therefore. All drivers and personnel will
be required to comply
as
to the qualifications, training program, drug
and alcohol testing and safety rules o the United States Department
o Transportation, and any other body having jurisdiction. It
is
further agreed that all drivers and personnel furnished by
CONTRACTOR shall comply with all rules and regulations
prescribed by any regulatory body having jurisdiction over the
operations to be conducted pursuant to this Agreement.
CONTRACTOR will ensure that all records pertaining to the
foregoing will be furnished to ALTOM TRANSPORT, in order that
ALTOM TRANSPORT can keep and maintain such records in
accordance with the rules and regulations o all regulatory bodies
having jurisdiction over these operations.
F. FINES AND PENALTIES.
ALTOM TRANSPORT shall not be re-
sponsible for any fine, expense or costs incurred
by
CONTRACTOR
or any drivers or personnel furnished by CONTRACTOR, by reason
o its or their violation of, or failure to adhere to, any federal or state
law, local ordinance or regulation, or rule or regulation o any
federal, state or local regulatory body having jurisdiction; provided,
however, that ALTOM TRANSPORT agrees to pay
all
fines and
penalties for inadequacies in operating authorities or licenses where
it
is
mandatory that such be issued in ALTOM TRANSPORT s
name. ALTOM TRANSPORT shall be responsible for fmes for
overweight or over-dimension trailers when trailers are pre-loaded,
sealed or the load
is
containerized, or when the trailer or lading
is
otherwise outside o CONTRACTOR s control, except when such
fine shall be the result o an act or omission o CONTRACTOR or
personnel furnished by CONTRACTOR.
G.
CONTRACTOR s PERSONNEL. As between ALTOM
TRANSPORT and CONTRACTOR, except as may be otherwise
required by law or regulation, CONTRACTOR shall be solely
responsible for the direction and supervision o
all
personnel
furnished by CONTRACTOR in connection with this Agreement,
including, but not limited to the selection, hiring, firing, supervising,
directing, training, setting wages, hours and working conditions,
paying and adjusting grievances. As between CONTRACTOR and
ALTOM TRANSPORT only, CONTRACTOR shall be solely and
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exclusively responsible for all aspects of the operation of the
Equipment leased hereunder.
9 ompensation
A The compensation and additional terms affecting payment .of that
compensation are stated in A P P E N D I X ~ ' ' J \ . , attached to this
Agreement and made a part hereof. .......
B ALTOM TRANSPORT sfiall---settie with CONTRACTOR
with respect to services
provided under this
Agreement
within 15 calendar days after CONTRACTOR s
submission,
in
proper
form, of those
documents
necessary for ALTOM TRANSPORT to secure
payment
from
its
customers, including
the
signed
freight
bill,
delivery
receipt
or bill of lading, and
properly
completed
logs
as required by
the
DOT. In order that
CONTRACTOR may verify the accuracy of all payments
made pursuant to this Agreement,
where payment
is
predicated
upon
a percentage
of
gross revenues, ALTOM
TRANSPORT
shall present
CONTRACTOR
with copies of
rated freight
bills,
or
a
computer-generated
document
containing
all
of
the
same information, for
all
shipments
transported
in or with Equipment
leased pursuant to
this
Agreement.
CONTRACTOR
shall have the
right
to
examine copies
of
ALTOM TRANSPORT s tar iffs
or
rate
schedules
at ALTOM TRANSPORT s
home
office
during
reasonable business hours. In those circumstances
when CONTRACTOR is given a computer-generated
document rather than a copy of a
freight
bill,
CONTRACTOR shall have
the
right to examine
the
source document s) from which such computer-gener
ated
information
was compiled,
under the
same
conditions. However, ALTOM TRANSPORT
shall
have
the
right
to
block
out
or obliterate all references
on
such
freight bills,
source
document s), tariffs and rate
schedules as to the identity
of
customers, shippers and
consignees. CONTRACTOR shall have thirty (30) days
from
receipt
to contest, in
writing,
the information
contained on any
rated
freight bill or computer
generated
document.
Following
this
thirty (30) day
period, CONTRACTOR shall waive
all
rights to contest
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. .
the validity
or
accuracy of any/
all
payments
made
pursuant to
this Section
9.
With
respect to final
settlement upon
termination
of this
Agreement the
failure on the part of CONTRACTOR to remove and
return
to
ALTOM TRANSPORT
all identification devices
of ALTOM TRANSPORT
or
a letter certifying their
removal
shall
entitle
ALTOM TRANSPORT to
withhold
any
payments owed to CONTRACTOR, including any
escrow funds until such obligation is met.
10
CONTRACTOR s General Duties
A INSPECTION/WARRANTY. ALTOM TRANSPORT shall, prior to
taking possession
of
the Equipment, inspect said Equipment.
CONTRACTOR warrants that the Equipment
is
complete with all
required accessories, appurtenances and appliances, and that the
same is in good, safe and efficient operating condition and shall be
so
maintained, at CONTRACTOR s sole expense, throughout the
duration of this Agreement. CONTRACTOR shall and will submit
said Equipment for ALTOM TRANSPORT s inspection at the time
ALTOM TRANSPORT takes possession and periodically thereafter,
as required by ALTOM TRANSPORT. CONTRACTOR shall
furnish ALTOM TRANSPORT with all necessary information and
documents
of
title or registration so
as
to enable ALTOM
TRANSPORT
to
correctly identify and license the Equipment.
CONTRACTOR shall furnish ALTOM TRANSPORT copies of all
statements
or
invoices for repairs to said Equipment on a monthly
basis, whether done by CONTRACTOR or by a third party.
ALTOM TRANSPORT reserves the right
to
inspect the Equipment
at any time, and if ALTOM TRANSPORT exercises this right and
the Equipment shall be utilized in ALTOM TRANSPORT s service,
as
ALTOM TRANSPORT sees fit, CONTRACTOR shall not hinder
or deter ALTOM TRANSPORT s utilization in any manner whatso-
ever. Nothing in this Paragraph or Agreement shall obligate
ALTOM TRANSPORT to utilize said Equipment with any specific
frequency, for any specific number of miles, trips or pounds of
freight.
B IDENTIFICATION.
CONTRACTOR shall identifY the leased
Equipment with ALTOM TRANSPORT s design, emblem, lettering
and United States Department of Transportation and state certificate
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or permit numbers (if any), at CONTRACTOR's expense. ALTOM
TRANSPORT agrees to furnish to CONTRACTOR the appropriate
identification for said Equipment, and CONTRACTOR agrees to
permit ALTOM TRANSPORT to identify the Equipment and
display such identification thereon, in the manner required by all
applicable laws and regulations, and CONTRACTOR further agrees
to
remove or obliterate such identification, at CONTRACTOR's
expense, and to prohibit display o such identification upon the
termination o this Agreement, whereupon such identification shall
be returned to
ALTOM TRANSPORT. CONTRACTOR agrees to
indemnify and hold ALTOM TRANSPORT harmless for any
expense or loss, howsoever arising, including, but not limited to,
attorneys' fees in connection therewith, which ALTOM
TRANSPORT may incur
as
a result o CONTRACTOR's failure to
do
so
C NOTICE O LOSSES CONTRACTOR shall promptly advise
ALTOM TRANSPORT in writing o any and all injuries, accidents,
cargo loss or damage or spillage, or similar incidents or occurrences,
involving any Equipment which is the subject
o
this Agreement.
CONTRACTOR shall also advise ALTOM TRANSPORT o any
delay in the delivery
o
any cargo. CONTRACTOR shall make a
full and complete written report to ALTOM TRANSPORT, and to
any
insurance company or other agencies
as
may be required o any
and
all
such events within twenty-four (24) hours
o
their
occurrence.
CONTRACTOR shall irmnediately report all cargo claims, including
all shortages, overages or other exceptions to the cargo, to ALTOM
TRANSPORT. CONTRACTOR shall be liable for, and ALTOM
TRANSPORT shall charge back to CONTRACTOR, the first 2,000
o each cargo claim, including but not limited to, delay, shortages,
misdelivery, and any direct damage claim relating to lost, damaged
or contaminated loads, arising out of, or in connection with
CONTRACTOR's services. Before deducting any cargo claim from
CONTRACTOR's compensation, ALTOM TRANSPORT shall
provide CONTRACTOR with a written explanation and itemization
for each such claim.
CONTRACTOR agrees to return any trailer provided for its use by
ALTOM TRANSPORT in the same good condition as received by
CONTRACTOR, reasonable wear and tear excepted, along with any
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. .
and all other equipment and property belonging to ALTOM
TRANSPORT immediately upon ALTOM TRANSPORT s request
or upon termination of this Agreement. In the event the trailer is not
in as good s condition s it was delivered by ALTOM
TRANSPORT, CONTRACTOR hereby authorizes ALTOM
TRANSPORT to restore the trailer to proper condition and to charge
back
to
CONTRACTOR the costs of such repairs or reconditioning.
In the event CONTRACTOR for any reason fails to comply with this
provrswn and return ALTOM TRANSPORT s trailer,
CONTRACTOR agrees to reimburse ALTOM TRANSPORT for all
reasonable expense and costs, including attorney fees, incurred by
ALTOM TRANSPORT in recovery
of
its trailer or property from
CONTRACTOR or its drivers. CONTRACTOR agrees that in the
event it is necessary for ALTOM TRANSPORT to enter upon
private property or remove private property in order to recover its
trailer and property, CONTRACTOR does hereby irrevocably grant
ALTOM TRANSPORT or its duly authorized agents, permission to
do so and further agrees to indemnify and hold harmless ALTOM
TRANSPORT, and its duly authorized agents, from any form
of
liability whatsoever in connection with such repossession.
CONTRACTOR shall be liable for, and pay, the entire amount for
each incident involving direct, indirect and consequential damage,
including but not limited to, towing charges, replacement costs for a
total loss, arising out of, or in connection with, CONTRACTOR s
use
of
ALTOM TRANSPORT s trailers, ALTOM TRANSPORT s
customer s trailers, other ALTOM TRANSPORT equipment, or
equipment
of
any other carrier. Before deducting any such damage
from CONTRACTOR s compensation, ALTOM TRANSPORT
shall provide CONTRACTOR with a written explanation and
itemization of such damage. CONTRACTOR agrees and warrants
that any trailer provided for use by ALTOM TRANSPORT will only
be used by CONTRACTOR and its drivers to transport shipments
tendered to CONTRACTOR by ALTOM TRANSPORT.
D
ALTOM
TRANSPORT s RIGHT TO TRANSFER In the event of
an Equipment breakdown, or,
if
for any other reason, CONTRAC-
T R
is unable to effect delivery
of
freight being transported with the
Equipment leased herein in a timely fashion, then ALTOM
TRANSPORT shall have the right to transfer such freight to another
vehicle, or attach CONTRACTOR s trailer to another tractor, in
order to deliver such freight and to deduct any costs or expenses so
incurred from CONTRACTOR s trip settlements. In the event that
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CONTRACTOR trip leases the Equipment without first having ob
tained ALTOM TRANSPORT s approval, then ALTOM
TRANSPORT shall not be responsible to CONTRACTOR for the
payment
o
any monies relating to said trip lease, unless and until
ALTOM TRANSPORT has actually received payment for the trip
lease undertaken by CONTRACTOR. Further, it
is
the respon
sibility o CONTRACTOR to submit all paperwork relating to a trip
lease shipment to ALTOM TRANSPORT, and not to the trip-lease
carrier. ALTOM TRANSPORT shall then immediately forward said
paperwork to the trip-lease carrier.
11
Method Means and Manner o Performance
A. METHOD. CONTRACTOR shall determine the method, means and
manner
o
performing this Agreement and shall be responsible to
consignors and consignees for the proper performance
o
this
Agreement, in accordance with the rules and regulations o the
Illinois Commerce Commission and the United States Department
o
Transportation, and any other federal or state regulatory agency.
B. RIGHT TO REFUSE.
CONTRACTOR has the right to accept or
refuse, without penalty, any shipment(s) offered for transportation
by ALTOM TRANSPORT. CONTRACTOR has the right to
determine the actual route
o
travel taken in transporting any freight
shipment for or
on
behalf
o
ALTOM TRANSPORT so long
as
such
route is within the scope
o
ALTOM TRANSPORT s operating
authorities as issued by the United States Department
o
Trans
portation, FMCSA or any other regulatory body having jurisdiction
over such transportation and does not otherwise violate any law,
ordinance, rule or regulation. ALTOM TRANSPORT reserves the
right to offer shipment(s) to contractor and is under no obligation to
do so.
C.
INDEPENDENCE.
CONTRACTOR
as
an independent contractor
is
able to work for others and hold itself out to the public generally, in
a manner consistent with the other provisions
o
this Agreement.
CONTRACTOR shall not be required or expected to grant ALTOM
TRANSPORT priority.
12
Regulatory Requirements/Laws
It is agreed that CONTRACTOR must satisfy all laws or requirements es
tablished by state or federal law, by the DOT and any other federal
or
state
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regulatory agency having jurisdiction, in the performance of this Agreement, and
that ALTOM TRANSPORT may inspect the records
of
CONTRACTOR
periodically to assure compliance with said requirements, laws, or regulations.
13 Subleasing frip Leasing/Etc.
A ALTOM TRANSPORT may sublease the Equipment which is the
subject
of
this Agreement whenever permitted by applicable laws
and regulations, and ALTOM TRANSPORT shall be considered to
be the owner of said Equipment for the purpose of any such
subleasing
if
such
is
required by law or regulation. Neither party
may assign this Agreement. CONTRACTOR may not act as
ALTOM TRANSPORT s agent for the trip or sublease of the subject
Equipment, except upon such express terms and conditions as
ALTOM TRANSPORT may establish. In the event that
CONTRACTOR trip-leases the subject Equipment without first
having obtained ALTOM TRANSPORT s approval, then ALTOM
TRANSPORT shall not be responsible to CONTRACTOR for the
payment of any monies relating to said trip lease, unless and until
ALTOM TRANSPORT has actually received payment from the trip
lease carrier, nor shall ALTOM TRANSPORT be responsible for
any obligations to any trip-lessee undertaken by CONTRACTOR.
Further, it is the responsibility of CONTRACTOR to submit all
paperwork relating to a trip-lease shipment to ALTOM
TRANSPORT, and not to the trip-lease carrier. ALTOM
TRANSPORT shall then immediately forward said paperwork to the
trip-lease carrier.
B. Consistent with its independent contractor status, CONTRACTOR is
free to and may, lease or trip
to
other carriers at such times as the
Equipment that is not being utilized by ALTOM TRANSPORT. f
CONTRACTOR enters into a sublease, CONTRACTOR agrees to
assume all responsibility and hold ALTOM TRANSPORT harmless
from any claim by CONTRACTOR, its subcontractors, agents or
employees during such sublease.
C.
At those times when CONTRACTOR is not operating under
ALTOM TRANSPORT s operating authorities or otherwise oper
ating in ALTOM TRANSPORT s service pursuant to this Agree
ment, or is hauling for someone else, CONTRACTOR agrees to
cover or remove any signs and/ or other identification on the
Equipment containing ALTOM TRANSPORT s name and/or motor
carrier identification numbers.
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.,
14 Indemnification by Contractor
As
between ALTOM TRANSPORT and CONTRACTOR only, without
any regard or effect upon the obligations of ALTOM TRANSPORT to any third
party, CONTRACTOR agrees to be responsible for indemnify and hold ALTOM
TRANSPORT harmless from any and all claims of any nature, losses, personal
injury, death, and/or damage to individuals, cargo or other property, and/or claim
for any such loss or occurrence which may arise from or in connection with the
operations performed or
to
be performed pursuant
to
this Agreement arising from
negligence on the part of CONTRACTOR or any breach of this Agreement by
CONTRACTOR. This
is
to include, but is not limited to, attorneys fees and any
other expenses incurred in defending or processing any claim arising as a result of
any of the above or operation of the Equipment leased herein. ALTOM
TRANSPORT may deduct any sums for which CONTRACTOR is responsible
hereunder from any monies that ALTOM TRANSPORT may owe to CON-
TRACTOR as rentals or from any other sums which ALTOM TRANSPORT may
owe to CONTRACTOR, after first giving CONTRACTOR an itemized statement
therefor. Further, CONTRACTOR will be responsible to indemnify ALTOM
TRANSPORT for any deductible payments incurred by ALTOM TRANSPORT
as a result of the negligence of the CONTRACTOR.
15
Miscellaneous Provisions
A.
L BOR
DISPUTE CONTRACTOR hereby agrees that should it
become involved in a labor dispute with its employees or with
drivers or other personnel furnished to ALTOM TRANSPORT, it
will immediately report such fact
to
ALTOM TRANSPORT. f such
labor dispute interferes or tends
to
interfere with the operations of
CONTRACTOR for ALTOM TRANSPORT pursuant
to
this
Agreement, then this Agreement shall be subject to immediate
cancellation by ALTOM TRANSPORT, without penalty.
B. RENT/PURCHASE CONTRACTOR is not required
to
purchase or
rent any products, equipment or services from ALTOM
TRANSPORT
as
a condition
of
this Agreement.
C. LOADING/UNLOADING Loading of freight onto the Equipment,
which is the subject of this Agreement, is the responsibility of
CONTRACTOR and shall be done at CONTRACTOR s expense.
Unloading of freight is the responsibility of CONTRACTOR and
shall be done at CONTRACTOR s expense.
PAGE
7 OF 22
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I _
D COMPLETE AGREEMENT. This Agreement shall supersede, replace
and take precedence over any prior agreement
of
a similar character
between the parties hereto. This Agreement shall constitute the
complete Agreement between the parties, and no agent or
employee
of
either party shall have the authority to alter or vary the terms
hereof or
to
make any representations or commitments not included
herein. This Agreement shall not be assignable except with the ex
press written consent of both parties. This Agreement shall be
interpreted and governed pursuant to the laws
of
the State of Illinois,
and any action pertaining thereto shall be brought and maintained
exclusively in Courts in the State of Illinois.
E
COPIES.
This Agreement shall be executed in at least three (3)
copies, each of which shall be considered an original, to the end that
one executed copy, known
as
ALTOM TRANSPORT's Copy
shall be retained by ALTOM TRANSPORT; one executed copy
known as CONTRACTOR's Copy shall be retained by CON
TRACTOR; and
one
executed copy known as Equipment Copy
shall be carried in the Equipment during the term
of
this Agreement
and returned to ALTOM TRANSPORT at the conclusion of this
Agreement. Additional copies may be signed where necessary, and,
when signed, such additional copies shall also be considered as
originals and may be filed with appropriate regulatory bodies.
F
COSTS/ATTORNEY FEES.
CONTRACTOR shall be responsible
to pay all court costs and reasonable attorney fees incurred
as
a
result of ALTOM TRANSPORT having to enforce the terms of this
agreement in the event
of
CONTRACTOR'S non-compliance with
the terms and conditions set forth herein.
G NON WAIVER. The failure or refusal of either party to insist upon
the strict performance of any provision of this Agreement, or to
exercise any right in any one or more instances or circumstances
shall not be construed
as
a waiver or relinquishment of such
provision or right, nor shall such failure or refusal be deemed a
customary practice contrary
to
such provision or right.
H
GOVERNING LAW AND CHOICE OF FORUM.
This
Agreement is to be governed by the laws of the United States and of
the State of Illinois, including the choice-of-law rules
of
Illinois, and
PAGE
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CARRIER and CONTRACTOR hereby consent
to
the jurisdiction
of the state and federal courts of Illinois.
16 Independent Contractor Status/Tax Treatment
CONTRACTOR acknowledges and agrees that it has been engaged as an
independent contractor and not as an employee. It shall be therefore, responsible
for payment of all federal, state and local taxes arising out of its activities under
this Agreement, and/or the activities of its subcontractors, agents or employees
including by way of illustration, but not limitation, federal and state income tax,
Social Security tax, unemployment insurance taxes, where applicable, and
business license fees, where required. CONTRACTOR understands and agrees
that ALTOM TRANSPORT is not obligated or responsible to deduct any taxes
which may be imposed by any governmental authority from the fees
as
paid
to
CONTRACTOR or CONTRACTOR s subcontractors, agents or employees by
ALTOM TRANSPORT under this Agreement, but that any such tax obligations
are the sole responsibility of CONTRACTOR. ALTOM TRANSPORT is not
authorized to withhold state or federal income tax, or Social Security tax upon the
sums paid CONTRACTOR or CONTRACTOR s subcontractors, agents or em-
ployees.
17 Confidentiality
CONTRACTOR will
obtain
from
ALTOM TRANSPORT
information concerning customer names, pnc1ng
information,
customer
usage patterns, etc., and
other
information
described
in
Section 2(C)
above, all
of
which
ALTOM TRANSPORT
considers to
be
proprietary and
confidential
( confidential data''). To insure the
confidentiality of ALTOM TRANSPORT S confidential data,
CONTRACTOR shall limit disclosure of all
information
concerning
this Agreement, CONTRACTOR S performance
and
ALTOM
TRANSPORT S
confidential data to
only
those
employees of
CONTRACTOR who require such information
to
properly perform
their
respective
duties
under
this
Agreement.
Upon termination
of
this Agreement, CONTRACTOR agrees to return to ALTOM all of the
confidential information and documents, as provided
in
Section
2(C) hereof.
PAGE
9
OF 22
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r
18. Non-Compete
MICHAEL STAMPELY
are officers, directors
and
shareholders
of
CONTRACTOR,
and
will benefit financially, both
directly and
indirectly
from CONTRACTOR doing business
with
ALTOM TRANSPORT. CONTRACTOR, MICHAEL STAMPELY
individually and collectively, agree that they shall not and will not
both during
the term
of this Agreement or for two
2)
years after the
termination
of
this Agreement solicit
the
business of any
customer
of
ALTOM TRANSPORT,
unless
CONTRACTOR
can prove
that
it
also had
a business
relationship with any
ALTOM TRANSPORT
customer
on
the
effective
date of
this
Agreement.
All parties hereto agree
that in
addition to any monetary loss
which
ALTOM TRANSPORT would suffer as a
result
of a
violation
of
this Agreement by CONTRACTOR, such violation would
cause
ALTOM TRANSPORT irreparable harm for which harm monetary
damages
are presumptively inadequate.
Therefore
ALTOM
TRANSPORT may apply
to
a
court
of a competent
jurisdiction
for a
Temporary
Restraining Order or a Preliminary or Permanent
Injunction
against any other
party to this Agreement.
In such
event the Defendant
in
such action
specifically
waives
any
requirements for an injunction bond and
agrees
they will not ask
for
an
injunction bond. The seeking of injunctive
relief
shall not
constitute
an election of remedies.
19. Invalidity
In the event any provision
of
this Agreement shall be held to be invalid, it
shall not affect the validity
of
the remainder
of
this Agreement.
20. Notices
Any written notice required by the terms
of
this Agreement shall be given
either by personal delivery, by certified mail, premium overnight delivery service,
facsimile or such other means as the parties shall in writing agree upon.
21. Headings
The headings of this Agreement s provisions are for convenience only and
shall not control or affect the meaning or construction or limit the scope or intent
PAGE
2
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o any o this Agreement s provisions. All headings shall be subordinate t the
meaning
o
the text
o
the Agreement.
PAGE 2 OF PAGES)
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State of Illinois
Illinois Commerce Commission 527 E. Capitol Avenue, Springfield,
IL
62701 217(782-4654 Fax 217(785-1448
.
0
Equipment Lease Motorized (Power) Units Only
'
Read
Attached Instructions Carefully
Identification of Lessee: (ILCC authority
holder).
1. Full Legal name: (as shown on license)
2.
FEIN/SSN:
Altom
Transport, Inc.
36-3217907
3. Business Address: (street and number)
4. Lessee s Illinois Motor Carrier No.: (required)
7439 W
Archer Ave.
MC 62032
5. City:
6.
State:
7.
Zip Code:
8. Business Phone:
Summit
Illinois 60501
(773) 284-4400
Identification of Lessor: (equipment
owner and/or
operator
9. FEIN/SSN: 331-58-4620
10. Full Legal Name: (as it appears on vehicle title)
11.
FMCSA No.: (if available)
MICHAEL STAMPLEY
12. Business Address: (street and number)
13.
Lessor s Illinois Motor Carrier No.:
15129 SOUTH GRANT STREET
14. City: 15. State:
16.
Zip Code:
17. Business Phone:
DOLTON
ILLINOIS
60419 708-849-6265
Identification of
Eouioment:
A seoarate lease is required for each
piece
of MOTORIZED eauipment.
18. Manufacturer or Make: Model: Year: Vehicle Identification Number (VIN):
PETERBILT CONVENTIONAL 2007 1XP5DB9X27N730834
TERM;::; uF LEASt:: 1 e rollowing conditions are the
express
terms or this
lease,
and any contrary provisions in
attachments
or other contractual documents are
void.
19. Duration
or
Lease. LEA::>E
Pt:RiuD
CAN NUT t:XCEED THREE
Yt:AR::>.
EFFEGTIVE DA II:: CANNOT BE MORE THAN
FIFTEEN DAYS PRIOR TO THE DATE THIS LEASE
IS
FILED WITH THE ILLINOIS COMMERCE COMMISSION.
Effective Date of Lease: 09/28/2012 Expiration date of Lease:
09/28/2015
20. Compensation
to
Lessor: Is a
current master
lease
addendum on
file with the Illinois
Commerce
Commission?
Yes
O o
Lessor shall
be
compensated as follows:
per hour OR
70
or gross
and/or
(other terms)
121. Insurance. Lessee is
aware
of
insurance
obligations for operations under this
lease.
Please read
Required
Terms
on
reverse side.
ves
0 No
22. Direction
and
Control.
Lessee
is
aware
of his responsibilities for direction and control of operations under this lease.
ves
0 No
23. 15.00
FILING FEE
REQUIRED. THIS FORM MUST BE SUBMITIED IN TRIPLICATE. ORIGINAL SIGANTURES REQUIRED ON ALL COPIES.
. .
24. Certirytng
Statement
and
Signature.
Under
penalty
of
perjury, I declare
that
I have examined
the
equipment
lease submitted by
me
and
to the
best of
my
knowledge it is true and correct and
complete.
My signature authorizes the Illinois
Commerce
commission
to
lower the amount of the check if fees submitted
exceed the correct amount. A power of attorney is required if
an
agent signs this lease.
Lessee Signature (lessee
or
authorized a g e n t ~
_,
_ . {
Lessor signature( ow ner
or
authorized representive):jt/d.. JJ JV 1.--;t/;- , Positionmtle:
Positionmtle:
b g
1
: ( Date:
Date:
Page 1 of2
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JOSEPH
M.
MALONE
DIRE TOR OF SAFETY
NTTC I BOARD OF DIRECTORS
4243 S
KNOX AVENUE
CHICAGO ILLINOIS 60632
800 327 8903 X 245
www ALTOMTRANSPOAT com
Owner Operator Comdata Fuel Card Agreement
This agreement made this 28th day of SEPrEMBER.
2012.
between Altom Transport, Inc and
Contractor MICHAEl, STAMPLEY /DNJT B439 to establish a fuel purchase plan for the Independent
Contractor named
above.
Altom Transport, Inc agrees to issue a Comdata Fuel Card to Contractor for
the purchase of fuel to be used
in
the assigned equipment leased to Altom Transport,
Inc
Contractor
hereby agrees to the following conditions and limitations governing the use of the fuel card. Tbe
Comdata Fuel Card issued to the contractor remains the property of Altom Transport,
Inc
and must be
surrendered upon demand or
at
the termination of the Contractor s lease with Altom Transport, Inc
Altom Transport, Inc is to be held harmless against all claims arising from the Contractor s use of card
including,
but
not limited
to
the quality of the fuel purchased or pricing of fuel. Contractor may not use
card for fueling of any vehicle not leased to Altom Transport, Inc Contractor agrees to be responsible
for any and
all
charges made with the card and posted against Altom s account with Comdata. Tbe loss
or theft of the card shall not waive Contractor s obligation
until
the card
is
properly reported lost or
stolen and the card
is
cancelled.
Contractor agrees that a weekly settlement deduction will be made to cover charges against the card. Tbe
daily limits imposed upon the card for fuel and miscellaneous purchases are subject to change without
notice and shall not be the basis of any claim against Altom Transport,
Inc
Altom Transport,
Inc
reserves the right to cancel or suspend charge privileges during any period of non- revenue the Contractor.
Contractor agrees to abide
by
the conditions and limitations contained in this agreement and any
revisions deemed necessary by the
account holder, Altom Transport, Inc This program is being
administrated
by
the Safety Department and they must be contacted regarding any account maintenance.
_ ~
2: _
_ i : J I
;;J
Date
~ ~ - ~ - - - - - - - -
164-804-1160
omdata Fuel
ard Number
J. M Malone Director of Safety
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JOSEPH M MALONE
DIRECTOR
OF SAFETY
4243 S.
NOX
AVENUE
CHICAGO ILLINOIS 60632
OO
327 8903 x245
MALONE @ALTOMTRANSPORT COM
www ALTOMTRANSPORT com
OWNER OPERA
TOR
LICENSING PURCHASE PROGRAM
By requesting the use o an LTOM TRANSPORT, INC., Illinois Apportioned License Plate,
I, MICHAEL STAMPLEY Unit Number: B439 VIN 1XP5DB9X27N730834, agree to the
following terms and conditions:
All applicable charges will be subject to an administration fee that will be added to the final
invoicing received from the Illinois Secretary o State's Office.
The issued License Plate will remain the property
o
Altom Transport, Inc., and must be returned
upon cancelation
o
lease and/or termination.
Refunds will only be issued and based on an unused full Quarterly basis should separation from
Altom Transport, Inc., occur.
Deductions from your weekly settlement will begin the first week after the request for plates has
been approved.
Your deductions will be amortized in (4) four equal installments.
Any owner operator requesting Altom Transport, Inc., to purchase license plates, your pay
percentage will be set at 70
o
the gross revenue.
All License Plates owned and purchased by Altom Transport, Inc., will be apportioned
in
all 48
States and the lower 6 provinces o Canada.
b t
:;JtJid
a t e ~
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5 t is against company policy to willfully disconnect this unit or disable it for any reason. Any
intentional act to deceive or evade the company s ability to use the system s functionality
will be considered a breach
o
this agreement and may result in the termination
o
the
contractor s hauling agreement.
6
The contractor agrees to pay
l,OOO.OOlfor
removal
o
system unit
i
contractor elects to
terminate contract and lease during first
65 days
after this agreement is signed. (Amended
03/02/11)
7 The contractor agrees to and understands that all charges the contractor is responsible for
related to the PeopleNet system as outlined above, will be paid to the company through
settlement deductions.
The undersigned acknowledges they have read this agreement and agree to the terms outlined
above.
Altom Transport, Inc. Date
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o
40 PageiD :2
operators.
2. Plaintiff brings this class action because Altom formulated, implemented and/or
engaged in and practiced an unlawful common course
of
conduct against Plaintiff and the
members
of
the Class (as defined in 8(a)
of
this Complaint) by knowingly and unlawfully
reducing and intentionally miscalculating Plaintiffs compensation and the compensation
of
the
other members of the Class and by relying upon owner-operator agreements that failed to clearly
state or disclose deductions made to amounts used
to
calculate owner-operator compensation.
THE PARTIES
A.
Plaintiff
3
At
all times relevant
to
this complaint, Michael Stampley ( Stampley ), a resident
and citizen
of Illinois, was an owner-operator of a moving truck.
He
entered into a lease
agreement listing Altom as the carrier within the purview of 49 U.S.C.
14102
and 49 C.F.R.
376 12
A true and correct copy of the owner-operator agreement (the Ow11er-Operator
Agreement ) he signed
is
attached hereto as Exhibit
A
1
Plaintiff brings this suit individually
and on behalfof all members
of
the Class, defined 8
of
this Complaint.
B Defendant
4. Altom, which is headquartered in Summit, Illinois, is a motor carrier which, at all
times relevant to this class action, held and continues to hold a certificate of authority issued by
the Federal Motor Carrier Safety Administration. In addition to its corporate headquarters,
Altom operates facilities in Chicago, Illinois, Hammond, Indiana, Indianapolis, Indiana,
Pasadena, Texas, and Lufkin, Texas.
Mr
Stampley's social security number, which is set forth on Page 22
of of
he Owner-Ogerator
Agreement has
been
redacted
for privacy purposes.
2
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JURISDICTION ND VENUE
5. This Court has subject matter jurisdiction over this class action pursuant to
28
U.S.C.
1331
and l337(a) because the claims asserted in this Complaint arise under the
Motor Carrier Act, 49 U.S.C.
14102 and 14704 t seq. and the regulations promulgated
thereunder, namely 49 C.F.R. 376.12, all o which relate to truck owner-operators lease
equipment to authorize motor carriers for the transportation
o
property.
6. Venue is proper in this District pursuant to 28 U.S.C. 1391(b) because, during the
Class Period, Altom transacted business
in
this District, maintained offices in this District, were
and are found in this District, and because a substantial part o the events giving rise to Plaintiffs
and Class members' claims occurred in this District.
7.
Upon information and belief, Altom continues to carry out the wrongful acts
described in this Complaint in this District.
CLASS
CTION LLEG TIONS
8.
Plaintiff brings this class action pursuant to Rule 23(a) and b)(3)
o
the Federal
Rules
o
Civil Procedure, on behalfo the following Class:
All equipment owner-operators
in
the United States who, during the
period from May 21, 2004, through the prese