Preview
FILED
12/10/2020 6:06 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY
CAUSE NO. . DC-20-11175
MICHAEL WILLIAMS IN THE DISTRICTCOURT
Plaintiff,
Vv.
TXI OPERATIONS, L.P.,
TEXAS INDUSTRIES, INC., OF DALLAS COUNTY, TEXAS
MARTIN MARIETTA,
MARTIN MARIETTA
MATERIALS, INC., AND
MARTIN MARIETTA MATERIALS
SOUTHWEST, L.L.C.,
Defendant. 134TH JUDICIAL DISTRICT
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE
TO THE HONORABLE JUDGE OF THIS COURT:
NOW COMES Plaintiff, MICHAEL WILLIAMS, who files this his Response to
Defendants’ Motions to Transfer Venue. In support thereof, Plaintiff respectfully shows the Court
the following.
In support of this response, Plaintiff attaches and incorporates the following Exhibits:
Exhibit A- Agreement between Counsel
Exhibit B- Services Agreement between Plaintiff's employer, 3B and MMMI.
Exhibit C- MMMI’s Responses to Plaintiff's Discovery
I.
SUMMARY OF PLAINTIFF’S ARGUMENT
Defendants’ Motions to Transfer must be denied for the following reasons:
Venue is proper in Dallas County per CPRC 15.002(a)(3) because Defendants do not
contest Plaintiff's assertion that one or more Defendants had a principal office in Dallas
County;
Plaintiff's Response to Defendants’ Martin Mariettta Motion to Transfer Venue
1|Page
Venue is proper in Dallas County because Defendant has failed to meet its burden of
transferring venue to another specified county pursuant to Tex. R. Civ. P. 87(2)(a); and
Venue is proper in Dallas County because Plaintiff's evidence submitted herewith
demonstrates that
1 maintenance of this suit in Dallas County would not work an injustice to the
Defendants considering the Defendant’s economic and personal hardship;
2 the balance of interests of all the parties does not predominate in favor of this suit
being brought in Comal County; and,
3 the transfer would not work an injustice to Defendants.
IL.
THE ONLY VENUE DISPUTE BETWEEN THE PARTIES IS THE “CONVENIENCE”
OF DALLAS COUNTY PURSUANT TO CPRC § 15.002(b)
On August 12, 2020, Plaintiff filed his Petition against TXI Operations, L.P.; Texas
Industries, Inc.; Martin Marietta; Martin Marietta Materials, Inc., and Martin Marietta Materials
Southwest, L.L.C. (collectively “Defendants”). See August 12, 2020 Plaintiff's Original Petition
which is incorporated by reference herein. In Plaintiff's Original Petition, Plaintiff pled the
following venue fact: “venue is proper in Dallas County because one or more defendants have its
principal office in Texas in this county.”
On September 11, 2020, Defendants filed their Original Answer and Motion to Transfer
Venue. See September 11, 2020 Defendants’ Original Answer and Motion to Transfer Venue which
is incorporated by reference herein. Originally, Defendants asserted two venue challenges. First,
Defendants asserted essentially that venue was improper pursuant to TEX. CIv. PRACT. & REM.
CODE § 15.002(a) because it had a principal office in Raleigh, North Carolina, any of Defendants’
other offices in Dallas County, or elsewhere in Texas, are not a “principal office” for venue
Plaintiff's Response to Defendants’ Martin Mariettta Motion to Transfer Venue
2|Page
purposes'. See id. Defendants are no longer pursing this venue challenge pursuant to § 15.002(a).
See December 8, 2020 correspondence between counsel attached hereto as Exhibit A.
Second, Defendants moved to transfer venue based upon convenience pursuant to TEX.
CIV. PRACT. & REM. CODE § 15.002(b). This is the only basis before the court on Defendants’
Motion to Transfer Venue.
Til.
OVERVIEW OF RELEVANT VENUE FACTS
On September 28, 2018, Plaintiff was injured while working as a vaccumer for his
employer 3B Dozer Service, LLC. (“3B”). See Plaintif Original Petition. Plaintiff's work for
3B was being performed pursuant to a contract between 3B and Defendant Martin Marietta
Materials, Inc. (““MMMI”). See “Services Agreement” produced in discovery by MMMI attached
hereto as Exhibit B. The Services Agreement was signed by MMMI’s “Buyer” in their Dallas
office at 1503 LBJ Freeway, Dallas, Texas 75234. See ExhibitB at p. 7.
The Services Agreement appears to be a “master” services agreement, as it seems to apply
to maintenance services for Martin Marietta throughout the State of Texas, rather than just one
MMM facility. See Exhibit B. at p. 10. Plaintiff's accident occurred, at MMMI’s facility in Comal
County. Notwithstanding, Plaintiff exercised his right to choose to file venue where Plaintiff
contends Defendants have a principal office, not where the accident occurred, and the principal
office basis is no longer contested by Defendants.
| For purposes of venue, a defendant may have more than one principal office in Texas. In re Missouri Pacific R.R.
Co., 998 $.W.2d 212, 217 (Tex. 1999). That is, even though a company may have a principal office in another state,
this does not preclude that company from having a “principal office” in one or more Texas counties. See id.
Plaintiff's Response to Defendants’ Martin Mariettta Motion to Transfer Venue
3|Page
Defendants also do not contest that MMMI conducted business operations at 1503 LBJ
Freeway, Suite 400 Dallas, Texas at the time of Plaintiff's accident See MMMI’s Responses to
Plaintiff's Discovery attached hereto as Exhibit C at p.5.?
Iv.
ARGUMENTS AND AUTHORITIES
A. Plaintiff has no burden to prove venue is proper in Dallas County pursuant to
CPRC § 15.002(a) because Plaintiffs “principal office” venue facts are no longer
contested.
B. Plaintiff has the Right to Choose his Venue
Defendants contends there are other counties of proper venue. However, Defendants failed
to present any evidence that transfer for convenience is appropriate. Therefore, Defendants’
motion must be denied. Garcia v. Garza, 70 S.W.3d 362 (Tex. App.-Corpus Christi, 2002), rev'd
on other grounds, 137 S.W.3d 36 (Tex. 2004).
Plaintiff is accorded the right to choose venue first; and as long as suit is initially filed in a
county of proper venue, the Plaintiffs’ venue choice cannot be disturbed. Chiriboga v. State Farm
Mut. Auto. Ins. Co., 96 S.W.3d 673, 677 (Tex. App-Austin 2003, no pet.); Wilson v. Tex. Parks &
Wildlife Dep't, 886 S.W.2d 259, 261 (Tex.1994). Given more than one option, the choice of venue
belongs to the Plaintiff. Geochem Tech Corp. v. Verseckes, 962 S.W.2d 541, 544 (Tex. 1998);
Wilson v. Texas Parks and Wildlife Dep’t., 888 S.W.2d 259, 260 (Tex. 1994). Plaintiff exercised
? Although Plaintiff propounded narrowly tailored discovery to each Defendant to discovery facts pertaining to their
business operations in Dallas County, Defendants have stymied those efforts. For example, Defendants object to
Plaintiff's Interrogatory No. 6 which seeks the identity of employees working in the MMMI’s LBJ Freeway office.
Even though “principal office” is no longer an issue, that discovery is still relevant to determining the degree of
inconvenience to MMMI for defendant this case in Dallas County.
Plaintiff's Response to Defendants’ Martin Mariettta Motion to Transfer Venue
4|Page
his right to bring suit in Dallas County and that choice should not be disturbed absent substantial
findings of inconvenience and injustice, Wilson, 888 S.W.2d at 260, which cannot be shown here.
C. Defendants Are Not Economically or Personally Prejudiced by Dallas County
Defendants are not, and have not claimed to be personally prejudiced either through
economic or personal hardship because of Dallas County venue. In fact, the Services Agreement
giving rise to this lawsuit was signed in Dallas County, it was made by an employee of Defendant
who was working in one Defendants’ Dallas County offices at the time, and Defendants are clearly
able to effectively defend this case with counsel it selected from Dallas County. It is ludicrous for
a Defendant such as Martin Marietta with over $1.3 Billion in revenue’ to contend it somehow is
going to experience economic and/or personal hardship if this lawsuit’s venue is maintained in
Dallas County. Similarly, the other CPRC § 15.002(b) bases, which are conjunctive, fail for lack
of evidence, credibility, and no evidence.
PRAYER
For these reasons, Plaintiff respectfully ask this Court to deny all of the Defendants Motion
to Transfer venue in its entirety, and for any further and just relief which Plaintiff may show
himself entitled to.
Respectfully Submitted,
THE CARLSON LAW FIRM, P.C.
11606 N. TH-35
Austin, Texas 78753
(512) 346-5688 Telephone
(512) 719-4362 Facsimile
3 See https://ir.martinmarietta.com/news-releases/news-release-details/martin-marietta-reports-third-quarter-2020-
results
"Plaintiff's Response to Defendants’ Martin Mariettta Motion to Transfer Venue
5|Page
By: ihe CED
Joshua Crowley
SBN: 24091451
jcrowley@carlsonattorneys.com
William G. Rossick
SBN: 00789597
wrossick@carlsonattorneys.com
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
In conformity with TEXAS RULES OF CIVIL PROCEDURE 21 AND 214A, I hereby certify that a
true and correct copy of the above and foregoing instrument was served upon the following
individuals on December 10, 2020:
VIA E-SERVE:
AND/OR VIA EMAIL:
Mark E. Stradley
Mark@Stradleylawfirm.com
THE STRADLEY LAW FIRM
9330 LBJ Freeway, Suite 1185
Dallas, Texas 75243
Hae COED
William G, Rossick
Attorney for Plaintiff
Plaintiff's Response to Defendants’ Martin Mariettta Motion to Transfer Venue
6|Page
m Rossick
From: Mark Stradley
Sent: Tuesday, December 08, 2020 3:42 PM
To: William Rossick
Ce: Christy Schmitz; Joshua Crowley; Rachel Stahlke
Subject: RE: M. Williams v. TXI et al / venue / discovery responses
Yes.
Only arguing 15.002(b).
Mark
From: William Rossick
Sent: Tuesday, December 8, 2020 3:40 PM
To: Mark Stradley
Cc: Christy Schmitz ; Joshua Crowley ; Rachel Stahlke
Subject: RE: M. Williams v. TX! et al / venue / discovery responses
Mark —
For clarity, and for the purpose of filing a Response to your Motion to Transfer venue, is your client dropping the
15.002(a) denial of a principal office and only keeping the 15.002(b) basis to transfer venue?
Part of why | ask circles back to your clients’ discovery responses. Much of those discovery responses avoids discovery
of necessary facts on the principal office issue. If we are only arguing 15.002(b) next Monday, then | wouldn’t need to
push back on most of those discovery responses/objections. On the other hand, if your client will be denying venue on
the principal office basis next Monday, then | will be seeking a ruling on many of those objections, a motion to compel
answers/responses and a motion to continue the venue hearing to obtain such information.
In short, can you please let me know if you are only arguing 15.002(b) on Monday (transferring for convenience of the
parties)?
Thanks
Bill
The | William Rossick
Attorney at Law
Carlson O: 512-346-5688 F: 512-719-4362
CarlsonAttorneys.com
Law Firm 11606 N Interstate Hwy 35 « Austin ¢ TX ¢ 78753
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Exhibit A
MARTIN MARIETTA MATERIALS, INC,
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the “Agreement”), is made and entered into
effective as of the 8'" day of January, 2018 (the “Effective Date”), by and between MARTIN
MARIETTA MATERIALS, INC., a North Carolina corporation for itself and its subsidiaries
(collectively “Martin Marietta”), and 3B DOZER SERVICE LLC. (“Contractor”), and by
which the parties to this Agreement, in consideration of the mutual agreements set forth below
and other good and valuable consideration (the receipt and sufficiency of which are
acknowledged), hereby agree as follows:
I Contractor’s Services.
(@) Services. During the term of this Agreement, Contractor will provide to
Martin Marietta the services more fully described on Exhibit A. Contractor shall perform such
duties as and when reasonably requested by Martin Marietta or as otherwise provided on Exhibit
A. Contractor shall employ such personnel as may be necessary or required to perform the
services required hereunder in accordance with the highest standards of the industry. Contractor
shall use the same degree of care and skill in the performance of services hereunder as a prudent
business would exercise or use in the conduct of its own affairs. Contractor shall also cooperate
with other contractors if and as requested by Martin Marietta. Contractor shall report to Martin
Marietta’s representative(s) listed on Exhibit A with respect to Contractor’s services under this
Agreement. If requested by Martin Marietta, Contractor shall submit monthly a written report
summarizing such services for the priot month. Prior to submitting any written reports under this
Agreement, Contractor shall first submit an initial report, cloarly marked “draft”, which report
shall be finalized only after approval by Martin Marietta. Contractor acknowledges receipt of a
copy of Martin Marietta’s Code of Ethics and Standards of Conduct and shall perform services
under this Agreement in accordance with the Code of Ethics and Standards of Conduct.
(b) Compensation and Expenses. Martin Marietta shall pay Contractor at the
amount(s)/rate(s) set forth on Exhibit A for all services to be provided by Contractor under this
Agreement. Unless otherwise provided for on Exhibit A, Martin Marietta shall also reimburse
Contractor in accordance with Martin Marietta policy for all reasonable expenses incurred by
Contractor while rendering services under this Agreement, provided Contractor has obtained
Martin Marietta’s prior consent to such expenses. Contractor shall submit semi-monthly to
Martin Marietta a statement detailing the services provided during the prior period and setting
forth the expenses for which Contractor seeks reimbursement. Martin Marietta shall not
reimburse Contractor for any expenses incurred in entertaining or furnishing meals, refreshments,
or gifts to anyone whose organization prohibits acceptance of such items. Contractor certifies that
no such expenses shall be included in any invoice or statement submitted by Cont tor for
reimbursement of expenses. If compensation payable hereunder is based on per hour\charges,
Contractor’s statement should break out services provided per hour with detailed infor mn as
to how much time was spent per task and for which activity.
_— Initial, CB
——-——--—— Page 1
Exhibit B|
©) Insurance. Contractor shall furnish, at its expense, and keep in full force
and effect throughout the t erm of this Agreement the insurance coverage speci fied on ExhibitB,
Marietta and meet the
which shall be underwritten by carriers reasonably acceptal ble to Martin
other requirements specified on Exhibit B.
@) Independent Contractor. Contractor is an independent contractor of
the parties agree to take
Martin Marietta and not an employee or agent of Martin Marietta, and
ent shal! be construed to create a
actions consistent with the foregoing. Nothing in this Agrocm
parties. Contract or shall have sole
partnership, joint venture, or other association between the
or’ 's own employees and
fiscal and other responsibility for the acts and compensation of Contact
agents, Contractor shall be solely responsible for all costs and expense
s of providing the services
required of Contra ctor hereunder and for such services shall be entitled to
receive from Martin
1(b).
Marietta only the compensation and expenses provided in Section
© Indemnification,
Indemnilication, Contractor shall indemnify and hold harmless Martin
d assigns (collectively the “Martin
Marietta and its affiliates, employees, agents, successors, an
ts, or other liabilities,
Marietta Parties”) from and against any damages, losses, claims, judgmen
, interest, and
costs, or expenses of any kind whatsoever (including without limitation penalties
against Martin Marietta
reasonable attorneys’ fees) which may al any time arise or be asserted
from Contractor’s or
and/or the Martin Marietta Parties to the extent arising out of, or resulting
Agreement. The
its affiliates, employees, or agents, performance of services under this
it is alleged or
obligat: ‘ions of Contractor under this Section s! hall apply regardless of whether
To the extent that both
determined that Martin Marietta was partial! ly responsible for the loss.
loss, they shall each
Martin Marietta and Contractor are jointly responsible for an indemnifiable
ve acts and omissions
share such responsibility on the same proportional basis that their respecti
OF THIS
caused such loss. NOTWITHSTANDING ANY OTHER PROVISION
OF A PERSO NAL INJURY TO ANY OF
AGREEMENT, HOWEVER, IN THE EVENT
OR CONTRACTORS,
CONTRACTOR’S EMPLOYEES, OFFICERS, DIRECTORS, AGENTS AND
CONTRACTOR SHALL INDEMNIFY AND HOLD HARMLESS MARTIN MARIETTA
EMPLOYEES FROM
ITS SHAREHOLDERS, OFFICERS, DIRECTORS, AGENTS AND
SUCH INJURY,
AND AGAINST ANY AND ALL CLAIMS AND COSTS ARISIN FROM
G
ARISING DUE TO THE
EXCEPTING ONLY THAT PORTION OF ANY CLAIM OR COST
MARTIN MARIETTA PARTY
GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF THE
survive expiration or
SEEKING INDEMNITY. The obligations contained in this Section will
termination of this Agreement regardless of the reason for termination.
relating
® Work Papers. All final work product and work papers directly
on with the perform ance of services
thereto prepared or developed by Contractor in connecti
be the
pursuant to this Agreemen , including any public records obtained by Contractor, shall
of Contractor. Upon demand,
property of Martin Marietta, whether or not in the possession
and papers in Coptractor’s
Contractor should tum over to Martin Marietta such work product
possession or control.
— Page2 —— —_ _mitiat_CB
Exhibit B
@) Nondisclosure. Contractor acknowledges and agrees that, during the
access to knowledge and
performance of services under this Agreement, Contractor may have
ntial or proprietary information
information with respect to (i) trade secrets or (ii) certain confide
of Martin Marietta or the Martin Marietta Parties or any of its or their operations or products
s, specific ations, samples, pamphlets,
(including without limitation plans, brochures, blueprint
and marketing plans, formulas,
advertising copy, financial information, cus' tomer lists, business
prepared by, or on behalf of,
methods, techniques, and processes) owned by y or developed or
’s business and any
Martin Marietta or the Martin Marietta Parties involving Martin Marietta
Parties not
other information generated by or on behal 1f of Martin Marietta or the Martin Marietta
ion is embodied in
generally known in the trade or industry, in cach case whether such informat
m: anner ("Confidential
writing or other physical form or communicated or disclosed in any other
[x] not at any time to divulge, furnish, or make
Information"]), Therefore, Contractor agrees
of the perform ance of services for the
accessible to anyone (other than in the re; gular courseF
secrets of Martin Marietta or
benefit of Martin Marietta or the Martin Marietta Parti ies) any trade
and for a period of
the Martin Marietta Parties and [y] during the full term of this Agreement
three (3) years thereafter, not to divulge, furnish, or make accessible to anyone (other than in the
Marietta or the Martin
regular course of the performan ce of services for the benefit of Martin
Marietta Parties.
Marietta Parties) any Confidential { Information of Martin Marietta or the Martin
(b) Compliance with Law. In performing this Agreement, Contractor agrees
to comply with all applicable laws and regulations and to not make
or permit to be made any
improper payments, or to perform any unlawfu l acts.
Inventions, Discoveries, and Improvements. In consideration of the
@ disclose to Martin
and fully
compensation paid hereunder, Contractor agrees to promptly
ents (whether patentable
Marietta all works of authorship, inventions, discoveries, and improvem
or jointly with others,
or not) that have been or may be conceived or made by Contractor, solely
during the term of this Agreement, (1) which are along the lines of or relate
to Martin Marietta’s
, techniques,
business, work, or investigations (inclu ding, but not limited to, products, processes
Parties, or (2) which
facilities, equipment, and devices) of Martin Marietta or the Martin Marietta
Marietta
result from or arise out of any work which Contractor may do for or on behalf of Martin
or the Martin Marietta Parties. Copyrights in the works of authorship, as well as the works, and
exclusive
all of such inventions, discoveries, and improvements shall be or become the sole and
property of Martin Marie ta, and Contractor hereby assigns and agrees to assign to Martin
to Martin
Marietta all of its rights an d interest therein, Contractor agrees to execute assignments
its right, title, and interest in and to any
Marietta or to its nominees, successors, or assigns, of all
and in and to any and all
and all such copyrights, inventions, discoveries, and improvements
the International
patent applications therefor, and in and to all priority rij ghts as acquired under
ons, and in and to all
Convention for Protection of Industrial Property by filing of such applicati
and
patents that may be gra nted therefor throughout the world. Contractor also agrees, during
and to assist Martin Marietta
subsequent to the term of this Agreement, to sign all lawful papers
and its nominees, successors, or assigns, at its or their request and expense but without charge, in
every lawful way to obtain and sustain such patents in any and all countries for its and thejr own
benefit.
Initial__ cb
—— a Page 3
a
Exhibit B
beginning on the
2 Term, The term of this Agreement shall be for the period
d, however, that the parties
Effective Date and ending on the date specified on Exhibit A; provide
mutual consent. Martin
may renew the Agreement for additional periods o: f time upon their
with or without cause, upon
Marietta may terminate this Agreement at any time for any reason,
ent, Contrac tor x will be entitled to the
notice to Contractor. Upon terminatio: n of this Agreem
pursuan t to Section 1(b) through the
compensation and expenses to which Co tractor is entitled
ent shall impair or defeat those
date of such termination, No terminatio1 n of this Agreem
to do or refrain from
obligations set forth elsewhere in this Agreement which require either party
to perform any obligation
doing any specified act or acts after termination of this Agreement, or
Agreement.
which by its terms or normal meaning survives termination of this
3 Dispute Resolution.
Mutual Negotia tion. The parties : shall attempt in good faith to resolve
@) Mutual Negotiation,
relating to, or in connection
through negotiation any dispute, claim, or controversy ari ising out of,
or terms of this Agreement, the
with this Agreement, whether regs arding the formation
performance of the parties hereunder, or otherwise (collectively a “Dispute”). Either party may
party, setting forth the
initiate negotiations by providing writ ten notice in letter form to the other
subject of the Dispute and the relief requeste: d. The recipient of such
notice shall respond in
recommended solution to
writing within fifteen (15) days with a statement o fits position on and
the Dispute. If the Dispute is not resolved b y this exchange of correspo
ndence, then a
meet at a mutually agreeable
representative of each party, wi th full settlement authority, shall
time and place within thirty Gi 0) days of the date of the initial
notice in order to exchange
Dispute.
relevant information and perspectives, and to attempt to resolve the
() Mediation or Arbitration, If the parties are unable to resolve the Dispute
ity of submitting
by negotiation, pursuant to Subsectio: n (a) above, they shall discuss the desirabil
or arbitrato r who has bad
the Dispute to mediation or binding ar rbitration before a single mediator
is the subject matter of the
at least ten (10) years’ relevant indus' try experience in the field that
cing an action in a court of
Dispute. This discussion shall take place prior to either pé arty commen
competent jurisdiction in accord lance with subsection (c) below. If any Dispute is submitted to
ise any difference between
binding arbitration, the arbitrator may not through the award comprom
the positions of the parties. Instead, the parties shall each submit to th e arbitrator a proposed
is schedul ed to commen ce. The arbitrator shall
award at least three (3) days before any arbitrat ion
proposed by one party or the other. No other award
endorse as the final award either the award
fees of the arbitrato r and the reasonable
may be made, The non-prevailing party shall pay the
ng without limitati on the prevailing
expenses incurred in connection with the arbitration, includi
party’s reasonable attorneys’ fees.
in
© Litigation. If within fifteen (15) days after the meeting described
Dispute, or on
Subsection (a) above, the parties have not reached agreement on resolution of the
may be settled
the submission of the Dispute to mediation or binding arbitration, then the Dispute
over any
by litigation in accordance with the following provisions. Any litigation by the parties
tion an¥ venue
Dispute under this Agreement shall be brought in federal district court, if, jurisdic
party hereby irrevoc ably submits to p nal
are otherwise proper in such court. Each
= ee Page4 ———-—
Initia 1A ——
Exhibit B
and waives any and all
jurisdiction in any federal district court in the State of Texas
objections as to venue, inconvenient forum, and the like, and further
waives any right to
trial by jury that might otherw ise be available to the party,
The decision of such court of
d within ninety (90) days
competent jurisdiction that is either not su ibject to appeal or not appeale
applicable law,
of any judgment or, if sooner, the period in which an app eal may be filed under
under this Agreement. The
shall be final and binding on the parties as to any matter su bmitted
prevailing party shall be entitled to receive its reasonable attorneys’ fees.
4 Miscellaneous,
and given
@) Notices. All notices under this Agreement shall be in writing
the address of the party to this
either in person or by telefax or express overnig! ht service to
to this Agreement may furnish to
Agreement set forth below or to such ot! ther address as a party personal
received on the date of
the other as provided in this sentence, and shall be deemed
busines s day after sent by express
delivery or confirmed telefax tran: smission or on the first
to the foregoi ng of a permitted successor or
overnight service; and if notice is given pursuant
assign, then notice shall thereafter be given pursuant to the foregoi ng to such permitted successor
or assign.
(b) Assignment; Binding
Assignment; Effect. No assignment, transfer, or delegation of
Binding Eitect
without the prior
any tights or obligations under th is Agreement by Contractor shall be made
of the services to be provided
written consent of Martin Marietta (but given the personal nature
not expected that consent to
by Ci ‘ontractor to Martin Marietta pursuant to this Agreement, it is
assignment, transfer, or delegation by Contractor will be granted).
Martin Marietta may assign
shall be binding upon the parties
this Agreement without consent 0 f Contractor, This Agreement
tatives, heirs, devisees, legatees, or other
to this Agret ement and their respective legal represen
the parties to this Agreement and their
successors and assigns, and shal! inure to the benefit of
legates , or other permitted successors
respective permitted legal representatives, heirs, devisees,
and assigns.
(©) Interpretation; Captions.
retation: Captions Whenever the context so requires, the singular
singular, and the gender of any
number shall include the plural and the plural sh all include the
in this Agreement are inserted
pronoun shall include the other genders. Titles and captions of or
way affect the scope for this
only as a matter of convenience and for reference and in no
Agreement or the intent of its provisions.
agreement of
@) Entire Agreement, This Agreement constitutes the entire
matter, superse des all prior agreeme nts, if
the parties to this Agreement with respect to its subject d
matter, and may not be amende
any, of the parties to this Agreement with respect to its subject is being
against whom the change
except in writing signed by the party to this Agreement
asserted.
The failure of any party to this Agreement at any time or
ph
© No Waiver.
shall in no manner
times to require the performance of any provisions of this Agreement
‘ect
Agreement of any proyis| jor
the right to enforce the same; and no waiver by any party to this
a ——--—--— Page 5
= nit
_ Cb
Exhibit B
of a breach of any provision) of this Agreement, whcther by conduct or otherwise, in any one or
more instances, shall be deemed or construed either as a further or continuing waiver of any such
provision or breach or as a waiver of any other provision (or of a breach of any other provision)
of this Agreement,
@® Governing Lay. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas without regard to principles of conflict or choice
of law.
() Counterparts. This Agreement may be executed in two or more copies,
each of which shall be deemed an original, and it shall not be necessary in making proof of this
Agreement or its terms to produce or account for more than one of such copies.
(h) Use of Name. Contractor agrees to not use Martin Marietta’s name in any
advertising, reference material, or other public document without the express written permission
of Martin Marietta.
(Signatures on following page)
—— a a —~—~ Page 6 Initial,
Exhibit B
DULY EXECUTED and delivered by the parties of this Agreement, under seal effective
the Effective Date.
MARTIN MARIETTA: MARTIN MARIETTA MATERIA! iC.
we bony Wesco
Title: Buyer
Address: 1503 LBJ Freeway
Dallas, Texas 75234
Fax: 919-882-2208 OR 919-882-2242
CONTRACTOR: 3B DOZER SERVICE LLC-926924
By:
Name: Clar ENce. Ratlifort
Title: Ounce
Address: PO Pox ay
Bremond, Tx. Toe24
Fax: AW- Fa¥-2133_
—— . Page 7
fw
Initial, _ Ch :
Exhibit B
EXHIBIT A
SERVICE & RATE SHEET
iProject/Equipment:
Customer/Site: Martin Marietta Call Out
Contact:
Phone: Email:
zi
job Description:
Labor
ary uoM Unit/OTY Rate Price
Description
Safety Supervisor HR. $42.00 $0.00
Safety Supervisor OT HR $63.00 $0.00
HR $36.00 $0.00
SupervisorST
HR $55.50 $0.00
supervisor OT
Operator ST HR $24.00 $0.00
|Operator OT HR $45.50 $0.00
{Technician ST HR $26.00 $0,00
_
Technician OT HR $38.00 $0.00
Labor Totals} $0.00
Equipment & Material
Description any vom Unit/QTy Rate Price
Air Machine $75.00 $0.00
iCombo Unit $175.00 $0.00
Hydro Excavation Truck $150.00 $0.00
ILV 10K Pump $55.00 $0.00
Crew Truck $10.00 $0,00
sin ADS Hose
$1.80 $0.00
|4in ADS Hose $1.25 $0.00
6" Steel Flex $2.10 $0.00
Is" Stand Pipe
Preview
FILED 12/10/2020 6:06 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Margaret Thomas DEPUTY CAUSE NO. . DC-20-11175 MICHAEL WILLIAMS IN THE DISTRICTCOURT Plaintiff, Vv. TXI OPERATIONS, L.P., TEXAS INDUSTRIES, INC., OF DALLAS COUNTY, TEXAS MARTIN MARIETTA, MARTIN MARIETTA MATERIALS, INC., AND MARTIN MARIETTA MATERIALS SOUTHWEST, L.L.C., Defendant. 134TH JUDICIAL DISTRICT PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE TO THE HONORABLE JUDGE OF THIS COURT: NOW COMES Plaintiff, MICHAEL WILLIAMS, who files this his Response to Defendants’ Motions to Transfer Venue. In support thereof, Plaintiff respectfully shows the Court the following. In support of this response, Plaintiff attaches and incorporates the following Exhibits: Exhibit A- Agreement between Counsel Exhibit B- Services Agreement between Plaintiff's employer, 3B and MMMI. Exhibit C- MMMI’s Responses to Plaintiff's Discovery I. SUMMARY OF PLAINTIFF’S ARGUMENT Defendants’ Motions to Transfer must be denied for the following reasons: Venue is proper in Dallas County per CPRC 15.002(a)(3) because Defendants do not contest Plaintiff's assertion that one or more Defendants had a principal office in Dallas County; Plaintiff's Response to Defendants’ Martin Mariettta Motion to Transfer Venue 1|Page Venue is proper in Dallas County because Defendant has failed to meet its burden of transferring venue to another specified county pursuant to Tex. R. Civ. P. 87(2)(a); and Venue is proper in Dallas County because Plaintiff's evidence submitted herewith demonstrates that 1 maintenance of this suit in Dallas County would not work an injustice to the Defendants considering the Defendant’s economic and personal hardship; 2 the balance of interests of all the parties does not predominate in favor of this suit being brought in Comal County; and, 3 the transfer would not work an injustice to Defendants. IL. THE ONLY VENUE DISPUTE BETWEEN THE PARTIES IS THE “CONVENIENCE” OF DALLAS COUNTY PURSUANT TO CPRC § 15.002(b) On August 12, 2020, Plaintiff filed his Petition against TXI Operations, L.P.; Texas Industries, Inc.; Martin Marietta; Martin Marietta Materials, Inc., and Martin Marietta Materials Southwest, L.L.C. (collectively “Defendants”). See August 12, 2020 Plaintiff's Original Petition which is incorporated by reference herein. In Plaintiff's Original Petition, Plaintiff pled the following venue fact: “venue is proper in Dallas County because one or more defendants have its principal office in Texas in this county.” On September 11, 2020, Defendants filed their Original Answer and Motion to Transfer Venue. See September 11, 2020 Defendants’ Original Answer and Motion to Transfer Venue which is incorporated by reference herein. Originally, Defendants asserted two venue challenges. First, Defendants asserted essentially that venue was improper pursuant to TEX. CIv. PRACT. & REM. CODE § 15.002(a) because it had a principal office in Raleigh, North Carolina, any of Defendants’ other offices in Dallas County, or elsewhere in Texas, are not a “principal office” for venue Plaintiff's Response to Defendants’ Martin Mariettta Motion to Transfer Venue 2|Page purposes'. See id. Defendants are no longer pursing this venue challenge pursuant to § 15.002(a). See December 8, 2020 correspondence between counsel attached hereto as Exhibit A. Second, Defendants moved to transfer venue based upon convenience pursuant to TEX. CIV. PRACT. & REM. CODE § 15.002(b). This is the only basis before the court on Defendants’ Motion to Transfer Venue. Til. OVERVIEW OF RELEVANT VENUE FACTS On September 28, 2018, Plaintiff was injured while working as a vaccumer for his employer 3B Dozer Service, LLC. (“3B”). See Plaintif Original Petition. Plaintiff's work for 3B was being performed pursuant to a contract between 3B and Defendant Martin Marietta Materials, Inc. (““MMMI”). See “Services Agreement” produced in discovery by MMMI attached hereto as Exhibit B. The Services Agreement was signed by MMMI’s “Buyer” in their Dallas office at 1503 LBJ Freeway, Dallas, Texas 75234. See ExhibitB at p. 7. The Services Agreement appears to be a “master” services agreement, as it seems to apply to maintenance services for Martin Marietta throughout the State of Texas, rather than just one MMM facility. See Exhibit B. at p. 10. Plaintiff's accident occurred, at MMMI’s facility in Comal County. Notwithstanding, Plaintiff exercised his right to choose to file venue where Plaintiff contends Defendants have a principal office, not where the accident occurred, and the principal office basis is no longer contested by Defendants. | For purposes of venue, a defendant may have more than one principal office in Texas. In re Missouri Pacific R.R. Co., 998 $.W.2d 212, 217 (Tex. 1999). That is, even though a company may have a principal office in another state, this does not preclude that company from having a “principal office” in one or more Texas counties. See id. Plaintiff's Response to Defendants’ Martin Mariettta Motion to Transfer Venue 3|Page Defendants also do not contest that MMMI conducted business operations at 1503 LBJ Freeway, Suite 400 Dallas, Texas at the time of Plaintiff's accident See MMMI’s Responses to Plaintiff's Discovery attached hereto as Exhibit C at p.5.? Iv. ARGUMENTS AND AUTHORITIES A. Plaintiff has no burden to prove venue is proper in Dallas County pursuant to CPRC § 15.002(a) because Plaintiffs “principal office” venue facts are no longer contested. B. Plaintiff has the Right to Choose his Venue Defendants contends there are other counties of proper venue. However, Defendants failed to present any evidence that transfer for convenience is appropriate. Therefore, Defendants’ motion must be denied. Garcia v. Garza, 70 S.W.3d 362 (Tex. App.-Corpus Christi, 2002), rev'd on other grounds, 137 S.W.3d 36 (Tex. 2004). Plaintiff is accorded the right to choose venue first; and as long as suit is initially filed in a county of proper venue, the Plaintiffs’ venue choice cannot be disturbed. Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 677 (Tex. App-Austin 2003, no pet.); Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d 259, 261 (Tex.1994). Given more than one option, the choice of venue belongs to the Plaintiff. Geochem Tech Corp. v. Verseckes, 962 S.W.2d 541, 544 (Tex. 1998); Wilson v. Texas Parks and Wildlife Dep’t., 888 S.W.2d 259, 260 (Tex. 1994). Plaintiff exercised ? Although Plaintiff propounded narrowly tailored discovery to each Defendant to discovery facts pertaining to their business operations in Dallas County, Defendants have stymied those efforts. For example, Defendants object to Plaintiff's Interrogatory No. 6 which seeks the identity of employees working in the MMMI’s LBJ Freeway office. Even though “principal office” is no longer an issue, that discovery is still relevant to determining the degree of inconvenience to MMMI for defendant this case in Dallas County. Plaintiff's Response to Defendants’ Martin Mariettta Motion to Transfer Venue 4|Page his right to bring suit in Dallas County and that choice should not be disturbed absent substantial findings of inconvenience and injustice, Wilson, 888 S.W.2d at 260, which cannot be shown here. C. Defendants Are Not Economically or Personally Prejudiced by Dallas County Defendants are not, and have not claimed to be personally prejudiced either through economic or personal hardship because of Dallas County venue. In fact, the Services Agreement giving rise to this lawsuit was signed in Dallas County, it was made by an employee of Defendant who was working in one Defendants’ Dallas County offices at the time, and Defendants are clearly able to effectively defend this case with counsel it selected from Dallas County. It is ludicrous for a Defendant such as Martin Marietta with over $1.3 Billion in revenue’ to contend it somehow is going to experience economic and/or personal hardship if this lawsuit’s venue is maintained in Dallas County. Similarly, the other CPRC § 15.002(b) bases, which are conjunctive, fail for lack of evidence, credibility, and no evidence. PRAYER For these reasons, Plaintiff respectfully ask this Court to deny all of the Defendants Motion to Transfer venue in its entirety, and for any further and just relief which Plaintiff may show himself entitled to. Respectfully Submitted, THE CARLSON LAW FIRM, P.C. 11606 N. TH-35 Austin, Texas 78753 (512) 346-5688 Telephone (512) 719-4362 Facsimile 3 See https://ir.martinmarietta.com/news-releases/news-release-details/martin-marietta-reports-third-quarter-2020- results "Plaintiff's Response to Defendants’ Martin Mariettta Motion to Transfer Venue 5|Page By: ihe CED Joshua Crowley SBN: 24091451 jcrowley@carlsonattorneys.com William G. Rossick SBN: 00789597 wrossick@carlsonattorneys.com Attorneys for Plaintiff CERTIFICATE OF SERVICE In conformity with TEXAS RULES OF CIVIL PROCEDURE 21 AND 214A, I hereby certify that a true and correct copy of the above and foregoing instrument was served upon the following individuals on December 10, 2020: VIA E-SERVE: AND/OR VIA EMAIL: Mark E. Stradley Mark@Stradleylawfirm.com THE STRADLEY LAW FIRM 9330 LBJ Freeway, Suite 1185 Dallas, Texas 75243 Hae COED William G, Rossick Attorney for Plaintiff Plaintiff's Response to Defendants’ Martin Mariettta Motion to Transfer Venue 6|Page m Rossick From: Mark Stradley Sent: Tuesday, December 08, 2020 3:42 PM To: William Rossick Ce: Christy Schmitz; Joshua Crowley; Rachel Stahlke Subject: RE: M. Williams v. TXI et al / venue / discovery responses Yes. Only arguing 15.002(b). Mark From: William Rossick Sent: Tuesday, December 8, 2020 3:40 PM To: Mark Stradley Cc: Christy Schmitz ; Joshua Crowley ; Rachel Stahlke Subject: RE: M. Williams v. TX! et al / venue / discovery responses Mark — For clarity, and for the purpose of filing a Response to your Motion to Transfer venue, is your client dropping the 15.002(a) denial of a principal office and only keeping the 15.002(b) basis to transfer venue? Part of why | ask circles back to your clients’ discovery responses. Much of those discovery responses avoids discovery of necessary facts on the principal office issue. If we are only arguing 15.002(b) next Monday, then | wouldn’t need to push back on most of those discovery responses/objections. On the other hand, if your client will be denying venue on the principal office basis next Monday, then | will be seeking a ruling on many of those objections, a motion to compel answers/responses and a motion to continue the venue hearing to obtain such information. In short, can you please let me know if you are only arguing 15.002(b) on Monday (transferring for convenience of the parties)? Thanks Bill The | William Rossick Attorney at Law Carlson O: 512-346-5688 F: 512-719-4362 CarlsonAttorneys.com Law Firm 11606 N Interstate Hwy 35 « Austin ¢ TX ¢ 78753 E-MAIL CONFIDENTIALITY STATEMENT: This transmission may be subject to the attorney-client privileg may be attorney fork product or may be strictly confidential. If you are not the intended recipient of this message, you may not d , print, copy or di inate this information. If you have received this in error, please reply and notify only the sender and del message. Unauthorized interception of this e-mail is a violation of Federal criminal law. Exhibit A MARTIN MARIETTA MATERIALS, INC, SERVICES AGREEMENT THIS SERVICES AGREEMENT (the “Agreement”), is made and entered into effective as of the 8'" day of January, 2018 (the “Effective Date”), by and between MARTIN MARIETTA MATERIALS, INC., a North Carolina corporation for itself and its subsidiaries (collectively “Martin Marietta”), and 3B DOZER SERVICE LLC. (“Contractor”), and by which the parties to this Agreement, in consideration of the mutual agreements set forth below and other good and valuable consideration (the receipt and sufficiency of which are acknowledged), hereby agree as follows: I Contractor’s Services. (@) Services. During the term of this Agreement, Contractor will provide to Martin Marietta the services more fully described on Exhibit A. Contractor shall perform such duties as and when reasonably requested by Martin Marietta or as otherwise provided on Exhibit A. Contractor shall employ such personnel as may be necessary or required to perform the services required hereunder in accordance with the highest standards of the industry. Contractor shall use the same degree of care and skill in the performance of services hereunder as a prudent business would exercise or use in the conduct of its own affairs. Contractor shall also cooperate with other contractors if and as requested by Martin Marietta. Contractor shall report to Martin Marietta’s representative(s) listed on Exhibit A with respect to Contractor’s services under this Agreement. If requested by Martin Marietta, Contractor shall submit monthly a written report summarizing such services for the priot month. Prior to submitting any written reports under this Agreement, Contractor shall first submit an initial report, cloarly marked “draft”, which report shall be finalized only after approval by Martin Marietta. Contractor acknowledges receipt of a copy of Martin Marietta’s Code of Ethics and Standards of Conduct and shall perform services under this Agreement in accordance with the Code of Ethics and Standards of Conduct. (b) Compensation and Expenses. Martin Marietta shall pay Contractor at the amount(s)/rate(s) set forth on Exhibit A for all services to be provided by Contractor under this Agreement. Unless otherwise provided for on Exhibit A, Martin Marietta shall also reimburse Contractor in accordance with Martin Marietta policy for all reasonable expenses incurred by Contractor while rendering services under this Agreement, provided Contractor has obtained Martin Marietta’s prior consent to such expenses. Contractor shall submit semi-monthly to Martin Marietta a statement detailing the services provided during the prior period and setting forth the expenses for which Contractor seeks reimbursement. Martin Marietta shall not reimburse Contractor for any expenses incurred in entertaining or furnishing meals, refreshments, or gifts to anyone whose organization prohibits acceptance of such items. Contractor certifies that no such expenses shall be included in any invoice or statement submitted by Cont tor for reimbursement of expenses. If compensation payable hereunder is based on per hour\charges, Contractor’s statement should break out services provided per hour with detailed infor mn as to how much time was spent per task and for which activity. _— Initial, CB ——-——--—— Page 1 Exhibit B| ©) Insurance. Contractor shall furnish, at its expense, and keep in full force and effect throughout the t erm of this Agreement the insurance coverage speci fied on ExhibitB, Marietta and meet the which shall be underwritten by carriers reasonably acceptal ble to Martin other requirements specified on Exhibit B. @) Independent Contractor. Contractor is an independent contractor of the parties agree to take Martin Marietta and not an employee or agent of Martin Marietta, and ent shal! be construed to create a actions consistent with the foregoing. Nothing in this Agrocm parties. Contract or shall have sole partnership, joint venture, or other association between the or’ 's own employees and fiscal and other responsibility for the acts and compensation of Contact agents, Contractor shall be solely responsible for all costs and expense s of providing the services required of Contra ctor hereunder and for such services shall be entitled to receive from Martin 1(b). Marietta only the compensation and expenses provided in Section © Indemnification, Indemnilication, Contractor shall indemnify and hold harmless Martin d assigns (collectively the “Martin Marietta and its affiliates, employees, agents, successors, an ts, or other liabilities, Marietta Parties”) from and against any damages, losses, claims, judgmen , interest, and costs, or expenses of any kind whatsoever (including without limitation penalties against Martin Marietta reasonable attorneys’ fees) which may al any time arise or be asserted from Contractor’s or and/or the Martin Marietta Parties to the extent arising out of, or resulting Agreement. The its affiliates, employees, or agents, performance of services under this it is alleged or obligat: ‘ions of Contractor under this Section s! hall apply regardless of whether To the extent that both determined that Martin Marietta was partial! ly responsible for the loss. loss, they shall each Martin Marietta and Contractor are jointly responsible for an indemnifiable ve acts and omissions share such responsibility on the same proportional basis that their respecti OF THIS caused such loss. NOTWITHSTANDING ANY OTHER PROVISION OF A PERSO NAL INJURY TO ANY OF AGREEMENT, HOWEVER, IN THE EVENT OR CONTRACTORS, CONTRACTOR’S EMPLOYEES, OFFICERS, DIRECTORS, AGENTS AND CONTRACTOR SHALL INDEMNIFY AND HOLD HARMLESS MARTIN MARIETTA EMPLOYEES FROM ITS SHAREHOLDERS, OFFICERS, DIRECTORS, AGENTS AND SUCH INJURY, AND AGAINST ANY AND ALL CLAIMS AND COSTS ARISIN FROM G ARISING DUE TO THE EXCEPTING ONLY THAT PORTION OF ANY CLAIM OR COST MARTIN MARIETTA PARTY GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF THE survive expiration or SEEKING INDEMNITY. The obligations contained in this Section will termination of this Agreement regardless of the reason for termination. relating ® Work Papers. All final work product and work papers directly on with the perform ance of services thereto prepared or developed by Contractor in connecti be the pursuant to this Agreemen , including any public records obtained by Contractor, shall of Contractor. Upon demand, property of Martin Marietta, whether or not in the possession and papers in Coptractor’s Contractor should tum over to Martin Marietta such work product possession or control. — Page2 —— —_ _mitiat_CB Exhibit B @) Nondisclosure. Contractor acknowledges and agrees that, during the access to knowledge and performance of services under this Agreement, Contractor may have ntial or proprietary information information with respect to (i) trade secrets or (ii) certain confide of Martin Marietta or the Martin Marietta Parties or any of its or their operations or products s, specific ations, samples, pamphlets, (including without limitation plans, brochures, blueprint and marketing plans, formulas, advertising copy, financial information, cus' tomer lists, business prepared by, or on behalf of, methods, techniques, and processes) owned by y or developed or ’s business and any Martin Marietta or the Martin Marietta Parties involving Martin Marietta Parties not other information generated by or on behal 1f of Martin Marietta or the Martin Marietta ion is embodied in generally known in the trade or industry, in cach case whether such informat m: anner ("Confidential writing or other physical form or communicated or disclosed in any other [x] not at any time to divulge, furnish, or make Information"]), Therefore, Contractor agrees of the perform ance of services for the accessible to anyone (other than in the re; gular courseF secrets of Martin Marietta or benefit of Martin Marietta or the Martin Marietta Parti ies) any trade and for a period of the Martin Marietta Parties and [y] during the full term of this Agreement three (3) years thereafter, not to divulge, furnish, or make accessible to anyone (other than in the Marietta or the Martin regular course of the performan ce of services for the benefit of Martin Marietta Parties. Marietta Parties) any Confidential { Information of Martin Marietta or the Martin (b) Compliance with Law. In performing this Agreement, Contractor agrees to comply with all applicable laws and regulations and to not make or permit to be made any improper payments, or to perform any unlawfu l acts. Inventions, Discoveries, and Improvements. In consideration of the @ disclose to Martin and fully compensation paid hereunder, Contractor agrees to promptly ents (whether patentable Marietta all works of authorship, inventions, discoveries, and improvem or jointly with others, or not) that have been or may be conceived or made by Contractor, solely during the term of this Agreement, (1) which are along the lines of or relate to Martin Marietta’s , techniques, business, work, or investigations (inclu ding, but not limited to, products, processes Parties, or (2) which facilities, equipment, and devices) of Martin Marietta or the Martin Marietta Marietta result from or arise out of any work which Contractor may do for or on behalf of Martin or the Martin Marietta Parties. Copyrights in the works of authorship, as well as the works, and exclusive all of such inventions, discoveries, and improvements shall be or become the sole and property of Martin Marie ta, and Contractor hereby assigns and agrees to assign to Martin to Martin Marietta all of its rights an d interest therein, Contractor agrees to execute assignments its right, title, and interest in and to any Marietta or to its nominees, successors, or assigns, of all and in and to any and all and all such copyrights, inventions, discoveries, and improvements the International patent applications therefor, and in and to all priority rij ghts as acquired under ons, and in and to all Convention for Protection of Industrial Property by filing of such applicati and patents that may be gra nted therefor throughout the world. Contractor also agrees, during and to assist Martin Marietta subsequent to the term of this Agreement, to sign all lawful papers and its nominees, successors, or assigns, at its or their request and expense but without charge, in every lawful way to obtain and sustain such patents in any and all countries for its and thejr own benefit. Initial__ cb —— a Page 3 a Exhibit B beginning on the 2 Term, The term of this Agreement shall be for the period d, however, that the parties Effective Date and ending on the date specified on Exhibit A; provide mutual consent. Martin may renew the Agreement for additional periods o: f time upon their with or without cause, upon Marietta may terminate this Agreement at any time for any reason, ent, Contrac tor x will be entitled to the notice to Contractor. Upon terminatio: n of this Agreem pursuan t to Section 1(b) through the compensation and expenses to which Co tractor is entitled ent shall impair or defeat those date of such termination, No terminatio1 n of this Agreem to do or refrain from obligations set forth elsewhere in this Agreement which require either party to perform any obligation doing any specified act or acts after termination of this Agreement, or Agreement. which by its terms or normal meaning survives termination of this 3 Dispute Resolution. Mutual Negotia tion. The parties : shall attempt in good faith to resolve @) Mutual Negotiation, relating to, or in connection through negotiation any dispute, claim, or controversy ari ising out of, or terms of this Agreement, the with this Agreement, whether regs arding the formation performance of the parties hereunder, or otherwise (collectively a “Dispute”). Either party may party, setting forth the initiate negotiations by providing writ ten notice in letter form to the other subject of the Dispute and the relief requeste: d. The recipient of such notice shall respond in recommended solution to writing within fifteen (15) days with a statement o fits position on and the Dispute. If the Dispute is not resolved b y this exchange of correspo ndence, then a meet at a mutually agreeable representative of each party, wi th full settlement authority, shall time and place within thirty Gi 0) days of the date of the initial notice in order to exchange Dispute. relevant information and perspectives, and to attempt to resolve the () Mediation or Arbitration, If the parties are unable to resolve the Dispute ity of submitting by negotiation, pursuant to Subsectio: n (a) above, they shall discuss the desirabil or arbitrato r who has bad the Dispute to mediation or binding ar rbitration before a single mediator is the subject matter of the at least ten (10) years’ relevant indus' try experience in the field that cing an action in a court of Dispute. This discussion shall take place prior to either pé arty commen competent jurisdiction in accord lance with subsection (c) below. If any Dispute is submitted to ise any difference between binding arbitration, the arbitrator may not through the award comprom the positions of the parties. Instead, the parties shall each submit to th e arbitrator a proposed is schedul ed to commen ce. The arbitrator shall award at least three (3) days before any arbitrat ion proposed by one party or the other. No other award endorse as the final award either the award fees of the arbitrato r and the reasonable may be made, The non-prevailing party shall pay the ng without limitati on the prevailing expenses incurred in connection with the arbitration, includi party’s reasonable attorneys’ fees. in © Litigation. If within fifteen (15) days after the meeting described Dispute, or on Subsection (a) above, the parties have not reached agreement on resolution of the may be settled the submission of the Dispute to mediation or binding arbitration, then the Dispute over any by litigation in accordance with the following provisions. Any litigation by the parties tion an¥ venue Dispute under this Agreement shall be brought in federal district court, if, jurisdic party hereby irrevoc ably submits to p nal are otherwise proper in such court. Each = ee Page4 ———-— Initia 1A —— Exhibit B and waives any and all jurisdiction in any federal district court in the State of Texas objections as to venue, inconvenient forum, and the like, and further waives any right to trial by jury that might otherw ise be available to the party, The decision of such court of d within ninety (90) days competent jurisdiction that is either not su ibject to appeal or not appeale applicable law, of any judgment or, if sooner, the period in which an app eal may be filed under under this Agreement. The shall be final and binding on the parties as to any matter su bmitted prevailing party shall be entitled to receive its reasonable attorneys’ fees. 4 Miscellaneous, and given @) Notices. All notices under this Agreement shall be in writing the address of the party to this either in person or by telefax or express overnig! ht service to to this Agreement may furnish to Agreement set forth below or to such ot! ther address as a party personal received on the date of the other as provided in this sentence, and shall be deemed busines s day after sent by express delivery or confirmed telefax tran: smission or on the first to the foregoi ng of a permitted successor or overnight service; and if notice is given pursuant assign, then notice shall thereafter be given pursuant to the foregoi ng to such permitted successor or assign. (b) Assignment; Binding Assignment; Effect. No assignment, transfer, or delegation of Binding Eitect without the prior any tights or obligations under th is Agreement by Contractor shall be made of the services to be provided written consent of Martin Marietta (but given the personal nature not expected that consent to by Ci ‘ontractor to Martin Marietta pursuant to this Agreement, it is assignment, transfer, or delegation by Contractor will be granted). Martin Marietta may assign shall be binding upon the parties this Agreement without consent 0 f Contractor, This Agreement tatives, heirs, devisees, legatees, or other to this Agret ement and their respective legal represen the parties to this Agreement and their successors and assigns, and shal! inure to the benefit of legates , or other permitted successors respective permitted legal representatives, heirs, devisees, and assigns. (©) Interpretation; Captions. retation: Captions Whenever the context so requires, the singular singular, and the gender of any number shall include the plural and the plural sh all include the in this Agreement are inserted pronoun shall include the other genders. Titles and captions of or way affect the scope for this only as a matter of convenience and for reference and in no Agreement or the intent of its provisions. agreement of @) Entire Agreement, This Agreement constitutes the entire matter, superse des all prior agreeme nts, if the parties to this Agreement with respect to its subject d matter, and may not be amende any, of the parties to this Agreement with respect to its subject is being against whom the change except in writing signed by the party to this Agreement asserted. The failure of any party to this Agreement at any time or ph © No Waiver. shall in no manner times to require the performance of any provisions of this Agreement ‘ect Agreement of any proyis| jor the right to enforce the same; and no waiver by any party to this a ——--—--— Page 5 = nit _ Cb Exhibit B of a breach of any provision) of this Agreement, whcther by conduct or otherwise, in any one or more instances, shall be deemed or construed either as a further or continuing waiver of any such provision or breach or as a waiver of any other provision (or of a breach of any other provision) of this Agreement, @® Governing Lay. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to principles of conflict or choice of law. () Counterparts. This Agreement may be executed in two or more copies, each of which shall be deemed an original, and it shall not be necessary in making proof of this Agreement or its terms to produce or account for more than one of such copies. (h) Use of Name. Contractor agrees to not use Martin Marietta’s name in any advertising, reference material, or other public document without the express written permission of Martin Marietta. (Signatures on following page) —— a a —~—~ Page 6 Initial, Exhibit B DULY EXECUTED and delivered by the parties of this Agreement, under seal effective the Effective Date. MARTIN MARIETTA: MARTIN MARIETTA MATERIA! iC. we bony Wesco Title: Buyer Address: 1503 LBJ Freeway Dallas, Texas 75234 Fax: 919-882-2208 OR 919-882-2242 CONTRACTOR: 3B DOZER SERVICE LLC-926924 By: Name: Clar ENce. Ratlifort Title: Ounce Address: PO Pox ay Bremond, Tx. Toe24 Fax: AW- Fa¥-2133_ —— . Page 7 fw Initial, _ Ch : Exhibit B EXHIBIT A SERVICE & RATE SHEET iProject/Equipment: Customer/Site: Martin Marietta Call Out Contact: Phone: Email: zi job Description: Labor ary uoM Unit/OTY Rate Price Description Safety Supervisor HR. $42.00 $0.00 Safety Supervisor OT HR $63.00 $0.00 HR $36.00 $0.00 SupervisorST HR $55.50 $0.00 supervisor OT Operator ST HR $24.00 $0.00 |Operator OT HR $45.50 $0.00 {Technician ST HR $26.00 $0,00 _ Technician OT HR $38.00 $0.00 Labor Totals} $0.00 Equipment & Material Description any vom Unit/QTy Rate Price Air Machine $75.00 $0.00 iCombo Unit $175.00 $0.00 Hydro Excavation Truck $150.00 $0.00 ILV 10K Pump $55.00 $0.00 Crew Truck $10.00 $0,00 sin ADS Hose $1.80 $0.00 |4in ADS Hose $1.25 $0.00 6" Steel Flex $2.10 $0.00 Is" Stand Pipe